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-
6161251 Canada Inc. O/A Shot House Pub Licensee
DECISION ON SANCTION
Panel: Beryl Ford, Board Member Kirsti Hunt, Vice-Chair
Decision Date: March 17, 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 ) Joyce Taylor, Representative 6161251 Canada Inc., Licensee ) Ronald Lachmansingh, Representative
Authorities
Gordon Capital Corp. v. Ontario (Securities Commission), [1991] O.J. No. 934
The Board of the Alcohol and Gaming Commission of Ontario held a hearing on June 28, 2007 and September 11, 2007 pursuant to a Notice of Proposal number 15049 dated March 4, 2007 to suspend licence number 802270 issued to 6161251 Canada Inc. operating as SHOT HOUSE PUB at 1880 Kennedy Road, Scarborough, Ontario, M1P 2L8.
In its decision of December 7, 2007, the Board made a finding of a breach of subsection 45(1) of the O.Reg. for permitting drunkenness in the licensed premises on December 10, 2006 and on December 22, 2006 and asked parties for submissions on penalty.
Decision On Sanction
The Registrar submitted that a ten-day suspension was appropriate for the two breaches. The Licensee submitted that a one-day suspension for each event would be appropriate, for a total suspension of two days.
Having reviewed the submissions of the parties as a whole, the Board finds that a ten-day suspension is appropriate in the particular circumstances of this case as a specific as well as a general deterrent.
In arriving at its decision, the Board considered the fact that the Licensee has no prior record. However, the Board also considered as an aggravating factor the extreme level of intoxication of Mr. Sorrentino on December 22, 2006. His extreme drunkenness resulted in his making a vulgar comment to a female patron which then escalated to him being punched in the parking lot by her friend. The punch necessitated the intervention of ambulance personnel, the police and hospital staff who had to isolate him because of his vulgarity and uncooperative behaviour. In the view of the Board, Mr. Sorrentino’s behaviour was fuelled by alcohol for it is unlikely that a sober citizen would be as crass and belligerent as he was that evening.
Licensees have an obligation to ensure that their staff recognize the signs of intoxication and are prepared to act when they see them. There is no evidence of that happening on December 22, 2006, since Mr. Sorrentino left of his own accord and was not removed from the premises by staff. Also on December 10, 2006, Mr. Bala’s evidence appears to indicate that he was not prepared to recognize and address the intoxicated patron in his wife’s establishment.
The Board agrees with the Registrar’s submission that “due diligence does not apply to regulatory administrative tribunals, though the Licensee’s efforts to prevent the infraction from happening could be taken into account when assessing penalty” (Gordon Capital Corporation v. Ontario Securities Commission). The Licensee disagreed with the Registrar’s submission that “there is no evidence of any attempt by the licensee to prevent drunkenness in this establishment” and submitted in rebuttal the evidence of Sandy O’Toole having her Smart Serve card. The Board agrees with the submission of the Registrar. Having a Smart Serve card does not constitute a defense of due diligence because managers, servers of liquor and security staff must hold a certificate of a Board approved server training program as a condition of a licence. Besides, the card is just a card if the lessons learned in obtaining it are not applied. In this case, on neither date were the signs of intoxication recognized or any steps taken by staff or management to prevent drunkenness in the licensed premises. Also the Board cannot accept the Licensee’s submission that the breaches were “inadvertent” since drunkenness was permitted on the licensed premises not only on one but on two occasions, the second being just 12 days after the first infraction.
Order
Therefore, the Board ORDERS that licence number 802270 issued to 6161251 Canada Inc. operating as SHOT HOUSE PUB, 1880 Kennedy Road, Scarborough, Ontario, M1P 2L8 be SUSPENDED for a period of ten (10) consecutive days.
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 17th DAY OF MARCH, 2008
KIRSTI HUNT, VICE-CHAIR BERYL FORD, BOARD MEMBER
KH/sm