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-
4062205 Canada Inc. O/A Lobby Lounge and Restaurant Licensee
DECISION ON SANCTION
Panel: Brian J. Ford, Board Member Eleanor Meslin, Board Member
Decision Date: March 31, 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 ) Phillip Morris, Representative 4062205 Canada Inc., Licensee ) Mitchell Worsoff, Representative
Allegations
1. A hearing into Notice of Proposal number 16122 dated March 13, 2008, to suspend liquor licence number 28927 issued to 4062205 Canada Inc., operating as LOBBY LOUNGE AND RESTAURANT, 192 Bloor Street West, Toronto, Ontario, M5S 1T8, on the basis of an alleged violation of section 43 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act, was held on October 17, 2008 in the City of Toronto.
2. In its decision dated January 30, 2009 the Board found the Licensee violated section 43 of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions
Registrar’s Submissions
3. Mr. Morris notes in his submission that the Board found a breach of the O.Reg on two separate dates, September 9, 2008 and September 13, 2008. On both occasions Mr. Morris notes the overcrowding was substantial. He also notes that the second date occurred only four days after the first incident of overcrowding, despite the fact the Licensee’s manager was told of the first infraction.
4. Mr. Morris notes that the liquor licence also was suspended in 2007 for seven days for overcrowding. The Registrar’s Notice of December 20, 2006 carried out the suspension which was served from January 2, 2007 until January 9, 2007.
5. He further notes the licence was suspended in 2006 for seven days for failing to clear signs of service. The Registrar’s Notice of April 18, 2006 carried the suspension which was served from August 28, 2006 until September 4, 2006.
6. Mr. Morris submits a 10 day suspension would be appropriate given that the second breach occurred despite the conversation of September 9th, 2009 and the two prior suspensions, one related to the same breach of overcrowding.
Licensee’s Submissions
7. Mr. Worsoff notes in his submission that the Licensee was said to have committed two violations involving overcrowding of its premises.
8. He notes that Licensee challenged the allegations and that the Board found that the Licensee did breach subsection 43 of the O.Reg.
9. Mr. Worsoff notes that the Licensee sent a letter to the Deputy Registrar, dated November 22, 2007 to explain its circumstances with justification and candor, it also sought clarification and direction on how to rectify certain issues that were causing them concern. No response was received.
10. Mr. Worsoff notes the Licensee entered into four contracts with companies who booked corporate events in the Licensee’s establishment.
11. Mr. Worsoff submits that the offence was not alcohol related, nor was there any other type of contravention. There have been no subsequent infractions since September 2007.
12. Mr. Worsoff points out that the Licensee has not contracted with more than one party at a time since then, so as to avoid similar circumstances.
13. The Licensee acknowledges the two previous breaches, one of which was an overcrowding offence on its patio. He also points out that the present circumstances occurred during the busy film festival.
14. Mr. Worsoff submits that with the mitigating circumstances of this case, in contrast to other acts of irresponsibility involving violence, alcohol and concealment that the Board frequently deals with, a warning should be given. He notes that a warning has never been given to the Licensee and in this matter he suggests that it would not be inappropriate despite the Board’s previous findings in December and April of 2006.
Registrar’s Reply
15. Mr. Morris notes with respect to the letter of December 20, 2007, that it was irrelevant as it post-dated events. He also notes it is inaccurate to state the Registrar did not respond to the letter as there were without prejudice conversations between counsel.
16. Mr. Morris submits that it is inaccurate to say that overcrowding is not alcohol-related. Capacity and crowd management are an integral aspect of liquor service under the statutory regime.
17. Mr. Morris submits with respect to penalty the Licensee is asking to be treated as a first time offender noting that one of the previous breaches was for overcrowding.
Analysis/Reasons/Findings
18. The Board has carefully considered the submissions of both parties in this matter.
19. In making its decision on sanction the Board notes that evidence in this matter was that the AGCO Inspectors on the first occasion, September 9, 2007, pointed out to the manager of the licensed establishment there was considerable overcrowding. The reply to the inspector at the time was there is a film festival on.
20. The Manager was advised the film festival was not an excuse for overcrowding and it was not allowed even if there was a festival.
21. Within four days of the first offence, inspectors found that premises were again considerably overcrowded.
22. The Board views overcrowding as a serious violation of the O.Reg, noting that while it is not violent, as noted by Mr. Worsoff, it has the potential to be very dangerous in emergency situations.
23. The Board is also concerned that the second offence took place only four days after the first.
24. Taking into consideration that the Licensee has been suspended on two other occasions, one of which was for overcrowding, the Board considers a suspension of ten days to be appropriate.
Order
25. Therefore in consideration of the submissions on sanction and the need to send a strong message and the need for a general and specific deterrence the Board ORDERS that liquor licence number 28927 issued to 4062205 Canada Inc., operating as LOBBY LOUNGE AND RESTAURANT, 192 Bloor Street West, Toronto, Ontario, M5S 1T8 be suspended for a period of TEN (10) days.
26. 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 31st DAY OF March , 2009
BRIAN J. FORD, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER