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-
2066819 Ontario Inc. O/A King Station Pub (Licensee)
DECISION ON SANCTION
Panel: Patricia McQuaid, Vice-Chair, AGCO Joan Lougheed, Board Member
Decision Date: August 7, 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: Richard Kulis, Representative 2066819 Ontario Inc., Licensee: Jerry Herszkopf, Representative
1A hearing into an Amended Notice of Proposal number 16615 dated September 8, 2008 to suspend liquor licence number 200364 (the "Licence") issued to 2066819 Ontario Inc. (the "Licensee") operating as KING STATION PUB, 4528 Kingston Road, Unit 1, Scarborough, Ontario, M1E 2N8 (the "establishment" or "premises"), on the basis of alleged violations of subsections 45(1) and 34(1) of Ontario Regulation 719/90 ("O.Reg") made pursuant to the Liquor Licence Act ("LLA") was held on April 14, 2009 in the City of Toronto.
2In its decision dated June 17, 2009, the Board found the Licensee violated subsection 34(1) of the O.Reg on January 4 and March 15, 2008 and subsection 45(1) of the O.Reg on January 4th in respect of one patron and again on March 15, 2008. The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Decision On Sanction
3The NOP seeks a suspension of 10 days and Mr. Kulis, in submissions, reiterated that request. The Licensee had been in business less than a year when these violations occurred. The violations were repeated on two different dates suggesting that a significant suspension is required as a matter of specific deterrence.
4Mr. Herszkopf submits that the Licensee had no prior suspensions but did advise that a subsequent incident (on April 20, 2008) did result in a finding of a violation of subsection 34(1) and 50(c) of the O.Reg and a suspension of eight days. That agreement on violations and sanction was reached prior to this hearing. Given that findings on all of the violations alleged in this NOP were not made, that the prior suspension was in fact subsequent in time to these violations, and that the Licensee's sincere intention was to sell the business, Mr. Herszkopf submits that a five day suspension is appropriate.
5As stated above, this NOP seeks a 10 day suspension, however, only four of the five separate violations alleged (though the Board notes these involved two sections of the O.Reg) were found by the Board. Further, evidence was led at the hearing that the endorsement allowing liquor in the hallways and washrooms is now in place. In the circumstances, the Board has determined that a suspension for 10 days is not appropriate.
6However, the Board has not received in submissions any information regarding policies and procedures in place to promote compliance with prohibitions on drunkenness. Further, it does cause the Board concern that in the first year or so of operations the Licensee had appeared before the Board for disciplinary action, involving multiple infractions on two occasions. This demonstrates a lack of understanding of the requirements of the LLA and its regulations and/or a lack of diligence in ensuring compliance.
7While it is unusual that a subsequent breach of the O.Reg results in a suspension served prior to the hearing with respect to earlier incidents, it does not necessarily lead to a conclusion that the breach first in time should result in a lesser penalty, on the basis of a principle of progressive discipline. While the Board gives some weight to that principle in its decisions, the facts of each case are especially important in assessing penalty. Here, with the violations found, on two different dates, a five day suspension would not serve the interest of specific and general deterrence. And while not doubting the sincerity of the Licensee's intentions to sell the business, that fact does not weigh heavily as a mitigating factor. Continued compliance by the Licensee while in business is critical.
8Therefore, for the above reasons, in the circumstances of this case, the Board finds that an eight (8) day suspension is appropriate not only as a specific but also as a general deterrence.
Order
9The Board ORDERS that liquor licence number 200364 issued to 2066819 Ontario Inc. (the "Licensee") operating as KING STATION PUB, 4528 Kingston Road, Unit 1, Scarborough, Ontario, M1E 2N8, be suspended for a period of EIGHT (8) consecutive days.
10Licensee 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 7th DAY OF AUGUST, 2009
PATRICIA MCQUAID, VICE-CHAIR, AGCO JOAN LOUGHEED, BOARD MEMBER