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-
1283433 Ontario Limited O/A Ray’s Restaurant Licensee
DECISION ON SANCTION
Panel: Patricia McQuaid, Vice-Chair, AGCO Guy Maurice, Board Member
Decision Date: January 8, 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 1283433 Ontario Limited, Licensee: Raymond Khan, on behalf of the corporation
Allegations
A hearing into a Notice of Proposal (“NOP”) number 16393 dated June 13, 2008 and NOP number 16444 dated July 2, 2008 to suspend liquor licence number 22749 (the “Licence”) issued to 1283433 Ontario Limited operating as RAY’S RESTAURANT, 833 Westlock Road, Lockdale Plaza, Mississauga, Ontario, L5C 1K7 (the “Premises”), on the basis of alleged violations of section 29 and subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on November 3, 2008 the City of Toronto.
In its decision dated November 18, 2008, the Board found the Licensee contravened section 29 and subsection 45(1) of the O.Reg. The parties were directed to provide written submissions on the appropriate sanction. The Board has received and reviewed submissions from Mr. Alakas and Mr. Khan.
Decision on Sanction
Mr. Alakas has requested a suspension of five (5) to seven (7) days in respect of the violation of subsection 45(1) of the O.Reg and twelve (12) to fourteen (14) days for the violation of section 29 for a total suspension of seventeen (17) to twenty-one (21) days. He cites the fact that the Board found the inspectors’ evidence to be clear and concise, with no evidence from the Licensee to contradict it. Further, the Licensee has not offered any factors in mitigation of the events on either date nor has Mr. Khan suggested any remedial efforts made to ensure that these incidents do not recur. Mr. Khan, he noted, has received a warning in 2006 regarding an intoxicated patron in the establishment.
Mr. Alakas has conceded that Mr. Khan may well have had serious concerns about attending, personally, the event on November 11, 2007, but submits that he could have, but did not, call any evidence to substantiate that concern or the efforts he did make through a third party, to ensure compliance that night.
Mr. Khan, in his submissions, did not propose a period of suspension, stating that any period of suspension would put his employees out of work at a challenging economic time. He did propose, in effect, revocation of his caterer’s endorsement. The Board notes that Mr. Khan did include in his submissions evidence that was not before the Board at the hearing. The Board cannot consider that evidence in its decision on sanction.
Regarding the violation that was found to have occurred on September 15, 2007, Mr. Kahn has offered neither remorse nor acknowledgement of responsibility for what transpired. There were two intoxicated patrons in the Premises and as the Board noted, it was not a busy night, they could not have been overlooked. The Licensee, other than the warning, albeit for the same offence, has no disciplinary history. In the circumstances, the Board finds that a five (5) day suspension of the liquor licence is appropriate to serve both the interests of specific and general deterrence in respect of this violation.
Regarding the violation of section 29 on November 11, 2007, the Board finds Mr. Khan’s apparent disregard for the Board’s decision on the issue troubling. Any suggestion that signs of service had been cleared at the appropriate hour, but re-appeared at 4:06 a.m. when the inspectors attended is untenable, given the facts as portrayed in the photographs.
The Board, at paragraph 23 of its decision, did propose that Mr. Khan take measures to ensure that he does not find himself in the situation again wherein his endorsement is used without his consent. The panel recognizes from Mr. Khan’s evidence that he had deep concerns about the November 11 event, and from his submissions, it would appear that the use of his endorsement has had significant negative consequences for him. As a significant measure, Mr. Khan proposes the endorsement be revoked. The Board commends this strong proactive measure, and in that context is prepared to show some leniency in the disciplinary consequences.
However, the severity of the infraction, and the abdication of responsibility as a licensee cannot be ignored. A period of suspension is warranted. For every licensee a suspension at any time, and especially in this challenging economic climate, has financial ramifications and from that stems a deterrent effect. A twelve (12) to fourteen (14) day suspension would, however, be too harsh in the circumstances. The Board finds that a seven day suspension, together with revocation of the caterer’s endorsement of liquor licence number 22749, appropriately satisfies the guiding principles of specific and general deterrence in respect of the violation on November 11, 2007.
Order
The Board ORDERS that liquor licence number 22749 issued to 1283433 Ontario Limited operating as RAY’S RESTAURANT, 833 Westlock Road, Lockdale Plaza, Mississauga, Ontario, L5C 1K7, be suspended for a period of TWELVE (12) consecutive days.
The Board further ORDERS that the caterer’s endorsement attached to liquor licence number 22749 is hereby REVOKED.
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 8th DAY OF JANUARY, 2009.
PATRICIA MCQUAID, VICE-CHAIR, AGCO GUY MAURICE, BOARD MEMBER