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 Gabella Inc. O/A Club Gabella Inc. Licensee
DECISION ON SANCTION
Panel: Patricia McQuaid, Vice-Chair Bruce Monteith, Board Member
Decision Date: March 12, 2008 Hearing Location: Toronto, 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 ) Richard Kulis, Representative
Allegations
A hearing into a Notice of Proposal dated August 2, 2007, to suspend liquor licence number 806133 issued to Club Gabella Inc. operating as Club Gabella Inc., 574 Rogers Road, Toronto, Ontario, M6M 1B6, on the basis of alleged violations of subsection 34(1) of the Liquor Licence Act (LLA) and subsection 45(1) of Ontario Regulation 719/90 (O.Reg) made pursuant to the LLA, was held on January 21, 2008, in the City of Toronto.
The NOP alleged violations of section 45(1) of the O.Reg, for both drunkenness and disorderly conduct and of subsection 34(1) of the LLA. A 28 day suspension was sought in the NOP. The Board, in its decision dated February 12, 2008, made a finding of drunkenness with respect to three patrons, pursuant to subsection 45(1) and dismissed the remainder of the allegations.
Decision on Sanction
Mr. Kulis, in his submissions on sanction, repeats the request for a 28 day suspension. The licence holder, who did not attend the hearing, received a copy of the Board’s decision and was given the opportunity to respond. He did not provide submissions. The Board makes its determination on its findings which are based on the evidence received during the hearing. Given the tenor of Mr. Kulis’ submissions, it may be helpful to review that evidence in more detail than is normal.
Mr. Kulis asserts a violation of subsection 31(4) of the LLA occurred and appears to suggest this ought to be a consideration in determining the appropriate sanction. With respect, a breach of that subsection was not part of the NOP, the evidence or the argument in the hearing. As such, it is not something the Board can properly have regard to in this determination.
The submissions with respect to the possibility of serious injury or injury or damage from vehicular traffic that might have occurred but for the presence of the police officers, are not grounded in the evidence; rather, they are entirely speculative. Moreover, as the Board noted in the decision on the merits, there is no reliable evidence, given Mr. Yard’s state of intoxication, concerning Mr. Muraca’s behaviour. Without that evidence, the Board was unable to conclude, on a balance of probabilities, that Mr. Muraca failed to interevene. Finally, while there was evidence the Licensee made certain admissions of guilt with respect to the Provincial Offences Act charges and that other charges were withdrawn, the Provincial Court decision was not before the Board, nor were those proceedings canvassed in any detail in the evidence. In those circumstances, the Board cannot be faulted for failing to give proper consideration to any admissions or the findings of the Court in reaching its decision on the merits.
However, the facts as found by the Board confirm that, two drunken patrons were involved in a “brawl”, to use Mr. Kulis’ term, or an “altercation”, using the language of the police witnesses, and a third patron was found drunk and slumped over a table inside. A licence holder cannot turn a blind eye to this behaviour and must be watchful that drunken patrons do not enter or that patrons do not become drunk and remain in the premises. It is incumbent upon a licensee to be mindful of the LLA and its regulations and to carefully monitor the consumption and behaviour of patrons.
Mr. Kulis has advised the Board of a prior 21 day suspension served some 6 years ago and for different violations. While the recent, relatively clean record of this licensee is a mitigating factor, licence holder’s failure to participate in this proceeding suggests an apparent disinterest in and respect for the liquor licensing regime. This is of considerable concern to the Board as the Board’s sanction must, as Mr. Kulis correctly submits, achieve both general and specific deterrence.
Therefore, to accomplish that end while recognizing that the Board did not make findings on all of the allegations asserted in the NOP, the Board concludes a suspension of 21 days is appropriate in all the circumstances.
Order
The Board ORDERS that liquor licence number 806133 (the Licence) issued to Club Gabella Inc. operating as Club Gabella Inc., 574 Rogers Road, Toronto, Ontario, M6M 1B6, be suspended for a period of TWENTY-ONE (21) 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 12th DAY OF March , 2008
PATRICIA MCQUAID, VICE CHAIR BRUCE MONTEITH, BOARD MEMBER
PM/ee