Registrar, Alcohol and Gaming Commission of Ontario v. Viet Truong O/A Gia-Han Quan Karaoke Bar, 2008 CanLII 91799

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-

Viet Truong O/A Gia-Han Quan Karaoke Bar Licensee

DECISION on SANCTION

Panel: Jacqueline Castel, Board Member S. Grace Kerr, Board Member

Decision Date: October 2, 2008 Hearing Location: Hamilton, 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 ) Brad Alton, Representative Viet Truong, Licensee ) Anthony Tran, Representative

Allegations

1A hearing into Notice of Proposal number 16123 dated March 17, 2008, to suspend and add a condition to liquor licence number 805193 (the "licence") issued to Viet Truong (the "Licensee"), operating as GIA-HAN QUAN KARAOKE BAR, 430 York Boulevard, Unit 6, Hamilton, Ontario, L8R 3K8, (the "premises" or the "establishment"), on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act ("LLA" or the "Act") and section 29 and subsection 25(1) of Ontario Regulation 719/90 ("O.Reg"), prescribed under the LLA, was held on July 2, 2008, in the City of Hamilton.

2In its decision dated August 29, 2008, the Board found the Licensee contravened subsection 45(1) and 45(2) of the LLA and section 29 of the O.Reg. The Board dismissed the allegation of a contravention under subsection 25(1) of the O.Reg. The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Registrar's Submissions

3The findings of the Board in this case emphasize a serious safety issue for the AGCO liquor inspectors and the police and are of grave concern to the Registrar. The LLA is clear that police officers and inspectors must be allowed to conduct investigations unimpeded and licensees are required to assist law enforcement with carrying out their duties. In addition, society has decided that bars and restaurants must clear away all signs of service after closing time to avoid causing unnecessary social problems that can result from the late consumption of liquor. As a result, all licensees are expected to have all signs of service and consumption of liquor cleared from the licensed premises within 45 minutes of the cessation of liquor sales. Not only was this Licensee openly breaking the law, by failing to clear the signs of service by 2:45 a.m., but he, his staff and patrons were also blatantly failing to facilitate and obstructing investigations by: warning patrons and staff of the arrival of police and/or inspectors; locking the doors while patrons were still in the licensed premises; dumping their drinks on the floor; and removing pitchers to the sink and dumping their contents upon arrival of inspectors and police.

4Any suspension of a liquor licence must satisfy the principles of specific and general deterrence: general deterrence to discourage others from acting in a similar manner and specific deterrence to discourage the Licensee from continuing this unlawful behaviour. The egregious acts committed in this licensed establishment must be forced to cease immediately, to allow law enforcement to perform its job responsibilities, and must not be allowed to spread elsewhere. A suspension meeting both criteria will have the greatest remedial impact. Moreover, any sentence imposed by the Board should reflect and be proportionate to the gravity of the offence and the degree of responsibility of the Licensee. In this case, the Licensee was present when the obstructions occurred and did nothing to stop or dissuade them and, in fact, the Licensee and/or his staff were behind some of the law-breaking actions and are directly responsible for what occurs in the licensed establishment.

5The Licensee has shown a wanton disregard for the LLA. While this may be this Licensee's first time before the Board, there are multiple violations of a very serious nature on several dates. The Licensee is being disciplined for some very serious breaches of the LLA and the fact that this is a "first time" should not be a mitigating factor or should be weighed accordingly. The Licensee and his staff were behind the violations, in whole or in part, and to satisfy the principles of general and specific deterrence, the Registrar is seeking a suspension of the licence for a period of seventeen (17) to twenty-one (21) days. In addition, the Registrar is requesting that the following condition be added to the liquor licence: "[T]he entrance door shall remain unlocked while patrons are still in the establishment." The addition of this condition will make it easier for the liquor inspectors and police to conduct a liquor licence inspection and to ensure compliance in the future.

Licensee's Submissions

6Mr. Tran concurs with Registrar's counsel that "any suspension of the liquor licence must satisfy the principals of specific and general deterrence," and that "any sentence of the Board should reflect and be proportionate to the gravity of the offence and the degree of responsibility of the Licensee". However, Mr. Tran submits that a suspension of seventeen (17) to twenty-one (21) days is unduly harsh, especially for a "first time" offender and would impose an undue financial hardship on the Licensee. Instead, he proposes a suspension of seven (7) to ten (10) days.

7The Licensee's business income has dropped dramatically as a result of these infractions, and a suspension of the liquor licence for more than ten (10) days would cause undue hardship and possibly cause the Licensee to close the establishment.

Reasons and Decision on Sanction

8The Board has carefully considered the submissions of the Registrar and Licensee on sanction.

9The contraventions of the LLA and the O.Reg in this case were serious in nature, particularly so because of both the number of contraventions and the context in which they occurred. Not only did the Licensee fail to clear the signs of service on four (4) separate dates, but the Licensee also obstructed the police and/or liquor inspectors from carrying out inspections under the legislation and failed to facilitate these inspections on three (3) of these dates.

10In assessing the number of occasions of offending behaviour by this Licensee, the Board notes that there were ten (10) contraventions in total which took place on four (4) separate dates (i.e., subsections 45(1) and 45(2) of the LLA were contravened on November 10, November 24 and December 22, 2007, and section 29 of the O.Reg was contravened on November 10, November 24, and December 22, 2007, and on January 4, 2008). As such, this is not a case of an isolated contravention by an otherwise compliant licensee.

11The Board also considers the acts of obstruction to be particularly serious because they were blatant attempts to conceal other contraventions. Lawful inspections, which monitor compliance with the Act and Regulations, are key to ensuring public safety at licensed establishments. The cooperation of the licensee is an integral part of these inspections; without such cooperation, the public's confidence in the safety and integrity of licensed establishments may be irreparably damaged. The Licensee's conduct, in obstructing the inspections of the police and/or liquor inspectors, demonstrated a lack of respect for the authority of these individuals and for the law.

12Furthermore, there was no evidence of extenuating circumstances for any of the contraventions in question. It bears stating that the Licensee's professed ignorance of the law, that is, in the case of permitting beverage alcohol at a private function in the licensed premises after 2:45 a.m. on January 4, 2008, is not a mitigating or extenuating factor. All licensees are expected to be knowledgeable of the requirements of the LLA and Regulations.

13The Licensee also did not present evidence of remedial measures it has put in place to minimize the likelihood of these types of infractions occurring in the future. The Licensee has neither shown any remorse nor accepted any responsibility for the violations, but instead offered up lame and unbelievable excuses (for example, that the establishment was serving "cold tea") for the actions on the nights in question. This gives the Board little confidence that there will not be any repeat occurrences.

14No evidence was tendered to substantiate the Licensee's claim that it has suffered business difficulties as a result of its infractions. As such, the Board should not take this bald assertion into consideration when determining an appropriate sanction in this matter.

15For all of the foregoing reasons, a significant suspension is appropriate in this matter. In coming to its decision to impose a 15 day penalty, rather than a 17 to 21 day suspension as sought by the Registrar, the Board has taken into account that this is the Licensee's first time before the Board, that the establishment is small, and that there was no disruptive behaviour involved in the incidents.

16In conclusion, given the number and seriousness of the infractions, as well as the absence of any extenuating circumstances and the failure of the Licensee to implement remedial measures, and having taken into account the mitigating factors described in the foregoing paragraph, the Board FINDS a fifteen (15) day suspension is warranted, in order to achieve general and specific deterrence.

17Finally, based on the facts giving rise to the subject infractions, and to assist the police and liquor inspectors in carrying out future inspections at this establishment, the Board also FINDS that a condition on the liquor licence, requiring the Licensee to keep the entrance door unlocked at all times while patrons are still in the establishment, is warranted.

Order

18The Board ORDERS that liquor licence number 805193, issued to Viet Truong operating as GIA-HAN QUAN KARAOKE BAR, 430 York Boulevard, Unit 6, Hamilton, Ontario, L8R 3K8, be suspended for a period of fifteen (15) consecutive days and that the following condition be added to the liquor licence:

"The entrance door shall remain unlocked while patrons are still in the establishment."

19The Licensee shall submit proposed suspension dates in writing to the Manager, 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 the 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