ALCOHOL AND GAMING COMMISSION OF ONTARIO
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 of Ontario Registrar
-and-
Elgin Street Holdings Inc. O/A Lieutenant’s Pump Restaurant Licensee
DECISION ON SANCTION
Panel: David C. Gavsie, Chair, AGCO Guy Maurice, Board Member
Decision Date: August 20, 2008
Hearing Location: Ottawa, 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 ) Joyce Taylor, Representative Elgin Street Holdings Inc., Licensee ) Gordon Douglas, Representative
AUTHORITIES
R. v. Zack, [1999] O.J. No. 5747 Rooster (Re), [2006] O.A.G.C.D. No. 334 Sin City Bar & Eatery (Re), [2007] O.A.G.C.D. No. 229
1A hearing of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held in Ottawa on May 2 and 15, 2008 regarding Notice of Proposal number 15673 issued on September 31, 2007 (the “NOP”) to suspend the licence of Elgin Street Holdings Inc. operating as LIEUTENANT’S PUMP RESTAURANT (the “Licensee”), 361 Elgin Street, Unit 1, Ottawa, K2P 1M6 (the “Premises”), licence number 200346 (the “Licence”), on the basis of alleged violations of section 43 of Ontario Revised Regulation 719/90 (the “O.Reg”).
2In its decision dated July 8, 2008, the Board found that section 43 of the O.Reg was breached. The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Decision On Sanction
3Counsel for the Registrar submitted that the overcrowding must be considered in context. Elgin Street was very crowded that night, but this was not the first playoff game night and the Licensee had previously been warned not to overcrowd. Further, the Licensee did nothing to stop people from jumping over the north wall onto the upper patio, other than having a staff member escort them out.
4Given the measures implemented by the Licensee to control the situation, but taking into account the seriousness of a breach of section 43 of the O.Reg, Registrar’s counsel stated that a four (4) day suspension of the Licence would be appropriate.
5Counsel for the Licensee submitted that the overcrowding was created when the staff member was asked to go find the manager. During this time people jumped over the barrier onto the upper patio.
6The breach of section 43 of the O.Reg at 11:45 p.m. was a “technical” breach. The Licensee had instituted a number of initiatives and controls, but despite these, a breach occurred. The breach was beyond its reasonable control.
7Counsel for the Licensee stated that the appropriate sanction would be for the Board to order the Licensee to pay $1000.00 to a charitable cause. Failing that, a one (1) day suspension would be appropriate.
8The Board wishes to thank both counsel for their submissions which, together with the presentation of their cases at the hearing, the Board found to be very professional.
9A breach – technical or otherwise – of section 43 of the O.Reg is very serious. Overcrowding is regarded by the Board of the AGCO as a major offence because of the consequences that could arise from it.
10As Ms. Taylor correctly pointed out in her reply, the Board does not have authority at the present time to impose fines or make orders telling a Licensee to make a charitable donation. In the present case, the Board can choose to either impose a suspension or not.
11The facts of this case are unique. The Premises are unique. The steps taken by the Licensee were impressive, but obviously not enough, especially because the Licensee had been warned about the possibility of overcrowding. The Licensee’s focus was clearly the lower patio, and the stairs leading from it to the upper patio, not the upper patio per se.
12As a matter of general deterrence to licence holders in Ontario, a suspension is appropriate based on the finding. As a matter of specific deterrence to the Licensee, given the due diligence and security measures that were employed, a short suspension is appropriate.
Order
13Therefore, the Board ORDERS that liquor licence number 200346 issued to Elgin Street Holdings Inc. operating as LIEUTENANT’S PUMP RESTAURANT, 361 Elgin Street, Unit 1, Ottawa, K2P 1M6, be suspended for TWO (2) consecutive days.
14The 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 20th DAY OF AUGUST, 2008.
DAVID C. GAVSIE, CHAIR, AGCO GUY MAURICE, BOARD MEMBER
DCG/cp