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-
Central Bar & Grill Ltd. O/A Central Bar & Grill Licensee
DECISION ON SANCTION
Panel: Jacqueline Castel, Board Member Allan Higdon, Board Member
Decision Date: December 22, 2009
Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario 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 Central Bar & Grill Ltd., Licensee ) Alfred Herman, Representative
Authorities
Central Bar & Grill Ltd. (c.o.b. Central Bar & Grill) (Re), [2008] O.A.G.C.D. No. 194
Allegations
A hearing into Notice of Proposal (“NOP”) number 17102 dated March 6, 2009 to suspend liquor licence number 90060 (the “Licence”), issued to Central Bar & Grill Ltd. (the “Licensee”), operating as CENTRAL BAR & GRILL, 1946 - 48 Weston Road, Toronto, Ontario, M9N 1W2, (the “establishment” or the “premises”), on the basis of alleged violations of sections 29 and 43 of Ontario Regulation 719/90 (the “O.Reg.”), prescribed under the Liquor Licence Act (the “LLA”), was held on July 14 and October 15, 2009, in the City of Toronto.
In its decision dated December 3, 2009 the Board found the Licensee contravened sections 29 and 43 of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Submissions on Sanction
Mr. Kulis submitted that a 30 day suspension is appropriate, given that all of the allegations in the NOP were found to have occurred, there were no mitigating circumstances, and the Licensee has had three prior suspensions (3 day suspension in 2007 for contravening subsection 45(1) of O.Reg. 719/90, 5 day suspension in mid-2008 for contravening section 43 of O.Reg. 719/90 and 15 day suspension in late 2008 for contravening section 43 and subsection 45(2) of O.Reg. 719/90).
Mr. Herman submitted that a suspension of a maximum period of five or 10 days would be more than adequate and still impose an extreme financial hardship. He asked the Board to consider the contravention of section 29 as extremely minor in the circumstances. Mr. Herman submitted that the presence of a municipal councillor, on the inspection of November 8, 2008, confirms information of the Licensee that the councillor has “embarked upon a personal vendetta against this Licensee”. He asked the Board to place more weight on the count conducted by the security officer at the entrance than on the ones conducted by the inspectors. He also indicated that the Licensee demonstrated remorse by not giving evidence, thereby saving time and expense at the hearing. Finally, Mr. Herman described the Licensee’s personal financial circumstances and explained that a suspension of 30 days would be tantamount to a forced closing of the business.
Decision on Sanction
At the outset, the Board did not place any weight on the Licensee’s submission that the presence of a municipal councillor on the inspection of November 8, 2008 suggests or confirms that this councillor has a vendetta against the Licensee. There was absolutely no evidence of same at the hearing.
Regarding the Licensee demonstrating remorse, by not giving evidence and saving the time and expense of a more lengthy hearing, the Board has difficulty in accepting this argument. The Licensee requested an adjournment at the first hearing date because one of its witnesses was unable to attend. The Board elected to hear the Registrar’s evidence, since its witnesses were in attendance, and to set another hearing date to hear the Licensee’s case. It was only at the second hearing date, three months later (the first mutually convenient date), that Mr. Herman informed the Board that the Licensee has now decided not to call any evidence and would like to file written submissions. Indeed, in waiting until the second hearing date three months later to communicate this change in strategy, the Licensee caused significant delay and the unnecessary expense of requiring attendance at an additional hearing date.
The Board considers violations of section 43 of the O.Reg. to be serious from a public safety standpoint. The excess in capacity was also significant. There were 105 people in the north area, which is licensed for 67 people, and there were 57 people in the south area, which is licensed for 40. As noted in its decision, the Board found that the inspectors had a methodical approach to conducting the count and relied on their count over the one performed by the Security Officer at the entrance. The Security Officer did not give evidence on her methodology for conducting the count and, according to what she told the inspectors, she was only counting people as they entered the premises.
There were no mitigating or extenuating circumstances for the contravention of section 43. In addition, the Licensee has a recent history of non-compliance with section 43 of the O.Reg.
At an earlier hearing in May 2008 relating to overcrowding, the Licensee indicated that he had implemented remedial measures to minimize the likelihood of overcrowding occurring in the future. In the May 2008 case, the Board placed some weight on the remedial measures in imposing a suspension of only 5 days. Clearly, however, the remedial measures have not been effective, as there have been repeated violations of section 43 since that time. The failure of the Licensee to have a security officer posted between the north and south areas of the establishment, each of which has a different capacity, reflects an absence of due diligence on the part of the Licensee.
The fact that the Licensee’s landlord will not provide the blueprint which the Licensee requires to apply for an increase in capacity, while regrettable, does not justify repeated violations of section 43.
Therefore, for the above reasons, the contravention of section 43 warrants a significant suspension, in particular, from the standpoint of specific deterrence, but also as a general deterrent.
The Board considers the violation of section 29 to be less serious in nature and recognizes that there were some mitigating and extenuating circumstances. Specifically, when the police officer attended the premises, it was only five minutes after the 2:45 a.m. cut off time for having the signs of consumption and service cleared, and the Licensee explained to the police officer on the night in question that he was short-staffed as a number of his employees had called in sick.
Therefore, when determining the appropriate duration of the suspension, the Board placed much more weight on the violation of section 43 than it did on the violation of section 29.
Given that there were some mitigating and extenuating circumstances for the violation of section 29 and given that it was the first time the Licensee had contravened this section of the O.Reg., the Board found that the Registrar’s proposed 30 day suspension for the two contraventions was a bit too harsh.
In the circumstances of this case, the Board FINDS that a 24 day suspension is appropriate, as a specific and general deterrent, given the Licensee’s recent history of non-compliance with section 43 and the Licensee’s failure to implement effective remedial measures.
While the Board appreciates that the suspension will impose a 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
The Board ORDERS that liquor licence number liquor licence number 90060, issued to Central Bar & Grill Ltd., operating as CENTRAL BAR & GRILL, 1946 - 48 Weston Road, Toronto, Ontario, M9N 1W2, be suspended for TWENTY-FOUR (24) 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 this decision.
DATED AT TORONTO THIS 22nd DAY OF December , 2009
JACQUELINE CASTEL, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER