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-
2130845 Ontario Inc. O/A The Heart & Crown Irish Pub and Restaurant
Licensee
DECISION ON SANCTION
Panel: Joan Lougheed, Board Member Alex McCauley, Board Member
Decision Date: September 22, 2009
Hearing Location: Ottawa, 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 ) Joyce Taylor, Representative
2130845 Ontario Inc., Licensee ) Jerry Levitan, Representative
Allegations
- A hearing into Notice of Proposal number 16445 dated July 2, 2008 to suspend liquor licence number 812706 (the “Licence”) issued to 2130845 Ontario Inc. (the “Licensee”), operating as THE HEART & CROWN IRISH PUB AND RESTAURANT, 353 Preston Street, Ottawa, Ontario, K1S 5N4, (the “premises” or the “establishment”) on the basis of alleged violations of section 29 of the Liquor Licence Act (the “LLA”) and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on April 21, 2009 in the City of Ottawa.
Decision
- In its Decision dated July 31, 2009, the Board dismissed the allegation of a violation of subsection 45(1) of the O.Reg, permitting drunkenness, and found that the Licensee violated subsection 45(1) of the O.Reg, permitting disorderly conduct with regards to the events of August 10, 2007. The Board dismissed the allegation of a violation of section 29 of the LLA and subsection 45(1) of the O.Reg with regards to the events of January 30, 2008. The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Registrar’s Submissions
The Registrar submits that a seven day suspension is appropriate, given the circumstances of the infraction of permitting disorderly conduct on the premises, contrary to subsection 45(1) of the O.Reg.
Ms Taylor noted that the premises have only been licensed since June 2007 and Mr. Bradley is also an owner of a Heart & Crown Irish Pub & Restaurant at another location. This second location agreed to a seven day suspension in 2006 for overcrowding and a seven day suspension in 2000 for permitting service to a minor.
In relation to this infraction, Ms Taylor submitted that the Licensee failed to supervise the patrons on the patio and the staff. Although this is a first infraction for the Licensee at this establishment, Ms Taylor submitted that permitting disorderly conduct is not minor and deserves a significant sanction.
Licensee’s Submissions
The Licensee’s Counsel suggests that no more than a warning is warranted stating that the disorderly conduct was a violation of omission rather than commission. Mr. Levitan noted that in the Decision by the Board, the statement was made that the inspector may have contributed, in some manner, to the disorderly behaviour.
Mr. Levitan noted that Ms Taylor referenced violations which occurred at another location, with one occurring three years ago and one nine years ago. There is no previous record relating to this premises.
Registrar’s Reply
- In Reply submissions, Ms Taylor stated that a major infraction cannot be characterized as an “omission”. The failure to supervise patrons indicates the Licensee did not perform their job and breached legislation. Ms Taylor stated that the infraction started before the inspector reached the establishment and he did not cause the disorderly conduct. Ms Taylor stated that the Licensee’s management’s failure to control what goes on in an establishment is significant, even if it is a first time occurrence.
Decision on Sanction
The Board has carefully reviewed the submissions on sanction.
The Board notes that both parties agree that this is the first infraction for the Licensee at this establishment.
The Board also notes the previous historical offences against this Licensee but also recognises that there have been no infractions at the location in question.
The Board remains concerned about the disorderly conduct of the patrons. The evidence was clear and undisputed that there were more patrons on the patio than inside the premises at the time and there were six servers and two door staff on duty. Given these facts, the Board remains concerned about the lack of monitoring and that there were no staff assigned to the door or present on the patio at the time that events escalated.
The Board found that the Licensee permitted disorderly conduct, primarily because they did nothing to prevent it. Disorderly conduct is of serious concern given that it can often lead to serious consequences. The onus is on the Licensee to prevent such conduct by ensuring appropriate supervision of the licensed premises.
The Board does not support the Licensee’s submission that a warning is sufficient penalty given the nature of the violation and in view of the inadequate supervision of the premises by the Licensee and neither does the Board agree with the Registrar’s submission for a seven day suspension.
In reaching a decision, the Board has considered the fact that this is a first time offence. The Board is concerned that staff were not properly monitoring patrons at the time of the incident, but notes that the Board has previously expressed concern that the deteriorating behaviours may have also been provoked, in part by the actions of the Inspector. In making its decision, the Board also recognises that the Manager, Mr. Bradley did take the necessary and appropriate actions once the problems were brought to his attention.
Order
Therefore, the Board ORDERS that liquor licence number 812706 issued to 2130845 Ontario Inc., operating as THE HEART & CROWN IRISH PUB AND RESTAURANT, 353 Preston Street, Ottawa, Ontario, K1S 5N4, be suspended for FIVE (5) 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 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 20 days from the date of this decision and must be completed within 90 days of this decision.
DATED AT TORONTO THIS 22nd DAY OF September , 2009
ALEX MCCAULEY, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER