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-
Trasheteria (Peterborough) Inc. O/A Trasheteria
Licensee
DECISION ON Sanction
Panel: Kirsti Hunt, Vice-Chair Bruce S. Miller, Board Member
Decision Date: February 16, 2010
Hearing Location: Peterborough, 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 ) Phillip Morris, Representative Trasheteria (Peterborough) Inc., Licensee ) Jeffrey Ayotte and David O’Neill, Representatives
Allegations
1The Board of the Alcohol and Gaming Commission of Ontario (“AGCO”) held a hearing on September 9, 2009 pursuant to a Notice of Proposal number 17215 dated April 28, 2009 to suspend liquor licence number 40087 issued to Trasheteria (Peterborough) Inc., operating as TRASHETERIA, 123 Simcoe Street, Peterborough, Ontario, K9H 2H3 (the “establishment” or the “premises”), on the basis of an allegation of a violation under section 29 of Ontario Regulation 719/90 (the “O.Reg.”) under the Liquor Licence Act (the “LLA”).
Decision
2In its decision dated December 9, 2009 the Board found the Licensee violated section 29 of the LLA. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Registrar’s Submissions
3The Registrar’s representative submitted essentially that a 30-day suspension was appropriate as a specific as well as a general deterrent based on the past history of the establishment. The Licence was suspended for seven days in 2005 for after hours service and failure to clear, for 21 days in 2006 for failure to clear and after hours service and for 21 days in 2008 for overcrowding and permitting a minor to consume alcohol.
4The present breach has occurred for the third time. Staff have been involved at least once before, specifically Mr. Whelpdale. Consumption of liquor occurred in front of staff members and involved a friend of a staff member.
Licensee’s Submissions
5The Licensee’s representative submitted that the Licensee confirms that this is the fourth time that the Licensee has been before the Board but that each of the other three instances were more serious than this incident which is not a safety issue as was the 2008 transgression for which the Licensee received a 21-day suspension. A 7-day suspension would be appropriate as a specific and a general deterrence given the present fact scenario.
6This transgression occurred during the “Head of the Trent” weekend, an extremely busy one. The Inspector attended the establishment earlier in the evening and found no transgressions so the Licensee had done a proper job. Some leniency should be extended to the Licensee given these mitigating factors.
7A 30-day suspension is not appropriate given all the circumstances. Given the economic times, the Licensee is in a precarious financial situation and a lengthy suspension will undoubtedly cause the Licensee to close its doors permanently. The Licensee employs individuals, four on a full-time basis and 26 part-time employees who are mostly students. The Licensee asks the Board to consider this.
Registrar’s Reply Submissions
8In reply, the Registrar’s representative submitted that there is a strong public interest, which includes a safety component, in ensuring that patrons are not consuming liquor after hours in a licensed establishment.
9Economic factors are not only irrelevant but should not be referred to in the absence of real evidence of financial distress. A 7-day suspension would not reflect either the gravity of the breach or the history of problems in the establishment.
Analysis, Reasons and Decision
10The Board reviewed the submissions. In arriving at an appropriate sanction, the Board considered the fact that the Licensee has served suspensions on three previous occasions arising from breaches in April 2004 (7-day suspension), February 2005 (21-day suspension) and September 2007 (21-day suspension). The breaches in 2004 and 2005 were for failure to clear and after hours service. These infractions occurred five and almost six years ago and have not been repeated until the present incident so it would appear that the suspensions have had a deterrent affect over a number of years. The infractions in 2007 were for overcrowding and permitting a minor to consume alcohol.
11The Board agrees with the Licensee’s submission that the other instances were more serious than this incident. Each of the past instances included two different infractions and the third was overcrowding and permitting a minor to consume which have a public safety aspect.
12The Board does not support the Registrar’s submission that “there is a strong public interest, which includes a safety component, in ensuring that patrons are not consuming liquor after hours in a licensed establishment”. The allegation and the finding was that the licence holder failed to clear signs of service and consumption in the premises within 45 minutes after the end of the period during which liquor may be sold and served under the licence. The evidence did show that a friend of a staff member was consuming from a bottle of beer that had not been cleared but failure to clear signs, not the consumption, was the central issue and in the view of the Board failure to clear signs of service and consumption is, in and of itself, not a public safety issue.
13As submitted by the Registrar, economic factors are not a consideration. Any suspension has a financial impact on a Licensee which is part of the deterrence factor.
14The fact that this infraction occurred during a very busy weekend is not a consideration. A Licensee should be compliant at all times. However, the Inspector did not find any problems during a visit earlier in the evening and that does show that the Licensee “had done its job.” However that should have continued to the end of the evening but did not since the Inspector observed an infraction prior to closing time.
15The Board agrees with the principle of progressive discipline and the Licensee has served three suspensions, the last one being in 2008. However, a 30-day suspension is not appropriate in the circumstances of this case. Neither is a 7-day suspension appropriate given the overall history of infractions in this establishment or considerations of specific and general deterrence.
16Board finds in the circumstances that a 12-day suspension is appropriate as a specific as well as a general deterrence.
Order
17Therefore, the Board ORDERS that liquor licence number 40087 issued to Trasheteria (Peterborough) Inc., operating as TRASHETERIA, 123 Simcoe Street, Peterborough, Ontario, K9H 2H3, be SUSPENDED for a period of twelve (12) consecutive days.
18The 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 16th DAY OF February , 2010
KIRSTI HUNT, VICE-CHAIR, AGCO BRUCE S. MILLER, BOARD MEMBER