Registrar, Alcohol and Gaming Commission of Ontario v. VN Spring Rolls Inc. O/A Baby Blue, 2008 CanLII 91743

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-

VN Spring Rolls Inc. O/A Baby Blue Licensee

DECISION ON SANCTION

Panel: Beryl Ford, Board Member Jacqueline Castel, Board Member

Decision Date: July 24, 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 VN Spring Rolls Inc., Licensee ) Minh Phi Tram, Representative

Allegations

1. A hearing into Notice of Proposal number 15972 dated January 31, 2008, to suspend liquor licence number 811615 issued to VN Spring Rolls Inc., (the “Licensee”), operating as BABY BLUE, 189 Augusta Avenue, Toronto, Ontario, M5T 2L4, (the “establishment”), on the basis of alleged violations of section 29, and subsections 25(1), 44(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg”), made pursuant to the Liquor Licence Act (“LLA”), was held on June 2, 2008, in the City of Toronto.

2. By correspondence dated June 3, 2008, to the Manager of Hearings, copied to the Licensee’s Representative, the Registrar withdrew the request for a finding under subsection 44(1) of the O.Reg.

3. In its decision dated July 2, 2008, the Board made a finding of violation of section 29 of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Submissions

4. Counsel for the Registrar submitted that a ten (10) day suspension was appropriate given that the Board found the Licensee failed to clear numerous signs of service by 2:45 a.m. and given that the Licensee served a seven day suspension for this same offence, as well as keeping for sale liquor not purchased under the license in contravention of paragraph 31(1)(c) of the O.Reg, in 2006. Counsel for the Registrar also noted that the licence holder and her witnesses were found not to be credible by the Board.

5. The representative for the Licensee submitted that a three (3) to five (5) day suspension would be appropriate, given that the Registrar was originally seeking a seventeen (17) day suspension for the contravention of section 29 and subsections 25(1), 45(1) and 44(1) of the O.Reg., and the Licensee was only found to have contravened section 29 of the O.Reg.

Reasons and Decision on Sanction

6. The Board carefully considered the submissions of the representatives of the Registrar and the Licensee.

7. Although the Board found there to be only one infraction, when the Notice of Proposal alleged four infractions (two were dismissed by the Board, and the Board accepted the Registrar’s request to withdraw another allegation), the contravention of section 29 of the O.Reg was serious. Liquor Inspector Higuara counted as many as 31 signs of service, on the floor of the establishment, approximately 20 minutes after the Licensee was legally required to have cleared all of the signs of service. Further, when the Inspectors entered the establishment at approximately 3:04 a.m. on the date in question, no efforts were underway to clear these signs of service. The Licensee did not present mitigating circumstances, which were credible, for the delay in clearing the signs of service. In fact, the Board found the evidence of the Licensee on this point to be self-serving and contradictory.

8. Although the Licensee admitted to contravening section 29 of the O.Reg, the Licensee did not give evidence that it has put in place remedial measures to prevent or minimise the likelihood of this infraction from occurring in the future. This is of concern to the Board since it is the second time the Licensee has been found to have failed to remove the signs of service by 2:45 a.m.

9. The Board found that the Licensee contravened section 29 and subsection 33(1) of the O.Reg in November 2006, less than one year before the September 2007 infraction, which is the subject of this decision. The Licensee served a seven (7) day suspension for the 2006 offences. Given that there is a relatively recent prior sanction for the same offence, and given the seriousness of the infraction on September 30, 2007, (i.e., as many as 31 signs of service, and no efforts underway to clear the signs of service when the Inspectors entered at 3:04 a.m.), the Board finds that a three (3) to five (5) day suspension would be inadequate.

10. To achieve both specific and general deterrence, the Board FINDS that a ten (10) day suspension is appropriate in the circumstances.

Order

11. The Board ORDERS that liquor licence number 811615, issued to VN Spring Rolls Inc., operating as BABY BLUE, 189 Augusta Avenue, Toronto, Ontario, M5T 2L4, be suspended for a period of TEN (10) consecutive days.

12. The 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 24^th DAY OF July , 2008

JACQUELINE CASTEL, BOARD MEMBER BERYL FORD, BOARD MEMBER

JC/ee