Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8940/LLA
CASE NAME: 8940 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
1280858 Ontario Inc. o/a Diamonds Cabaret Appellant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION ON SANCTION
ADJUDICATOR: Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Appellant: Ed Blaha, Paralegal
For the Respondent: Rena Khan, 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 June 20, 2014 which proposed to suspend the licence of 1280858 Ontario Inc. o/a Diamonds Cabaret (the "Appellant”) for 14 days.
The appeal of the Proposal was heard on October 30, 2014. In its decision dated December 1, 2014, the Tribunal found that the Appellant contravened s. 45(1) of Ontario Regulation 719/90 under the Act (the OReg) in that it did, on November 29, 2013, “permit drunkenness” on the premises and dismissed the allegation that the Appellant violated s.45.1 of the OReg. 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, Ms Khan proposed a suspension of 14 days, the amount requested in the Proposal; this, despite the fact the Tribunal found against the Appellant on only one of the two allegations set out in the Proposal. Counsel pointed to certain aggravating factors: that the patron was allowed to remain in the premises though he drew attention to himself shortly after his arrival and at a time when the establishment was not busy, he was ineffectively “cut-off” and he was only asked to leave when the inspectors intervened. Further, the Appellant has a disciplinary history, namely, a monetary penalty in the amount of $500 for permitting drunkenness on March 28, 2014.
In response, Mr Blaha requested a “suspended sentence”, suggesting that this was a unique situation and pointing out that staff attempted to deal with the situation but were effectively overtaken by the inspectors’ investigation.
It is unclear, in the context of this appeal, what Mr. Blaha might mean by a suspended sentence, but for the purposes of this matter, the Tribunal will presume that he is suggesting something akin to a warning. The Tribunal notes that Mr. Blaha did not speak to any remedial measures the Appellant may have put in place to ensure there is no repeat of the situation that occurred on November 29, 2013.
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 Proposal, and whether those violations were more or less serious in nature.
As stated above, findings were made on one of the two allegations set out in the Proposal. This was not a unique situation; issues of “permit drunkenness” in a licensed establishment in similar situations are not uncommon. While not minimizing a licensee’s obligation to fully comply with the Act and its regulations, this particular breach as outlined in the Tribunal’s decision, was not particularly egregious. However, the Appellant has provided no evidence or submissions on remedial measures.
The Tribunal notes that discipline, especially with respect to continued violation of the same regulation is generally progressive. The only other violation of s. 45(1) of the OReg (and the only violation cited to the Tribunal) occurred after this incident. It resulted in a monetary penalty of $500, which the Tribunal surmises is at the lesser end of the scale for such a breach. In this context, and taking into account that a sanction is intended to achieve the goals specific and general deterrence, a suspension of 14 days is both unreasonable and too harsh in the circumstances.
A warning, given the Tribunal’s findings, and in particular, the Appellant’s inaction regarding the patron on November 29, 2013, or at best its ineffective response to the situation, would not serve the purpose of specific deterrence. Therefore, the Tribunal must assess a period of suspension. In light of the considerations set out above, and the Tribunal gives particular weight to the Appellant’s relatively positive compliance history, and has concluded that a suspension of the Appellant’s liquor licence for a period of four days is appropriate.
ORDER
The Tribunal orders that the Appellant’s liquor licence be suspended for a period of four (4) 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
Patricia McQuaid, Vice-Chair
Released: January 12, 2015