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-
Hideliza Marcos Garvida O/A Kalan Chow
Licensee
DECISION
Panel: Kirsti Hunt, Vice-Chair, AGCO Jacqueline Castel, Board Member
Decision Date: May 29, 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
Hideliza Marcos Garvida, Licensee ) George Garvida, Representative
AUTHORITIES:
1663977 Ontario Inc. (2066 Lounge Restaurant and Bar)(Re), [2009] O.A.G.C.D. No. 1
Allegations
A hearing into Notice of Proposal (“NOP”) number 17086 dated March 3, 2009 to suspend liquor licence number 807968 issued to Hideliza Marcos Garvida (the “Licensee”) operating as KALAN CHOW, 2528 Eglinton Avenue East, Scarborough, M1K 2R5 (the “establishment”), on the basis of alleged violations of subsection 45(1) and paragraphs 54(1)(a) and 54(1)(b) of Ontario Regulation 719/90 (the “O.Reg.”) prescribed under the Liquor License Act (the “LLA”), was held on May 28, 2009 in the City of Toronto.
Richard Kulis, Registrar’s Representative, and George Garvida, the son of the Licensee and the Licensee’s Representative, submitted an Agreed Statement of Facts which the Board entered as Exhibit 1 and which forms part of this decision. It was agreed and admitted that:
On September 8, 2008 a drunken patron was permitted in the licensed premises. The receipts for three bottles of recently purchased liquor found in the licensed premises were not available. Cash register receipts for the sale of liquor had not been kept after August 12, 2008.
Based on the facts in paragraph 1, the licence holder admits to violations of subsection 45(1) (permit drunkenness) and paragraphs 54(1)(a) (liquor purchase receipts) and 54(1)(b) (liquor sales receipts) of the O.Reg..
The licence holder served a seven (7) day suspension in April 2008.
The Licensee has sold the business and will be transferring the liquor license.
- Based on the Agreed Statement of Facts, the Board found the Licensee breached subsection 45(1) and paragraphs 54(1)(a) and (b) of the O.Reg..
Submissions on Sanction
Mr. Kulis submitted that the fourteen (14) day suspension proposed in the NOP is appropriate for the following reasons. First, the Licensee refused earlier attempts to settle this matter through the Letter of Incident process. The Registrar was prepared to proceed with the hearing today and its witness was in attendance, only to find out that the Licensee has now decided to admit to all of the allegations. Second, the Licensee served a seven (7) day suspension for contraventions in 2008. As such, this is not an isolated contravention.
In response to a question from the Board, Mr. Kulis clarified that the 2008 suspension was for failing to offer light meals, fire exit issues, liquor being purchased off licence and failure to display signage warning of fetal alcohol syndrome.
Mr. Garvida filed a written statement signed by the Licensee which the Board entered as Exhibit #2. He highlighted the following:
At the time of the incident, the Licensee was alone in the establishment. Her husband had gone to the basement to rest because of a medical condition.
She got scared when she heard the altercation from outside and panicked. She was afraid for her safety and was still confused when the police entered the establishment and conducted an inspection.
Due to her age and physical condition, the Licensee admits to being unable to prevent drunken patrons from entering the establishment.
She is remorseful for failing to comply with the O.Reg.
She is retiring and selling the business. The business has been transferred to a third party who has already begun renovating the establishment.
In light of the above, Mr. Garvida asked the Board for leniency in terms of the sanction. He submitted that any suspension should be stayed, in light of the sale of the business, referring to the Board’s decision in 1663977 Ontario Inc. (2066 Lounge Restaurant and Bar) dated January 30, 2009.
In Reply, Mr. Kulis submitted that he recognizes specific deterrence may not be required if the licence is being transferred, but a suspension is still appropriate for the purpose of achieving general deterrence for other licensees.
In response to a question from the Board, Mr. Garvida clarified that the transfer of the licence is pending the resolution of this disciplinary matter.
Decision on Sanction
The Board FOUND that a ten (10) day suspension is appropriate for the following reasons.
While specific deterrence is not applicable in this case, since the Licensee is retiring and the licence is being transferred, pending the resolution of this disciplinary matter, the contraventions were serious and a suspension is, therefore, appropriate from the standpoint of achieving general deterrence.
In addition to there being serious multiple contraventions in this case, they also were not isolated contraventions. The Licensee served a seven (7) day suspension in 2008 for other contraventions.
Nevertheless, given the following mitigating factors, the Board found that the fourteen (14) day suspension proposed by the Registrar would be excessive:
the 2008 suspension was for different types of contraventions;
the Licensee admitted to the contraventions in this case; and
the Licensee was remorseful.
Order
- For the above reasons, the Board confirms its oral ORDER that liquor licence number 807968 issued to Hideliza Marcos Garvida, operating as KALAN CHOW, 2528 Eglinton Avenue East, Scarborough, M1K 2R5,be SUSPENDED for ten (10) consecutive days to COMMENCE at 11:00 a.m. on June 1, 2009 and CONTINUE until 2:00 a.m. on June 11, 2009.
DATED AT TORONTO THIS 29th DAY OF MAY, 2009
KIRSTI HUNT, VICE-CHAIR, AGCO JACQUELINE CASTEL, BOARD MEMBER
Attached.
IN THE MATTER OF THE LIQUOR LICENCE ACT
R.S.O. 1990, chapter L.19, subsections 15(1) and 21(1)
AND IN THE MATTER OF THE LIQUOR LICENCE
OF HIDELIZA MARCOS GARVIDA OPERATING AS
KALAN CHOW, 2528 EGLINTON AVENUE EAST,
TORONTO
LICENCE NUMBER 807968
NOTICE OF PROPOSAL NUMBER 17086
Agreed Statement of Facts
The Licence Holder, having consulted her legal representative, and the Registrar’s Counsel agree to the following:
On September 8, 2008 a drunken patron was permitted in the licensed premises. The receipts for three bottles of recently purchased liquor found in the licensed premises were not available. Cash register receipts for the sale of liquor had not been kept after August 12, 2008.
Based on the facts in paragraph 1, the licence holder admits to violations of subsection 45(1) (permit drunkenness), and paragraphs 54(1)(a) (liquor purchase receipts) and 54(1)(b) (liquor sales receipts) all of Ontario Regulation 719/90 under the Liquor Licence Act
The licence holder has a prior seven (7) day suspension served in April 2008.
The licensee has sold the business and will be transferring the liquor licence.
Dated in Toronto this 28th day of May, 2009.
for the licence holder Richard E. Kulis, for the Registrar
of the AGCO