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-
1197801 Ontario Inc. O/A Body English/Body Rok Licensee
DECISION ON SANCTION
Panel: David C. Gavsie, Chair Alex McCauley, Board Member
Decision Date: October 14, 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 1197801 Ontario Inc., Licensee ) Joseph Irving, Representative
Allegations
A hearing into a Notice of Proposal 16233 dated April 28, 2008 to suspend liquor licence number 100072 issued to 1197801 Ontario Inc. (the “Licensee”) operating as BODY ENGLISH/BODY ROK, 1325 Eglinton Avenue East, Unit 1-6, Mississauga, Ontario, L4W 4L9 (the “Premises”), 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 August 25, 2008 in the City of Toronto.
In its decision dated September 4, 2008, the Board made a finding that the Licensee violated subsection 45(1) of the O.Reg. The Board requested the parties to make written submissions as to the appropriate sanction which have been received and reviewed by the Board.
Registrar’s Submissions
No evidence was called on behalf of the Licensee, and no mitigating factors are before the Board.
The Licensee under its former name of Club 107/108 has a long history of repeated violations. Disciplinary action started in 1996 with a seven day suspension and continued until 2006 with a combined suspension of 70 days involving 2 suspension s of 25 and 45 days. Copies of prior Board decisions were provided to the Board by Mr. Kulis.
Based on the past record, the 14 day suspension sought in this case by the Registrar will not be a deterrent and certainly not an insurmountable burden to the Licensee. It is also appropriate.
Licensee’s Submissions
The 2006 decision of the Board involved far more serious allegations than the allegation in the present case and the events in that decision dated back to 2003. These are mitigating factors.
Also, the fact that security removed the intoxicated patron and saw to it that satisfactory arrangements were made to get the patron home, satisfied police concerns. This is also a mitigating factor.
Other decisions relied on by the Registrar relate to events 8 to 10 years ago and are dated.
A warning in this case is sufficient. In the alternative, an appropriate suspension would be 7 days.
Decision
No evidence was led nor were any submissions made to the Board that the numbered company which is the Licensee had the same owners, directors or officers in place at the date of this event as were in place when the earlier events giving rise to prior suspensions occurred.
Accordingly, the Board has not taken into account the prior findings in arriving at an appropriate sanction, which in any event occurred at a minimum of 4 years before this event.
In this case, a finding was made that there was 1 intoxicated patron in the Premises on one night. Although, security staff did deal with the patron in a responsible manner, they only commenced doing so when they saw that the police officers were following the patron and then interviewing him. Clearly, security staff should have been more vigilant and intervened with this patron before the police did.
As a matter of general and specific deterrence, a suspension of the Licence is warranted in this case.
The Board has concluded that the Licence should be suspended for seven (7) days, and makes an ORDER accordingly.
Order
Therefore, the Board ORDERS that liquor licence number 100072 issued to 1197801 Ontario Inc. operating as BODY ENGLISH/BODY ROK, 1325 Eglinton Avenue East, Unit 1-6, Mississauga, Ontario, L4W 4L9, be suspended for a period of seven (7) consecutive days.
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 14th DAY OF OCTOBER, 2008.
DAVID C. GAVSIE, CHAIR, AGCO ALEX MCCAULEY, BOARD MEMBER
DCG/sm