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-
Athina (Tina) Skiadopoulos operating as Landmark Restaurant Licensee
DECISION ON SANCTION
Panel: Allan Higdon, Board Member Jacqueline Castel, Board Member
Decision Date: December 17, 2010 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 ) Rena Khan, Representative Athina (Tina) Skiadopoulos, Licensee ) Neil Boyko, Representative
Authorities
George’s Restaurant (Re) [2000] O.A.C.D. No. 103 Yorke (c.o.b. Four S’s Bar and Grill) (Re) [2010] O.A.G.C.D. No.10
Allegations
A hearing into Notice of Proposal number 17916 dated March 3, 2010 to suspend liquor licence number 23615 (the “licence”) issued to Athina (Tina) Skiadopoulos, (the “Licensee”) operating as LANDMARK RESTAURANT, 1839 Eglinton Avenue West, Toronto, Ontario, M6E 2J3, (the “establishment” or “the premises”), based on allegations under section 29 of the Liquor Licence Act (the “LLA”) and under subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg.”) prescribed under the LLA, was held on October 12, 2010 in the City of Toronto.
The Board found, in its decision dated November 1, 2010, that the Licensee contravened section 29 of the LLA and subsection 45(1) of the O.Reg. The parties were invited to provide written submissions on sanction within specified time frames. Those submissions were received and reviewed.
Registrar’s Submissions on Sanction
There were a number of aggravating factors in this case. First, the patrons were exhibiting extreme signs of intoxication when they entered the licensed establishment and when they were dancing on the dance floor. They were not assessed for signs of intoxication when they purchased alcohol. The establishment was not busy and the Licensee should have turned its attention to the two patrons according to its responsibilities under the LLA.
Second, the Licensee has had a recent history of violations. On March 3, 2009 the licence issued to the Licensee was suspended for 17 days for breaches of the regulations under the LLA. That suspension was served on April 12, 2009 until April 29, 2009.
On March 3, 2009, the licence issued to the Licensee was suspended for 14 days for a breach of the regulations under the LLA. The suspension was served on March 9, 2009 until March 23, 2009.
On June 18, 2007 the licence issued to the Licensee was suspended for 10 days for breaches of the regulations under the LLA.
A 30 day suspension would therefore be appropriate as a matter of specific and general deterrence.
Licensee’s Submissions on Sanction
The facts in this case were not aggravating, as set out in the Registrar’s submissions. Instead, the facts should be seen as mitigating. The server has no prior record of serving or permitting drunken patrons at the establishment in question or any other establishment.
The facts were most unusual with the two employees on duty being distracted with closing and clean up duties and with no patrons having entered the establishment for two hours prior to the incident in question. In the normal circumstances, the server would have been standing and would have been able to clearly observe drunken patrons entering the establishment. In this case, she was bending down stocking the fridge underneath the bar. She should have stood up and observed the condition of the two drunken patrons. She did not. A mistake in judgment occurred. She let her guard down for a few seconds at closing time.
The other employee, Nick Skiadopoulos, was also distracted with closing duties. Neither employee was able to observe the drunken patrons on the dance floor because their view was partially blocked by the other patrons sitting at the bar. The mistake was made by the server, who should have stood up and observed the two patrons better and engaged them in conversation before serving them. This was all the more important, as she admitted in evidence that the chances of drunken patrons entering the establishment late in the evening or the next morning were much greater than earlier in the evening.
The Licensee was not present at the time. She relied on her employees to do their job properly.
The Licensee admits the prior record set out in the Registrar’s submissions.
The Licensee has submitted three compliance plans to the Registrar between August and October 2010.
Any suspension beyond seven to ten days would be punitive when the real issue is an educational one which the three compliance plans address. The required submission of compliance plans signals a change in direction to ensure future compliance by the Licensee. A seven to ten day suspension period would be confirmation of that change of direction. The 30 day suspension proposed by the Registrar would nullify all the changes the Licensee has implemented.
The Licensee’s representative referred the panel to the case of George’s Restaurant for which a 10 day suspension was imposed for serving liquor to an intoxicated patron. The Licensee, in this case, did not have a prior record.
In the case of Yorke (cob Four S’s Bar and Grill) was also relied on. The Licensee had served two previous seven day suspensions for serving liquor to an intoxicated person and permitting drunkenness. The panel subsequently ordered an 8 day suspension for contraventions of subsection 25(1) (sale of liquor outside the prescribed hours) and section 29 (failure to remove signs of service by 2:45 a.m.) of the LLA.
Registrar’s Reply Submissions
The two patrons were in the establishment for well over a few minutes and were exhibiting numerous signs of intoxication.
Ms Skiadopoulos is the Licensee of record and, as such, is responsible for what takes place at the premises regardless of whether or not she is there at the time.
The compliance plans dates August 19, 2010 and October 5, 2010 were deemed to be insufficient by the AGCO’s Licensing and Registration Branch. The third compliance plan, dated October 25, 2010, is currently under review. The compliance plans were submitted pursuant to the AGCO’s Risk Based Licensing process due to concerns relating to the Licensee’s compliance record.
Decision on Sanction
The Board considers contraventions of section 29 of the LLA and subsection 45(1) of the O.Reg. to be serious. In this case, the Licensee’s server admitted to not assessing two customers, who were exhibiting quite pronounced signs of intoxication, before serving them beverage alcohol, even though the establishment was not busy. The Board considers these facts, which surround the contravention, to be very serious.
The Board agrees with the Registrar’s representative that there were aggravating factors in this case, particularly the Licensee’s recent, serious and lengthy history of contraventions under the LLA and regulations. Specifically, the Licensee has served three suspensions ranging from ten to 17 days for various contraventions of the LLA and regulations, including prior contraventions of section 29 of the LLA and subsection 45(1) of the O.Reg., between 2007 and 2009.
The Licensee’s compliance plans were not proactively prepared but were required by the Registrar pursuant to its Risk Based Licensing initiative. Further, the first two versions of the plan were found to be inadequate by the AGCO, and the third version of the plan is still under review by the AGCO’s Licensing and Registration Branch. Moreover, the value of a compliance plan is not measured by the mere existence of such a document, but rather in the effectiveness of the procedures contained in the plan in preventing additional contraventions.
While the Board can perhaps excuse the Licensee’s staff for being distracted for a few minutes while the drunken patrons entered the establishment, the Board cannot excuse the Licensee for failing to assess customers for signs of intoxication before serving them beverage alcohol.
The fact that the server does not have a prior record, which the Licensee’s representative referred to as mitigating, is actually irrelevant. It is the Licensee’s prior compliance record which is relevant, and as noted above, the Licensee has a recent and lengthy history of non-compliance with the Act and regulations.
The fact that the Licensee was not present at the time of the incident is also not relevant. The Licensee is responsible for the conduct of its staff under the legislation.
The cases raised by the Licensee’s representative are distinguishable. In the George’s Restaurant case, as the Licensee’s representative admitted, the Licensee, whose licence was suspended for 10 days, had no prior compliance history. As noted above, in the present case, there is a recent and serious history of non-compliance with the legislation.
In the Yorke case, the licence was suspended for eight days, notwithstanding two prior suspensions of seven days each for permitting drunkenness and serving an intoxicated patron. However, the eight day suspension was for non-compliance with section 25 (sale of liquor outside prescribed hours) and section 29 (failure to clear the signs of service by 2:45 a.m.) of the O.Reg. While these latter contraventions are serious, they are not as serious as contraventions of section 29 of the LLA and subsection 45(1) of the O.Reg.. The Licensee in the present case also has a more lengthy history of non-compliance with the legislation.
For the above reasons, the seven to ten day suspension the Licensee is proposing would not be sufficient from the standpoint of specific or general deterrence. Given the seriousness of the contravention and the Licensee’s recent, lengthy and serious history of non-compliance under the legislation, a significant and progressive suspension is warranted.
Order
Therefore, the Board ORDERS that liquor licence number 23615 issued to Athina Skiadopoulos, operating as LANDMARK RESTAURANT, 1839 Eglinton Avenue West, Toronto, Ontario, M6E 2J3, be suspended for a period of twenty-one (21) days.
The Licensee shall submit proposed suspension dates in writing to the Manager, 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 the 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 17th DAY OF DECEMBER, 2010
ALLAN HIGDON, BOARD MEMBER JACQUELINE CASTEL, BOARD MEMBER