Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-12-15

FILE:

9706/LLA

CASE NAME:

9706 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

2336108 Ontario Ltd. o/a Queen’s Cave Bar & Patio

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

DECISION ON SANCTION AND ORDER

ADJUDICATOR:

Jacqueline Castel, Member

APPEARANCES:

For the Appellant:

Giuseppe Di Marco, Counsel

For the Respondent:

Rena Khan, Counsel

DECISION AND ORDER

In its decision dated November 18, 2015, the Tribunal found that the Appellant contravened subsection 55(1) of Ontario Regulation 719 (the “O.Reg.”), prescribed under the Liquor Licence Act (the “Act”), by failing to ensure that the AGCO suspension placard remained posted at all times during the period of suspension. The parties were directed to provide written submissions on an appropriate sanction. The Tribunal received and reviewed these submissions.

Ms Khan submitted that a 14 day suspension is appropriate because of aggravating factors and the seriousness of the contravention. However, her submissions do not identify any aggravating factors.

Mr. Di Marco submitted that a 10 day suspension is appropriate and disputed that the facts of this case disclosed any aggravating factors.

The Tribunal does not typically impose a penalty which is less onerous than the penalty proposed by both the representative of the Registrar and the Appellant. However, in the circumstances of this case, the suspensions being proposed are excessive and would be unfair to the Appellant.

The Appellant signed an Agreed Statement of Facts and Joint Submission on Sanction to serve a 4 day suspension for altering the boundaries of the premises without prior AGCO approval, in contravention of section 49 of the O.Reg. The Tribunal considers this contravention to be more serious than the contravention of failing to ensure that the suspension placard remained posted, in the circumstances of the present case. However, the representatives for the Registrar and the Appellant are both proposing significantly longer suspensions.

A number of factors in the present case make a suspension of 10 to 14 days excessive. First, the Appellant complied with the suspension order and not only did not serve beverage alcohol, but also closed its entire premises during the period of suspension. Second, this was not a case where the Appellant wilfully or intentionally failed to comply with the inspector’s direction regarding the posting of the suspension placard. The sign was posted in the location designated by the AGCO inspector, but at some point prior to the arrival of inspector on the second day of the suspension, the placard fell off the door. Third, the Tribunal finds it mitigating that the inspector acknowledged that there may have been some structural issues associated with the door which caused the placard to fall.

Ms Khan submitted the Steaky Restaurant (Re) [1999] O.A.G.C.D. 309 case, where a 21 day suspension was imposed for contraventions of subsections 55(1) and (2) of the O.Reg. However, the facts of the two cases are distinguishable. In the Steaky Restaurant case, the period of suspension was longer (14 days) and the suspension placard was not posted for the entire period of the suspension. There was no evidence, in the Steaky Restaurant case, that the placard was ever posted and fell due to deficiencies in the location designated by the inspector.

Given the nature and circumstances of the contravention, a monetary penalty may have been the most appropriate form of sanction. However, the Tribunal does not have jurisdiction to impose a monetary penalty. As such, the Tribunal finds that a two day suspension is warranted, on these facts, to achieve specific and general deterrence.

ORDER

The Tribunal orders that the Appellant’s liquor licence (#0813564) be suspended for a period of 2 consecutive days within 90 days of the date of this decision. The Appellant shall submit proposed suspension dates in writing to the Registrar, Alcohol and Gaming, within 7 days of this decision. If the Appellant fails to do so, the Registrar shall set suspension dates without further notice to the Appellant.

LICENCE APPEAL TRIBUNAL

_________________________

Jacqueline Castel, Member

Released: December 15, 2015