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-
1109221 Ontario Ltd. O/A New Ho King Restaurant
Licensee
DECISION
Panel: Patricia McQuaid, Vice-Chair Jacqueline Castel, Board Member
Decision Date: October 15, 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 ) Daniel Alakas, Representative 1109221 Ontario Ltd., Licensee ) Hugh Mark, on behalf of the Corporation
Allegations
- A hearing into Notice of Proposal (“NOP”) number 16310 dated May 23, 2008, to suspend liquor licence number 24976 issued to 1109221 Ontario Ltd., (the “Licensee”), operating as NEW HO KING RESTAURANT, 416 Spadina Avenue, Toronto, Ontario, M5T 2G7, (the “premises”), on the basis of alleged violations of section 29 and subsection 25(1) of Ontario Regulation 719/90 (the O.Reg) made pursuant to the Liquor Licence Act (LLA), was held on October 6, 2008, in the City of Toronto.
Decision
- Based on the agreement between the Registrar and the Licensee on the facts, as well as the admissions of the licence holder, the Board FINDS that the Licensee violated subsection 25(1) and section 29 of the O.Reg. On the consent of the parties, the Registrar and Licensee made submissions on sanction at the hearing. Having carefully considered the submissions, the Board FINDS a warning to be the appropriate sanction in the circumstances of this case. Reasons follow.
Preliminary Matters
Mr. Hugh Mark is an officer, director and shareholder of the Licensee. He appeared on behalf of the corporate Licensee and waived its right to be represented by legal counsel.
Mr. Alakas informed the Board that the Registrar and the Licensee are in agreement on the facts, as outlined in the NOP. The only disagreement is on the appropriate sanction.
Mr. Mark confirmed that he admits to the following:
“On October 20, 2007, at approximately 3:37 a.m., AGCO inspectors attended the licensed premises. Upon entering the inspectors approached a table with 4 male patrons. Here they found a ceramic teapot with four ceramic cups containing beer that was ice cold to the touch. The manager was notified of the infraction and one of the owners was called at home and notified as well.”
Mr. Mark elaborated that one of his employees served alcohol to friends after 2:00 a.m., in violation of restaurant policy. The patrons were not billed for the alcohol.
- Mr. Mark stated that he requested a hearing to uphold the integrity and good reputation of the Licensee.
Reasons and Decision
- Based on the agreement between the Registrar and the Licensee on the facts, and on the admission of the Licensee that one of his employees served beverage alcohol after 2:00 a.m. to four customers seated at one table, the Board FINDS that the Licensee contravened subsection 25(1) and section 29 of the O.Reg. The fact that the Licensee did not bill the customers for the beverage alcohol served after 2:00 a.m. does not enable the Licensee to escape liability under subsection 25(1).
Submissions on Sanction
Mr. Mark submitted that an employee (not a manager) made a bad judgment call in serving beverage alcohol to friends after 2:00 a.m. and in failing to clear the signs of service by 2:45 a.m. In doing so, the employee was acting on his own, against the Licensee’s policy, and without the knowledge of the manager on duty or the Licensee. The restaurant would have been very busy when the inspectors attended. Mr. Mark said he is never present after 2:00 a.m. and when his employee telephoned him at home at approximately 4:00 a.m. on October 20, 2007, about the liquor inspection and the infractions, he was very upset. Mr. Mark said he understands he is responsible for the conduct of his employees, and the Licensee and its staff are very remorseful. They have learned from the mistakes made on October 20, 2007, and the contraventions will not be repeated.
Mr. Mark emphasized that the Licensee has been in business for 26 years and this is the first time it has ever appeared before the Board or contravened the LLA or regulations. The Licensee’s business is food-driven, and the sale of beverage alcohol accounts for a very small portion of its revenues. As such, the financial impact of a possible suspension is not the main reason he attended to make submissions, on behalf of the Licensee. Rather, it is very important to the Licensee to ensure that its good reputation and excellent record on compliance, over the last 26 years, is not tarnished by a suspension. Mr. Mark submitted that a warning would be a fair and appropriate sanction for the contraventions.
Mr. Alakas submitted that given that the Licensee has no prior contraventions, showed remorse, and was cooperative, a two or three day suspension would be appropriate. A warning would not be sufficient from the standpoint of general deterrence: Licensees serving beverage alcohol after 2:00 a.m. and concealing it in teapots after 2:45 a.m. have become industry problems, and the Board should demonstrate, through a suspension, that such contraventions are not condoned.
Reasons and Decision on Sanction
The Board has carefully considered the submissions of the Registrar and Licensee on sanction and finds that a warning is appropriate, in the circumstances of this case, for the reasons outlined below.
First and foremost, the Licensee has a stellar track record of complying with the LLA and regulations. In 26 years of business, this is the first time the Licensee has ever been found in contravention of the LLA or regulations. As such, the contraventions on October 20, 2007, were isolated occurrences by an otherwise compliant Licensee.
The contraventions of October 20, 2007, to which the Licensee admitted, were committed by an employee, not a manager, officer or director, without the knowledge of the Licensee. While the Licensee is of course responsible for the conduct of its employees, the Board views the fact that the contraventions were caused by one non-management employee, acting against the policy of the Licensee, to be less serious than a case where the contraventions were committed by, or with the knowledge of, a management employee or an officer or director of the Licensee.
The Licensee cooperated fully with the representatives of the Registrar, admitted to the contraventions, showed significant remorse and indicated that he and his staff have learned from their mistakes and will not allow them to be repeated. The Licensee took the matter very seriously, and at no time during the hearing did he attempt to minimise the seriousness of the infractions.
The Board in no way condones the contraventions and recognizes that these types of contraventions are a problem in the industry. However, given the Licensee’s 26 year history of complying with the LLA and regulations, as well as the facts that the Licensee admitted to the contraventions which were committed by an employee (not a manager or an officer or director of the Licensee), showed significant remorse, cooperated fully, and took the matter very seriously, it would be neither fair nor appropriate to make an example of this Licensee for the purpose of achieving general deterrence. In this case, the Board placed more emphasis on specific rather than general deterrence, and for the reasons outlined in paragraphs 12 to 14, a two or three day suspension is not necessary to satisfy the principles of specific deterrence.
Conclusion
- The Board, therefore, declines to carry out the Notice of Proposal suspending liquor licence number 24976 and instead issues a WARNING to the Licensee to ensure that its staff comply strictly with subsection 25(1) [requirement that beverage alcohol only be sold and served between 11 a.m. and 2 a.m. on the following day, except for December 31st] and section 29 [requirement that the signs of beverage alcohol service and consumption be cleared within 45 minutes of the end of the period during which liquor may be sold and served under the licence or by 2:45 a.m., except for December 31st] of the O.Reg.
DATED AT TORONTO THIS 15th DAY OF October , 2008
PATRICIA MCQUAID, VICE-CHAIR JACQUELINE CASTEL, BOARD MEMBER
JC/ee