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-
2051187 Ontario Inc. O/A Pur Supper Club Licensee
DECISION
Panel: Dianne Axmith, Board Member Beryl Ford, Board Member
Decision Date: June 25, 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 ) Richard Kulis, Representative 2051187 Ontario Inc., Licensee ) Randall Barrs, Representative
A hearing into a Notice of Proposal dated 16035 dated February 26, 2008 to suspend liquor licence number 811112 issued to 2051187 Ontario Inc. (the "Licence holder") operating as PUR SUPPER CLUB, 365 King Street West, 4th & 5th floors, Toronto, Ontario, M5V 1K1, on the basis of alleged violations of subsection 45(2) and section 43 of Ontario Regulation 719/90 (O.Reg) made pursuant to the Liquor Licence Act (LLA), was held on June 18, 2008 in the City of Toronto.
Richard Kulis represented the Registrar and J. Randall Barrs appeared on behalf of the Licence holder.
An Agreed Statement of Facts along with a document detailing a previous suspension dated December 15, 2006 was tabled as Exhibit #1. It was agreed and admitted that:
On May 12, 2007 the licence holder allowed more than 130 people to be on the fourth floor of the licensed premises. Also, on the licensed patio a patron openly, rolled, smoked and shared with other patrons two marijuana cigarettes.
Based on the facts jointly presented by the Registrar and Licensee's counsel, the Board made FINDINGS of a violation of section 43 (overcrowding) and subsection 45(2) (smoke marijuana) both of Ontario Regulation 719/90 under the LLA.
The board then heard submissions on disposition from both parties.
On behalf of the Licence holder, Mr. Barrs submitted that a 21 day suspension is too harsh and would be financially crippling to his client. The Pur Supper Club is attempting to appeal to a more mature clientele and business has been difficult. In fact, the Licence holder conceded that the overcrowding found on May 12, 2007 was probably the busiest day so far this year.
Further, Mr. Barrs suggested that at the time of the previous incident on June 2, 2006, Mr. Annis was not totally in charge of the establishment. He acted on his own behalf, without benefit of counsel and accepted the 10 day suspension without question. Mr. Barrs was only recently engaged by the License holder to act on his behalf regarding the latest incident and while he knows it would have been better to negotiate a settlement rather than go to a hearing. His client should not be penalized for not understanding or perhaps being unable to afford legal counsel.
Mr. Barrs tabled a letter from Mr. Annis dated January 22, 2008 (Exhibit #2) which he contends demonstrates his client's commitment to security procedures and policy regarding overcrowding and narcotics. He asked the Board to appreciate Mr. Annis' attempts to avoid repetition of the problem in the future and to consider a 14 day suspension of this licence as an appropriate penalty under the circumstances.
On behalf of the Registrar, Mr. Kulis submitted that there has been no demonstration of a Security Plan either in place now or proposed that would eliminate the possibility of repeated violations in the future. Clearly, the system described in Exhibit #2 was not effective on the night of May 12, 2007. The financial and business challenges faced by the Licence holder should not be a factor in the Board's decision and based on the repeat nature of the infractions, 21 days is an appropriate penalty.
Decision and Order
The Board has reviewed Exhibits #1 and #2 and considered the arguments regarding disposition provided by both counsel in this matter.
While the Board has some appreciation for any Licence holder who is in a financially challenging situation, this must not be a consideration in determining an appropriate penalty for LLA infractions. Further, the Board believes that both findings are of a very serious nature. Overcrowding is a potentially hazardous safety risk and the use of narcotics in any establishment is a dangerous situation. The Licensee previously served a 10 day suspension for these violations.
The fact that overcrowding and the presence of marijuana were the same infractions in these two separate incidents is particularly troubling to the Board. While Mr. Annis suggests his security system goes beyond minimum requirements, it has clearly failed on at least two occasions.
Having carefully considered both the seriousness of the infractions and the submissions by both parties, the Board believes that 14 days is not sufficient as a general or specific deterrence and therefore ORDERS a seventeen (17) day suspension of licence number 811112.
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 25th DAY OF JUNE, 2008
DIANNE AXMITH, BOARD MEMBER BERYL FORD, BOARD MEMBER
DA/sm