Registrar, Alcohol and Gaming Commission of Ontario v. El Mocambo Rocks Inc., 2008 CanLII 91798

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-

El Mocambo Rocks Inc. O/A El Mocambo Rocks Licensee

DECISION on sanction

Panel: Beryl Ford, Board Member S. Grace Kerr, Board Member

Decision Date: October 2, 2008 Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario (AGCO) 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 ) Phillip Morris, Representative El Mocambo Rocks Inc., Licensee ) Jerry Levitan, Representative

Allegations

1. A hearing into Notice of Proposal (the "NOP") number 15849 dated December 13, 2007, to suspend liquor licence number 90105 (the "Licence"), issued to El Mocambo Rocks Inc., (the "Licensee"), operating as EL MOCAMBO ROCKS, 464 Spadina Avenue, Toronto, Ontario, M5T 2G8, (the "Establishment" or the "Premises"), on the basis of alleged violations of section 29 and subsection 30(4) of the Liquor Licence Act (LLA or the Act), and subsections 25(1), 34(1), 44(1) and 45(1) of Ontario Regulation 719/90 (the O.Reg), made pursuant to the LLA, was held on April 15, 2008, in the City of Toronto.

2. In its decision dated August 15, 2008, the Board made findings that the Licensee had violated section 29 of the LLA and subsections 25(1), 34(1) and 45(1) of the O.Reg. The Board dismissed the allegations that subsection 30(4) of the LLA and subsection 44(1) of the O. Reg had been violated. The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions. Reasons follow.

Submissions

3. The Registrar cites a number of aggravating factors relating to the night the Licensee violated the Act and its regulations, as follows:

• the number of sections (4) of the legislation were breached;
• three of the breaches involved numerous patrons who acted in variously inappropriate manners; and,
• after-hours service took place even though the Licensee's hours had already been extended to 4:00 a.m.

4. The Registrar also notes that the Licensee has served two previous suspensions: in 2003, it was for 14 days for "off licence" liquor and "remove liquor", further to the Board of the AGCO's decision dated June 17, 2003; and, in 2006, it was for 21 days for "off licence", further to the Board's decision dated October 17, 2006.

5. A 25 day suspension as sought in the NOP is necessary as a matter of specific and general deterrence in this case, the Registrar argues, and also because all but one allegation ("serve minor") was proven. [The Registrar notes that he never requested a finding under subsection 44(1), in that this was a typographical error and should have read subsection 41(1).]

6. Mr. Levitan urges that since not all of the allegations made in the NOP were proven, logic dictates that the suspension ordered should be less than the 25 days the Registrar sought.

7. The Board is asked to consider the following mitigating factors:

• the Licensee admitted the "after hours" service breach;
• the 2003 suspension which occurred five years ago involved serving beer to "thirsty construction workers" before the establishment opened, the breach being admitted;
• the 2006 infraction involved an employee purchasing alcohol without providing the Licence Number to the LCBO outlet; and,
• all of the within infractions occurred on one date during an Extended Hours situation.

8. In view of the foregoing mitigating factors, Mr. Levitan argues that a 25 day suspension would be punitive and inconsistent. Instead, he suggests that a 10 day suspension would serve the dual purposes of disposition.

Analysis, Reasons and Decision on Sanction

9. The Board has carefully reviewed and considered the evidence in this matter as well as the written submissions received.

10. From a specific deterrence perspective, in the Board's decision the following factors weighed in favour of a lengthier suspension than the Licensee has proposed:

• there were numerous infractions by the Licensee on the night in question;
• at least one of the infractions related to "permitting drunkenness" involved five intoxicated patrons, three of whom were later involved in a fight outside of the establishment;
• in giving his evidence, the Licensee did not seem remorseful, but rather seemed to condone his staff's actions vis-à-vis the after-hours service, notwithstanding his counsel's written submissions following the hearing to the contrary; more generally, as regards to this violation, the Licensee was disrespectful of the liquor licensing legislation (and its regulations) and its requirements, expressing an inclination to follow his spiritual and personal opinions rather than the law; and,
• the Licensee has a history of two previous infractions, the 14 day suspension in 2006 being fairly recent.

11. The "permit drunkenness" and "service to intoxicated patrons" findings, in particular, are very serious offences. The length of the suspension must be towards the "heavier end" in order to properly reflect that fact from both a general and specific deterrence standpoint. The Board has done so in this case.

12. Lastly, in deciding to impose a 20 rather than a 25 day suspension as sought by the Registrar, a couple of mitigating factors, as follow, were weighed into the Board's decision, to the Licensee's favour:

• the Licensee admitted the "after hours" service offence; and,
• not all of the allegations made against the Licensee were proven.

13. Thus, and for the reasons articulated above, the Board concludes that a significant suspension is appropriate and required in this case and that a twenty day suspension will properly satisfy the dual guiding principles as to disposition, given the particulars of this case.

Order

14. The Board orders that liquor licence number 90105 issued to El Mocambo Rocks Inc. operating as EL MOCAMBO ROCKS, 464 Spadina Avenue, Toronto, Ontario, M5T 2G8, be suspended for a period of TWENTY (20) consecutive days.

15. 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 2nd DAY OF October, 2008

BERYL FORD, BOARD MEMBER S. GRACE KERR, BOARD MEMBER

GK/ee