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-
Club 924 Social Group O/A Andy Kapps Pub Licensee
DECISION ON SANCTION
Panel: Brian J. Ford, Board Member Alex McCauley, Board Member
Decision Date: October 5, 2007 Hearing Location: London, 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 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Brad Alton, Representative Club 924 Social Group, Licensee ) Barry Card, Representative
1A hearing into a Notice of Proposal dated December 11, 2006 to revoke liquor licence number 806801 issued to Club 924 Social Group operating as ANDY KAPPS PUB, 924 Oxford Street East, Unit 4, London, Ontario, N5Y 3J9 on the basis of alleged violations of subsections 30.1 and 45(2) of the Liquor Licence Act ("LLA") and subsections 15(1), 17(2), 44(1), 45(1) and section 52 of Ontario Regulation 719/90 ("O.Reg.") made pursuant to the LLA was held on January 19, 2007 in the City of London.
2In its decision dated July 17, 2007 the Board found the Licensee violated subsection 45(1) of the O.Reg. and dismissed the remaining allegations. Parties were directed to provide written submissions on appropriate sanction. The Board has received and reviewed those submissions.
Decision On Sanction
3The Board orders that the Liquor Licence be suspended for three (3) consecutive days. Reasons follow.
Registrar’s Submission
4Mr. Alton notes that the finding of a breach of subsection of 45(1) of the O.Reg. is a serious public safety issue and is of concern to the Registrar. The penalty imposed by the Board should reflect and be proportionate to the gravity of the offence and the degree of responsibility of the Licensee. Mr. Alton notes that in the case before the Board the Licensee’s staff was present, but failed to act. It is his opinion that a clear message needs to be sent to bar owners that they need to be more diligent in their duties to not allow drunkenness in their licensed premises. The Board must seek to achieve the objective of both general and specific deterrence in imposing a sanction, general deterrence to prevent or at least reduce the likelihood that others will act in a similar manner, and specific deterrence to prevent this Licensee from allowing similar acts to occur in the future.
5The Registrar submits a seven to ten day suspension is appropriate.
Licensee’s Submission
6The Licensee agrees the disciplinary penalty imposed by the Board should reflect and be proportionate to the gravity of the offence and recognizes that general and specific deterrence may be factors which influence the penalty. The Licensee does not agree that the suggested seven to ten day suspension is appropriate.
7Mr. Card notes that the first male AGCO Inspector Purvis encountered was drunk but was not unruly. He notes that a ride had been called for patron by the bartender, at the patron’s request, before the Inspector arrived. Further, he suggests the patron may have consumed drugs or alcohol before he entered the bar.
8That the patron was not turned out of the premises, where he might have driven his own automobile was a mitigating factor the Board should consider. Until the incident involving the Inspector, the patron had not exhibited the symptoms noted in the Board’s decision.
9Mr. Card suggested that the conduct being punished was the licence holder’s failure to provide a waiting area, outside the licensed premises, where the conduct of the patron could be monitored while the ride provider was responding. While such a requirement might flow from subsection 45(1) it is not express in the regulation or identified in the Registrar’s submissions.
10In the circumstances, a warning will serve the public interest in having this requirement understood. It will achieve the objectives of general and specific deterrence. Any further punishment would be unduly harsh.
Reply Submission
11Mr. Alton disagrees with the Licensee’s conclusion and premise. The Board did not find that the licence holder failed to provide a room to hold drunken patrons. Rather, the Board was quite clear the licence holder failed in its duty to prevent a patron from becoming drunk and then failed again by failing to promptly remove the patron from the premises. To suggest otherwise undermines the Board’s explicit finding of a breach and demonstrates a lack of acceptance of responsibility by the licence holder.
Decision
12There is no dispute the Board found a breach of subsection 45(1). There is no evidence to support Mr. Card’s suggestion the drunken patron consumed drugs or alcohol prior to coming to Andy Kapps or that the bartender called a ride for this patron prior to the arrival of Inspector Purvis.
13Both parties agree that a general and specific deterrence are factors for consideration of the penalty the Board imposes.
14Drunkenness is a serious breach of the LLA and its regulations and any sanction should reflect that seriousness. However, the Board also notes that this Licensee has no previous adverse history with the Board.
15Therefore, having considered the parties’ submissions, the need to send a strong message that drunkenness on a licensed premise is taken seriously by the Board, and the need for general and specific deterrence the Board ORDERS that liquor license number 806801 issued to Club 924 Social Group operating as ANDY KAPPS PUB, 924 Oxford Street East, Unit 4, London, Ontario, N5Y 3J9 be suspended for three (3) consecutive days.
16Proposed suspension dates are to be submitted in writing to the Manager of Hearings of the Alcohol and Gaming Commission of Ontario at the address set out on the front of this decision within seven (7) days of the date of this decision, failing which the Board shall set the dates for suspension without further notice to the licence holder. The suspension shall not commence for at least 20 days after the date of this decision, shall be completed within 90 days of the date of this decision, and shall be completed on days that the establishment is normally operating.
DATED AT TORONTO THIS 5th DAY OF OCTOBER, 2007
BRIAN J. FORD, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER
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