Registrar, Alcohol and Gaming Commission of Ontario v. Central Bar & Grill Ltd., 2009 CanLII 47504

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: Guy Maurice, Board Member Eleanor Meslin, Board Member

Decision Date: June 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 ) Daniel Alakas, Representative Central Bar & Grill Ltd., Licensee ) A.H. Herman, Representative

Allegations

1. A hearing into Notice of Proposal number 16878 dated November 26, 2008, to suspend liquor licence number 90060 issued to Central Bar & Grill Ltd. (the “Licensee”), operating as CENTRAL BAR & GRILL, 1946 – 48 Weston Road, Toronto, Ontario, M9N 1W2 (the “establishment”), on the basis of an alleged violation of section 43 of Ontario Regulation 719/90 (“OR 719/90”) made pursuant to the Liquor Licence Act (the “LLA” or the “Act”)), was held on March 30, 2009 in the City of Toronto.

Decision

2. In its decision dated April 21, 2009, the Board found the Licensee violated section 43 of OR 719/90 on March 8, 2008. The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Registrar’s Submissions

3. The Registrar’s Representative submitted that there were three licensed areas in the establishment with three separate capacities. The North Room with 67 persons, the South Room with 40 persons and the North-East Section with seven persons.

4. He indicated that on March 8, 2009, Sergeant Dugan had counted 90 people in the North Room, 23 over capacity. His count represented about 80% of the people in the room.

5. Evidence from the Licensee and staff indicated that their count of 121 was an overall count, including staff and that they did not monitor the flow between rooms, or in each room, or in the passage between the rooms.

6. The Licensee and staff believed their total capacity was 114 persons, and did not understand that there were separate capacities for each room. The Registrar’s Representative submitted that even with this misunderstanding, the Licensee was still over capacity.

7. The Registrar’s Representative pointed out that the Licensee had been previously warned, suspended for 5 days in January 2007 and for 15 days in April 2009 all for overcrowding.

8. Although the Licensee had previously indicated it would apply for an increase in capacity, it has not done so. The Registrar submitted that it was a business decision by the Licensee, consciously and knowingly, to not comply with the LLA regarding capacity. In addition, that the Licensee had offered no mitigating factors or elements of due diligence to reduce any sanction imposed. The Licensee demonstrated a pattern of disregarding its responsibilities resulting in further violations.

9. The Registrar’s Representative also submitted that it must be made clear, through severe sanctions, that financial considerations do not supplant the Licensee’s responsibility to ensure a safe environment for patrons under the LLA.

10. Based on these submissions the Registrar submitted that a thirty (30) day suspension would be appropriate.

Licensee’s Submissions

11. The Licensee’s Representative indicated to the Board that after the previous 15 day suspension, an additional 30 days would be an extreme financial and personal hardship on the Licensee.

12. The Licensee’s Representative pointed out that the Licensee had taken steps to adhere to the requirements by installing cameras and improving the counting system by monitoring from two points – into the South and North Rooms, which doubled the cost to do so. Thus demonstrating remorse, contrition and a willingness to recognized the need to be more vigilant in addressing the problem.

13. For these reasons, the Licensee requested a maximum suspension of between five and 10 days.

Registrar’s Reply

14. The Registrar’s Representative submitted that the Licensee cannot rely on the fact of its previous suspension of 15 days to reduce any sanctions for the current violations. It is because of the previous suspensions for the same offence that the principle of progressive discipline applies, requiring a longer suspension period.

15. The Licensee cannot ask for a reduced suspension after committing repeated violations. The Registrar indicated that it was the very financial concerns that caused this Licensee to disregard its responsibilities. The Board has held that financial hardship is not a mitigating factor in the imposition of suspensions.

16. The Registrar’s Representative does not understand how installing cameras can help with the count. The better counting system the Licensee imposed is the Licensee simply doing what it should have done in the first place and does not indicate remorse or contrition.

17. In addition, the Registrar’s Representative pointed out that the Licensee’s request for a five to 10 day suspension is less that the previous suspension for the same violation. If done, this would convey the message that additional violations are treated less seriously by the Board. Abandoning the principles of progressive discipline would be contrary to the spirit of the Act and Regulations and could have serious public safety implications.

Decision

18. The Board has carefully considered the submissions of the parties.

19. The Board takes very seriously the Licensee’s responsibility to act in accordance with the LLA and its Regulations.

20. This is not the Licensee’s first overcrowding violation. The Licensee was previously warned and suspended for five and 15 days for the same offence.

21. The Board rejects the Licensee’s submissions that by installing cameras and monitoring patrons from two areas, this should be considered by the Board as demonstrating remorse and recognizing the need to be more vigilant. Cameras do not help with the count and the expanded monitoring system is one that should have been done after the Licensee was first warned about the overcrowding.

22. The Board understands that imposing severe sanctions may create financial and personal hardships for the Licensee. However, the Licensee should have considered the impact a lengthy suspension would have before irresponsibly violating the LLA once again.

23. For the Licensee to request a suspension that is less than the previous suspension for the same violation is unacceptable and flies in the face of the principle of progressive discipline, and the Board rejects it.

Order

24. Therefore, the 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 FOURTEEN (14) consecutive days.

25. 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 June , 2009

GUY MAURICE, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER