Registrar, Alcohol and Gaming Commission of Ontario v. 1326284 Ontario Ltd., 2009 CanLII 29772

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-

1326284 Ontario Ltd. operating as T.J.’s Hanger Sports Grill

Licensee

DECISION ON SANCTION

Panel: Patricia McQuaid, Vice-Chair, AGCO Bruce Miller, Board Member

Decision Date: April 24, 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 ) Dan Alakas, Representative

1326284 Ontario Ltd., Licensee ) Greg Burd, Representative

Allegations

1. A hearing into a Notice of Proposal (“NOP”) number 16789 dated November 6, 2008 to suspend liquor licence number 24479 (the “Licence”) issued to 1326284 Ontario Ltd. (the “Licensee”) operating as T.J.’S HANGER SPORTS GRILL, 35 Broadway Avenue, Orangeville, Ontario, L9W 1J7 (the “establishment” or “premises”), on the basis of an alleged violation of section 43 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on March 9, 2009, in the City of Toronto.

2. In its decision dated April 3, 2009, the Board found the Licensee violated section 43 of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Registrar’s Submissions

3. Mr. Alakas pointed to the lack of positive effort and action by Mr. Nanos. Mr. Nanos walked away when asked by the AGCO Inspector to conduct a count with him. When Mr. Nanos was informed the patio was over capacity he stated “What do you want me to do about it Harry?” and walked away from the Inspector.

4. The Registrar appreciates that patrons exiting the establishment through the patio may be included in a count of the capacity. However this is a public safety issue and it is the responsibility of the Licensee to ensure the capacity is not exceeded.

5. A suspension of 12 to 14 days would be appropriate in these circumstances.

Licensee’s Submissions

6. Mr. Burd stated Mr. Nanos’ role in the operation has been reassigned to avoid any “perceived conflict of personalities” with AGCO Inspector Quirt.

7. The Licensee now enjoys a good working relationship with Inspector Quirt and the members of the Orangeville Police Service.

8. The Licensee was trying to be proactive on the night in question as there were two security staff on the patio and another on the inside at the main door.

9. The Board should consider that the layout of the premises requires all patrons to exit via the patio. This can have a real impact on the capacity of the patio, especially at closing time.

10. The Licensee is well aware of the reasons for capacity limits after having gone through an explosion and fire during business on December 4, 2007. The Licensee suffered great hardship as a result of the fire and the business has yet to fully recover.

11. The Licensee is a contributing and respected member of the Orangeville business community and employs 40 local residents.

12. The Board should consider imposing a fine pursuant to the regulations in the amount of $3,000.00 or in the alternative a suspension of 3 days would be appropriate in these circumstances.

Registrar’s Reply

13. A personality conflict is not a reason or an excuse for the Licensee to fail to fulfill his obligations and responsibilities under the Act.

14. The mere presence of security staff is not enough. The evidence showed the security staff was not keeping an accurate count.

15. The Licensee has a high level of responsibility under the Act. Cooperation is fundamentally linked to the Licensee taking proactive measures to ensure compliance, especially where public safety is involved.

16. The Board must seek to achieve general and specific deterrence in imposing sanctions. Both staff members gave evidence their counts were based on estimates. More concerning is the attitude of Mr. Nanos who appeared to treat this matter lightly.

17. The Licensee has offered no mitigating factors or elements of due diligence that would serve to reduce any sanction imposed by the Board.

18. The Board has consistently taken the position that violations involving overcrowding will be taken very seriously due to the implications on public safety.

19. Financial considerations do not supplant the Licensee’s responsibility to ensure a safe and responsible environment.

Analysis/Reasons/Findings

20. The Board considers overcrowding a serious public safety issue. The Fire Marshall sets the capacity for licensed premises to ensure a safe number of occupants and exceeding that capacity can potentially put both patrons and staff at risk. It is the responsibility of the Licensee to abide by the LLA and to protect the public.

21. Cooperation between the Licensee and enforcement personnel are crucial to ensuring compliance with the Act and public safety. The Board is very concerned over the lack of cooperation shown by Mr. Nanos on the night in question, especially when dealing with a matter impacting public safety. When Mr. Nanos was informed by the Inspector that the patio was over capacity he walked away and there was no evidence he took any proactive action. While the Board is encouraged that the Licensee appears to have taken steps to improve cooperation, this does not override what occurred.

22. The Licensee has a clear responsibility under the Act to ensure the licenced capacity is not exceeded. The Board understands the difficulty imposed by the layout of the premises. However, the Board wishes to make it very clear that this is the responsibility of the Licensee. The Licensee must take proactive measures to address this situation and be extra vigilant at those times when people are entering or leaving the establishment. There was no evidence presented that such steps have been taken. The Board notes as well that the counts of the Licensee were estimates only and that there was no evidence that some of the persons on the patio were, in fact, at the time of the Inspectors’counts, in transit on the patio.

23. The Board is sympathetic to the challenges posed by the current economic environment, however, a suspension at any time has financial ramifications for a Licensee, which is part and parcel of the deterrent effect.

24. Given the circumstances of the violation found, the Board considers a suspension of TEN (10) days to be appropriate.

Order

25. Therefore, the Board ORDERS that liquor licence number 24479, issued to Casual Restaurant Systems Inc., operating as 1326284 Ontario Ltd. operating as T. J.’S HANGER SPORTS GRILL, 35 Broadway Avenue, Orangeville, Ontario, L9W 1J7, be SUSPENDED for a period of TEN (10) consecutive days.

26. 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 24th DAY OF APRIL, 2009

PATRICIA MCQUAID, VICE-CHAIR, AGCO BRUCE MILLER, BOARD MEMBER