Licence Appeal Tribunal
FILE: 9493/LLA
CASE NAME: 9493 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
G. Bar & Grill Inc. o/a G Bar & Grill Appellant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER ON SANCTION
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Appellant: William Luke, Counsel
For the Respondent: Joyce Taylor, Counsel
REASONS FOR DECISION AND ORDER
1The Registrar issued Notice of Proposal #20755 dated February 23, 2015 which proposed to suspend the licence of the Appellant for 14 days on the grounds that the Appellant obstructed an inspection and that the Appellant had breached a condition on its licence. The appeal was heard on September 30 and October 29, 2015. In its decision issued on November 23, 2015, the Tribunal found that the Appellant was in breach of a condition on its licence that there be no gaming machines on the premises, but did not find that the Appellant obstructed the inspector during the course of his inspection.
2In its ruling, the Tribunal gave the Registrar seven days from the date of the release of its order to make submissions on the appropriate sanction. It gave the Appellant seven days from the receipt of the Registrar’s submissions to make responding submissions on sanction. The Registrar was then given a further three days to make reply submissions, if any. The Tribunal received the Registrar’s submissions on sanction on November 27, 2015 and notes that they were copied to Counsel for the Appellant. The Appellant’s responding submissions were due on December 4. None had been received by December 17, accordingly, the Tribunal will make its ruling on sanction based on the facts disclosed at the hearing and the Registrar’s submissions.
3The Registrar submits that the Appellant’s breach of the condition on his licence not to have gaming machines on his premises just three weeks after agreeing to the condition is a serious infraction that warrants a significant penalty. The Registrar submits that that penalty should be a suspension of 10 to 12 days. He submits that this level of suspension is necessary to bring home to the Appellant the importance of compliance with the regulatory framework and the importance of compliance with conditions to which he consented.
4There is also the broader public interest perspective. Licence holders in general must know how seriously the Registrar and this Tribunal treat compliance with the regulatory framework and conditions on licences. It must be generally understood that breach of that framework will carry a substantial cost. The two concepts in paragraph 2 and 3 are referred to as specific and general deterrence and they form the basis for all penalty assessments.
5In considering specific deterrence in the current appeal, the Tribunal takes special note of two facts that came out in evidence. Firstly, the Tribunal notes the evidence of the Appellant’s former counsel, Mitchell Worsoff, that it was his interpretation of the agreed conditions that machines that were not actually used for gaming purposes fell outside the prohibition against gaming machines. Mr. Worsoff told the Appellant that this was his understanding of the condition. Secondly, the Tribunal notes that the machines as found by the inspector, Inspector McInnis, were unplugged and facing the wall. That they were not being used for gaming purposes was confirmed by Inspector McInnis when he checked the cash drawers and found no cash inside.
6It appears from the above consideration that, in reliance on Mr. Worsoff’s advice, the Appellant had grounds to assume he was in compliance with the condition on his licence. The Registrar disagreed with that advice and, ultimately, so did the Tribunal. His reliance upon it, however, alters the characterization of his behaviour from wilfully ignoring the condition on his licence to mistakenly breaching it. Further, the Tribunal notes that there were two allegations of wrongdoing: breach of a condition of a licence and obstructing an inspection, of which only one was found proven. In all of the circumstances of this case, the Tribunal is of the opinion that a lesser sanction is warranted than the ten to twelve day sanction sought by the Registrar.
ORDER
7Having considered the range of possible sanctions, the evidence at the hearing and the submissions of the Registrar, the Tribunal is of the view that the aims of specific and general deterrence are best served by imposing a seven day suspension. The Tribunal orders that the Appellant’s liquor licence be suspended for a period of seven 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.
8On December 21, the Tribunal received submissions from the Appellant. Nothing in these submissions alters the Tribunal's view of the appropriate sanction as set out above.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
Released: December 22, 2015