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-
1053007 Ontario Inc. O/A Endzone Bar and Grill Licensee
DECISION ON SANCTION
Panel: David C. Gavsie, Chair, AGCO Allan Higdon, Board Member
Decision Date: August 6, 2009
Hearing Location: Burlington, 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 ) Phillip Morris, Representative 1053007 Ontario Inc., Licensee ) Ivan Marini, Representative
Allegations
A hearing into a Notice of Proposal (“NOP”) number 16543 dated August 5, 2008 and NOP number 16550 dated August 8, 2008 to suspend liquor licence number 811932 (the “Licence”) issued to 1053007 Ontario Inc. (the “Licensee”) operating as ENDZONE BAR AND GRILL, 1900 King Street East, Unit 7, Hamilton, Ontario, L8K 1W1 (the “premises” or “establishment”), on the basis of alleged violations of subsections 30(2), 30(4) and 45(2) of the Liquor Licence Act (“LLA”) and section 29 and subsection 41(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on April 20 and May 11, 2009 in the City of Burlington.
In its decision dated July 7, 2009 the Board found the Licensee violated subsection 45(2) of the LLA, twice violated section 29 of the O.Reg, and dismissed the remaining allegations. The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Registrar’s Submissions on Sanction
Counsel for the Registrar requested a 10 day suspension for the breach of s. 29 of O.Reg committed on February 24, 2008 as alleged in NOP number 16543. He noted the doorman had tried to hide his drink when the inspector entered the premises, demonstrating that he clearly knew drinking at that hour was illegal. In addition, the manager and his girlfriend were also present and drinking, despite the fact they had been warned of such an infraction by an inspector only weeks before.
Regarding the allegations made in NOP number 16550, the Board found that on April 20, 2008 at 3:00 a.m. the Licensee permitted people to consume liquor after hours and, in addition, failed to facilitate an inspection.
Counsel for the Registrar found a number of aggravating factors in that the doorman was again drinking liquor, as was a patron. This took place despite the warning given on February 8, 2008 by an inspector and the incident of February 24, 2008.
In addition, the manager was found to have verbally abused and obstructed the inspector who was unable to continue his duties and forced to leave by the manager. The behaviour of the manager was aggressive and intimidating.
Registrar's counsel considered this incident to be one of the most egregious examples of failure to facilitate.
Registrar's counsel asked that the full 10 day suspension proposed in the NOP be imposed for these two offences, in addition to a similar suspension for the February 24 incident.
Licensee’s Submissions on Sanction
Regarding the findings made by the Board in both NOPs, counsel for the Licensee pointed to the long history of compliance of the establishment and its predecessor and its excellent reputation in the community.
Counsel noted the Licensee accepted responsibility for the incidents and an apology was offered by the manager to the inspector for the confrontation between them.
The Licensee has adopted new procedures in order to prevent a repetition of service after hours and failure to clear. Members of the Licensee’s family were frank in stating the incidents could have been handled better than they had been and acknowledged they “weren’t on top of things the way we should have been.”
Given the excellent record of the establishment, its reputation in the community, and the steps management has taken to ensure such incidents are not repeated, a suspension of 3-5 days would be appropriate for all the infractions.
Registrar’s Reply Submissions on Sanction
- Registrar's counsel stated the Board found the manager to be obstructive, intimidating, abusive and threatening. The manager is still in a position of authority at the establishment. The length of suspension suggested by counsel for the Licensee would provide little specific or general deterrence for that kind of conduct.
Analysis and Reasons
The Board considers the infractions committed by the Licensee to be serious.
The evidence presented showed that on February 8, 2008 management had been warned about the necessity to have all signs of service cleared by 2:45 a.m. Yet approximately two weeks later, on February 24, 2008, the manager, his girlfriend, and the doorman were found drinking on the premises at 3:42 a.m.
On occasion, a careless or irresponsible employee might be caught in such an infraction without the knowledge of management. In this incident it was management and an individual responsible for security who chose to ignore their legal obligations. This is a very dangerous example to set for staff and demonstrates a clear disregard for issues of public safety, not to mention legal liability for the Licensee.
On April 20, 2008 this offence was repeated. The same employee responsible for security was one of the participants.
The Board is very concerned that such a serious infraction should be repeated within such a short time period. The Board is left to consider that management is either set in its ways and incapable of change, or it is contemptuous of its obligations to abide by the provisions of the Liquor Licence Act.
The incident between the manager, Greg Koropatnicki, and the AGCO inspector is particularly troubling. The evidence indicated the establishment and its predecessor have been operated by the Koropatnicki family for many years. One would expect that Mr. Koropatnicki would be very aware of all the necessary protocols for dealing with inspectors, police and other such officials after many years of business contact by the family. He is certainly not new to the world of licensed premises. Yet his behaviour on April 20, 2008 was completely unprofessional, out of control and inappropriate. This is very disturbing and of concern for the future. The Board expects that such behaviour will never be repeated.
Registrar's counsel has asked for a total suspension of 20 days for the three infractions as a matter of specific and general deterrence. Licensee's counsel has requested a 3-5 day suspension.
The Board has considered mitigating circumstances presented by counsel for the Licensee and agrees on several points.
The Licensee has had a long record of compliance prior to the current incidents. The predecessor to the current establishment, operated by the same family, had an unblemished record for 20 years. This is an appropriate consideration in assessing sanctions.
The current establishment has an excellent reputation in the community and appears to attract a very reputable clientele.
Licensee Judy Koropatnicki was frank in her admission that things could have been better handled and appeared genuinely regretful the incidents had taken place. In addition, she has taken the initiative to cut off the service of liquor earlier so that infractions related to failure to clear will not be repeated. The Board is appreciative of her actions.
Finally, the incidents, while serious, are not part of a pattern of behaviour over time. The evidence indicates that the relatively recent transition from the establishment “Crickets” to “Endzone,” with a much greater capacity, has stretched the ability of the Licensee and staff and has possibly been a source of stress and fatigue. This may partially account for some of the aberrant behaviour.
Order
Based on the considerations above, the Board orders that liquor licence number 811932 issued to 1053007 Ontario Inc. operating as ENDZONE BAR AND GRILL, 1900 King Street East, Unit 7, Hamilton, Ontario, L8K 1W1, be suspended for a period of fourteen (14) consecutive days.
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 6th DAY OF AUGUST, 2009
DAVID C. GAVSIE, CHAIR, AGCO ALLAN HIGDON, BOARD MEMBER