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-
1122175 Ontario Limited operating as Old Barn Tavern
Licensee
DECISION ON SANCTION
Panel: David C. Gavsie, Chair, AGCO Patricia McQuaid, Vice-Chair, AGCO
Decision Date: June 21, 2010
Hearing Location: Niagara Falls, 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 112175 Ontario Limited, Licensee ) Patrick Little, Representative
Allegations
1A hearing into Notice of Proposal (“NOP”) number 17943 dated March 13, 2010 to revoke a licence and an Order dated March 13, 2010 to immediately suspend on an interim basis liquor licence number 23785, issued to 1122175 Ontario Limited (the “Licensee”), operating as OLD BARN TAVERN, 466 Merritt Street, St. Catharines, Ontario, L2P 1P3, (the “premises”), on the basis of alleged violations of section 45.2 and subsection 45(2) of Ontario Regulation 719/90 (the “O.Reg.”) made pursuant to the Liquor Licence Act (the “LLA” or the “Act”), was held on April 14, 2010, in the City of Niagara Falls.
2In its decision dated May 12, 2010, the Board found the Licensee contravened subsection 45(2) and section 45.2 of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Decision on Sanction
3Mr. Kulis, in his submissions, reiterates the request in the NOP for a revocation of the liquor licence stating that the Licensee failed to monitor the business, resulting in open drug activity occurring on the premises. Further, the Licensee has failed to acknowledge that there was a serious problem instead asserting that the police “planted” the drugs and paraphernalia found on the premises.
4Mr. Little submits that the continuation of the interim suspension from its imposition on March 13, 2010 to the present time is sufficient penalty. He states that the fact that someone took advantage of the Licensee should not be the basis for the revocation of the licence. What Mr. Little does propose is that the suspension of the licence continue until the conclusion of the criminal charges (at which time a court will determine the issue of Mr. Syfras’ participation in the illegal drug activity). This, he suggests, protects the integrity of liquor licensing system and at the same time leaves Mr. Syfras with the option to pursue a potential transfer of the licence.
5Regarding the issue of the criminal court’s determination of Mr. Syfras’ active participation, if any, in illegal drug activity in the premises, the Board in its decision on findings at paragraphs 66 to 73 clearly stated that the wording of subsection 45(2) does not require the licence holder’s active involvement. The criminal court’s determination of guilt or innocence does not determine this Board’s findings of violations of the O.Reg. Therefore waiting for that outcome serves no useful purpose.
6Other than potentially pursuing a plan to transfer ownership, the Licensee, through his counsel has offered nothing by way of remedial measures to address the problems found in the establishment so that there is no reoccurrance, despite having the opportunity to do so. It was not an isolated event that led to the hearing, but an investigation that spanned months.
7All that Mr. Syfras offered was a suggestion that perhaps no drug activity in fact occurred, rather, everything was a “plant” or, at best that he was taken advantage of by S.D. Both reflect varying degrees of abdication of responsibility. The Licensee has presented no mitigating evidence that would assure the Board that the licensed premises will be operated without risk of illegal activity and in full compliance with the Act and regulations. The violations as found by the Board are very serious and reflect a premises run in such a wilfully blind manner so as to negatively impact the community around it.
8The Board agrees with Mr. Little: the fact that someone takes advantage of a Licensee is not a basis for the revocation of a licence. However, the attitude of the Licensee as exhibited through his actions, or inaction, together with the violations found and Mr. Syfras’ response to the evidence given by police is of significant concern. The Board finds, for the reasons given, that the appropriate disposition of this matter is the revocation of the licence.
Order
9Therefore, the Board ORDERS that liquor licence number 23785, issued to 1122175 Ontario Limited, operating as OLD BARN TAVERN, 466 Merritt Street, St. Catharines, Ontario, L2P 1P3, be REVOKED IMMEDIATELY.
DATED AT TORONTO THIS 21st DAY OF June , 2010
DAVID C. GAVSIE, CHAIR, AGCO PATRICIA MCQUAID, VICE-CHAIR, AGCO