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-
2142575 Ontario Limited operating as XS Licensee
DECISION ON SANCTION
Panel: Eleanor Meslin, Chair, AGCO Brian Ford, Board Member
Decision Date: June 17, 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: Rena Khan, Representative 2142575 Ontario Limited, Licensee: Randall Barrs, Representative
Allegations
1A hearing into Notice of Proposal number 18163 dated June 24, 2010 to suspend liquor licence number 810853 (the “licence”) issued to 2142575 Ontario Limited (the “Licensee”) operating as XS, 261 Richmond Street West, Toronto, Ontario, M5V 3M6, (the “establishment” or the “premises”), on the basis of alleged violations of section 30(4) of the Liquor Licence Act (the “LLA”) and section 29 and subsections 45(1) and 45(2) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on December 1 and 2, 2010 in the City of Toronto.
2In its decision dated April 14, 2011 the Board found the Licensee contravened section 29 of the O.Reg and dismissed the allegations of violations of subsection 30(4) of the LLA and subsections 45(1) and 45(2) of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed the submissions of counsel relative to its finding under section 29 of the O.Reg.
Registrar's submissions
3Ms. Khan points out that there were a number of aggravating factors. First, there were several signs of alcoholic beverages still present throughout the premises when the inspectors arrived.
4Second, Ms. Khan points out that since the licence was issued to XS in November 2007, the Licensee has had its licence suspended two other occasions.. On both of those occasions, it was for a breach of subsection 45(1) of the O.Reg 719/90. One suspension was for seven days and the second for 14 days.
5Ms. Khan submits that a seven day suspension would be appropriate as a matter of general and specific deterrence.
Licensee's Submissions
6Mr. Barrs submits there are no previous findings of fail to clear and that this finding relates to one bottle with an unknown amount of alcohol in it and two plastic cups with unknown amounts of beer at 2:53 a.m., which Mr. Barrs states is eight minutes late.
7Mr. Barrs also submits that there was no one consuming alcohol and this was the least serious of all the allegations, and could have been resolved with a financial penalty.
8Mr. Barrs submits it will cost the licence holder approximately $5000.00 for every single day that the establishment is closed, as well as taking income from 60 - 75 employees.
9Mr. Barrs submits that a warning is more than sufficient. He also states the Licensee will do everything possible to make sure every last cup and bottle is removed by 2:45 a.m.
Registrar's Reply
10Ms. Khan submits, there is a strong public interest, which includes a safety component, in ensuring that all signs or service and consumption in the licensed premises are cleared within 45 minutes.
11Ms. Khan states the finding relates to the presence of a partial bottle of vodka and plastic cups with beer in them.
12Ms. Khan submits a suspension is intended to have an economic impact in order to have a specific deterrent effect.
13Ms. Khan submits that a seven day suspension would reflect the gravity of the breach and serve as a matter of general and specific deterrence.
Decision on Sanction
14The facts of this case are that the inspectors, on entering the establishment at 2:53 a.m., found several plastic cups, some of which contained beer. They also found a partial bottle of vodka mix. The inspectors did not see anyone drinking or with alcohol in front of them. There was obviously a failure to clear the signs of sale and service of alcohol in the required 45 minutes.
15The Board agrees with Registrar's counsel that it must consider the fact that the Licensee has had its licence suspended before. The Board also agrees with Mr. Barrs that the Licensee has not been suspended for this type of offence before.
16The Board does agree with the Registrar's counsel that a suspension is in order and not just a warning as submitted by Mr. Barrs.
Order
17Therefore, the Board Orders that liquor licence number 810833, issued to 2142575 Ontario Limited operating as XS, 261 Richmond Street West, Toronto, Ontario M5V 3M6, be suspended for three (3) consecutive days as a matter of general and specific deterrence.
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 17th DAY OF June , 2011
ELEANOR MESLIN, CHAIR, AGCO BRIAN FORD, BOARD MEMBER