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-
Maria Garcia operating as Classic Cocktails Bar & Grill Licensee
DECISION ON Sanction
Panel: Allan Higdon, Board Member Bruce S. Miller, Board Member
Decision Date: March 9, 2011
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 ) Phillip Morris, Representative Maria Garcia, Licensee ) John Paul Evans, Representative
Allegations
A hearing into Notice of Proposal number 17989 dated April 13, 2010 to suspend liquor licence number 202416 issued to Maria Garcia (the “Licensee”), operating as CLASSIC COCKTAILS BAR & GRILL (the “establishment” or the “premises”), 1805 Wilson Avenue, Unit 5, North York, Ontario, M9M 1A2, on the basis of an alleged violation of section 43 and subsection 45(2) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) and an alleged breach of conditions on the licence, was held on November 9, 2010 in the City of Toronto.
In its decision dated January 26, 2011 the Board found the Licensee violated section 43 and subsection 45(2) of O.Reg 719/90, made pursuant to the LLA and breached conditions on the licence. The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Registrar’s Submission
There are a number of aggravating circumstances. On October 27, 2009, the Licensee was ordered to pay $1,500 for permitting 298 people in an area licensed for 222 people. The date of the overcrowding was May 16, 2009. Five months later the Licensee permitted significant overcrowding on November 29, 2009. The Licensee was warned at that time that she could not combine the interior and exterior capacities.
On January 30, 2010, the licensed premises were seriously overcrowded. The Licensee clearly has refused to accept her public safety obligations to control numbers in the interior of her premises.
It is also clear that patrons are comfortable rolling joints directly in front of the Licensee’s security staff. This again denotes a failure of the Licensee to control her staff and patrons.
Finally, the Licensee seems indifferent to the security requirements on her licence.
Only a significant suspension will motivate this Licensee to comply with the law and a thirty day suspension would be appropriate.
Licensee’s Submission
The Licensee conceded that the number of persons in the premises exceeded 222 persons on November 29, 2010.
The Board’s findings regarding the breach of subsection 45(2) are disappointing. The bottom line is that one marijuana cigarette was being rolled, security saw her rolling it and did not do anything about it. What security should have done about what is a relatively minor matter is problematic given that police chose not to charge the patron.
With respect to the January 23, 2010 finding, the Licensee had the requisite number of security officers on the premises. The breaches relate to the fact they were not positioned in the premises according to a strict interpretation of the conditions.
The Licensee conceded that one female security officer left her post at the front entrance to use the bathroom and there was no female security officer stationed there for approximately 23 minutes. Surely this must be considered a minor breach.
There are no aggravating factors which could possibly justify a suspension of thirty days. The allegation of overcrowding which was the subject of an Order of Monetary Penalty was never admitted by the Licensee. The Licensee paid the fine under protest. The Crown ultimately withdrew the charges in court.
The Licensee has hired off duty police officers to patrol the exterior of her premises at a great cost in order to ensure public safety. She is prepared to make every effort to comply with the capacities including applying to the AGCO to have them increased.
A suspension of no more than five days would be the appropriate disposition.
Registrar’s Reply
The Licensee’s disappointment in the Board’s findings under subsection 45(2) is not relevant. The Board found that marijuana was not just possessed but was being openly rolled and consumed on the patio. Open marijuana use in licensed premises is not a “relatively minor problem.”
The Board’s finding was that there were 46 too many people on the premises on January 30, 2010 and not 43.
The Board clearly did not accept the Licensee’s evidence that the security guard was in the washroom on January 30, 2010 so this was not a “minor” breach.
The Licensee’s concession of overcrowding on November 29, 2010 is not a mitigating factor as it was substantially less than the number counted by the inspectors.
There is no such thing as a strict interpretation of the conditions. The conditions are clear on their face.
There is no such thing as paying a monetary penalty under protest. The Registrar issued an Order of Monetary Penalty and the Licensee did not appeal it. The fact the Crown withdrew the charges is irrelevant to these administrative proceedings.
Hiring paid off duty police officers does not absolve the Licensee from complying with her statutory duties.
Analysis/Reasons/Findings
The Board FINDS that a FIFTEEN (15) day suspension is appropriate, in the circumstances of this case, for the following reasons.
The Board found that the interior of the premises was overcrowded on two occasions. On November 29, 2009 the premises were severely over capacity. There were two counts made by the inspectors for the interior area. One was for 305 persons and the other was for 321 persons in an area with a licensed capacity of 222. Security staff advised Sergeant (“Sgt.”) Dugan there were over 300 people in the bar. Three months later on January 30, 2010 the premises were again found to be overcrowded by 46 persons. There was evidence that the security staff were unsure of the capacity.
The Board has taken into account that there were two dates on which the premises were overcrowded in a relatively short time span. This is further aggravated by the fact that an Order of Monetary Penalty (“OMP”) was issued for overcrowding that occurred on May 16, 2009. Mr. Evans stated that the OMP was paid “under protest.” The fact is that the Licensee could have appealed the OMP but chose not to. The Board has taken the OMP into account in assessing penalty. The Board has also taken into account that the Licensee has not had her licence previously suspended.
The Licensee needs to take responsibility for the operation of her establishment. The capacities for the interior and exterior areas are clear. The capacities cannot be combined and must include staff. There may well be challenges because of the design of the premises in enforcing capacities. However, this problem is not unique to Classic Cocktails Bar & Grill. Other licensed establishments have faced the same challenge and have overcome the problem through architectural changes, improved training and better communication among staff. It was clear throughout the hearing that staff did not have a clear understanding of the two capacities and their role in controlling it. The Licensee can apply to have the capacity increased but until that is approved by the AGCO the current capacity limits are in place and must be followed.
The Board views the breach of subsection 45(2) as serious. The evidence showed that a patron was rolling a marijuana cigarette directly in front of security staff. There was further evidence of marijuana use on the patio. It is clearly an aggravating factor that the Licensee’s security staff did nothing to deter the patron until they noticed the police officer. The fact that police used their discretion and chose not to charge the patron is of little relevance. The Board strongly disagrees with Mr. Evans that this is a minor matter. The fact that marijuana was possessed and/or used directly in front of security staff is symptomatic of poorly trained staff and/or a lack of supervision.
Finally, the Board found the Licensee breached the terms of her liquor licence on the two inspections in January 2010 when security staff were not at their designated locations. Mr. Evans argued that these breaches were minor in nature. There may be some merit to this argument if each incident were taken one by one. However when taken cumulatively they show a complete disregard for the terms and conditions of the Licensee’s liquor licence. The conditions are clear; they are not open to interpretation and must be followed.
The evidence consistently showed that staff had a poor understanding of their roles and responsibilities. Staff stood by while a patron rolled a marijuana cigarette. Staff did not understand the terms and conditions of the licence. Incredibly, staff was unsure of capacity limits and the fact that staff had to be included in the capacity counts. Finally, there was evidence that staff did not properly search people when they entered.
The Board notes the Licensee has hired off duty police officers to patrol the exterior and this is a positive step. The Board would hope that the sanction is a wake up call to the Licensee. The Board made a number of findings of violations that occurred over a relatively short period of time. Steps need to be taken to ensure that the rules are followed. It seems clear that the staff are lacking in both training and supervision. The Board has taken into account that this is the Licensee’s first licence suspension. The Licensee should note that further similar violations could lead to more serious sanctions.
Order
Therefore, the Board ORDERS that liquor licence number 202416 issued to Maria Garcia operating as CLASSIC COCKTAILS BAR & GRILL, 1805 Wilson Ave., Unit 5, North York, Ontario, M9M 1A2 be SUSPENDED for a period of FIFTEEN (15) consecutive days.
The 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 9 DAY OF MARCH , 2011
ALLAN HIGDON, BOARD MEMBER BRUCE MILLER, BOARD MEMBER