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-
Abebech Kasaye o/a Ambasel Bar & Restaurant
Licensee
decision on sanction
Panel: Allan Higdon, Board Member S. Grace Kerr, Board Member
Decision Date: October 12, 2010
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 and Paul Saguil, ) Representatives
Abebech Kasaye, Licensee ) Isaac Ige, Representative
Authorities
Big Ed's Tap and Grill, [2007] O.A.G.C.D. No. 144 Papa's Pizzeria, [2007] O.A.G.C.D. No. 283 Golden Ring Bar and Grill, [2007] OAGCD No. 473
Allegations
A hearing into Notice of Proposal number 18085, dated May 19, 2010 to revoke, and an Order dated May 19, 2010 to suspend liquor licence number 804374 (the “Licence”) issued to Abebech Kasaye (the “Licensee”) operating as AMBASEL BAR & RESTAURANT, 1334A Danforth Avenue East, Toronto, ON M4J 1M9, on the basis of alleged violations of section 6 of the Liquor Licence Act (the “LLA”) and sections 25 and 29 as well as subsections 31(1)(b), 31(1)(c), 45(1) and 50(c) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, and also on the basis of an alleged breach of a condition on the licence was commenced on June 7 and was continued on September 15, 2010 in the City of Toronto.
On May 19, 2010, the Registrar ordered that an interim suspension be placed on the licence (“the interim suspension”) in the interest of public safety and subject to an Order by the Board of the Alcohol and Gaming Commission of Ontario.
By the Board’s Orders dated June 8 and September 22, 2010, the interim suspension was continued.
On September 15, 2010, the parties submitted an Agreed Statement of Facts (Exhibit 1) and the Board accordingly found that the Licensee violated sections 25 and 29 and subsections 31(1)(b), 31(1)(c), 45(1) and 50(c) of the O.Reg. On that date, the parties also made oral submissions, directed on the appropriate sanction.
The Board has carefully considered the submissions and ORDERS that the Licence is revoked, effective immediately. Reasons follow.
Registrar’s Submissions
The Registrar asks the Board to revoke the liquor licence in view of the Board’s findings. The Registrar submits that the Board has good reason to believe that the Licensee will not carry on business with honesty and integrity, and in accordance with the law.
Specifically, the Licence was issued in the summer of 2008 and there have been problems almost since the beginning. Dating back to 2009, the Licensee has been warned. Almost all of the allegations in the Notice of Proposal have been admitted. Thus there is a continuous pattern of non-compliance by this Licensee. The Board should conclude that the business will continue to be operated contrary to the provisions of the LLA.
According to the Registrar, the Licensee’s behaviour also raises safety and security concerns. Doors that should have been unlocked were locked. Exit signs were not illuminated.
Since it has provided after-hours service and there are reports of alleged assaults and robberies at the establishment, the Registrar also argues that it encourages drunkenness and unsavoury characters to congregate. Notwithstanding that these are only allegations of assaults and robberies, there is a pattern of such complaints. Besides, it is an agreed fact that one of the complainants was taken to hospital for a cut lip. There are also charges under the Provincial Offences Act, which are pending before the Provincial Offences Court, of illegal substances being sold in the establishment.
If the Licensee were to apply for a licence now, in all of these circumstances one would not be granted. The Registrar urges the Board to apply the same considerations retrospectively to this Licensee.
Licensee’s Submissions
The drunken patron, referred to in paragraph 5 of Exhibit 1, was drunk when he entered the establishment and was uncontrollable while there.
The allegations of assaults and robberies (referred to in paragraphs 5 and 6 of Exhibit 1) are mere reports and unproven allegations.
The bottles of liquor that were found were purchased off-licence by one of the Licensee’s staff. The Licensee takes responsibility for his actions, but she was away from the establishment when this was done.
The Licensee admits that she was warned several times previously by police officers inspecting the premises; however, she did not intentionally commit any of the within offences. One time she locked the doors to the establishment when her family members were getting together and the Licensee was not expecting anyone else to arrive.
With respect to the marijuana allegedly found in one of the patron’s pockets, the Licensee states that there is no way that she can know what is in each patron’s pockets. She did not allow it into the establishment.
The Licensee is a single mother and law-abiding citizen. She does not have a criminal record. She has been in Canada for 26 years. The Licensee is asking for “a second chance”.
The Licensee says that she will ensure that she employs people who will do the right thing, even when she is not there (e.g. they will purchase liquor with the Licence; they will not lock the doors or serve liquor after hours.)
The Licensee proposes that the time the Licence has already been suspended would serve as a sufficient sanction in all of the circumstances. The Licensee is about to lose her house. She has no other sources of income. It is not a good time for her to have to go into the job market.
Registrar’s Reply Submissions
- The Licensee attempted to give evidence in her submissions.
Analysis, Reasons and Decision on Sanction
The Board has carefully reviewed and considered the evidence in this matter as well as the submissions made. Having taken into account that specific and general deterrence are the two guiding principles in determining the appropriate disposition in any case before the Board, a number of very serious facts necessitate that this Licence be revoked.
First, all of the facts in this case, which were admitted, indicate that the establishment was operating contrary to the public’s safety and with little regard to matters of social responsibility. Specifically, as a result of Toronto Police Service and/or Alcohol and Gaming Commission of Ontario (“AGCO”) inspections that took place between January 9, 2010 and May 16, 2010, the following offending behaviours were found to have occurred:
a. Drunkenness was permitted on at least one occasion (May 2, 2010);
b. The front door of the establishment, which by virtue of a condition on the Licence was to be kept open at all times, was locked on 4 occasions. Furthermore, the Licensee had been warned about breaching this condition on February 25, 2010;
c. The rear door of the establishment was also bolted shut on at least two occasions;
d. The fire exit sign was not illuminated on one occasion;
e. After hours service was permitted on six occasions;
f. Disorderly behaviour, including alleged assaults and robberies, occurred in the establishment on three occasions;
g. Liquor that had been purchased off licence was found on one occasion; and,
h. The liquor menu did not contain portion size information for mixed drinks.
Furthermore, as was also admitted by the Licensee, during an inspection in May 2009 the Licensee’s “Smart Serve” certificate could not be produced and a bottle of liquor, purchased off-licence, was found. As well, previous complaints regarding a patron having been assaulted and confronted with a gun in the establishment were investigated in July 2009.
The Licence was issued on October 23, 2008. Thus, in the just over a year and a half that the Licensee held the Licence the Board finds that there were numerous, flagrant and serious breaches of the LLA and its regulations as well as breaches of a condition on the Licence by this Licensee. What’s more, the evidence cited above points to an on-going and pervasive pattern of offending behaviour by this Licensee notwithstanding frequent attendances by and involvement with the police and inspectors at the premises over this time period.
In addition, the Board finds that the Licensee has, in essence, already been given the “second chance” that she now requests of the Board. Specifically, the Licensee has been given “several chances” by virtue of the police’s and the AGCO’s longstanding involvement with this establishment and the various warnings that had been given to the Licensee in the past.
Despite the police’s and the AGCO’s involvement with and the warnings given by them to the Licensee, there were no appreciable changes in the Licensee’s behaviour. Indeed, the number and types of offending behaviours started in less than a year from when the Licence was issued and continued for about the next 10 months, in what seemed to the Board to be an almost blatant fashion.
The Licensee tried to explain and/or excuse the breaches by urging the Board to conclude that the offences were unintentional or someone else’s fault. However, that argument suggests either one of two things, neither of which helps the Licensee’s case.
First, if the breaches were unintended, the Licensee did not sufficiently understand the requirements for the safe and socially responsibility operation of a licensed establishment. Further, she has not provided the Board with any evidence to allow it to confidently conclude that she now has the requisite understanding.
Alternatively the Licensee’s suggestion that some of the breaches were a staff member’s and not her fault suggests that the Licensee lacks meaningful control over the establishment for which she is ultimately responsible.
It is a basic concept that there is a qualified, and not an unfettered, right to a liquor licence in Ontario (Golden Ring Bar and Grill decision); the issuance of a liquor licence carries responsibilities with it for the Licensee to ensure compliance with the LLA and its regulations.
The Licensee’s promises at this juncture to adhere to the legislative requirements or his responsibilities as a Licensee do not assure the Board. For all of the reasons outlined above, the Board concludes that in all likelihood the establishment will continue to be operated contrary to the provisions of the LLA.
As a result, a strong action, in this case, a revocation of the Licence is necessary for the safety of the public as well as for the continued public confidence in and integrity of the regulatory regime of liquor licences in Ontario.
There is precedent for revoking the licence: see the Board’s previous decisions in Big Ed’s Tap & Grill, Papa’s Pizzeria, and Golden Ring Bar and Grill.
Given the weighty factors described above, taken in conjunction with how prolonged, fundamental, pervasive and serious were the Licensee’s breaches of the legislation, the option of issuing a lengthy suspension to the Licensee and/or imposing further conditions on the Licence is not an appropriate remedy from both a general and specific deterrence point of view.
Thus, and for the reasons articulated above, the Board concludes that a revocation of the Licence is appropriate as well as necessary, and properly satisfies the dual guiding principles as to disposition given the particulars of this case.
Order
- The Board ORDERS that liquor licence number 804374 issued to Abebech Kasaye operating as AMBASEL BAR & RESTAURANT, 1334A DANFORTH AVENUE EAST, TORONTO, ONTARIO M4J 1M9, is REVOKED, effective immediately.
DATED AT TORONTO THIS 12th DAY OF October 2010.
ALLAN HIGDON, BOARD MEMBER S. GRACE KERR, BOARD MEMBER