Registrar, Alcohol and Gaming Commission Ontario v. 1365136 Ontario Inc., 2008 CanLII 35228

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

B E T W E E N:

Registrar, Alcohol and Gaming Commission Ontario Registrar

-and-

1365136 Ontario Inc. O/A Michael’s Restaurant & Deli Licensee

Panel: Guy Maurice, Board Member Kirsti Hunt, Vice-Chair, AGCO

Decision Date: April 15, 2008 Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Richard Kulis, Representative 1365136 Ontario Inc., Licensee ) Mei Zhong, sole director, officer and shareholder of the Licensee

Allegations

A hearing into Notice of Proposal number 15701 dated October 18, 2007, to suspend liquor licence number 24440 issued to 1365136 Ontario Inc., operating as MICHAEL’S RESTAURANT & DELI, 566 Queen Street West, Toronto, Ontario, M5V 2B5, on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (O.Reg) made pursuant to the Liquor Licence Act (LLA), was held on January 29, 2008, in the City of Toronto.
In its decision dated March 13, 2008, the Board made a finding of a violation of subsection 45(1) of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Submissions

Counsel for the Registrar submitted that a 21-day suspension was appropriate given the past history of this licence holder.
Ms. Zhong, on behalf of the corporate licensee, asked for a one-week suspension.

Decision

This Licensee served a 12-day suspension in January 2006 and a 14-day suspension in January 2007 for 9 separate incidents of permit drunkenness. This present infraction occurred on April 20, 2007, just three months after the end of the second suspension. As the Registrar submitted, to which the Panel agrees, this licence holder is either incapable or uninterested in preventing this infraction.
The licence holder, rather than accepting the Board’s finding, argued in her submissions that the patron was not drunk, which is not appropriate at this stage of the proceedings. It is commendable that the licence holder is now on premises every day and has hired a family member to help supervise the business. However, this infraction happened when the licence holder was present in the premises.
The licence holder argued that since the last suspension, there has been only this one infraction at closing time so a 7-day suspension is sufficient. That might perhaps be an appropriate sanction for this one infraction on its own, but given the history of multiple infractions and suspensions for the same offence, it is not appropriate. Furthermore, the fact that the infraction took place at closing time is not relevant to the Board’s findings; infractions should not occur at any time in the licensed premises.
The Board is sympathetic to the economic difficulties of the licence holder and the attempt to sell the business, but this does not change the fact of this licence holder’s continued problems with ensuring compliance with the Act and Regulations.
Therefore, the Board finds that a 21-day suspension is appropriate in this case to achieve both specific and general deterrence.

Order

The Board ORDERS that liquor licence number 24440, issued to 1365136 Ontario Inc., operating as MICHAEL’S RESTAURANT & DELI, 566 Queen Street West, Toronto, Ontario, M5V 2B5, be suspended for a period of TWENTY-ONE (21) consecutive days.
Licensee shall submit proposed suspension dates in writing to the Manager of Hearings, Hearings Department, Alcohol and Gaming Commission of Ontario at the address on the front of this decision within seven (7) days of the date of this decision. The Board will set suspension dates without further notice to the Licensee if proposed dates are not provided within that time. The suspension must be served on days the establishment normally operates. The suspension may not start earlier than twenty (20) days from the date of this decision and must be completed within ninety (90) days of the date of this decision.

DATED AT TORONTO THIS 15th DAY OF April, 2008

GUY MAURICE, BOARD MEMBER KIRSTI HUNT, VICE-CHAIR

GM/ee