Licence Appeal Tribunal
Appeal in matière de permis
DATE: 2015-09-02
FILE: 8708/LLA
CASE NAME: 8708 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
1866398 Ontario Inc. o/a Mint Lounge & Karaoke Appellant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION AND ORDER ON SANCTION
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Appellant: Pradeep Chand, Counsel Murray Snider, Counsel
For the Respondent: Joyce Taylor, 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 March 7, 2014, to suspend the liquor sales licence of 1866398 Ontario Inc. o/a Mint Lounge & Karaoke (the “Appellant/Licensee”), for a period of 14 days. This was followed by a Further Amended Notice of Proposal issued on August 15, 2014 which proposed a suspension of 30 days.
The appeal was heard on August 14, 21, 22, and October 16, 22, 24, 2014, following which the Tribunal found the Licensee to be in breach of sub-section 45(2) of the Act (failure to facilitate an inspection), section 29 of OReg 719/90 (failure to clear the signs of service and consumption), section 45(1), of OReg 719/90 (permitting drunkenness) and subsection 44(1) of OReg 719/90 (unauthorized person behind the bar). The Tribunal did not find a breach of section 53 of OReg 719/90.
The parties were directed to provide written submissions on the appropriate sanction. The Tribunal has received and reviewed those submissions.
In her submission on sanction, Registrar’s Counsel submitted that a 25 to 30 day suspension is appropriate given that the Licensee committed numerous breaches of the Act and the regulation, within 7 months of receiving its liquor licence. Of particular concern to the Registrar was the fact the Licensee permitted drunkenness on three occasions and failed to ensure the responsible and controlled sale, service and consumption of liquor. Further, she submitted that were no extenuating circumstances put forward in evidence by the Licensee. These violations, together with the failure to facilitate an inspection, are very serious infractions.
Registrar's Counsel submitted that the Appellant did not present any evidence at the hearing, let alone any evidence to refute the evidence of the Registrar’s witnesses.
In response, Appellant's Counsel stated that the Tribunal should give little weight to the Registrar's submission regarding aggravating circumstances "as the Registrar has merely recited the evidence already provided" and should instead consider the following principles:
Protection of the Public: this would be equally served by a 7-10 day suspension.
Industry and/or regulator reputations: there are no compelling reasons to indicate this would require a 25-30 suspension as the Appellant has not previously been sanctioned in any way.
General and Specific Deterrence; this would be achieved with a 7-10 day suspension due to the financial impact of such a suspension - a 30 day suspension would threaten the livelihood of the Licensee and their employees.
Rehabilitation of the Licensee: this has already moved forward as the Licensee has taken steps to retrain staff and entered into a compliance plan with the AGCO.
In reply, Registrar's Counsel stated that the Licensee’s submission did not support the argument for a 7-10 day suspension and since the Licensee's operating hours are only on weekends, the suspension’s impact would be limited to one weekend.
In arriving at a decision on the appropriate suspension, the Tribunal takes into account the evidence of the witnesses and notes as well, the fact the Appellant provided no evidence to dispute the Registrar's evidence. The Appellant's submission on principles regarding sanction provide guidance generally, but the Tribunal, on these facts, puts particular emphasis on the principles of specific and general deterrence. Here, the Tribunal found numerous violations of the Act and its regulations, some of those breaches were repeated on several dates. The breaches were significant.
The Tribunal agrees with the Registrar's submission that a 7-10 days suspension, impacting one operating weekend only, would be insufficient to achieve the goals of both specific and general deterrence.
The Tribunal notes that the Licensee has no disciplinary history, yet given that this Licensee had been in business for a very short period of time when these violations occurred, the lack of disciplinary history is not a significant mitigating factor. This was not one incident, but rather, involved incidents which occurred on different inspection dates.
Further, the Tribunal notes that while the Licensee has submitted that substantial efforts have been made to ensure ‘absolute compliance’ with the Act and regulations, no particulars of such measures have been provided, other than reference to a compliance plan entered into with the AGCO in February 2015.
The Licensee has also submitted that a lengthy suspension would threaten its livelihood and that of its employees. However, the fact that the Licensee may lose some income is not a consideration in determining the appropriate remedy. A suspension by its very nature has financial ramifications, regrettably with an impact upon employees. But this is part of the responsibility for compliance with the Act that rests with a Licensee.
Given the circumstances of the various violations, and in particular those of November 23 and December 21, 2013 and January 19, and March 2, 2014 , the Tribunal has determined that a suspension of the Appellant's liquor licence for a period of twenty-three (23) days is appropriate.
Therefore, the Tribunal ORDERS that liquor license number 816341 held by 1866398 Ontario Inc. o/a Mint Lounge & Karaoke be suspended for a period of twenty-three (23) 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
Simon Dann, Member
Released: September 2, 2015