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-
Pizza Mom Pizza Inc. O/A Pizza Mom Pizza (Licensee)
DECISION ON SANCTION
Panel: Patricia McQuaid, Vice-Chair Jacqueline Castel, 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: Joyce Taylor, Representative Pizza Mom Pizza Inc., Licensee: Richard Elbirt, Representative
Authorities
Blue Moon (Re), [2006] O.A.G.C.D. No. 194 1170651 Ontario Inc. (c.o.b. Mingal's Restaurant & Bar) (Re), [2009] O.A.G.C.D. No. 18 Phoenix (Re), [2006] O.A.G.C.D. No. 582
Allegations
1A hearing into a Notice of Proposal number 17127 (“NOP”) dated March 18, 2009 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 paragraphs 50(c) and 50(d), subsection 33(1) and section 53 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on June 1, 2009 in the City of Toronto.
2In its decision dated June 24, 2009 the Board found the Licensee contravened subsection 33(1) and paragraphs 50(c) and (d) of the O.Reg. The Board dismissed the allegation under section 53 of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Submissions
3The Registrar submits that a 21 day suspension is appropriate, given the seriousness of the infractions, particularly the violations of the Fire Code and O.Reg. 562/90 made under the Health Protection and Promotion Act (the “HPPA”), and given that the Licensee provided no explanation for the infractions let alone any evidence of corrective action. In addition, the Licensee was also found to have breached subsection 45(1) of the LLA (obstructing an inspection) and section 29 of the O.Reg (failure to clear signs of service) in relation to incidents taking place in June 2008. The Board issued an 8 day suspension in relation to these contraventions.
4The Board has indicated in previous decisions, such as The Phoenix and Mingal’s Restaurant and Bar, where the Board imposed 18 and 14 day suspensions, respectively, that violations of the Fire Code are serious and require a significant sanction for both specific and general deterrence. In relation to the violations of the O.Reg. 562/90, Ms Taylor referred to the Blue Moon decision, which dealt with permitting drunkenness, serving an intoxicated patron and the public interest, as well as the Licensee’s failure to comply with the HPPA. The latter led the Registrar to issue an interim suspension of the licence, which was lifted when the Licensee took steps towards compliance with the HPPA. Ms Taylor submits that while in the Blue Moon case there was no evidence that food was being prepared during the inspection, in this case rotting food was on the kitchen counter, sauces which require refrigeration were on the stove and gasoline was being stored in the same place as dry food.
5The Licensee indicated that it respects the Registrar’s position but requests that the Board limit the suspension to 14 days, a penalty which would address the concerns of the Registrar while taking into consideration the harsh financial consequences of the proposed 21 day suspension. Mr. Balasubramaniam’s only source of income is from the establishment, he is basically a one-man operation, and his business attracts only a small number of customers. In addition, on November 25, 2008, the date of the contraventions in this case, the Licensee had not come before the Board on the other matters referred to in the Registrar’s submissions. These other matters were decided on May 6, 2009. As such, the Licensee submits that although it may not be a first offender, it ought not to be treated as a subsequent offender.
6In Reply submissions, Ms Taylor submitted that the Board is not entitled to consider the financial consequences of disciplinary action in determining the appropriate sanction and referred the Board to 3 cases (Ontario Registrar of Alcohol and Gaming v. Hosseini-Rad, as interpreted by the Licence Appeal Tribunal in Rainbow Cars (Tecumseh) Inc., and the Board in Sizzling Plate Bar & Grill. Further, even if the Board were entitled to consider financial hardship, there was no evidence before the Board supporting financial hardship.
Decision on Sanction
7There were three contraventions in this case and the Board considers the contraventions of paragraphs 50(c) [non compliance with O.Reg. 562/90 under HPPA] and (d) [non-compliance with the Fire Code] of the O.Reg to be particularly serious, given that they had the potential to directly affect the health and safety of customers and staff of the establishment.
8Although the Licensee has not contravened these provisions of the O.Reg before, the Licensee was found to have contravened the LLA and O.Reg in respect of incidents occurring in June 2008, five months prior to the incidents which gave rise to the present case. As such, the infractions in the present case were not isolated cases of non-compliance, but rather there is a recent pattern of non-compliance on the part of this Licensee, a pattern which needs to be curtailed. The date of the Board’s decision relating to the June 2008 contraventions is less important than the date of the contraventions themselves.
9The Licensee did not offer an explanation for the non-compliance. As such, the Board cannot look to any mitigating or extenuating circumstances when determining the appropriate sanction. Further, the Licensee gave no evidence at the hearing, or through submissions, of corrective measures it has put in place to ensure there will be no repeat occurrences of the contraventions.
10The above factors all warrant a “significant” suspension, from the standpoint of both specific and general deterrence. Nevertheless, the Board finds the 21 day suspension proposed by the Registrar to be too harsh in the circumstances.
11The cases referred to by Ms Taylor are distinguishable on the facts and do not justify the 21 day suspension the Registrar is seeking. The Phoenix case, where an eighteen day suspension was imposed, involved contraventions of section 43 (overcrowding), paragraph 50(c) (panic bar on rear door did not operate) and subsection 45(1) (permitting drunkenness) of the O.Reg, and the Board emphasized it was very concerned about the dangerous combination of overcrowding and an inoperative push bar. The present case did not involve overcrowding, which would have made the Fire Code violation much more serious from a safety standpoint, nor did it involve permitting drunkenness.
12The Mingal case, where a 14 day suspension was imposed for first-time contraventions, involved serious violations of section 29 (serving liquor to someone who is or appears intoxicated) of the LLA and subsection 45(1) (permitting drunkenness) of the O.Reg, in addition to paragraph 50(c) of the O.Reg. In its decision on sanction, the Board appeared to place more weight on the violations of section 29 of the LLA and subsection 45(1) of the O.Reg, neither of which is applicable to the present case.
13Further, although Ms Taylor did not provide the Board with the Exhibits to the Blue Moon decision, which included the evidence of the health inspector, the Board can infer the violations of the HPPA were more serious than in this case, since they prompted the Registrar to impose an interim suspension.
14In the present case, taking into consideration the nature of the contraventions, the Licensee’s compliance history, the absence of mitigating or extenuating circumstances, the failure of the Licensee to provide evidence of remedial action, as well as the size of the establishment, the Board finds that a 15 day suspension is sufficient for the purpose of achieving specific and general deterrence. While the Board appreciates that the suspension will impose some financial hardship on the Licensee, it did not take financial hardship into consideration when determining the appropriate sanction, as financial ramifications are part of the deterrent effect of any suspension.
Order
15The 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 FIFTEEN (15) consecutive days.
16The 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 this decision.
DATED AT TORONTO THIS 7th DAY OF August , 2009
PATRICIA MCQUAID, VICE-CHAIR JACQUELINE CASTEL, BOARD MEMBER