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-
Sharks Club & Grill Inc. O/A Sharks Club & Grill (Licensee)
DECISION ON SANCTION
Panel: Kirsti Hunt, Vice-Chair, AGCO Bruce Miller, Board Member
Decision Date: September 23, 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 Sharks Club & Grill Inc., Licensee: Michael Taylor, Representative
Allegations
A hearing into Notice of Proposal number 17106 dated March 16, 2009 to suspend liquor licence number 0201444 issued to Sharks Club & Grill Inc. (the "Licensee"), operating as Sharks Club & Grill (the "establishment" or the "premises"), 7007 Islington Avenue, Unit 7, Woodbridge, Ontario, L4L 4G5, on the basis of alleged violations of section 39 and subsections 19(1), 31.1(1), 34(1) and 45(1) of Ontario Regulation 719/90 ("O.Reg"), made pursuant to the Liquor Licence Act (the "LLA"), was held on June 23, 2009, in the City of Toronto.
In its decision dated July 30, 2009, the Board found the Licensee violated subsections 19(1), 31.1(1) and 45(1) of the O.Reg, and the Board consented to the Registrar's request to withdraw the alleged violation of subsection 34(1) of the O.Reg and the alleged violation of section 39 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
The proposed disciplinary action of 14 days cannot be sustained with the withdrawal of subsection 34(1) and section 39, both of the O.Reg.
A violation of subsection 19(1) of the O.Reg can be a serious health issue but is not at the high risk end in this case.
The violation of subsection 31.1(1) of the O.Reg usually deals with the re-pouring of illegally purchased liquor, sometimes untested by the Liquor Control Board of Ontario, into illegally purchased containers. Again, in this case, the presence of Grenadine in the bottle does not place the risk at the high end.
These above two violations are minor compared to the findings of two drunken patrons. This is the first violation of this section for the Licensee. The Licensee's attention seems to have lapsed due to his celebratory mode. A specific deterrence may be needed to prevent a relapse; a general deterrence is also appropriate.
The Licensee has one prior disciplinary action.
A 7 to 10 day suspension would be appropriate.
Licensee's Submissions
The subject establishment has been continuously operated by the Scavuzzo family since 1992.
The Licensee has never been charged with permitting drunkenness prior to this incident.
The Licensee has one prior suspension from an alleged breach of subsections 31(1)(c) and 33(1) of the O.Reg which resulted in a 7 day suspension. The incident involved Mr. Scavuzzo Sr. (who is currently 86 years of age) who forgot the establishment's licence number when making a small purchase of liquor.
The establishment has a commendable record of compliance over its 17 year history.
It should not be forgotten that both patrons refrained from driving, there was no disturbance or rowdy conduct involved and no criminal conduct occurred.
It is acknowledged that the events occurred on the attending manager's birthday and a minor lapse in due diligence may have occurred.
The Licensee has reinforced its policy of wholly refraining from permitting drunkenness with staff at all recent staff meetings.
The establishment is a modestly run family business. A family member is onsite at all times to oversee the smooth, efficient and lawful operation of the business.
In addition to the Scavuzzo family the Licensee employs approximately 20 employees, many of whom are single mothers. These workers will be adversely impacted economically by any suspension order.
A proper and meaningful suspension should be 2 to a maximum of 4 days.
Registrar's Reply
- There was no reply submitted.
Analysis/Reasons/Findings
The Board finds that a 6 day suspension is appropriate, in the circumstances of this case, for the following reasons.
The Board agrees with Mr. Kulis that the violations of subsections 19(1) and 31.1(1) of the O.Reg are not at the high risk end in this case.
The finding on permitting drunkenness is much more concerning. There was substantial evidence with respect to both patrons who were clearly intoxicated. The Board considers violations of this nature to be serious.
The Board is sympathetic to the challenges posed by the current economic environment. However, a suspension at any time has financial ramifications for a licensee, which is part and parcel of the deterrent effect.
The Board is mindful of the fact that there have been no prior allegations of permitting drunkenness in the establishment. The Licensee has a prior suspension. While the nature of the contraventions is different, the previous contravention in 2006 resulted in a 7 day suspension. This does not suggest that the Licensee should be treated as a first-time offender.
The Board appreciates the fact that the Licensee has held staff meetings and reinforced the need to be vigilant in preventing drunkenness. The Board also appreciates the fact that this is a family run business and that a family member is always onsite to ensure compliance.
However, in this case Mr. Sal Scavuzzo, the son of the principal owner was onsite, in such a role but in his words he was "only relatively sober" as it was his birthday. The end result was that two intoxicated patrons were found on the premises.
Order
Therefore, the Board ORDERS that liquor licence number 0201444 issued to Shark's Club and Grill Inc. operating as SHARK'S CLUB & GRILL, 7007 Islington Avenue, Unit 7, Woodbridge, Ontario, L4L 4G5, be SUSPENDED for a period of SIX (6) 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 23rd DAY OF SEPTEMBER, 2009
KIRSTI HUNT, BOARD MEMBER BRUCE MILLER, BOARD MEMBER