Licence Appeal Tribunal
FILE: 8401/LLA
CASE NAME: 8401 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
1647874 Ontario Inc. o/a Corner Pocket Applicant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION AND ORDER ON SANCTION
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Applicant: Ersio Amendola, Paralegal
For the Respondent: Aviva Harari, Counsel
DECISION AND ORDER ON SANCTION
The Registrar of Alcohol and Gaming (the "Registrar") under the Liquor Licence Act, (the "Act") issued a Notice of Proposal, dated September 25, 2013, which proposed to suspend a licence for fourteen days. 1647874 Ontario Inc. o/a Corner Pocket (the "Applicant") appealed this Notice of Proposal to the Licence Appeal Tribunal (the "Tribunal").
The appeal of the Notice of Proposal was heard on February 10, 2014. In its decision issued on March 3, 2014, the Tribunal found that the Applicant had breached section 29 of the Act by selling or permitting liquor to be sold to a person who is or appears to be intoxicated and section 45(1) of Regulation 719/90, by permitting drunkenness to occur on the premises.
The Tribunal has carefully considered the submissions on sanction from the Registrar and Applicant.
In her submission on penalty, Ms. Harari recommended a suspension of twelve to thirteen days, and noted that the Applicant has a previous history of non-compliance. She provided the Tribunal with the following information respecting previous violations:
- an agreement dated May 20, 2009 in which the Applicant agreed, with respect to an occurrence on December 5, 2008, to serve a three day suspension and to pay a $1,000 monetary penalty with respect to violations of section 29 of the Act and section 45(1) of Regulation 719/90;
- a May 28, 2010 decision of the Board of the Alcohol and Gaming Commission of Ontario ("AGCO") ordering a five day suspension with respect to its findings that the Applicant permitted drunkenness on its premises on February 27, 2009 in violation of section 45(1) of Regulation 719/90; and
- an agreement dated February 21, 2013 in which the Applicant agreed to pay a monetary penalty of $1,000 with respect to alleged violations of section 29 of the Act and section 45(1) of Regulation 719/90 occurring on June 23, 2012.
Ms. Harari argued that there is no evidence to suggest that staff took any steps to monitor alcohol consumption in the establishment and noted that although evidence of the existence of a policy was presented at the hearing, testimony indicated that the policy was not put into practice.
In his submission on penalty, Mr. Amendola suggested that a suspension of two to three days would be appropriate. He noted that the Tribunal found that "there were conflicting accounts of what happened at the Corner Pocket on the evening of May 11, 2013" and suggested that the outcome could have been in favour of the Applicant.
He argued that the Applicant had not had the benefit of counsel when he entered into the two agreements cited above and therefore "these prior alleged violations should not be held against him". Further, because Mr. Saraco, the Applicant's principal, was self-represented at the hearing held on April 12, 2010, he was disadvantaged because he did not fully understand the process. Mr. Amendola further noted that the Applicant is now fully aware of its responsibilities and "promises, in the future, to abide by the law" and to proactively ensure that staff are aware of all policies. Finally, he argued that the Applicant has demonstrated responsibility by banning a total of 114 patrons over the past nine years that the establishment has been in operation.
The Tribunal notes that while its decision indeed states that there were conflicting accounts of the events on May 11, 2013, this statement was an introduction to its explanation of why the police testimony was accepted as the more credible evidence. The Tribunal's findings were conclusive. Nor does the Tribunal accept that it should not assign weight either to the two agreements signed by Mr. Saraco in which he acknowledged violations or to the April 12, 2010 findings of the Board of the AGCO. Mr. Saraco had the right to representation in all instances. That he chose to represent himself on not one, but on three separate occasions, does not undermine the validity of the outcomes.
A sanction is intended to achieve the goals of both specific and general deterrence. Mr. Amendola stated that the Applicant now promises to abide by the law in the future and to ensure that the establishment's alcohol policy is followed. At the hearing in this matter, Mr. Saraco testified that he put the policy in place in 2012. On cross-examination, he testified that he has not looked at it recently and stated "I let the girls read it". He did not know what a specific reference to a BAC chart meant although this is contained in the first section of the policy. Witness K.S., a bartender at the establishment, testified that Mr. Saraco went over the policy with the servers every three months. However, she also could not state what the BAC chart was or where it was kept. Their conflicting evidence and their lack of familiarity with the policy suggests that three previous violations have not acted as sufficient deterrent for Mr. Saraco to take proactive steps to ensure either understanding of the policy or compliance with it.
While the Tribunal acknowledges the commitments for the future set out in Mr. Amendola's submission, it cannot overlook three previous violations or the fact that despite previous sanctions, the establishment does not appear to have taken seriously its responsibilities with respect to implementing policy and complying with the Act and its regulations. The Registrar's Notice of Proposal sought a fourteen day licence suspension with respect to three alleged violations. In its decision, the Tribunal found the licensee did not breach section 20(1) of Regulation 719/90. In her submission on sanction, Ms. Harari requested a suspension of twelve to thirteen days. This slight reduction does not recognize that the licensee was not in breach of one of the original three allegations. The Tribunal has therefore determined that a suspension of the Applicant's liquor licence for a period of eight (8) days is appropriate.
ORDER
The Tribunal orders that the Applicant's liquor licence be suspended for a period of eight (8) 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
Mary Ann Spencer, Member
Released: March 31, 2014