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-
7080565 Ontario Inc. operating as Angie’s Restaurant Licensee
DECISION ON SANCTION
Panel: Patricia McQuaid, Vice-Chair Allan Higdon, Board Member
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: Lorenzo Policelli, Representative 7080565 Ontario Inc., Licensee: Roderick Jeffrey, on behalf of the corporate licensee
Allegations
1A hearing into Amended Notice of Proposal (“NOP”) number 18545, dated March 1, 2011 to suspend liquor licence number 800177 (the “licence”) issued to 7080565 Ontario Inc. (the “Licensee”) operating as ANGIE’S RESTAURANT, 2647 Eglinton Avenue East, Scarborough, Toronto, Ontario, M1K 2S2, on the basis of an alleged violation of section 43 of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (the “LLA”), was held on June 27, 2011 in the City of Toronto.
2In its decision dated July 19, 2011 the Board found the Licensee contravened section 43 of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Decision on Sanction
3In submissions Mr. Policelli has requested a thirty day suspension of the liquor licence, noting the overarching public safety concerns and the chronic issue of overcrowding at this establishment. In particular, since 2009 to the date of the hearing, the Licensee has been cited for overcrowding on at least seven occasions, with penalties ranging from monetary penalties to a twelve day suspension (the latter of which included other violations). The disciplinary history of this Licensee is far from exemplary.
4Mr. Jeffrey, though represented by counsel at the hearing, made submissions on sanction on his own behalf. He has expressed remorse for the overcrowding, indicated he has taken steps to ensure that it does not occur again, by monitoring more closely, and being more vigilant in reference to the head count. Mr. Jeffrey went on to state that there have been no further recurrences of the issue, and proposed that a suspension of ten days would be appropriate in the circumstances.
5In reply, Mr. Policelli took issue with the comment that there were no further recurrences. He gave information regarding dates, subsequent to June 26, 2010 on which, it is alleged, the Licensee exceeded capacity. While the Board understands why Mr. Policelli may deem his reply submissions to be a fair rebuttal, given Mr. Jeffrey’s submissions, the Board will not consider the incident dates subsequent to June 26, 2010 in reaching its determination of the appropriate sanction for the matter before it.
6The Board considers overcrowding a serious public safety issue. Capacities are set by the fire department to ensure a safe number of occupants; exceeding that capacity can potentially put both patrons and staff at risk. In this instance, the Board accepted the inspectors’ counts at 56 persons in an area licensed for 30. The establishment was, therefore, overcapacity by a significant margin.
7From the Registrar’s submissions, it can only be inferred that overcrowding is a chronic issue at the establishment and given the prior disciplinary history, it is an issue which Mr. Jeffrey is, or should be, very aware. There were numerous opportunities prior to June 26, 2010 to take steps to ensure that overcrowding did not occur, but the Licensee has failed, over time, to effectively monitor capacity. More diligence and attention to patrons entering and exiting the licensed area is required.
8A sanction must serve as both a specific and general deterrent. A ten day suspension given the prior contraventions is insufficient to meet those principles. However, the Board finds that a 30 day suspension as proposed by the Registrar would be too harsh in the circumstances of this case. The Licensee has expressed remorse, though the Board understands the Registrar’s concern as to how that expression of remorse will translate into effective corrective measures.
9Mr. Jeffrey, as principal of the Licensee must accept responsibility for operating his establishment in accordance with all of his responsibilities under the LLA. He continues to assert that the number of inspections suggest that he is being (potentially unfairly in his view) singled out. Yet, it appears that on those inspections, noncompliance is noted. Though the Board is sympathetic to the challenges experienced in running a successful business, this is clearly not the Licensee’s first offence for overcrowding. Any leniency must be weighed against these repeated occurrences.
10Therefore, the Board FINDS in these circumstances, and weighing the need for specific, and general, deterrence, that a seventeen day suspension is warranted.
Order
11Accordingly, as a matter of specific deterrence the Board ORDERS that liquor licence number 800177 issued to 7080565 Ontario Inc. operating as ANGIE’S RESTAURANT, 2647 Eglinton Avenue East, Scarborough, Toronto, Ontario, M1K 2S2, be suspended for SEVENTEEN (17) consecutive days.
12The 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 15^th^ DAY OF September , 2011
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PATRICIA MCQUAID, VICE-CHAIR ALLAN HIGDON, BOARD MEMBER