Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-10-22
FILE:
8844/LLA
CASE NAME:
8844 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 Revoke a Licence
1860920 Ontario Inc. o/a Papa J’s Doghouse Cafe and Eatery
Appellant
-and-
Registrar of Alcohol and Gaming
Respondent
DECISION AND ORDER ON SANCTION
ADJUDICATOR:
Mary Ann Spencer, Member
APPEARANCES:
For the Appellant:
Constantine Bethune, Agent
For the Respondent:
Aviva Harari, Counsel
REASONS FOR DECISION AND ORDER
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act (the “Act”) issued a Notice of Proposal (the “Proposal”), dated April 17, 2014 which proposed to revoke the licence of 1860920 Ontario Inc. o/a Papa J’s Doghouse Cafe and Eatery (the "Appellant”). The Appellant appealed the Proposal to the Licence Appeal Tribunal (the “Tribunal”) and the appeal was heard on August 26, 2014.
In its decision issued on September 19, 2014, the Tribunal found that the Appellant had breached sections 45(1) and (2) of the Act, subsection 44(1) of Regulation 719/90, and the conditions on its licence which exclude Inderjeet Joshi from the premises and require the installation of security cameras and the storage of their surveillance records.
The Tribunal requested written submissions on sanction from the parties.
The Tribunal has carefully considered the submission on sanction from the Registrar, received on September 24, 2014. Ms Harari recommends that the Appellant’s licence be revoked. No submission was received from the Appellant although ample time was given to the Appellant to provide its submissions.
Ms Harari argued that the breaches of sections 45(1) and (2) of the Act are serious and impede the regulator’s ability to ensure compliance. She also argued that the breach of two conditions on the Appellant’s licence, the failure to install security cameras and the fact that Inderjeet Joshi was allowed on the premises, is sufficient to support a revocation of its licence, referring the Tribunal to 102265 Ontario Inc.(c.o.b. Tri-Star Sales and Leasing) v. Ontario (Motor Vehicle Dealers Act, Registrar) [2004] O.J. No. 900, (“Tri-Star”) in which the Court found that breach of a consent order was sufficient to result in revocation of a licence.
A sanction is intended to achieve the goals of both specific and general deterrence. It is the responsibility of the licence holder to put policies and mechanisms in place to ensure compliance with the Act, the regulations and the licence conditions. In her closing submission at the hearing in this matter, Ms Harari described Mr. Bethune’s attitude as being “laissez-faire”.
The Tribunal agrees with Ms Harari’s description. With respect to the condition requiring the installation of security cameras, the first camera was not purchased until November, 2013 and no operating indoor camera was in place in March, 2014, even though the conditions had been placed on the licence in June, 2013.
With respect to Mr. Joshi’s presence at the establishment, Mr. Bethune did not dispute any of the inspectors’ testimony but admitted he had difficulty controlling both Mr. Joshi and his staff who allowed Mr. Joshi on the premises. Mr. Bethune testified he had told all of his staff about the licence conditions. The Tribunal concluded that employee Pentz knew Mr. Joshi’s identity and deliberately withheld this information from Inspector Gayle, thereby failing to facilitate an inspection, a breach of section 45(2) of the Act. The Tribunal also found a breach of section 45(1) of the Act notwithstanding Mr. Bethune’s unsubstantiated testimony that he had in fact submitted some of the documents requested although three days after what was an extended deadline.
At the hearing, Mr. Bethune provided the Tribunal with no evidence of any initiative he had either taken or intended to take to ensure compliance with the conditions on the licence. He also failed to provide the Tribunal with a submission on sanction, leaving the Tribunal only with his closing statement at the hearing in which he expressed a hope that he would be penalized with a suspension which would assist him in proving to his staff that failure to comply with licence conditions is a serious situation.
Ms Harari suggested that the licensee’s failure to ensure all staff was aware of the conditions is an aggravating factor. However, as noted above, the Tribunal accepted Mr. Bethune’s testimony that he had told all staff about the conditions. The Tribunal also notes that there is a mitigating factor; because of illness, Mr. Bethune has been unable to be present on the premises for more than a few hours per week. However, while his absence may explain why the staff risked permitting Mr. Joshi’s presence on the premises, it does not explain why Mr. Bethune continues to rely on them, going so far as to say he trusts Mr. Pentz to be alone in the establishment, notwithstanding his testimony that Pentz is ‘hard to deal with’. It was Mr. Joshi’s presence that resulted in one of the two breaches of conditions and the breaches of section 45(2) of the Act and. subsection 44(1) of Regulation 719/90. A plan to deal with staff who continue to allow Mr. Joshi to enter the premises might have helped persuade the Tribunal of Mr. Bethune’s commitment to compliance.
Ms Harari submitted no history of previous violations for this licensee. The Tribunal notes that penalties are generally progressive in nature. The Tribunal notes that in Tri-Star, the Commercial Registration Appeal Tribunal had ordered a revocation of the registration and the consent order was in settlement of an appeal of that decision. In this case, while conditions were placed on the licence following a June, 2013 incident, there is no evidence of previous warning letters or suspensions. The Tribunal therefore concludes that revocation of the liquor licence is unwarranted, notwithstanding the fact that the licence holder appears to have had some difficulty communicating to its staff the seriousness of the requirement to comply with its licence conditions and the Act. The licence holder cannot abdicate responsibility to his staff. Further, the actions of Mr. Bethune and the Appellant’s staff led to violations of sections 45(1) and 45(2) of the Act respectively, thereby, as Ms. Harari submitted, impeding the regulator’s ability to ensure compliance. Given the seriousness of these breaches, the Tribunal has therefore determined that suspension of the Appellant’s liquor licence for a period of twenty one (21) days is appropriate.
ORDER
The Tribunal orders that the Appellant’s liquor licence be suspended for a period of twenty one (21) consecutive days. The Appellant 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 Appellant.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Released: October 22, 2014