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-
Marcia Garcia o/a Classic Cocktails Bar & Grill Licensee
DECISION ON SANCTION
Panel: S. Grace Kerr, Board Member; Patricia McQuaid, Vice-Chair Decision Date: September 15, 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 ) Aviva Harari, Representative Maria Garcia, Licensee ) John Paul Evans, Representative
Allegations
1A hearing into Amended Notice of Proposal number 18561, dated March 2, 2011 to suspend for 30 days liquor licence number 202416 (“the Licence”) issued to Maria Garcia (“the Licensee”), operating as CLASSIC COCKTAILS BAR & GRILL (the “establishment” or the “premises”), 1805 Wilson Ave., Unit 5, North York, ON M9M 1A2, on the basis of alleged violations of subsection 45(2), clause 50(c), and section 43 of Ontario Regulation 719/90 (the O. Reg) made under the Liquor Licence Act (the “LLA” or the Act), and on the basis of an alleged breach of a condition of the Licence, was held on May 3, 2011 in the City of Toronto.
2In its decision dated August 17, 2011 the Board found that the Licensee contravened section 43 of the O. Reg and, on two separate occasions, breached the security provisions that are a condition of the Licence. The Board dismissed the allegations that the Licensee violated subsection 45(2) and clause 50(c) of the O. Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board received and reviewed those submissions.
Registrar’s Submissions
3The Registrar submitted that a 26-30 day suspension is appropriate as a matter of general and specific deterrence.
4The Licensee has the following record:
- An Order of Monetary Penalty, dated October 27, 2009 and in the amount of $1,500, for overcrowding on May 16, 2009 (298 persons in an area licensed for 222);
- A 15-day suspension by Order of the Board, dated January 26, 2011, based on earlier findings of overcrowding that occurred on November 29, 2009 and January 30, 2010. This was based on the Board’s earlier findings that conditions of the license had been breached on January 23 and 30, 2010 and that subsection 45(2) of the O. Reg had also been violated.
5The Board (in the within matter) found that the licensed premises were over-capacity on 4 occasions and that the Licensee was in breach of conditions attached to the Licence on 2 occasions.
6Crowd control is integral to the sale and service of liquor and necessary for the public’s protection and safety.
7Escalating penalties and lengthier suspensions should be used to encourage specific deterrence, as well as deterrence in the alcohol service industry more generally.
8This Licensee has acted with continuing disregard to her obligations under the legislation. Her pattern of repeated noncompliance demands significant consequences.
9A number of the within offences occurred shortly after another Board hearing that dealt with similar offences.
10The NOP asks for a 30-day suspension; the Registrar proved all of the allegations, except for the alleged subsection 45(2) and clause 50(c) offences. Therefore the sanction imposed should be close to the request in the NOP.
Licensee’s Submissions
11The Licensee points out that the Board’s findings were based on the Licensee’s admissions. Furthermore, the Licensee either provided an explanation for the breaches or candidly admitted that there was no legal defence under the circumstances.
12The Licensee asks for a 7-day suspension.
Registrar’s Reply Submissions
13There were no reply submissions.
Reasons and Analysis
14The Board has carefully considered the submissions of the Registrar and the Licensee on sanction and has decided that an 18-day suspension is warranted in this case.
15Licensees, by virtue of their participation in a regulated industry, which allows them to serve alcohol and do so for profit, must comply with their statutory obligations.
16One obligation the O. Reg imposes is not to permit a greater number of people to be in the establishment at any one time, mainly for important public safety reasons such as to ensure safe egress from licensed premises in the event of emergencies.
17It also requires licensees to comply with conditions attached to their licenses.
18In the within matter, the Board found that the Licensee was overcrowded on September 28, November 6, and December 5, 2010, and on January 23, 2011 (249, 294, 292, and 254 persons, on each date respectively, in an area licensed for 222).
19It also found that the security conditions on the Licence were breached on September 18 and November 6, 2010.
20The Board has also reviewed the Licensee’s history. It turns out that, recently, there was another Board hearing held on November 9th, 2010 (the November 9th hearing). It dealt with similar issues and resulted in findings on substantially the same breaches as the Board found in this case. For the findings resulting from the November 9th the Licensee received a 15-day suspension, in total. (This included sanctioning in relation to the breach of subsection 45(2) of the O Reg.)
21Also of relevance, the NOP, resulting in the November 9th hearing, was issued on April 13, 2010.
22All four of the dates on which the Board found the Licensee to be over-crowded occurred after the April 13th NOP.
23Also, one of the dates of admitted over-crowding in this matter occurred just 3 days prior to the November 9th hearing, and another one occurred only over a couple of months afterwards.
24This timeline concerns the Board. In determining the appropriate sanction, the Board needs to ensure that it acts not only as a general deterrent, and importantly, as a specific deterrent to the Licensee.
25Surely the Licensee was, or ought to have been aware, in preparation for (and if not, then certainly following) the November 9th hearing, that there were problems with over-capacity, and that she needed to address them.
26As a result, the Board needs to carefully assess the Licensee’s assertion that she had a valid explanation (that is, combining capacities) for her breaches of section 43 of the Act as a result of this NOP and in this hearing.
27Generally, acknowledgement of responsibility is to be encouraged. Evidence of genuine accountability may act to mitigate the length of a suspension. Its authenticity should also be judged, however.
28Specifically, the Board needs to discern that there has been real learning so that the offences will not be repeated.
29In the hearing the Licensee specified what she has been doing differently since the last offence to minimize the likelihood of both types of contraventions reoccurring. She testified that her security staff members would be trained to keep track of the numbers at the front door, using counters, and to always count the patrons exiting as well as entering. She also intends to bring in less people so that she can keep the capacity in control.
30Ms Garcia has also been training female staff to fill in as security on an “as-needed” basis to ensure that the condition on her Licence is met. This condition requires her to have at least one female (of 2) security staff working at the washrooms and at least one female security staff working at the front door.
31These corrective, or remedial, measures allay some of the Board’s concerns about the troubling pattern on non-compliance, both regarding the problems with overcapacity and the repeated breaches of conditions. The Board also believes that the Licensee’s training initiatives are authentic, and as a result, should be a preventative to future violations.
32The Board considers contraventions of section 43 of the O. Reg to be very serious. They are also combined with the findings that a condition was breached twice. As well, since this is not the first time that the Licensee has contravened this subsection and the prior contraventions were also recent, the Board believes that a 7-day suspension is insufficient to meet the principles of general and specific deterrence.
33However, the Board finds that the 26-30 day suspension proposed by the Registrar would be too harsh in the circumstances of this case. In particular, the Board considered that: the Board did not find against the Licensee as regards the also serious, subsection 45(2) allegation; the previous 15-day suspension included sanctioning for a subsection 45(2) finding; and, the Board believes the Licensee’s explanation for why the condition on the License was breached.
34In the context of this case, given the nature of the contraventions, the surrounding circumstances, and the Licensee’s prior disciplinary hearing, offset by the presence of corrective action, the Board finds that an eighteen (18) day suspension is appropriate, from the standpoint of specific and general deterrence.
35This suspension, which is escalated above and lengthier than the one previously ordered by the Board, should also act to protect the public, maintain the industry’s and the regulator’s reputations, and facilitate the Licensee’s rehabilitation.
Order
36Therefore, 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, ON M9M 1A2, be suspended for a period of eighteen (18) days.
37The Licensee shall submit proposed suspension dates in writing to the Manager, 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 the 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 15th DAY OF September, 2011
S. GRACE KERR, BOARD MEMBER PATRICIA MCQUAID, VICE-CHAIR