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-
1514507 Ontario Inc. operating as Riverbend Pub & Dining
Licensee
DECISION ON SANCTION
Panel: Kirsti Hunt, Vice-Chair, AGCO Joan Lougheed, Board Member
Decision Date: January 11, 2012
Hearing Location: Ottawa, 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 ) Tamara Brooks, Representative 1514507 Ontario Inc., Licensee ) Michael Rankin, Representative
Allegations
1A hearing into Notice of Proposal (“NOP”) number 18278, dated October 29, 2010 to suspend liquor licence number 90859 (the “licence”) issued to 1514507 Ontario Inc. (the “Licensee”) operating as RIVERBEND PUB & DINING, 3256 River Road, Manotick, Ontario K4M 1B4, on the basis of alleged violations of section 29 of the Liquor Licence Act (the “LLA”) and section 49 and subsections 31(1)(c), 33(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on March 28, 29 and 30, 2011 and May 30 and 31, 2011 in the City of Ottawa.
2In its decision dated October 28, 2011, the Board found the Licensee contravened subsection 31(1)(c) and 33(1) of the O.Reg and dismissed the allegations of violations of section 29 of the LLA and section 49 and subsection 45(1) of the O.Reg.
3The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Decision and Reasons on Sanction
4In making a determination of specific and general deterrence, the Board finds that a suspension of five (5) days is appropriate. Reasons follow.
5The NOP originally sought a suspension of sixty (60) days, based on a number of alleged violations. The Board made a finding in two of the allegations.
6In submissions the Registrar requested a fourteen (14) day suspension stating that the Licensee had a responsibility to comply with the legislation, which includes keeping personal receipts separate from business receipts and only permitting liquor purchased by the Licensee to be brought onto the premises. She noted that the Licensee had previously been given a warning by Inspector Rowntree and the Board made note of this in making the decision on sanction.
7The Licensee’s counsel stated that a warning would be sufficient given extenuating circumstances and mitigating factors, including no previous record of discipline, having been co-operative in relation to inspections and stating that the Licensee has ensured compliance since the incident.
8The Board accepts that the Licensee was and continues to be co-operative during inspections. The Board commends the Licensee for being co-operative, but notes that it is incumbent on the Licensee to take action when an Inspector identifies a concern or an infraction. The Board is concerned that the Licensee had received a previous warning but still did not fully realize the responsibilities that are integral to holding a liquor licence.
9The Board has made a determination that there was a contravention under subsection 31(1)(c) and 33(1) of the O.Reg. The Board accepts that the Licensee does not have a prior record of disciplinary action imposed by the Board. It also takes into consideration that the Licensee co-operated with the Board and admitted, as a preliminary matter at the hearing, that there had been a violation of subsection 31(1)(c), that alcohol for the establishment had been bought off licence.
10A warning is not appropriate since the Licensee has already had a previous warning. That suggests that a suspension is required as a matter of specific and general deterrence. However, a 14-day suspension is not appropriate given the circumstances of this case.
11The Licensee has an obligation to understand and fulfil the responsibilities that are required under the LLA, including taking measures to ensure that personal and business activities are separate and that business receipts are filed separately. The Licensee has an obligation to provide the purchase number for any and all liquor purchases made for the business, regardless of the quantity or whether there was a specific request for the purchase number at the time of purchase.
12The Licensee lives in the same building as the business, but she has an obligation to ensure compliance with legislation as it relates to the licensed areas of the business. The Licensee admitted in her evidence that she brought her own personal wine to the dining room of the establishment and was consuming it there on the night in question. However, the dining room is a licensed area and whether it has patrons or not or whether it is open or not, it remains a licensed area to which alcohol not purchased under the licence cannot be brought.
13In reaching a decision on sanction, the Board gave consideration to the fact that compliance is, at all times, the responsibility of the Licensee, and that the suspension should impart the seriousness of the violation on the Licensee while recognising the unique circumstances surrounding this violation.
14Therefore, for the above reasons, in the circumstances of this case, the Board FINDS that a five (5) day suspension is appropriate not only as a specific but also as a general deterrence.
Order
15The Board ORDERS that liquor licence number 90859 issued to 1514507 Ontario Inc. operating as RIVERBEND PUB & DINING, 3256 River Road, Manotick, Ontario, K4M 1B4, be suspended for a period of FIVE (5) consecutive days.
16The 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 11th DAY OF January, 2012
KIRSTI HUNT, VICE-CHAIR JOAN LOUGHEED, BOARD MEMBER