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-
Barrymore's Inc. O/A Barrymore's
Licensee
DECISION ON SANCTION
Panel: David C. Gavsie, Chair Bruce Monteith, Board Member
Decision Date: February 27, 2008
Hearing Location: Ottawa, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Toll Free In Ontario: 1-800-522-2876 Fax: (416) 326-5566 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative
Barrymore's Inc., Licensee ) Douglas Stel, Representative
A hearing into a Notice of Proposal number 14959 dated February 19, 2007 (“NOP”) to suspend liquor license number 23399 (the “Licence”) issued to Barrymore's Inc. (the “Licensee”) operating as BARRYMORE'S, 323 Bank Street, Ottawa, Ontario, K2P 1X9 (the “Premises”) on the basis of alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), and a Supplementary Notice of Proposal dated May 7, 2007 (“SNOP”) to suspend the Licence, was held on July 10 and 11, 2007 in the City of Ottawa.
In its decision dated January 11, 2008, the Board found the Licensee breached subsection 45(1) of the O.Reg on 2 different dates. The breaches pertained to permitting drunkenness on the Premises. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Decision On Sanction
Mr. Morris pointed out that the Licensee served a suspension in 2004, in part because of an incident of permitting drunkenness. Mr. Morris also indicated that it is not appropriate for the Licensee to let patrons get drunk, then give them water, or leave security to deal with the problem. Mr. Morris then asked for a 21 day suspension of the Licence, being appropriate as a matter of specific and general deterrence.
Mr. Stel submitted that Barrymore’s is a very large nightclub and the staff have a Herculean undertaking in attempting to assess how much alcohol a patron had consumed before entering the Premises. Mr. Stel submitted that Barrymore’s has an exemplary record but admitted that there had been a NOP in June 2002, involving four contraventions of the LLA and Regulations. Mr. Stel said this was concluded by an Agreed Statement of Fact and Joint Submission on Disposition and the Licensee served an 18 day suspension. Mr. Stel said that there was no evidence indicating any of the intoxicated patrons on February 23, 2007 were causing a disturbance. The patron who was arrested outside the Premises by police was exhibiting boisterous behaviour, but in Mr. Stel’s submission, that patron was leaving the Premises. On December 9-10, 2006 the patron Matte was escorted off the Premises eventually, but not right after he was cut off from further service. Mr. Stel concluded by saying the Licensee is not perfect, but given their good track record a 7 day suspension would be appropriate.
In his reply, Mr. Morris said that the prior suspension involved permitting drunkenness in the Premises, and the Licensee should have known better in allowing it to occur a second and third time.
The Licence was previously suspended in 2004 for multiple infractions, one of which was permitting intoxication in the Premises. That must be taken into account by the Board in setting a suspension in the present case. Further, in the present case, there were infractions on two dates involving a total of four patrons. While the evidence suggests that the licensee at one point cut off some of these patrons, it is incumbent upon the Licensee to ensure that patrons do not become drunk, or once identified as being drunk do not remain in the premises. Whether or not the intoxicated patrons were boisterous is not an issue which the Board considers a mitigating factor.
The Board determines, therefore, as a matter of general and specific deterrence that a suspension of eighteen (18) consecutive days is the appropriate disposition of this case.
Order
The Board ORDERS that liquor license number 23399 issued to Barrymore's Inc. operating as BARRYMORE'S, 323 Bank Street, Ottawa, Ontario, K2P 1X9, be suspended for a period of eighteen (18) consecutive days.
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.
DATED AT TORONTO THIS 27th DAY OF FEBRUARY, 2008
BRUCE MONTEITH, BOARD MEMBER DAVID C. GAVSIE, CHAIR
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