Registrar, Alcohol and Gaming Commission of Ontario v. Central Bar & Grill Ltd., 2009 CanLII 4448

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-

Central Bar & Grill Ltd. O/A Central Bar & Grill Licensee

DECISION ON SANCTION

Panel: Patricia McQuaid, Vice-Chair, AGCO Allan Higdon, Board Member

Decision Date: January 21, 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: Daniel Alakas, Representative Central Bar & Grill Ltd., Licensee: Patrick Allen, on his own behalf

Allegations

1A hearing into Notice of Proposal number 16601 dated September 4, 2008 to suspend liquor licence number 90060 (the "Licence") issued to Central Bar & Grill Ltd. (the "Licensee") operating as CENTRAL BAR & GRILL, 1946-48 Weston Road, Toronto, Ontario, M9N 1W2 (the "premises"), on the basis of alleged violations of section 43 and subsection 45(2) of Ontario Regulation 719/90 ("O.Reg") made pursuant to the Liquor Licence Act ("LLA") was held on December 3, 2008 in the City of Toronto.

2In its decision dated December 12, 2008 the Board found the Licensee violated section 43 and subsection 45(2) of the O.Reg on May 3, 2008.

Decision On Sanction

3In submissions, Mr. Alakas has requested a suspension of 18 to 21 days. Overcrowding in the establishment appears to be an ongoing problem. The Licensee has received a warning and, in June, 2008, a five day suspension in respect of previous overcrowding. Mr. Allen has admitted to overcrowding on May 3, 2008 but not to the extent as found by the Board. Further, while he asserts that he is taking steps to increase capacity, Mr. Allen has not provided evidence to support those efforts nor indicated any measures he is taking in the interim to ensure overcrowding does not occur again. Finally, his level of monitoring of the use of substances such as marijuana seems minimal.

4Mr. Allen, in his submissions, again indicated that an application to increase capacity is pending. He suggests, in the circumstances, that a seven day suspension would be appropriate.

5The Board agrees with the Registrar: overcrowding is an ongoing issue at the establishment, and given the prior disciplinary history it is an issue of which Mr. Allen is very aware. The Board has consistently indicated in its decisions that overcrowding is a serious public safety issue.

6Mr. Allen admitted that he was somewhat overcapacity, yet offered no explanation as to what he was doing on May 3rd to address that issue other than to suggest to security that some people should be leaving. He was not monitoring the flow of patrons between the two separate areas. As a mitigating factor, he states that the establishment could sustain a greater capacity (and the Board noted in paragraph 8 of its decision that Ms. Higuera in her evidence, did state that capacity might be increased, on her estimate only by 20 – 30 persons), yet nothing concrete has been provided to the Board to support that assertion. Regardless of whether a greater capacity is possible, Mr. Allen must abide by the current capacities and he has failed to do so on more than one occasion.

7Regarding the finding of a violation of subsection 45(2) of the O.Reg, Mr. Allen's efforts to monitor smoking in the premises may be minimal, however, he has not previously had an issue with marijuana in the premises. The Board is prepared to infer that his efforts to ensure smoking does not occur have been largely effective. As Mr. Alakas noted in his submissions the Board does view such violations as serious ones, but in these circumstances, some leniency in sanction will be extended.

8That leniency is weighed, however, with the concerns about the repeated occurrences of the same contravention, overcrowding. In the circumstances, a suspension of seven days would not satisfy the need for both specific and general deterrence. Mr. Allen has expressed concerns about financial viability, and while the Board is sympathetic to such concerns in this challenging economic climate, a suspension at any time has financial ramifications for a licensee, part and parcel of the deterrent effect. An eighteen (18) to twenty-one (21) day suspension would, however, be too harsh in the circumstances. The Board finds that a fifteen (15) day suspension is appropriate. The Board urges upon Mr. Allen, however, that another violation of section 43 of the O.Reg could however have significantly more serious ramifications for his licence.

Order

9The Board orders that liquor licence number 90060 issued to Central Bar & Grill Ltd. operating as CENTRAL BAR & GRILL, 1946-48 Weston Road, Toronto, Ontario, M9N 1W2, be suspended for a period of FIFTEEN (15) consecutive days.

10The 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.