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-
Ping Xing O/A The Grasshopper Licensee
DECISION ON SANCTION
Panel: Kirsti Hunt, Vice-Chair, AGCO Brian J. Ford, Board Member
Decision Date: March 24, 2009 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 Ping Xing, Licensee ) Jerry Levitan, Representative
Allegations
1A hearing into Notice of Proposal number 15492 dated August 2, 2007 and a Notice of Proposal number 15956 dated January 25, 2008 to suspend licence number 806815 issued to Ping Xing (the “Licensee”) operating as THE GRASSHOPPER, 460 Parliament Street (Basement), Toronto, Ontario, M5A 3A2 (the “establishment” or the “premises”), on the basis of alleged violations of subsections 34(1) and 45(1) and section 43 of the Ontario Regulation 719/90 (O.Reg.) made pursuant to the Liquor Licence Act, was held on December 8, 2008, in the City of Toronto.
2The Board accepted at the hearing the withdrawal of the allegations under 45(1) of the O.Reg. for April 9 and September 27, 2007.
3In its decision of February 10, 2009 the Board made findings that the Licensee violated section 43 and subsection 34(1) of the O.Reg. and asked parties for written submissions on an appropriate sanction.
4The Board has received and reviewed those submissions.
5The Registrar submitted that a 10 day suspension for Notice of Proposal 15492 and 10 day suspension for Notice of Proposal 15956 was appropriate.
6The Licensee submitted that a seven day suspension would meet the dual purpose of deterrence and safety, coupled with a warning to be more vigilant on the patio.
Decision On Sanction
7The Board has carefully reviewed and considered the evidence in this matter as well as the written submissions received.
8The Board notes that the proposed disciplinary action for Notice of Proposal 15492 is 14 days and for Notice of Proposal 15956 is also 14 days. The Registrar withdrew the allegation under subsection 45(1) of the O.Reg. in each Notice of Proposal. Therefore, the Registrar proposed as appropriate a suspension of 10 days for each Notice of Proposal for a total of 20 days.
9The Board agrees with the Registrar that the Licensee needs to be more vigilant regarding the patio since overcrowding occurred on two dates. However, the Board recognizes the anomalous situation that people have to cross the licensed patio to enter and exit the establishment. That poses an added challenge for the Licensee and the overcrowding on April 21, 2007 appeared to be because people, exiting after a special event, stopped to talk to the people on the patio thus creating a breach. At such times, the Licensee must be extra vigilant about the number of people on the patio because a larger than the permitted number of people in this very small area could causes a potential safety concern if all people from inside had to exit in an emergency.
10The Board considers Ms. Xing’s diligence regarding the patio to be a mitigating factor. Her evidence is clear that she is making efforts to maintain the capacity on the patio under the nine persons allowed by keeping only seven or eight chairs there and having staff or herself check numbers on the patio on a regular basis. Ms. Xing also agreed to post a sign on the patio indication that only nine people are allowed on the patio.
11The Board accepts the submission from the Registrar that the greater than allowed number of patrons on this patio undermines that Licensee’s ability to monitor the area for other compliance issues – such as the “remove liquor” violation. That occurred on April 21, 2007 when a male and a female patron left the patio with a glass of beer each unbeknownst to the Licensee.
12The Board accepts that the establishment may be in a difficult area with some problematic residents. However, the female who removed the beer was not the problematic person who was not served alcohol but made to leave as suggested by Licensee’s Representative. That female was present on September 27, 2007 and the allegation regarding her was withdrawn.
13As submitted by Licensee’s Representative, there was no finding of active malfeasance on the part of the Licensee. However, the lack of vigilance of the patio did result in breaches. The Board does recognize that Ms. Xing has operated this business since July 2005 with no prior adverse record.
14Given the circumstance of the breaches found and the mitigating factors considered, the Board finds that a 20 day suspension is too harsh.
15Licensee’s Representative submitted as appropriate a seven day suspension coupled with a warning to be more vigilant on the patio. The Board accepts that submission in part. Given all the circumstances of this matter, the Board finds that a seven day suspension along with a warning as well as two added conditions on the licence are appropriate as a specific as well as a general deterrence.
Order
16Therefore, the Board ORDERS that licence number 806815 issued to Ping Xing operating as THE GRASSHOPPER, 460 Parliament Street (Basement), Toronto, Ontario, M5A 3A2 be SUSPENDED for a period of SEVEN (7) consecutive days.
17Furthermore, the Board issues a WARNING to the Licensee to be more vigilant about the number of people physically on the patio.
18The Board also ORDERS that the following conditions be attached to the licence:
- The Licensee shall post a sign on the patio stating, “Only 9 people allowed on patio.”
- The Licensee shall post, at the exit from the patio to the street, a sign stating, “No alcohol allowed past this point.”
19The 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 24th DAY OF MARCH, 2009.
KIRSTI HUNT, VICE-CHAIR, AGCO BRIAN J. FORD, BOARD MEMBER