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-
1126430 Ontario Inc. o/a Little Texas Bar & Grill
Licensee
DECISION on SANCTION
Panel: S. Grace Kerr, Board Member Guy Maurice, Board Member
Decision Date: October 24, 2008
Hearing Location: Belleville, 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 ) Philip Morris, Representative 1126430 Ontario Inc., Licensee ) William W. Walker, Representative
Allegations
1. A hearing into a Notice of Proposal number 16012 dated February 19, 2008 to suspend liquor licence number 0809441 (the “Licence”) issued to 1126430 Ontario Inc. operating as LITTLE TEXAS BAR & GRILL, 290 North Front Street, Belleville, Ontario, K8P 3C6 (the “Licensee” or the “establishment”), on the basis of an alleged violation of section 43 of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on June 10, 2008 in Belleville, Ontario.
2. In its decision dated September 4, 2008, the Board found the Licensee contravened section 43 of the O.Reg by permitting overcrowding on the patio. Parties were directed to provide written submissions on appropriate sanction. The Board has received and reviewed those submissions and ORDERS the licence be suspended for a period of fourteen (14) consecutive days. Reasons follow.
Registrar’s Submissions
3. The Registrar seeks a 14-day suspension as a matter of general and specific deterrence. In that regard, Registrar’s counsel points out that in 2005 the principals of the corporate licensee, under a different corporate name and operating as “Atlantis”, were suspended for 21 days for breaches of the LLA and its Regulations.
4. The corporate licensee also owns an establishment at a different location in Belleville, also operating under the name, Little Texas. In 2004, that establishment had its licence suspended for 5 days by order of the Board; in 2007, a 10 day suspension was served. The breaches in 2007 included overcrowding on the patio, amongst other violations.
5. Taking this record together with the Licensee’s failure to produce the surveillance video and the staff’s failure to properly monitor counts, the Registrar urges that the problem of over-capacity could happen again in the future.
Licensee’s Submissions
6. The Licensee’s new representative, William W. Walker, who was retained after the Board’s Decision on Findings was released, made submissions on behalf of the Licensee. He urged that a warning, together with a recommendation by the Board that new surveillance video equipment be acquired by the Licensee for the establishment that would permit for duplication of surveillance video evidence in the future, would be appropriate because:
the significance of, and the negative inference that could be drawn by the Board because of the Licensee’s non-presentation of its video surveillance of the patio in the night in question was not appreciated;
the Licensee unsuccessfully attempted to have the video surveillance tape duplicated before the Board’s hearing;
the Licensee now provides still photographs of sections of the video surveillance tape show a range of 12 persons on the patio at 12:30 a.m. to 16 persons there at 1:16 a.m. on the night in question; and,
the 5-day suspension was ordered after a contested hearing but the 10-day and 21-day suspensions respectively were based on an agreed Statements of Facts and Joint Submissions as to Disposition.
Reasons and Decision on Sanction
7. The Board has carefully considered the submissions of the Registrar and Licensee on sanction.
8. In general, overcrowding an establishment is a serious issue of public safety. In this case, the Board accepted the AGCO Inspector’s evidence, which it found to be reasonably accurate, that at 12:30 a.m. on the day in question there were 112 persons on a patio licensed for 79 persons. At 12:35 a.m. that same day, a second count by the same Inspector produced a count of 117 persons. These figures represent significant overcrowding; hence, the public safety concerns are enhanced on the facts of this case. The Board does not accept or rely upon the still photographs which the Licensee has attempted to introduce in its submissions for several reasons. They are provided too late; they should have been disclosed to Registrar’s counsel in accordance with the time frames provided for in the Board’s Rules of Practice. Also, their veracity has not been established nor tested by cross-examination; had they been properly introduced into evidence at the hearing, the Board could have made a credibility determination.
9. Given the extent of the overcrowding, the Board also concludes that either the licence holder did not have policies or procedures in effect to accurately monitor capacity or the ones it had (such as the video surveillance monitoring) failed to do so. The licence holder is ultimately responsible for operating the establishment in accordance with the law and should have demonstrated much more diligence and attention to the flow of patrons entering and exiting and moving onto the licensed patio area. This Licensee, as are all licensees, is expected to comply with the requirements of the LLA and Regulations.
10. In addition, there was no evidence of either extenuating or mitigating circumstances for the contravention in question. Nor did the Licensee present evidence of remedial measures it has put in place to minimize the likelihood of this type of infraction occurring in the future.
11. The Licensee has neither shown any remorse nor accepted any responsibility for the violation, but instead offered up blame on its previous representative and attempted to tender evidence out of time. This gives the Board little confidence that there will not be any repeat occurrences.
12. Furthermore, this licence holder has a significant history of non-compliance, having previously served suspensions based on, amongst other violations, a finding for overcrowding.
13. For all of the foregoing reasons, a significant suspension is appropriate in this matter. In coming to its decision to impose a 14 day penalty, rather than a lesser suspension as sought by the Licensee, the Board has placed considerable weight upon the seriousness of the infraction, the failure of the Licensee to provide any evidence that it has implemented remedial measures, the fact that there are no mitigating or extenuating circumstances in this case, and the Licensee’s previous history. The Board FINDS a fourteen (14) day suspension is warranted, particularly for specific but also for general deterrence purposes. A warning is not a sufficient deterrent for such a serious matter. Further, it is expected that as a matter of course the Licensee would have video surveillance equipment capable of making duplicate copies of its video-recordings, thus the Board need not make that specific recommendation.
Order
14. The Board ORDERS that liquor licence number 0809441 issued to 1126430 Ontario Inc. operating as LITTLE TEXAS BAR & GRILL, 290 North Front Street, Belleville, Ontario, K8P 3C6, be suspended for a period of fourteen (14) consecutive days.
15. The 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 24th DAY OF OCTOBER, 2008
S. GRACE KERR, BOARD MEMBER GUY MAURICE, BOARD MEMBER
SGK/cp