Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2012-11-05
FILE:
7349/LLA
CASE NAME:
7349 v. Registrar of Alcohol and Gaming
Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 - To Suspend a Licence
1815360 Ontario Inc. o/a Soho Restaurant & Bar
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
DECISION AND ORDER ON SANCTION
ADJUDICATOR:
Simon Dann
APPEARANCES:
For the Applicant:
Simon Park, Counsel
For the Respondent:
Tamara Brooks, Counsel
DECISION AND ORDER ON SANCTION
The Registrar of Alcohol and Gaming, under the Liquor Licence Act (the “Registrar” and the “Act” respectively) issued a Notice of Proposal #19153 (the “NOP”), dated March 26, 2012, to suspend, for 10 days, the liquor licence number 800336 held by 1815360 Ontario Inc., o/a Soho Restaurant & Bar, 5649 Yonge Street, North York, Toronto (“Soho”). The appeal of the NOP was heard on August 13, 2012.
In its decision issued on September 17, 2012, the Tribunal found the Applicant had breached subsections 30(4) and 41(1) of Ontario Regulation 719/90 (the O Reg) under the Liquor Licence Act (the LLA) by permitting a person who appeared to be under the age of 19 to have or consume liquor in the licensed premises. The licensee was also found to have failed to inspect a piece of identification of a person apparently under the age of nineteen years prior to selling or serving liquor to that person. The Tribunal found that there was insufficient evidence to conclude a contravention of s.45(1) of the OReg. The Tribunal then requested written submissions from the parties regarding sanction.
The Tribunal has carefully considered the parties ’submissions.
In her submission on sanction, the Registrar’s Counsel, Ms. Brooks, noted that “regardless of the circumstances under which the minors entered the establishment, the responsibility of knowing whether the patrons were of age or not did in fact lie on the employee who also provided direct service to the underage females”; and that “the licensee’s employee failed at the most basic level to request identification and confirm the age of each person as newcomers appeared at the table”.
Ms. Brooks noted that a Toronto Police witness at the hearing said a female server admitted to him that she had not checked the identification of the two females who arrived after the original group of patrons.
Ms. Brooks also noted the licensee had admitted to providing service to underage patrons in his Notice of Appeal.
The case law submitted by Ms. Brooks, 1340305 Ontario Ltd.(c.o.b. All Star Tap & Grill House), [2011] O.A.G.C.D. No 126 (“All Star”), though somewhat different on the facts, is supportive of the proposition that the Licensee must “assume a more pro-active role and be diligent in ensuring that his staff fully understand and comply with their responsibilities as employees in a licensed establishment”.
In these circumstances, Ms. Brooks submitted that a suspension of 10 days is appropriate.
The Applicant’s counsel, Mr. Park, submitted that a 10 day suspension would be “excessively punitive” and instead, a three day suspension would “meet the objectives of specific and general deterrence for the contraventions”.
However, Mr. Park acknowledged the licensee took responsibility “for the finding that two minors were permitted to have or consume liquor in the licensed premises, and that the licence holder failed to inspect a piece of identification”.
Mr. Park submitted that a mitigating factor to consider in the Tribunal’s decision on sanction, is the fact the licensee had no prior infractions. He also noted the licensee has since hired extra staff and positioned staff at the entrance to check identification and ensure this infraction does not occur again
While Mr. Park submitted the licensee did a personal check to ensure there were no service issues every 30 minutes, and that the infraction occurred at a time when “there was an unusually large number of patrons”, the Tribunal agrees with Ms. Brooks’ position that “the responsibility of knowing whether the patrons were of age or not did in fact lie on the employee who also provided direct service to the underage females”. The employee’s failure to act on their responsibility is fundamental to the decision on sanction.
In arriving at a decision, the Tribunal notes that a sanction in this regulatory setting is intended to achieve the goals of both specific and general deterrence.
Contraventions of this nature are serious, however, given the circumstances of the violations of October 28, 2011, and also considering that the licensee has had no prior infractions, and has taken action to avoid a repeat occurrence, the Tribunal has determined that suspension of the liquor licence for a period of six (6) days would be appropriate.
Therefore, the Tribunal ORDERS that liquor license number 800336 held by 1815360 Ontario Inc. o/a Soho Restaurant & Bar be suspended for a period of six (6) consecutive days.
The Applicant shall submit proposed suspension dates to the Registrar within seven (7) days of the date of this decision, failing which the Registrar may set the suspension dates without further notice to the Applicant.
LICENCE APPEAL TRIBUNAL
Simon Dann, Member
Released: November 5, 2012