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-
1533175 Ontario Ltd. O/A The Abbey Pub and Steakhouse Licensee
DECISION ON SANCTION
Panel: Joan Lougheed, Board Member Eleanor Meslin, Board Member
Decision Date: October 28, 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 ) Phillip Morris, Representative 1533175 Ontario Ltd., Licensee ) Hui Zhang, On his own behalf and ) on behalf of the Corporate Licensee
Authorities
Mounties' Restaurant (Re), [2007] O.A.G.C.D. No. 212
Allegations
A hearing into Notice of Proposal number 17153 (the "NOP") dated March 30, 2009, to suspend liquor licence number 800210 issued to 1533175 Ontario Ltd. (the "Licensee"), operating as THE ABBEY PUB AND STEAKHOUSE (the "premises" or the "establishment"), 989 College Street, Toronto, Ontario, M6H 1A6, on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (the "LLA") and section 29 of Ontario Regulation 719/90 ("O.Reg. 719/90") made pursuant to the LLA, was held on August 12, 2009 in the City of Toronto.
In its decision dated September 23, 2009, the Board found that the Licensee violated subsection 45(2) of the LLA and dismissed the alleged violations under subsection 45(1) of the LLA and section 29 of O.Reg. 719/90. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Registrar's Submissions
The Registrar's representative submitted that by not coming to the door when Ms Peters heard the inspectors knocking and giving them immediate access and continuing to empty glasses, the inspectors were unable to determine what liquid she was pouring into the sink.
Failure to give inspectors immediate access goes to the heart of an inspector's ability to properly monitor after hours drinking, in the public interest.
The Registrar's representative pointed out his concern that the breach occurred less than a year after the Licensee was warned about failure to clear.
The Registrar's representative cited Mounties' Restaurant where the Licensee had received prior warnings regarding failure to facilitate and received a 10 day suspension.
Mr. Morris submitted that, in the present case, the Licensee having received a recent warning about the very breach the inspection was designed to deal with and still continued to pour out glasses was a more egregious violation than in the Mounties' case.
The Registrar, therefore, requested, as a matter of specific and general deterrence, a 14 day suspension.
Licensee's Submissions
The Licensee's representative submitted that the Licensee believed that Ms Peters did not see or hear the inspectors knock on the door.
The reasons for this were:
- at the time there were four patrons talking and laughing loudly and,
- her angle of vision and contrast of lighting made it hard to tell that the inspectors were outside.
The Licensee further submitted that Ms Peters did not do this intentionally.
Ms Peters has been in the service industry for over 10 years and worked at the premises for three years without any improper behaviour.
To avoid the situation happening again, the Licensee has shortened its hours from closing at 3:00 a.m. to 2:30 a.m.
The Licensee requested a monetary penalty rather than a suspension since it is in the process of selling the establishment and a suspension would delay the closing. The Licensee has also advised the buyer of this incident and explained the need to improve the management of the operation.
Registrar's Reply Submissions
- The Registrar made no reply to the Licensee's submissions.
Reasons / Analysis / Decision
16. The Board has carefully considered the submissions of both parties.
The Board agrees with the Registrar that immediate access to the premises by inspectors, particularly after hours, is necessary to properly monitor the premises in the public interest. The Licensee did not do so.
The Board has also taken into account the Licensee's recent prior warning.
In view of the above, the Licensee's request for a monetary penalty would not serve the purpose of progressive discipline or send a clear message that licence holders are expected to act with a high level of responsibility to prevent future violations from occurring.
In any event, with respect to the request for a monetary penalty, the Board has no jurisdiction to order one. Pursuant to subsection 14.1(2) of the Alcohol and Gaming Regulation and Public Protection Act, 1996, only the Registrar has jurisdiction to order a monetary penalty. In this instance, given the seriousness with which the Registrar viewed these allegations, it is apparent that he made a decision not to order a monetary penalty but rather to issue a Notice of Proposal for a 14 day suspension.
The Board does not agree however that this violation is more egregious than the scenario of facts set out in the decision cited in Mounties' Restaurant.
Although the Registrar has asked for a 14 day suspension, which was the amount originally requested in the NOP, that request related to three alleged violations; section 29 of O.Reg. 719/90 and subsections 45(1) and 45(2) of the LLA. The Board found only one violation, namely under subsection 45(2) of the LLA.
Order
Therefore, the Board ORDERS that liquor licence number 800210 issued to 1533175 Ontario Ltd., operating as THE ABBEY PUB AND STEAKHOUSE, 989 College Street, Toronto, Ontario, M6H 1A6, be suspended for a period of 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 (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 28th DAY OF October , 2009
JOAN LOUGHEED, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER