Registrar, Alcohol and Gaming Commission of Ontario v. Seawall Lounge Inc., 2009 CanLII 29764

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-

Seawall Lounge Inc. O/A Seawall Lounge Inc. Licensee

DECISION

Panel: Patricia McQuaid, Vice-Chair, AGCO Dianne Axmith, Board Member

Decision Date: April 7, 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 Seawall Lounge Inc., Licensee ) Randall Barrs, Representative

Allegations

1. A hearing into a Notice of Proposal (“NOP”) number 16911 dated December 9, 2008 to suspend liquor licence number 22873 (the “Licence”) issued to Seawall Lounge Inc. (the “Licensee”) operating as SEAWALL LOUNGE INC., 1067 Midland Avenue, Toronto, Ontario, M1K 1G7 (the “establishment” or “premises”), on the basis of alleged violations of section 29 and subsection 25(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on April 1, 2009 in the City of Toronto.

Preliminary Matters

2. Mr. Kulis and Mr. Barrs advised that the Licensee was admitting the violations as alleged in the NOP but the parties wished to make oral submissions on sanction.

3. With respect to the facts, the Licensee admitted the following:

a) On June 15, 2008 at approximately 4:06 a.m., AGCO inspectors attended the licensed premises for an inspection.

b) The doors were locked. People were observed to be inside. The principal of the Licensee, Mr. Rasheed admitted the inspectors.

c) Once inside, the inspectors observed several signs of the service of alcohol, specifically four Corona beer (1/3 to 1/2 full) which were cold to the touch, and a mixed drink containing ice cubes.

d) Mr. Rasheed admitted that alcohol was served after 2:00 a.m. and that signs of the service and consumption of alcohol were not cleared.

e) The establishment was not open to the general public at this time.

4. Based on the foregoing agreed facts, the Board made a finding of a violation of subsection 25(1) and section 29 of the O.Reg.

Reasons and Analysis Regarding Sanction

5. The Board then heard submissions from Mr. Kulis and Mr. Barrs on sanction. Both counsel, in their submissions, agreed that this is a Licensee of approximately four years who knew the law sufficiently such that this incident should not have been allowed to occur. However, the Licensee was cooperative on June 15, 2008 and continues to be. He has shown remorse regarding this incident. Further, no alleged violations have occurred since June.

6. Mr. Kulis submits, however, that this Licensee has a disciplinary history with the Board. There was a 20 day suspension in January, 2007, for overcrowding (section 43 of the O.Reg) and disorderly conduct (subsection 45(1) of the O.Reg) in respect of fights that occurred in the licensed premises. In January, 2008, a 21 day suspension was served in respect of a violation of subsection 45(1) of the O.Reg, again in respect of a fight in the licensed premises. Then, in February of this year, a 12 day suspension was served, for overcrowding. The concern for the Registrar is that the continuing problems at the establishment indicate a lack of focus in adhering to the LLA and its regulations. As a matter of specific deterrence, given the past record and the severity of the current violation, a 30 day suspension is sought by the Registrar.

7. Mr. Barrs, in submissions, stated that an 11 day suspension is appropriate. The Licensee has been cooperative, admitted to the violations, albeit late in the process, and although there had been a number of inspections since June, 2008 has had no problems. The Licensee seems to be in control of the establishment despite being located in a relatively high crime area of the City. In the circumstances here, there was no service to the public and no gross abuse of the LLA. He stated that certain of the security personnel have contributed to the problems encountered by the Licensee. Those persons have been discharged. While discipline may be progressive, it depends on the circumstances and the violation in issue. In this instance a 30 day suspension of the Licence would be excessive.

8. With that latter point, the Board agrees, given the circumstances. Though there have been three disciplinary proceedings in a rather short period of time, it has not been suggested that this is a rogue Licensee. And while the fact that the establishment was not open to the public at 4:00 a.m. does not in any way excuse the violation, the circumstances do provide some mitigation for the seriousness of the violation.

9. The question of the appropriate sanction is indeed evaluated in the context of disciplinary history, among other things. Discipline is not necessarily always progressive in nature as evidenced by the most recent suspension, 12 days for a repeated infraction. To Mr. Barrs’ point about the economic impact, a suspension at any time has financial ramifications for a Licensee and hence employees, which is part and parcel of the deterrent effect of the suspension.

10. As indicated above, the Board is of the view that a suspension for the 30 days requested in the NOP is too harsh. To issue a suspension for that lengthy period would suggest that there were no factors that could be considered in mitigation, which Mr. Kulis did not, in fairness, submit.

11. The Board, after considering the agreed facts and submissions, concludes that a fifteen (15) day suspension of the Licence is appropriate, reflecting the disciplinary history (and including the clear record since this incident), the circumstances of this particular violation, and the level of cooperation and remorse shown by this Licensee.

Conclusion

12. Therefore, the Board ORDERS that liquor licence number 22873 issued to Seawall Lounge Inc. operating as SEAWALL LOUNGE INC., 1067 Midland Avenue, Toronto, Ontario, M1K 1G7, be suspended for a period of fifteen (15) consecutive days.

13. 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 7th DAY OF APRIL, 2009.

PATRICIA MCQUAID, VICE-CHAIR, AGCO DIANNE AXMITH, BOARD MEMBER