Registrar, Alcohol and Gaming Commission of Ontario v. 910327 Ontario Inc. O/A Centretown Pub, 2008 CanLII 91779

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-

910327 Ontario Inc. O/A Centretown Pub Licensee

DECISION on sanction

Panel: Allan Higdon, Board Member Joan Lougheed, Board Member

Decision Date: November 27, 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 910327 Ontario Inc., Licensee ) Ainslie Dunstone, Representative

Authorities

Einstein’s, [2005] O.A.G.C.D. No. 511 1126430 Ontario Inc. (c.o.b. Little Texas Bar & Grill), [2008] O.A.G.C.D. No. 274

Allegations

1. A hearing into a Notice of Proposal number 16316 dated May 27, 2008 to suspend liquor licence number 22051 (the “Licence”) issued to 910327 Ontario Inc. (the “Licensee”) operating as CENTRETOWN PUB, 340 Somerset Street West, Ottawa, Ontario, K2P 0J9 (the “Premises”) on the basis of an alleged violation of section 43 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the of the Liquor Licence Act (“LLA”), was held on September 25, 2008 in the City of Ottawa.

2. In its decision dated October 24, 2008 the Board found the Licensee violated section 43 of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Registrar’s Submission

3. The Registrar seeks a 14-day suspension as stated in the NOP. The Registrar’s Representative points out:

• The Board found the evidence of the inspectors as reasonable and credible;
• The Board questioned the conflicting evidence of the Licensee’s staff;
• The manager on duty never went up to the upper floor to monitor the activity;
• While staff indicated that there was an emergency exit on the upper level, the inspectors did not note the location while on the upper level;
• The licensee did not present evidence of how this infraction would be prevented in the future, and;
• A previous suspension for overcrowding occurred two years earlier and was for 10 days, making a 14 day suspension appropriate as a matter of specific and general deterrence.

4. The Licensee did not present evidence at the time of the hearing of remedial measures to prevent this infraction in future and the safety of the patrons must be emphasized.

Licensee’s Submission

5. The Licensee submits that a suspension of five to seven days would be appropriate because:

• At the time the inspectors presented the overcrowding situation, staff took immediate steps to remedy the situation;
• The establishment did not exceed the overall capacity of the premises;
• Since then another door staff has been hired and mechanical counters are now being used to ensure compliance, and;
• A fourteen day suspension would result in hardship through loss of revenue and impact the livelihood of twelve people.

Registrar’s Reply

6. The Registrar answered that a repetition of the same infraction requires an additional increased sanction to emphasize the seriousness of the matter and to emphasize the principlies of both specific and general deterrence.

The Registrar pointed out that:

• Hiring of additional staff and use of counters is new evidence, not having been presented at the hearing, and;
• Impact on staff and revenue is not within the control of the Board.

Reasons and Decision on Sanction

7. The Board has carefully considered the submissions of both parties on sanction.

8. The Board has accepted the inspectors’ evidence that the there was overcrowding and the counts were reasonably accurate. It is noted that this evidence was not disputed by the Licensee.

9. Overcrowding is a very serious public safety issue and this becomes even more important when the establishment is an older building with only one narrow staircase within the Premises. Should an emergency occur, emergency exit(s) must be clearly marked and evident to patrons. The Board has expressed concern that neither inspector noted the location of an emergency exit on the upper floor. At the hearing, the witnesses for the Licensee did not dispute this observation as made by the inspectors.

10. An older home raises greater challenges, when used as a place of business and requires more diligence to ensure that overcrowding does not occur. The suggestion that the capacity for the entire Premises was not exceeded is not valid, given that the licence specifically states capacity for each area.

11. Licensee’s representative has submitted that the Licensee has hired another staff person and is now using counters. The Licensee is to be commended for taking these steps to correct the situation, however, the Board does not have enough information to be satisfied that the additional staff person is being scheduled and assigned in a way that ensures overcrowding does not occur in each of the licensed areas of the Premises.

12. Ultimately, the license holder is responsible for operating the establishment in accordance with the law and should have shown more diligence and attention to the flow of patrons entering and exiting the upper level. A suspension must reflect the seriousness of the matter and also take into account the previous suspension for 10 days.

13. In coming to a decision to impose a twelve (12) day suspension, the Board has taken into account that there were no other incidents reported at the time and staff took immediate steps to correct the overcrowding situation. The Board also concludes that a twelve day suspension will appropriately satisfy the guiding principles of specific and general deterrence, given the particulars of this case.

Order

14. The Board ORDERS that liquor licence number 22051 issued to 910327 Ontario Inc. operating as CENTRETOWN PUB, 340 Somerset Street West, Ottawa, Ontario, K2P 0J9, be suspended for a period of TWELVE (12) consecutive days.

15. 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 27th DAY OF NOVEMBER, 2008.

ALLAN HIGDON, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER