Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE:
2015-08-13
FILE:
9296/LLA
CASE NAME:
9296/LLA vs. 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
2372964 Ontario Inc. o/a Zak’s Appellant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION ON SANCTION
ADJUDICATOR:
Alex McCauley, Member
APPEARANCES:
For the Appellant:
Zlatko Horvatic, Agent
For the Respondent:
Aviva Harrari, 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 (the “Proposal”), dated December 10, 2014 which proposed to revoke the licence of 2372964 Ontario Inc. o/a Zak’s (the "Appellant”).
The appeal of the Proposal was heard on June 8, 2015. In its decision dated June 24, 2015, the Tribunal found that the Appellant contravened s. 45(1) and 45(2) of the Act and sections 25(1), 29, 34, 45(1), 45.1 and 45.2 of Ontario Regulation 719/90 under the Act. The Tribunal also finds that there was a breach of the following condition on the liquor licence: “The License Holder shall not be present in the licensed premises at any time unless in the presence of a manager employed by the establishment”. The Tribunal dismissed the allegation that the Appellant is in violation of s. 6(2)(d) of the Act. The parties were directed to provide written submissions on the appropriate sanction. The Tribunal has received and reviewed those submissions.
The Registrar is seeking a revocation of the licence, based on the findings of the Tribunal.
The Registrar is greatly concerned about breaches to the condition on the liquor licence, specifically that a manager be on duty at all times even when the Appellant is on the premises. The Appellant has breached this condition twice in a short period of time.
The Registrar is also very concerned about the incident of September 7, 2014, in and around the licensed premises. On this occasion, the police were denied access to the licensed premises and were faced with a very dangerous situation in the parking lot.
Throughout this incident, the Appellant was on the premises yet he failed to intervene to assist the police or to identify himself to the police.
It is the position of the Registrar that this licensee has demonstrated that he is not deserving of the privilege of having a liquor licence; the liquor licence should be revoked.
Zlatko Horvatic
In his submissions, the Appellant attempted to give further evidence regarding a manager being in the bar at the time that the condition was breached on May 30, 2014. This submission was never made by him in his evidence at the hearing and will not be considered by the Tribunal now. In addition, he submitted a letter from an individual who purports to be a witness to an incident which occurred on October 26, 2013. Its relevance to the incident of September 7, 2014 is not at all clear, but in any event, it too will not be considered at this stage given that it was not produced in evidence at the hearing.
In his submissions, the Appellant maintains that the persons causing problems in the parking lot were not persons from his bar, but had come from another location.
The Appellant denies that his staff served alcohol after hours or that they obstructed the police from entering the premises.
The Tribunal takes into account several factors when determining the appropriate sanction in these appeals: the disciplinary history of the Appellant, the nature of the violation and surrounding circumstances, remedial action taken to minimize the risk of a similar incident in the future and whether findings were made on some or all of the allegations set out in the NOP, and whether those violations were more or less serious in nature.
The condition requiring a manager be present in the establishment at all times that the licence holder is present has been breached previously, and resulted in a 21 day suspension. The Appellant appears not to have been deterred by that lengthy suspension.
The events of September 7, 2014, viewed as a whole, were extremely serious with risk of injury to both police and patrons. Based on the findings of the Tribunal of numerous violations of the Act and Regulations, it can fairly be concluded that this licensee has little understanding of his obligation as a licensee or, alternatively, does not see himself as obliged to comply with the Act.
In his submissions, the Appellant again asserted that the persons involved in the dispute in the parking lot were not from his bar. The Tribunal has previously addressed this in its decision and is satisfied beyond a doubt that the patrons who were involved in the parking lot dispute were indeed from the Appellant’s licensed premise. This is further reinforced by the Appellant’s own statement that he knew some of the combatants and actually spoke to them.
The Appellant’s continued assertions serve to underline his failure to accept responsibility as a licensee, in the face of clear findings made against him. He has provided no evidence or submissions to the Tribunal regarding any remedial measures to ensure that a similar incident does not occur in the future, and based on his submissions, he appears not to see any need for corrective measures to his method of operating his business.
On the night of September 7, 2014 the Appellant made no effort to intercede in events of that night or to assist the police, instead choosing to hide out in his office. Again, this is indicative of his abdication of responsibility as a licensee. The Tribunal concludes that a period of suspension would not, on these facts, provide any deterrent effect to this licensee.
The Tribunal agrees with the Registrar’s submission that the licensee has demonstrated that he is not deserving of the privilege of having a liquor licence and that the liquor licence should be revoked.
After considering all of the evidence before it and having reviewed the submissions of the parties, it is the decision of this Tribunal that the liquor licence of 2372964 Ontario Inc. o/a Zak’s, shall be revoked immediately.
LICENCE APPEAL TRIBUNAL
Alex McCauley, Member
Released: August 13, 2015