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-
1704477 Ontario Inc., operating as Cane Grove Restaurant Licensee
DECISION ON SANCTION
Panel: Patricia McQuaid, Vice-Chair, AGCO Jacqueline Castel, Board Member
Decision Date: December 20, 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 1704477 Ontario Inc., Licensee ) Tameshwar Veeria, On his own behalf and on behalf of the corporate licensee
Authorities
1744671 Ontario Ltd. (c.o.b. Liongate Lounge) (Re) [2009] O.A.G.C.D. No. 267
Allegations
1A hearing into Notice of Proposal number 17997 dated April 12, 2010 to suspend liquor licence number 91000 (the "licence") issued to 1704477 Ontario Inc. (the "Licensee") operating as CANE GROVE RESTAURANT, 2356 Finch Avenue West, Toronto, Ontario, M9M 2C7, (the "establishment" or the "premises"), on the basis of alleged violations of conditions on the licence pursuant to the Liquor Licence Act (the "LLA") was held on September 23, 2010 in the City of Toronto.
2In its decision dated October 4, 2010, the Board found that the Licensee contravened two conditions on the licence. The parties were directed to provide written submissions on an appropriate sanction. Ms Khan provided submissions on behalf of the Registrar on October 8, 2010. Despite numerous requests of Mr. Veeria through the month of November, the Hearings Department has not received submissions from him. The Board is therefore required to decide the issue of sanction in the absence of submissions from the Licensee.
Decision on Sanction and Reasons
3The NOP sought a 14 day suspension of this licence and given the finding of the Board that the two conditions were breached, as alleged by the Registrar, Ms Khan reiterates the request for a 14 day suspension.
4There is no question that the conditions in issue were consented to by this Licensee at a previous hearing, a hearing precipitated by incidents that occurred on three different dates at which violent acts occurred. As noted by the Board in its decision of October 4, 2010, Mr. Veeria candidly admitted that he did not have the appropriate number of security persons in place (three rather than six because business was slow, the premises being at about one-third of its capacity at about midnight). He also admitted that patrons were not being wanded, contrary to the condition requirement. The Registrar's sole witness made no observations on this point though it was alleged in the NOP. Mr. Veeria did state that instead, patrons were subject to a "pat-down". The Board has no reason to disbelieve this evidence.
5Factors in mitigation that were suggested by Mr. Veeria at the hearing are the financial hardship of requiring six security personnel when patron numbers do not warrant that many and the greater effectiveness of a pat-down rather than wanding when trying to detect the presence of marijuana, for example.
6As stated by the Board, it is not for the Licensee to assess when to comply with the conditions depending on the vagaries of business. If, given the current business realities, it is not financially feasible to comply, then there is a process by which a Licensee can seek to have conditions amended or removed.
7However, despite the contravention of the two conditions as alleged, the Board concludes that the fourteen day suspension sought is, in all the circumstances, too harsh. There is no evidence before the Board that on January 17, 2010 there were serious public safety issues at Cane Grove. Indeed, the failure to meet the conditions was the only breach noted by Inspector Marzo who was at the premises as part of a joint forces liquor inspection.
8Ms Khan, in her submissions, cites the Liongate Lounge decision (also a decision of this panel), wherein a seven day suspension was given for a breach of one condition on the licence, the suggestion apparently being that a fourteen day suspension is therefore appropriate for a breach of two conditions. While there is on its face a certain logic to that reasoning, the Board is also required to assess the particular circumstances of each case in determining the appropriate sanction. Further, the Board in reviewing the Liongate Lounge decision also notes that there was not only a breach of one condition, but also violations of two provisions of Ontario Regulation 719/90 under the LLA.
9The Board, as well as looking at the particular circumstances of the matter before it, also considers the need for specific and general deterrence in assessing sanction. Here, while no public safety issues arose because of the failure to meet the conditions, a licensee cannot of his own accord decide to comply or not, even if the financial impact of compliance may be significant. If conditions prove to be a financially heavy burden, consultation with the local inspector and/or the AGCO licensing branch may be called for to determine if some accommodations might be made. Therefore, in the circumstances and as a matter of specific and general deterrence, the Board concludes that a minimal period of suspension, namely two days is appropriate.
Order
10The Board therefore ORDERS that liquor licence number 91000 issued to 1704477 Ontario Inc., operating as CANE GROVE RESTAURANT, 2356 Finch Avenue West, Toronto, Ontario, M9M 2C7, be suspended for a period of TWO (2) consecutive days.
11The 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 20TH DAY OF DECEMBER, 2010
PATRICIA McQUAID, VICE-CHAIR, AGCO JACQUELINE CASTEL, BOARD MEMBER