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-
Abdul Mukit O/A House of India Restaurant
Licensee
DECISION
Panel: David C. Gavsie, Chair, AGCO S. Grace Kerr, Board Member
Decision Date: May 8, 2009
Hearing Location: Windsor, 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 ) Richard Kulis, Representative Abdul Mukit, Licensee ) On his own behalf
Allegations
- A hearing into Notice of Proposal (“NOP”) number 16813 dated November 6, 2008 to suspend liquor licence number 811053 (the “Licence”) of Abdul Mukit (the “Licensee”) operating as HOUSE OF INDIA RESTAURANT, 325 Ouellette Street, Windsor, Ontario, N9A 4J1 (the premises” or “establishment”) on the basis of alleged violations of section 39, clauses 31(1)(c) and 54(1)(a), and subsection 33(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on April 28, 2009 in the City of Windsor.
Preliminary Matters
- Abdul Mukit is the sole proprietor of the business operating as House of India Restaurant and the Licensee. He appeared on his own behalf and waived the right to legal representation.
Agreement on the Evidence and Findings
Richard Kulis, Registrar’s Representative, advised the Board as to the evidence and proposed findings in this matter, detailed below. The Licensee confirmed the evidence and consented to the proposed findings. Alcohol and Gaming Commission of Ontario Inspector Kevin Holman, who was present at the hearing and had conducted the subject inspection of the premises, stated that there was no discrepancy in the information given by either the Registrar’s Representative or the Licensee.
Therefore, it was agreed and admitted that:
a. On June 25, 2008, Inspector Holman attended at the establishment to conduct an inspection;
b. This inspection revealed that:
i. liquor (to wit: an 18 pack of beer) available for sale in the licensed premises had been purchased “off-licence”;
ii. the Licensee had failed to retain liquor purchase receipts; and,
iii. the Licensee was not SmartServe certified; and,
c. The Licensee had thereby breached subsection 33(1), clause 54(1)(a) and section 39 of the O. Reg.
- Based on the foregoing agreed facts, the Board FOUND the Licensee breached subsection 33(1), clause 54(1)(a) and section 39 of the O. Reg. The Board DISMISSES the remaining allegation.
Submissions as to Sanction
On the consent of the parties, the Board then received evidence and heard submissions by both parties on sanction.
Mr. Kulis advised the Board that the Licensee has had his Licence since October 26, 2004 for these premises. There is capacity for 98 persons. The Licensee has not violated the LLA before or after the within incident. However, since the Licensee had not responded to the Letter of Intent (“LOI”) process or the attempt by the Hearings Department to set up a Pre-Hearing Conference, Mr. Kulis’s instructions were to seek a sanction in accordance with the NOP, which is for a 17 day suspension.
Mr. Mukit submitted that he complied with all of the rules and regulations as required, but acknowledged that he did not do so satisfactorily as regards the matters he admitted to in the hearing. Shortly after the inspection, he became SmartServe certified; he has shown that certificate to Mr. Kulis. He was not keeping receipts because the ink on them was fading away, rendering them useless, and so he threw them away; he has been keeping receipts since the inspection. As well, he was not aware that the beer had been purchased off-licence, inadvertently by his daughter; as soon as Inspector Holman pointed it out to him, he took the beer out of the fridge and took it away. Mr. Mukit indicated that he was not ignoring either the LOI process or the offer of a Pre-Hearing Conference. Rather, he understood from telephoning and speaking with someone in Toronto that he could wait until the Board came to Windsor to explain what happened on the night in question. Finally, he said he was very sorry for the violations.
Analysis/Reasons/Decision on Sanction
The Board considered the evidence and submissions on the matter of sanction and concluded that a one (1) day suspension would be appropriate, for the reasons enunciated below.
A seventeen (17) day suspension would be too harsh on the facts of this case; neither would a warning be sufficient, however. The Board was satisfied that Mr. Mukit is a motivated Licensee, that he has a good record, that he immediately rectified the breaches brought to light by the inspection, and that he has shown genuine remorse. However, it was concerned that there were three offences, one of which may have been inadvertent. As such, a suspension – albeit a very short one - was appropriate on the facts of this case.
The Board indicated to Mr. Mukit that he needed to understand all of the rules which inform his responsibilities as a Licensee. A one-day suspension was appropriate in the circumstances of this case in that it would satisfy the need for the sanction to provide specific deterrence to the Licensee, while reminding other Licensees generally of their obligations to comply with the liquor licensing rules and regulations.
Order
- Therefore, having considered the Submissions on Disposition, the Board confirms its oral ORDER that the liquor licence number 811053, issued to Abdul Mukit, operating as House of India Restaurant, 325 Ouellette Street, Windsor, Ontario N9A 4J1, be SUSPENDED for ONE (1) day to COMMENCE at 11:00 a.m. on Monday, June 29, 2009 and CONTINUE until 2:00 a.m. on Tuesday, June 30, 2009.
DATED AT TORONTO THIS 8th DAY OF May , 2009.
DAVID C. GAVSIE, CHAIR , AGCO S. GRACE KERR, BOARD MEMBER