ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission of Ontario Registrar
-and-
Shooters Sports Bar Inc. O/A Shooters Sports Bar Licensee
DECISION ON SANCTION
Panel: David C. Gavsie, Chair, AGCO Dianne Axmith, Board Member
Decision Date: April 14, 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: Joyce Taylor, Representative Shooters Sports Bar Inc., Licensee: Clive Hayes Preddie, on behalf of corporate licensee
AUTHORITIES:
Central Bar & Grill Ltd. (c.o.b. Central Bar & Grill), [2008] O.A.G.C.D. No. 377
Allegations
1A hearing into a Notice of Proposal ("NOP") number 16102 dated March 11, 2008 to suspend liquor licence number 804183 (the "Licence") issued to Shooters Sports Bar Inc. (the "Licensee") operating as SHOOTERS SPORTS BAR, 980 Central Park Drive, Unit 10, Brampton, Ontario, L6S 3L7 (the "premises" or "establishment"), on the basis of alleged violations of section 43 and subsections 45(1) and 45(2) of Ontario Regulation 719/90 (the "O.Reg") made pursuant to the Liquor Licence Act ("LLA") was held on June 19, 2008 and January 12, 2009 in the City of Toronto.
2In its decision dated February 26, 2009 the Board found the Licensee violated section 43 and subsection 45(2) of the O.Reg and dismissed the allegation of a violation of subsection 45(1) of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Decision On Sanction
3On behalf of the Registrar, Ms. Taylor asks for a suspension of 18 to 21 days as a matter of specific and general deterrence.
4She reminds the Board that these infractions occurred just hours after the Licensee was given a pre-emptive warning from attending officers on this particular evening.
5It is her submission that these are serious infractions and that the licence holder continues to dispute the findings of the Board rather than focusing on future compliance with the LLA.
6A careful review of submissions on behalf of the licence holder suggests that Mr. Preddie does indeed continue to offer arguments about the evidence that led to the Board's findings and even includes staff schedules in an attempt to reinforce his claim regarding testimony the Board did not consider credible.
7New evidence cannot be considered at this stage of the proceedings. The time to provide such material is during the hearing when its legitimacy can be confirmed. We have no way of knowing when or by whom these schedules were prepared. As a result, the Board has disregarded them in making its determination about an appropriate sanction.
8Based on his arguments, Mr. Preddie suggests that an appropriate penalty in this matter would be a five day suspension for each of the two infractions and that they should be served concurrently.
9In reply, Ms. Taylor reiterates the Registrar's position that 18 to 21 days is a more appropriate suspension given the seriousness of the infractions.
10The Board has carefully considered the arguments from both parties. It notes that NOP number 16102 dealing with this incident asked for a 28 day suspension when three breaches of the O.Reg were alleged.
11While not bound by any previous decisions of the AGCO, the Board has also reviewed the case of Central Bar & Grill Ltd. cited by both parties in their submissions and finds some distinguishable circumstances.
12In that case, the licensee did serve a prior short suspension for overcrowding but the inspector, during that hearing, agreed that an increased capacity at that establishment may be appropriate. While this might have been a mitigating circumstance in that matter, no similar evidence was presented in this case. In any event, the Board in that case dealt with the infraction based on the existing licensed capacity which it is required to do.
13In this case, Mr. Preddie has not had any previous suspension for overcrowding but has served a seven day suspension for a previous violation of subsection 45(1) – permit drunkenness.
14The Board considers overcrowding a very serious matter as is the use of a controlled substance in any establishment. Notwithstanding Mr. Preddie's additional written submissions on the evidence that led to the findings, this Board has not been presented with any mitigating circumstances that would suggest two five day suspensions served concurrently is appropriate in the circumstances.
15Conversely, the Board finds the 18 to 21 day penalty requested by Registrar is too harsh given that these are both first time offences for these specific matters.
16For these reasons, the Board has concluded that a fourteen (14) day suspension is appropriate.
Order
17Therefore, the Board ORDERS that liquor licence number 804183 issued to Shooters Sports Bar Inc. operating as SHOOTERS SPORTS BAR, 980 Central Park Drive, Unit 10, Brampton, Ontario, L6S 3L7, be suspended for a period of FOURTEEN (14) consecutive days.
18The 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 14th DAY OF APRIL, 2009.
DAVID C. GAVSIE, CHAIR, AGCO DIANNE AXMITH, BOARD MEMBER