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-
1713957 Ontario Inc. operating as McGradies Tap & Grill
Licensee
DECISION ON SANCTION
Panel: Joan Lougheed, Board Member Bruce Miller, Board Member
Decision Date: September 15, 2011
Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON 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 ) Richard Kulis, Representative 1713957 Ontario Inc., Licensee ) Melissa Lee Harris, Agent for the ) Licensee
Allegations
A hearing into Notice of Proposal (“NOP”) number 18309, dated November 2, 2010 to suspend liquor licence number 22801 (the “licence”) issued to 1713957 Ontario Inc. (the “Licensee”) operating as MCGRADIES TAP & GRILL, 2167 Victoria Park Avenue, Toronto, Ontario, M1R 1V6, on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (the “LLA”) was held on February 10 and April 11, 2011 in the City of Toronto.
In its decision dated August 8, 2011 the Board found the Licensee contravened subsection 45(1) of the LLA and dismissed the allegation of a violation of subsection 45(2) of the LLA. The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Decision and Reasons On Sanction
In making a determination of specific and general deterrence, the Board finds that a suspension of seven (7) days is appropriate. Reasons follow.
The NOP seeks a suspension of thirty-one (31) days. Mr. Kulis, in submissions, requested a twenty-one (21) day suspension. Mr. Kulis stated that the actions of the licence holder were deliberate and interfered with the police investigation. The Licensee failed to acknowledge that his actions led to a violation and there was no suggestion of measures that the Licensee would take to ensure future compliance, suggesting that a significant suspension is required as a matter of specific deterrence.
Ms Melissa Lee Harris submits that the Licensee had no prior suspensions and the violation was not directly related to alcohol, but rather to a police assault investigation on the premises. Given the language problems leading to a misunderstanding between police and the Licensee, and the negative impact a suspension would have on employees, Ms. Harris submits that a three (3) day suspension is appropriate.
The Board in its Decision has made a finding in one of the two separate violations alleged. In the circumstances, the Board has determined that a suspension for 21 days is not appropriate nor is the suggestion of a three day suspension appropriate. The Board is concerned that there has not, in submissions, been any information regarding policies and procedures in place to promote compliance. This demonstrates a lack of understanding of the requirements of the LLA and its regulations and/or a lack of diligence in ensuring compliance.
The Board acknowledged, in its decision on finding, that language and understanding may have been a factor in the circumstances, and gave deliberation to this, as one consideration in dismissing the allegation of subsection 45(2) of the LLA, but the Board also notes that a licence holder has an obligation to understand and fulfil the responsibilities that are required under the LLA, including facilitating an inspection.
The Board does not agree with Ms Harris’ statement that there was no contravention of the LLA. In fact, the Board has already determined that there has been a contravention.
In reaching a decision on sanction, the Board gave consideration to the fact that this is a first offence for the Licensee, but notes that this consideration does not necessarily lead to a conclusion that the breach, first in time, should result in a much lesser penalty.
The Board understands the financial impact of a suspension on both the Licensee and employees. However compliance is, at all times, the responsibility of the Licensee, and financial ramifications are part of the deterrent effect of a suspension.
Therefore, for the above reasons, in the circumstances of this case, the Board FINDS that a seven (7) day suspension is appropriate not only as a specific but also as a general deterrence.
Order
The Board ORDERS that liquor licence number 22801 issued to 1713957 Ontario Inc. operating as MCGRADIES TAP & GRILL, 2167 Victoria Park Avenue, Toronto, Ontario, M1R 1V6, be suspended for a period of SEVEN (7) 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 the date of this decision.
DATED AT TORONTO THIS 15th DAY OF September , 2011
BRUCE MILLER, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER