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-
1008835 Ontario Ltd. O/A Tara Inn Pub & Restaurant Licensee
DECISION
Panel: Allan Higdon, Board Member Joan Lougheed, Board Member Bruce Miller, Board Member
Decision Date: February 26, 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 Toll Free In Ontario: 1-800-522-2876 Fax: (416) 326-5566 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative 1008835 Ontario Ltd., Licensee ) Jimmy Lee, Representative
Allegations
- A hearing into Notice of Proposal (“NOP”) number 16364 dated June 6, 2008 to suspend liquor licence number 200996 (the “Licence”) issued to 1008835 Ontario Ltd. (the “Licensee”) operating as TARA INN PUB & RESTAURANT, 2365 Kingston Road, Scarborough, Ontario, M1N 1V2 (the “premises” or “establishment”), on the basis of alleged violations of subsection 30(4) of the Liquor Licence Act (“LLA”) and subsections 45(1) and 41(1) and paragraph 50(c) of Ontario Revised Regulation 719/90 (“O.Reg”) made pursuant to the LLA was held on February 6, 2009 in the City of Toronto.
Preliminary Matters
- Phillip Morris, Registrar’s Representative, and Jimmy Lee, Licensee’s Representative, submitted an Agreed Statement of Facts (Exhibit #1) which forms part of this decision. It was agreed and admitted that:
i. On September 15, 2007, the Licensee permitted a friend to hold a Jack and Jill party at the licensed premises. The Licensee sold refreshments. The friend hired a professional company to run the gaming, which consisted of a roulette table and black jack table, and a raffle for hockey tickets. Proceeds from the gaming and the cover charge (which included the raffle) were remitted to the friend. The Licensee and friend were unaware that the gaming was illegal and ceased it when directed to do so by police officers.
ii. On September 15, 2007 and September 29, 2007, fire exit lights were not illuminated. They have since been fixed.
iii. On September 29, 2007, there was an intoxicated patron in the licensed premises. On December 19, 2008, there was an intoxicated patron in the licensed premises.
- Mr. Morris stated paragraph 5 in the Agreed Statement of Facts (as attached) contained a new incident which took place on December 19, 2008 that was not included in the NOP. An intoxicated patron was found in the licensed premises.
Registrar’s Submissions
Mr. Morris stated the Licensee had a prior suspension of twenty days involving two dates, January 1, 2003 and January 25, 2003. Both involved a finding under subsection 45(1) (permit drunkenness) of the O.Reg..
The Licensee also had a prior suspension of ten days in 2001.
There were both aggravating and mitigating circumstances for the current infractions.
Mr. Morris pointed out that gambling was illegal. There was no evidence that the Licensee took a “cut” or portion of the funds. There was an indirect benefit to the Licensee due to the event as customers purchased food and refreshments.
The fire exit lights were not illuminated, although the Licensee had received previous warnings. This is a serious public safety concern. They had now been repaired.
Mr. Morris then addressed the issue of the intoxicated patrons. He stated the mitigating fact was that there was no disorderly conduct involved. The aggravating fact was the past history of similar incidents.
The Registrar’s position is that there should be a suspension of twenty-five (25) days. At a minimum the Board should impose a fifteen (15) day suspension.
Licensee’s Submissions
Mr. Lee stated the Tara Inn is family owned and located in a small mall in the east end of Toronto.
The gaming incident involved a situation in which the Licensee was trying to help a friend who was getting married. There was no attempt to conceal what was going on inside the premises and the windows were open. The Licensee ceased the gaming as soon as he was informed by police that it was illegal. Mr. Lee reiterated that the Licensee did not receive a “cut” or portion of the funds gambled.
Mr. Lee addressed the matter of the fire exit lights. There had been problems with rain and melting snow which had short-circuited the electrical system. The Licensee had problems with the owner of the plaza in getting the roof repaired. The Licensee spent several thousand dollars to rectify the situation and the lights are now fully functional.
Mr. Lee noted a five year gap between the incidents currently before the Board and the last suspension which involved two dates in January 2003.
The Licensee is actively involved in the community. The Licensee supports a number of charities and also sponsors youth baseball, hockey and soccer teams. The Licensee’s employees are generally young and that some are single mothers. A prolonged suspension would have a negative financial impact on them.
Mr. Lee suggested a suspension of ten (10) days.
In response to questions from the Board Mr. Lee stated that Tara Inn was licensed for a capacity of 178 and was approximately 4,900 square feet in size. The premises were open to the general public on September 15, 2007 when the gaming incident took place. Mr. Lee stated that the gaming area was cordoned off but the police were able to get up to the “blackjack floor” and speak to the dealers.
Reasons and Analysis
The Board has given careful consideration to the Agreed Statement of Facts and to the submissions.
Mr. Morris submitted that a fifteen (15) to twenty-five (25) day suspension was appropriate for the breaches.
Mr. Lee submitted that a ten (10) day suspension would be appropriate.
The Board has taken into account the positive community involvement of the Licensee.
Fire exit lights are very necessary to ensure public safety. The Licensee had been warned previously about inoperative fire exit lights. The Board has taken into consideration that the Licensee has rectified the matter.
Gambling on licensed premises is illegal. The Agreed Statement of Facts stated the Licensee was unaware that gaming was illegal and ceased to permit gaming when directed by police officers. It is incumbent upon Licensees to be informed of all relevant laws and regulations related to the operation of licensed premises. Ignorance of the law is no excuse.
Drunkenness is a serious public safety issue. Licensees have an obligation to ensure their staff are trained to recognize the signs of intoxication and are prepared to act when they see them. A significant suspension is necessary to impress upon the Licensee that drunkenness cannot be tolerated. The Agreed Statement of Facts confirms two incidents, one in September 2007 and one in December 2008.
The Board has taken into consideration this is not a first offence for the Licensee under the LLA. The Licensee has two prior suspensions of ten (10) and twenty (20) days. The Board has taken into consideration that the last suspension was approximately five (5) years ago.
Conclusion
- Based on the Agreed Statement of Facts the Board FINDS the Licensee violated subsection 45(1) (permit unlawful gambling), subsection 45(1) (permit drunkenness) and paragraph 50(c) of the O.Reg. The Board accepted the withdrawal of the remaining allegations.
Order
Therefore, having considered the agreed facts and the submissions, the Board ORDERS that liquor licence number 200996 issued to 1008835 Ontario Ltd. operating as TARA INN PUB & RESTAURANT, 2365 Kingston Road, Scarborough, Ontario, M1N 1V2, be SUSPENDED for a period of FIFTEEN (15) consecutive days.
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 26th DAY OF FEBRUARY, 2009.
ALLAN HIGDON, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER
BRUCE MILLER, BOARD MEMBER
Attached
IN THE MATTER OF THE LIQUOR LICENCE ACT R.S.O. 1990, c.L.19, s. 15(1) AND 21(1);
AND IN THE MATTER OF THE LIQUOR LICENCE of 1008835 ONTARIO INC. OPERATING AS TARA INN PUB & RESTAURANT, 2365 KINGSTON ROAD, SCARBOROUGH LICENCE NO. 200996
AND IN THE MATTER OF A NOTICE OF PROPOSAL ISSUED JUNE 6, 2008 AS AMENDED
AGREED STATEMENT OF FACTS
The licensee, after consultation with counsel, and the Registrar agree to the following facts:
On Sept. 15, 2007, the licensee permitted a friend to hold a Jack and Jill party at the licensed premises. The licensee sold refreshments. The friend hired a professional company to run the gaming, which consisted of a roulette table and black jack table, and a raffle for hockey tickets. Proceeds from the gaming and the cover charge (which included the raffle) were remitted to the friend. The licensee and friend were unaware that the gaming was illegal and ceased it when directed to do so by police officers.
Based on paragraph 1, the licensee breached s. s. 45(1) of Ont. Reg. 719/90 (permit unlawful gambling).
On Sept. 15, 2007 and Sept. 29, 2007, fire exit lights were not illuminated. They have since been fixed.
Based on paragraph 3, the licensee breached s. 50(c) of Ont. Reg. 719/90.
On Sept. 29, 2007, there was an intoxicated patron in the licensed premises. On Dec. 19, 2008, there was an intoxicated patron in the licensed premises.
Based on paragraph 5, the licensee breached s. 45(1) of Ont. Reg. 719/90 (permit drunkenness).
The licensee has shown remorse and co-operated with the Commission. The police have received no additional complaints about the establishment.
The licensee was previously suspended for 10 days in 2001 and 20 days in 2004 (for a breach in early 2003), in part for related breaches.
If the Board accepts the agreed statement of facts, the Registrar will withdraw all remaining allegations in the Notice of Proposal and the parties will make separate submissions as to disposition.
DATED AT TORONTO THIS 6TH DAY OF FEBRUARY, 2009.
RESPECTFULLY SUBMITTED,
Wayne Reddy Phillip Morris for Registrar’s Counsel licensee