ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission of Ontario (Registrar)
-and-
Pizza Mom Pizza Inc. O/A Pizza Mom Pizza (Licensee)
DECISION ON SANCTION
Panel: Kirsti Hunt, Vice-Chair, AGCO Beryl Ford, Board Member
Decision Date: June 25, 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 Pizza Mom Pizza Inc., Licensee: Richard Elbirt, Representative
1A hearing into a Notice of Proposal number 16853 (“NOP”) dated November 21, 2008 to suspend liquor licence number 813075 (the “Licence”) issued to Pizza Mom Pizza Inc. (the “Licensee”) operating as PIZZA MOM PIZZA, 631 Kennedy Road, Scarborough, Ontario, M1K 2B2 (the “premises” or “establishment”) on the basis of alleged violations of subsection 45(1) of the Liquor Licence Act (“LLA”) and section 29 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on March 19, 2009 in the City of Toronto.
2In its decision dated May 6, 2009 the Board found the Licensee violated subsection 45(1) of the LLA and section 29 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
3On June 15th, 2008, an Inspector observed a patron dump or push a cup over the bar while waiting to enter the establishment. All Inspectors present at the inspection gave corroborative evidence on seeing the cup lying on the floor behind the bar; the cup contained a liquid consistent with beer. The Licensee stated to the Inspectors it was friends sitting around the bar and that the beer in the cup on the floor was served well before 2:00 a.m. and denied that anyone had pushed or dumped a cup over the bar.
4On June 27th, 2008, four to six people plus the owner were seated around the bar, two inspectors observed cups that were half to three quarters full of an amber liquid that appeared to be beer, on the bar, a partially filled bottle of Guinness beer was sitting on the bar back and a cup was laying on the floor behind the bar that contained what appeared to be the residue of beer.
5The Licensee explained the presence of the cups by stating that staff must have forgotten to remove them.
6Samples of the contents of the cups were sent for analysis to the LCBO laboratories; results indicated that both beverages contained alcohol content consistent with that of beer.
7The Registrar submitted that in the decision dated May 6th 2008, the Board found that the Licensee violated section 45(1) of the LLA and section 29 of the O.Reg.
8Regarding both dates, the Board found the evidence of the Inspectors to be consistent and credible. The Licensee called no evidence nor offered any alternative explanations.
9The sale and service of beverage alcohol is a highly regulated industry in the Province of Ontario. This level of regulation is necessary to protect the public interest and the public safety.
10The Registrar is concerned that the Licensee appears to have taken steps, on both dates, to destroy or deny evidence of a violation. On both occasions, half full cups were found behind the bar, although it was only on the first occasion that a patron was actually observed dumping the cup behind the bar.
11On both occasions, the Licensee attempted to state that the individuals sitting around the bar were just friends sitting and talking.
12The Registrar respectfully submitted that any Board imposed sanction should reflect the fact that this Licensee is clearly attempting to circumvent, rather than uphold, his responsibilities under the Act.
13The Registrar submitted there are no mitigating factors in this situation.
14The Licensee has demonstrated no remorse nor offered any explanation or compliance plan. His actions were limited to silence and denial.
15The Registrar submitted that the Board found that a patron did attempt to conceal the signs of service and consumption by throwing the cup of beer behind the bar. Further, the Licensee participated in this concealment by locking the front doors, notwithstanding that there were still patrons on the premises. The door was opened by the Licensee only after the attempt to dispose of the contents of the cup.
16The beer bottle and cups with beer had not been cleared by 3:27 a.m. on June 27th 2008.
There were still signs of service at 2:55 a.m. on June 15th, 2008.
17The Registrar is concerned regarding the beginnings of a pattern of failing to clear the signs of service.
18Based upon the factors and in order to give effect to the obligations, responsibilities and level of diligence required by the LLA, the Registrar submits that a twelve to fourteen day suspension of the Licence is appropriate in these circumstances.
Licensee’s Submissions
19The Licensee’s submissions are based on the findings of the Board but not necessarily the inference drawn by the Board.
20The Licensee contends that there was no evidence that he sought to conceal the consumption of the cup of beer thrown by another.
21There was no evidence that anyone in the bar was seen drinking an alcoholic beverage at the referable times on June 15th or June 27th 2008.
22The Licensee disputes the Registrar’s submission that he attempted to destroy evidence of a violation.
23The Licensee disputes the Registrar’s suggestion that he ought to have offered ‘remorse’, or an explanation or compliance plan and that he ought to have offered more than ‘silence and denial’ Such duties were not owing the nights of June l5th and 27th, 2008.
24The Licensee submitted that he is married, his wife is unemployed. They have three children of school age. He has no other source of income than the bar which garners him little income; a lengthy suspension of the Licence would work a hardship on him.
25In the absence of prior occurrences, it is submitted that a three day suspension of the Licence is fit and proper. It would satisfy the need to deter the Licensee and and balance that requirement with leniency.
26There were no reply submissions from the Registrar.
Reasons
27The Board has carefully reviewed and considered the submissions of the Registrar and Licensee regarding sanction.
28The Board considers violations of subsection 45(1) of the LLA and section 29 of the O.Reg to be serious.
29On two separate occasions, within a short period of time, the Licensee was charged with violations.
30On the first occasion the door was locked despite patrons still being present in the premises.
31Inspectors had to knock to gain entrance. A patron was seen by an Inspector to be pushing or dumping a cup of what was later found to be beer, behind the bar. There was evidence from three inspectors that they saw the cup containing residue of beer on the floor behind the bar.
32Signs of service were evident to the Inspectors, shot glasses and a beer glass containing the residue of alcohol were still on the bar.
33On the second occasion, Inspectors arrived at 3:27 a.m. and observed cups that were still cold, half to three quarters full of what was confirmed to be beer from an analysis by the LCBO.
34The Licensee called no evidence nor offered any explanation other than denying that anyone pushed or dumped a cup over the bar.
35The Board is concerned that the Licensee allowed violations similar in nature to occur within a two week period. However, the Board has taken into consideration that there is no evidence that the Licensee was aware that a cup was dumped or pushed over the bar by a patron.
36There was no evidence that patrons were still being served alcohol or that it was being consumed when the Inspectors arrived.
37The Licensee unlocked the doors to admit the Inspectors when he was aware they were at the door. There is no evidence to suggest that he prevented them entering the premises.
38The Licensee attempted to minimize the seriousness of the situation by stating that it was friends rather than patrons who were still at the establishment when the Inspectors arrived and there were still signs of service. The Board, however, did not accept this explanation.
39The Licensee’s submission that ‘sloppiness’ in forgetting to clear signs of service is not a violation, and is not accepted as an excuse by the Board.
40Paramount to acting in the best interest of the public, the Board must seek to achieve both general and specific deterrence in imposing sanctions.
41The Board has consistently taken the position that repeat violations with similar patterns need to be addressed seriously to ensure that acts of non-compliance with the LLA are addressed before escalating into even more serious incidents.
Order
42Therefore, the Board ORDERS that liquor licence number 813075 issued to Pizza Mom Pizza Inc. operating as PIZZA MOM PIZZA, 631 Kennedy Road, Scarborough, Ontario, M1K 2B2, be suspended for a period of EIGHT (8) consecutive days.
43The 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 25th DAY OF JUNE, 2009
KIRSTI HUNT, VICE-CHAIR, AGCO BERYL FORD, BOARD MEMBER