Registrar, Alcohol and Gaming Commission Ontario v. 1213963 Ontario Limited, 2007 CanLII 41542

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The : Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

B E T W E E N:

Registrar, Alcohol and Gaming Commission Ontario Registrar

-and-

1213963 Ontario Limited O/A Sin City Bar and Eatery Licensee

DECISION ON SANCTION

Panel: David C. Gavsie, Chair of the AGCO Bruce Monteith, Chair of the Panel

Decision Date: August 27, 2007 Hearing Location: Peterborough, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone (416) 326-0366 Fax (416) 326-5566 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Joyce Taylor, Representative 1213963 Ontario Limited, Licensee ) Harry Black, Representative

Authorities

R. v. McLellan's Supermarket Ltd., [1999] B.C.J. No. 443 Registrar of Alcohol and Gaming v. Hosseini-Rad, 2004 CanLII 34450

1A hearing of the Alcohol & Gaming Commission of Ontario (“AGCO”) was held in Peterborough on May 23, 2006, November 7, 2006 and March 15, 2007 to consider both a Notice of Proposal dated January 24, 2005 (the “NOP”) and a Supplementary Notice of Proposal dated May 31, 2005 (the “SNOP”), to suspend the liquor licence of 1213963 Ontario Limited (the “Licensee”) operating as SIN CITY BAR & EATERY, 295 George Street North, Peterborough (the “Premises”), licence number 92310.

2In its decision of June 11, 2007, the Board found the Licensee had breached subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) on March 12, 2005 by permitting an intoxicated patron on the Premises.

Submissions

3The Board asked counsel to make submissions on sanction which the Board has reviewed and considered.

4The Licensee has previously served an 18 day suspension pursuant to the Board’s order dated January 15, 2004 (unreported). The suspension was based on an agreed statement of facts in which the Licensee admitted violations of section 43 and subsection 45(1) the O.Reg as follows:

On April 18, 2003 a liquor inspector visited the licensed premises and found that the main floor of the establishment was overcrowded. The liquor inspector also found a drunken patron in the licensed area. Once the drunken patron had been pointed out to the manager by the inspector, and the inspector had advised the manager that the patron could not be allowed to remain on the premises, the manager had the patron removed from the establishment.

5At the hearing of the present matter, Mr. Nelson said that he had only agreed to the overcrowding violations, and he did not recall the issue regarding having a drunken patron in the Premises. The previous Order of the Board with the attachments clearly indicated Mr. Nelson did agree with all 3 violations including having a drunken patron in the Premises.

6In her submissions on sanction, the Registrar’s representative discussed the due diligence required of a licensee in dealing with possible intoxicated patrons. Registrar’s representative indicated that for due diligence to be taken into account when determining sanction, there must be a plan, evidence of its implementation, and reasonable steps being taken by the Licensee to ensure effective operation of the plan. This would include proper supervision by Mr. Nelson.

7Registrar’s representative summarized evidence given by Mr. Nelson and other employees at the hearing concerning meetings with the Peterborough police and health unit, educational courses, training seminars. She also pointed out there were no written training material for employees, other than Smart Serve materials. Nor was there any written policy of the Licensee respecting drunkenness in the Premises.

8Registrar’s representative relied on R. v. McLellan's Supermarket Ltd. as a good example of the due diligence efforts required in regulatory prosecutions such as the one now before the Board.

9Licensee’s representative referred to the Board’s 2004 decision. He noted the 18 day suspension does not delineate between offences, so it is impossible to tell how many days of the suspension are attributable to the violation of subsection 45(1) of the O.Reg.

10Licensee’s representative referred to evidence given by employees of the Licensee, including Mr. Nelson, at the hearing as to their training and ongoing education and attendance at seminars in Peterborough.

11Licensee’s representative also referred to Exhibit 1, a series of AGCO inspector reports for inspections dated between March, 2004 to August 30, 2005. By his count there were 47 inspections other than the dates referred to in the NOP and SNOP. No disciplinary infractions were found by inspectors during those inspections.

12Licensee’s representative pointed out that the violation of subsection 45(1) of the O.Reg. on March 12, 2005 occurred when 2 inspectors were in the Premises in an undercover capacity giving no indication to the Licensee or its employees until after that night affording Licensee no ability to verify the alleged infraction took place or prepare evidence of its own to defend itself.

13In reply, Registrar’s representative submits that a large amount of Licensee’s representative’s submissions had not been proven by the evidence. She also took exception to the claim that the AGCO conducted 47 inspections but agreed there had been 40 such inspections.

14Registrar’s representative also stated that financial implications to a Licensee arising from a Board decision, as argued by Licensee’s representative, are irrelevant based on the Ontario Divisional Court decision in Registrar of Alcohol and Gaming v. Hosseini-Rad.

Decision

15To an extent, the Board does give weight to the arguments of Licensee’s representative that:

a) there were a number (40 to 47) of inspections by AGCO inspectors of the Premises between March, 2004 and August, 2005 resulting in no infraction being found;

b) the Licensee did not find out about the March 12, 2005 inspection by Inspectors Baird and Foster until some time after that night, hampering efforts to defend itself against the alleged violations; and

c) Licensee has made significant efforts to comply with its obligations under the LLA and regulations including hiring experienced management, working with Peterborough police officials, attending courses, etc.

16On the other hand, the Board’s finding is the second occasion that the Licensee breached subsection 45(1) of the O.Reg, first on April 18, 2003 and again, about 2 years later on March 12, 2005.

17The Licensee does not have a written policy or written instructions other than the Smart Serve course material on how employees should deal with drunk or disorderly behaviour in the Premises.

18In determining the length of a suspension, the Board has an obligation to take into account factors in a licensee’s favour, but where a second infraction of the same nature occurs within 2 years of the first, the suspension must send a stronger message to the licensee than the first.

19Accordingly, the Board has determined that the appropriate sanction in the present case is a suspension of licence 92310 for ten (10) days on dates to be provided. The Licensee shall submit proposed suspension dates in writing to the Manager of Hearings, Hearings Department, Alcohol and Gaming Commission of Ontario at the address on the front of this decision within seven (7) days of the date of this decision. The Board will set suspension dates without further notice to the Licensee if proposed dates are not provided within that time. The suspension must be served on days the establishment normally operates. The suspension may not start earlier than twenty (20) days from the date of this decision and must be completed within ninety (90) days of the date of this decision.

20Without imposing a condition on Licensee 92310, the Board would strongly urge the Licensee to create a written policy, and ensure all staff members are made aware of it, on how to deal with intoxicated or disorderly patrons on the Premises. That policy should also include a “reporting up” procedure so that senior management are made aware, as soon as possible, of things noticed or seen by employees.

DATED AT TORONTO THIS 27th DAY OF AUGUST, 2007.