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-
1707417 Ontario Inc. operating as Pho So 6 Licensee
DECISION ON SANCTION
Panel: Guy Maurice, Board Member Eleanor Meslin, Board Member
Decision Date: January 26, 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 1707417 Ontario Inc., Licensee | Thuy Thank Thi Nguyen
Allegations
1A hearing into Notice of Proposal number 16232 dated April 28, 2008, to suspend liquor licence number 807609 issued to 1707417 Ontario Inc., (the "Licensee") operating as PHO SO 6, 1795 St. Clair Avenue West, Unit 2, Toronto Ontario, M6N 1J7, (the "establishment"), on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (the "LLA") and subsections 31(1)(c), 33(1) and 54(1)(a) of Ontario Regulation 719/90 ("OR 719/90") made pursuant to the LLA, was held on October 21, 2008, in the City of Toronto.
2In its decision of November 27, 2008, the Board found that the Licensee violated subsections 45(1) and 45(2) of the LLA and subsections 31(1)(c), 33(1) and 54(1)(a) of OR 719/90.
Registrar's Submissions
3Counsel for the Registrar submitted that the Licensee had not acted responsibly, had offered no mitigating factors to reduce any sanctions imposed by the Board and shown no remorse for her actions.
4The Licensee obstructed the officers by falsifying a receipt and misled them regarding her off-licence purchases.
5Counsel further submitted, regarding the principle of specific deterrence, that the Licensee demonstrated a clear lack of cooperation, truthfulness and responsibility in the circumstances, and offered no mitigating factors or measures she would take to ensure these violations would not happen again.
6Registrar's Counsel advised that the Licensee had served a prior 20 day suspension for violations of subsections 34(1), 45(1) and 50(c) of OR 719/90, which shows the beginning of a pattern of disregard for authority.
7Regarding the issue of general deterrence, Counsel pointed out that the Board has consistently taken the position that attempting to obstruct or interfere with an inspection will not be tolerated. Cooperation of the Licensee is an integral part of this principle.
8The Registrar's Counsel requested a 25 day suspension in these circumstances.
Licensee's Submissions
9The Licensee submitted that it had the constitutional right to request a hearing, where the Registrar had to prove its allegations and that the Registrar could not say that by exercising this right, the Licensee should be severely punished.
10The Licensee pointed out that on the prior occasion when the Licensee was before the Board and a condition was imposed, it had been strictly complied with and was treated seriously, contrary to the Registrar's submission.
11The Licensee indicated that the business had been inspected by the police many times and no offences had been found. However, the Licensee alleged that she had been treated very unfairly and been subject to abuse by the police. The Licensee further alleged that the business had been targeted by the police, possibly as a result of racial discrimination.
12The Licensee further submitted that a mitigating factor was that only one case of beer, out of many, had no receipt. That the offence was a minimal one and no injuries or damages resulted from it.
13The Licensee asked the Board to take into consideration the current economic conditions. That by suspending the Licensee for a considerable time, it would destroy the business which now supports not only her family of four children, but three staff.
14The Licensee asked that a suspension of 14 days or less be imposed by the Board,
Registrar's Reply
15Counsel for the Registrar disputed the Licensee's allegation that the Registrar is seeking to punish the Licensee for exercising the right to a hearing, as having no basis in fact.
16The fact that the Licensee complied with a previous suspension order is not a mitigating factor. It only illustrates, when combined with the present violation, that the Licensee continues to fail to understand her responsibilities under the Act.
17Counsel submitted that the Licensee's allegations of being treated unfairly, abusively and being targeted by the police are unfounded and without merit. Additionally, to imply that the police actions were racially motivated, without any evidence to prove this, is extremely irresponsible.
18Registrar's Counsel conceded that the amount of off-licence purchases was not a significant amount. But that the greater problem was the Licensee's obstruction of an investigation and her attempts to mislead and deceive the police and the Board, which alone warrant significant disciplinary action.
19Counsel agrees that suspensions involve significant economic hardships, but points out that this risk encourages Licensees and their staff to comply with the LLA. However, the Licensee should have considered this before choosing not to operate in accordance with the Act and disavowing any responsibility for her actions.
Decision
20The Board has carefully considered the submissions made by Registrar's Counsel and the Licensee.
21The Board takes very seriously the Licensee's responsibility to act in accordance with the LLA and its Regulations.
22This Licensee obstructed officers by falsifying a receipt, misleading them and withholding information regarding her purchases, thus failing to facilitate a lawful inspection.
23The Board rejects the Licensee's allegations of police harassment and of any racial motivations, or any motives on the part of the Registrar to punish the Licensee for requesting a hearing. Absolutely no evidence was offered to substantiate any of these allegations,
24The Licensee has shown no remorse for her actions or any admission of her responsibility for the violations. Nor has the Licensee indicated any remedial actions she is taking to assure the Board that future violations will not occur.
25The Board understands that these are very difficult economic times. However, the Licensee should have considered the impact a suspension would have on her family and staff before irresponsibly violating the LLA.
Order
26Therefore, the Board ORDERS that liquor licence number 807609 issued to 1707417 Ontario Inc., operating as PHO SO 6, 1795 St. Clair Avenue West, Unit 2, Toronto Ontario, M6N 1J7, be suspended for TWENTY-FIVE (25) consecutive days.
27Licensee 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 26th DAY OF January, 2009
GUY MAURICE, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER