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-
Mavis Gem (Julie) Yorke O/A Four S’s Bar and Grill
Licensee
DECISION ON Sanction
Panel: Joan Lougheed, Board Member Bruce S. Miller, Board Member
Decision Date: January 19, 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 ) Joyce Taylor, Representative Mavis Gem (Julie) Yorke, Licensee ) Nishanti de Zoysa, Representative
Allegations
1A hearing into Notice of Proposal number 17309 dated June 17, 2009 to suspend liquor licence number 810575 issued to Mavis Gem (Julie) Yorke (the "Licensee"), operating as FOUR S’S BAR AND GRILL, 685 Kennedy Road, Unit #1, Toronto, Ontario, M1K 2B8, (the "establishment"), on the basis of alleged violations of section 29 and subsection 25(1) of Ontario Regulation 719/90 ("O.Reg"), made pursuant to the Liquor Licence Act ("LLA") and two alleged violations of subsection 45(1) of the LLA, was held on September 28, 2009 in the City of Toronto.
2In its decision dated November 24, 2009, the Board found the Licensee violated subsection 25(1) and section 29 of the O.Reg and dismissed the two alleged violations of subsection 45(1) of the LLA. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Registrar’s Submission
3The liquor licence suspension should be in the range of 10 to 14 days.
4The Licensee has held a liquor licence at the current location since October 2007. There are no prior infractions at this location.
5The Licensee has operated at two other locations: Four S’s Restaurant and Sport Bar from 1998 to 2005 and Four S’s Restaurant and Nite Spot from 2005 to 2007.
6The liquor licence for Four S’s Restaurant and Sport Bar was suspended for seven days in 2005 for serving liquor to an intoxicated person and for permitting drunkenness in the establishment.
7The liquor licence for Four S’s Restaurant and Nite Spot was suspended for seven days in March 2007 for serving liquor to an intoxicated person and for permitting drunkenness in the establishment.
8This is the third time in approximately four and a half years that the Licensee is before the Board for breaching the provisions of the LLA and associated regulations.
9It should be noted that Ms Yorke, in her evidence, provided a version of events that the Board found was not credible.
10Ms Yorke also alleged that one of the Alcohol and Gaming Commission of Ontario ("AGCO") inspectors pushed her into the kitchen and swore at her. The allegation was made in a clear attempt to discredit the inspector. It was also an attempt to bring the liquor regulation process into disrepute for the Licensee’s own benefit.
11It is the Registrar’s position that this type of dishonest conduct should be censured by the Board. This is an aggravating factor and warrants an increased licence suspension.
12Given the Licensee’s past record of breaches of the regulations and her conduct in falsely accusing a liquor inspector of assault in an attempt to discredit him and the regulatory process for her own benefit, it is the Registrar’s position that a suspension of 10 to 14 days is appropriate.
Licensee’s Submission
13The Licensee’s position is that a reasonable penalty is a suspension of the liquor licence for a period of not more than 5 days or the imposition of a temporary condition limiting the hours of sales and service for a period of 14 days.
14It should be noted that the Licensee’s maximum penalty for the two prior infractions during Ms Yorke’s 10 year history was a suspension of no more than 7 days.
15The Registrar issued a Notice of Proposal on the basis of four alleged violations which included two serious violations of subsection 45(1) of the LLA being:
- The licence holder withheld, destroyed, concealed or refused to provide relevant information or things required for the purpose of the inspection; and
- The licence holder obstructed a person carrying out an inspection.
16The Board dismissed both allegations of subsection 45(1) of the LLA. The dismissal of these allegations should be considered by the Board in deciding the penalty.
17The Licensee objects to the Registrar’s position that the Licensee should be censured by the Board for Ms Yorke’s testimony.
18Ms Yorke testified to the version of events that she remembered and should not be penalized for any reason other than perjury.
19The Board did not accept or rely upon Ms Yorke’s evidence regarding the allegation against the inspector and therefore it should not be considered an aggravating factor for an increased licence suspension.
20The Licensee is willing to accept a suspension for a maximum period of five days or the imposition of a temporary condition for the sale and service of liquor to cease at 11:00 PM for a period of 14 days.
Registrar’s Reply
21A licence suspension is for the Board to impose and should not be determined by what the Licensee is "willing to accept".
22A suspension of five days does not recognize the principle of progressive discipline which the Board has used in the past.
23The fact that Ms Yorke’s derogatory testimony was not accepted by the Board does not mean the Board cannot take her attempt to demean the inspector into consideration.
24The Board does not have any jurisdiction under the LLA to impose time-limited conditions on a liquor licence.
25Additionally, the Divisional Court has made it clear that unless the Notice of Proposal is a proposal to revoke a liquor licence, the Board has no power to impose any conditions which are not included in the Notice of Proposal.
Analysis/Reasons/Findings
26The Board finds that an eight day suspension is appropriate, in the circumstances of this case, for the following reasons.
27The Board made a finding on two allegations which concerned the sale of liquor outside the prescribed hours of service and failing to remove signs of service within 45 minutes after the end of the period during which liquor may be sold and served under the licence.
28The Board considers violations of this nature to be serious.
29The inspection was conducted at 3:34 AM which was well outside the legislated timeframe for removing signs of service. The Board, in its decision, was satisfied based on the clear and consistent testimony of the inspectors that Ms Yorke was behind the bar and had served Mr. Shaver the beer after the prescribed hours of service and that signs of service had not been removed. The presence of Ms Yorke, the Licensee, is an aggravating factor.
30The Board believes that a suspension of the Licensee’s liquor licence is the appropriate penalty and as a result will not address the issue of whether it has the power to attach a time-limited condition to the liquor licence.
31The Board has taken into account that the Licensee has two prior suspensions of seven days each in the past five years. This is certainly an aggravating factor although the Board does note that the suspensions were for different infractions involving serving liquor to an intoxicated person and for permitting drunkenness in the establishment. A strong message needs to be sent to the Licensee that further infractions will not be tolerated.
32The Board has also taken into account that the Registrar originally requested a suspension of 14 days in the Notice of Proposal. The Notice of Proposal contained four allegations. Two allegations of subsection 45(1) of the LLA dealing with obstructing a person carrying out an inspection and withholding, destroying, concealing or refusing to provide relevant information or things required for the purpose of the inspection were dismissed by the Board.
33Finally, the Board takes a number of factors into consideration when making a decision on sanction. The Board seriously considers submissions made by the Licensee and the Registrar. However the Board does not consider what the Licensee is "willing" to accept as a penalty. The Board does consider suggestions or recommendations on penalty from the Licensee as it does from the Registrar.
Order
34Therefore, the Board ORDERS that liquor licence number 810575 issued to Mavis Gem (Julie) Yorke, operating as FOUR S’S BAR AND GRILL, 685 Kennedy Road, Unit #1, Toronto, Ontario, M1K 2B8, be SUSPENDED for a period of EIGHT (8) consecutive days.
35The 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 the date of this decision.
DATED AT TORONTO THIS 19th DAY OF January, 2010
JOAN LOUGHEED, BOARD MEMBER BRUCE MILLER, BOARD MEMBER