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 Ontario Registrar

-and-

1195927 Ontario Inc. o/a Quigley’s Pub & Bistro Licensee

DECISION on sanction

Panel: Dianne M. Axmith, Board Member S. Grace Kerr, Board Member

Decision Date: December 16, 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 ) Joyce Taylor, Representative 1495927 Ontario Inc., Licensee ) Jerry Levitan, Representative

Authorities

Pete’s Burger (Re), [2003] O.A.G.C.D. No. 184 Underground Garage Urban Saloon (Re), [2003] O.A.G.C.D. No. 289 Beam Me Up Scottie (Re), [2006] O.A.G.C.D. No. 591

Allegations

1. A hearing into a Notice of Proposal number 15632 dated September 11, 2007 to suspend liquor licence number 20044 (the “Licence”), issued to 1495927 Ontario Inc., (the “Licensee”), operating as QUIGLEY’S PUB & BISTRO, 2232 Queen Street East, Toronto, Ontario, M4E 1E9, (the “establishment” or the “premises”), on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (“LLA”) and of section 29 of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on January 17 and May 5, 2008, in the City of Toronto.

2. In its decision dated October 24, 2008, the Board made a finding of a violation of subsection 29 of the O.Reg and dismissed the alleged violations of subsections 45(1) and 45(2) of the LLA. Parties were directed to provide written submissions on an appropriate sanction.

3. The Board has received and reviewed those submissions and ORDERS the licence be suspended for a period of three (3) consecutive days. Reasons follow.

Registrar’s Submissions

3. The Registrar seeks a suspension in the range of five to seven days.

4. Ms. Taylor argues the only conclusion the Board can draw is that the glass of beer found by the Inspector on the premises just after 3:55 a.m. had been prepared for staff after hours, for two reasons. It was still cold to the touch; and, Ms. Iliodromitis, the owner, confirmed it takes 15 to 20 minutes for a glass of liquid, like beer, to warm up.

5. General and specific deterrence is required for this serious, albeit isolated infraction, according to Ms. Taylor. Licensees must control their staff’s conduct at all times and failure to do so is a serious matter.

6. Ms. Taylor relies upon the Board’s previous decisions in Pete’s Burger, Beam Me Up Scottie, and Underground Garage Urban Saloon to support her position.

Licensee’s Submissions

7. Mr. Levitan submits that a ‘warning’ ought to be imposed as the Board’s sanction. He urges that the finding of the single glass not cleared away after-hours should have been dealt with by the Registrar at the “Letter of Incident” stage. The Licensee has an impeccable record.

8. Licensee’s counsel points out that the Licensee incurred substantial legal expenses to defend itself at a 2-day hearing and was exposed to a potential 21-day suspension, in which the most serious allegations were not sustained.

9. Mr. Levitan distinguishes the Registrar’s case law, saying they all deal with after-hour service of ‘patrons’ and not ‘staff’. However, if the Board was to rely on those cases, he argues, they would support a penalty in the one to three day range on facts such as those in the matter before the Board.

Registrar’s Reply Submissions

10. In reply, Ms. Taylor argues that the Board’s decision as to sanction must address the infraction it found took place, not the ones it dismissed.

11. The Licensee’s record is not spotless: it was warned once before about failing to clear the signs of service and consumption.

Analysis and Reasons

12. After careful consideration of the evidence and the submissions as to sanction in this matter, the Board has concluded that, as a matter of specific and general deterrence, a 3-day suspension is appropriate. Several facts support a penalty of this length, which has been based on the specific infraction for which the Board made its finding (i.e. a violation of section 29 of the O. Reg), and on the facts in relation to that finding.

13. Several “omissions” on the Licensee’s part weighed significantly into the Board’s decision. First, while the Licensee admitted the failure to clear the one partly-filled glass of beer after-hours, no explanation was offered for its presence on the chair where it was found. This leaves the Board to decide whether the glass of beer was there through inadvertence, that is, a “cleaning-up error” to use Ms. Taylor’s descriptor, or whether it was a staff person’s or patron’s drink that had been placed there. The Board believes the latter, based on the following evidence.

14. The partially-full glass of beer was still “ice cold” to Inspector Leadbetter’s touch when she found it. Further, Ms. Iliodromitis, the owner, testified that the last patron left the establishment at 2:45 a.m. on the night in question. She also said that in her experience it takes 15 to 20 minutes to warm up a glass of liquid like beer. Finally, when the Inspector found the glass of beer, it was just after 3:55 a.m. or just short of two hours after ‘last call’ and just over an hour past the time for clearing all signs of service.

15. In her testimony at the hearing, Ms. Iliodromitis essentially argued there had been a simple oversight in cleaning-up the establishment that night, which resulted in the one glass of beer the Inspector found. Her excuse was that, while the staff checks for such things in clean up, “people leave beer in random places”. In cross-examination, she also acknowledged staff should not put a chair on a table if a glass is still there, but it had happened on more than one occasion. In its decision on findings, the Board made positive findings regarding Ms. Iliodromitis’s credibility. Again, it believes that her testimony, just described, likely represents what has happened in clean-up on other nights. But it does not fit the facts relating to the night in question. The conclusion more consistent with the facts described in paragraph 15 above is that the liquor found at just after 3:55 a.m. that was “ice cold” to the touch belonged to a staff person of the Licensee. The Board so finds on the balance of probabilities.

16. Section 29 of the O. Reg does not differentiate between staff and patrons. It applies with equal measure to both: Licensees’ responsibilities to ensure compliance are undifferentiated and similarly symmetrical. Even if patrons or staff members linger in an establishment beyond closing hours, by law neither should be served any alcoholic beverages after 2:00 a.m. and all signs of service are to be cleared within 45 minutes thereafter.

17. When determining the sanction to be imposed for violations of section 29, and only then, trifling or accidental examples of a failure to clear might attract a lesser sanction than when there is more significant or deliberate flouting of the section 29 requirements. While there was only the one partial glass of beer found in this case, which arguably puts it into the former category, the Board’s findings in paragraph 15 above places it into the latter category. Taken together with the factors described below, they support imposing a weightier penalty and were factored into the Board’s decision to impose a multiple day suspension rather than a warning in this case.

18. Ms. Iliodromitis testified that she does not allow staff to drink alcohol after closing. She further indicated she would fire anyone who breached this rule because she values her liquor license and has a responsibility to herself and her staff to maintain it. While the Board believes this evidence and Ms. Iliodromitis’s generally good intentions, unfortunately on the night in question this responsible policy was breached. However, there could be repeat occurrences since the Licensee was previously given a warning for the same infraction. As such, specific deterrence is a necessary ingredient to the sanction imposed in this case. It also makes a further warning an inappropriate sanction in this case.

19. In coming to its decision to impose a three day penalty, rather than a five to seven 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 the License admitted the failure to remove the signs of service.

20. While the Board derived some guidance from the cases presented by Registrar’s counsel, the sanction in all cases the Board deals with must be determined on an individual basis. The Board concludes that a three day suspension appropriately satisfies the guiding principles of specific and general deterrence on the particulars of this case.

21. It is not appropriate, in determining sanction for a specific finding in relation to one offence, for the Board to reduce an appropriate sanction for that offence because the Licensee may have had financial exposure in defending itself at a hearing in respect of other alleged offences. Specifically, the Board has not taken this factor into consideration when determining an appropriate sanction in this matter.

Order

22. The Board ORDERS that liquor licence number 20044, issued to 1495927 Ontario Inc., operating as QUIGLEY’S PUB & BISTRO, 2232 Queen Street East, Toronto, Ontario, M4E 1E9, be suspended for a period of THREE (3) consecutive days.

23. 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 16th DAY OF December, 2008

S. GRACE KERR, BOARD MEMBER DIANNE M. AXMITH, BOARD MEMBER