Licence Appeal Tribunal
Appeal from a Notice of Proposal of the Registrar of Alcohol, Gaming and Racing to Suspend a Licence for fourteen days
Between:
Okan Aziz-John Zeytinoglu o/a Republik Appellant
and
Registrar of Alcohol, Gaming and Racing Respondent
DECISION ON PENALTY
Adjudicator: D. Gregory Flude, Vice-Chair
Appearances:
For the Appellant: Self-Represented For the Respondent: Aviva Harari, Counsel and Angela Holland, Counsel
Heard in Sarnia: May 14, 2018
OVERVIEW
1In my decision dated June 19, 2018 I invited submissions from the parties on the appropriate penalty to be imposed as a result of the overcrowding of the appellant’s premises on the evening of Friday, February 3, 2018. I have now received those submissions. Having considered them, I am of the view that a penalty of 5 days’ suspension of licence, to include the first Friday of a month, will achieve the goals of specific and general deterrence and bring home to the appellant to seriousness of his behaviour.
2The original Notice of Proposal contained 3 allegations: overcrowding; permitting someone who is not Smart Serve-certified to be involved in the service of alcohol; and permitting a person under 19 to have or consume alcohol. The appellant admitted the overcrowding; the Registrar withdrew the allegation about under 19 possession or consumption; and I found in favour of the appellant on the Smart Serve issue.
3Given the appellant’s admission of overcrowding, I did not outline the evidence with respect to that issue in my liability decision. I stated that it may be relevant to the applicable penalty and I would address it in these reasons. I will also address the appellant’s previous monetary penalty for permitting overcrowding, and weigh these factors in arriving at an appropriate penalty.
OVERCROWDING AND PREVIOUS SANCTION
4On the evening of February 3, 2017 two inspectors from the Registrar’s office, the Alcohol and Gaming Commission, were conducting inspections in Sarnia. There is a tradition in Sarnia for people to go out to restaurants and bars on the first Friday of each month, so it was a busy night. Around 11:50 p.m. the inspectors arrived at the appellant’s premises. They spoke to the security person at the front door and asked him how many patrons were inside. The security person answered that: “It isn’t as bad as last time.” The inspectors understood this to mean that there were fewer people inside than were present during an inspection on May 7, 2017 when 73 people were found inside a bar licensed for 60. The appellant paid a monetary penalty in the amount of $750 for that incident.
5When the inspectors entered, they each, independently, conducted a head count. One counted 96 and the other 94. There was seating available for 50 people leaving more than forty people standing. The Notice of Proposal cites 94 as the number in a premise licensed for 60. In admitting that the bar was overcrowded, the appellant did not accept the 94 number. His staff had not counted independently, but the appellant felt the number was too high.
6I accept the inspectors’ evidence that there were at least 94 people on the premises, inclusive of patrons and staff. The inspectors testified about the methodology they used to conduct the count. They countered suggestions of double counting by stating that there was very little movement of patrons because of the crowding so they were able to count accurately. Of note is that the independent counts of both inspectors closely tally.
7In considering the appropriate penalty, I accept the Registrar’s submission that crowding at that level, over 150% of permitted capacity, would have been plain and obvious to the appellant’s management staff. This leads me to conclude that the appellant did not take his capacity control responsibilities seriously, and this conclusion must be taken into account when fashioning the penalty.
Parties’ Submissions of Penalty
8The Registrar submits that the appellant’s licence should be suspended for a period of 10 to 12 days. He points out this is a second offence. He also points out that overcrowding is a serious safety issue. The Registrar also asks that any period of suspension include the first Friday of a month as that corresponds with the day of the offence and is a day of increased business for the appellant. The appellant asks that I levy a monetary penalty as he states that any closure will cause him to go out of business.
9I take notice of the fact that capacity in licenced premises is generally set because of limits imposed under fire regulations. A capacity limit aims to ensure that patrons and staff can evacuate the premises safely in the event of an emergency. Building code standards and structural integrity also come into play as too many patrons may overstress the structure.
ANALYSIS
10In arriving at the appropriate penalty I must weigh three factors: general deterrence, specific deterrence and rehabilitation.
11General deterrence concerns itself with the perception of the penalty on the general public, and, in particular, on other licensees. The penalty should be of sufficient severity that it acts as a deterrent to other licensees who may contemplate permitting overcrowding.
12Specific deterrence addresses the deterrent impact of the penalty on the appellant. The penalty should be of sufficient severity that the appellant will be unlikely to reoffend. It is clear that the earlier monetary penalty of $750 failed in its goal of deterring the appellant from future overcrowding.
13The third factor is rehabilitation. The initial focus of any regulatory scheme, including the liquor licensing scheme, is to encourage compliance. Thus, penalties that are overly severe fail in that goal by denying a licensee the opportunity to reform by putting the licensee out of business. Rehabilitation works hand in hand with specific deterrence by applying a series of increasing penalties, consistent with the seriousness of the impugned behaviour. In this way, a licensee is given an opportunity to bring itself with the gambit of the regulations before it is put out of business.
14Applying these factors to this matter, and given that is the second overcrowding offence, I can immediately discount any notion that a monetary penalty would be appropriate. Because of this, I need not address the question of whether I even have the jurisdiction to impose a monetary penalty in a sanction proceeding under the Liquor Licence Act R. S. O. 1990, chap. L-19. Applying a second monetary penalty reduces the analysis to one of economics - is it economically advantageous to overcrowd and enjoy increased revenue, recognizing the limited resources of the Registrar to conduct frequent inspections?
15On all of the facts, I am of the view that a period of suspension is warranted. I am also of the view that that period should include the busiest night of the month, the first Friday, to deter the appellant from accepting the temptation to permit overcrowding on the night of the month when business is best.
16The more difficult consideration is the length of the suspension. The Registrar seeks 10 to 12 days. While I note that there was a previous offence, to jump from a $750 monetary penalty to a 10 to 12 day suspension is too severe and denies the appellant the opportunity to assess his behaviour and ensure corrective steps are taken. A lesser penalty is warranted.
17I am of the view that a suspension of five days is sufficient to address the goal of general and specific deterrence and make it clear to the appellant that continued breaches of the licensing regulations can only lead to more severe sanctions and a potential loss of licence.
ORDER
18Having considered the submissions of the parties, I order the Registrar to suspend the licence of the appellant for a period of five days, such period to include the first Friday of a month.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice Chair
Released: September 13, 2018