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-
1639857 Ontario Inc. O/A Fubar Nightclub
Licensee
DECISION ON SANCTION
Panel: Beryl Ford Board Member
Eleanor Meslin, Board Member
Decision Date: May 8, 2008
Hearing Location: Kitchener, 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
1639857 Ontario Inc., Licensee ) David McCarthy, Representative
Allegations
A hearing into Notice of Proposal (“NOP”) number 15413 dated July 5, 2007 to suspend liquor licence number 802685 (the “Licence”) issued to 1639857 Ontario Inc. (the “Licensee”) operating as FUBAR NIGHTCLUB, 140 University Avenue West, Campus Court, Waterloo, Ontario, N2L 6J3, on the basis of alleged violations of section 29 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 December 4, 2007 in the City of Kitchener.
In its decision dated April 3, 2008 The Board found a violation of section 29 of the LLA and subsection 45(1) of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Decision
Counsel for the Registrar submitted that the violations were a serious public safety issue at the Fubar Nightclub and a grave concern for the Registrar. Drunken patrons are at risk of serious harm to themselves and also a greater risk of harming others.
Only after the victim had suffered a serious injury did the Licensee’s staff make any effort to cut the drunken patron off and remove her from the premises.
The Registrar acknowledged that, although this was the first time that this Licensee has come before the Board in a disciplinary hearing, he asked the Board to weigh that fact against the severity of the offence that occurred.
The Registrar submitted that the Licensee is 100% responsible for what occurs in his or her establishment and a suspension of 14 – 18 days is requested by the Registrar as a deterrence that must send a strong message to the Licensee that these violations are not to be condoned.
Counsel for the Licensee submitted that 14 -18 days is too much and out of proportion to the severity of the offence. Further, the penalty suggested is “extreme beyond hardship” for the licence holder. Counsel for the Licensee noted that charges against the Licensee were withdrawn. He reminded the Board that this is a first offence for the licence holder and he has not received any prior warnings with respect to any LLA violation.
Counsel for the Licensee also submitted details of the financial obligations of the Licensee in its lease agreement, rental costs and the fact that the licence holder employs 30 individuals at the establishment. A fourteen to eighteen day suspension would punish those individuals for this offence against the Licensee.
Counsel stated that the licence holder does not minimize in any way the seriousness of the charges, but indicated that the penalty is vastly out of proportion and suggested the following alternatives:
no suspension;
a monetary fine between $500.00 and $2.500.00; or,
a suspension not to exceed three days.
Decision
The Board carefully considered the submissions made by both counsel.
Firstly, the Board does not have the jurisdiction to impose a monetary penalty or fine. Amendments to the LLA will provide the Registrar with this authority subject to certain provisions not yet in place.
A suspension of a liquor licence does not close an establishment, it prevents the sale of alcoholic beverages for the period of the suspension. The Board has taken into consideration the impact of a lengthy suspension on the establishment. However, it is the responsibility of the Licensee to ensure that his or her establishment is operated in accordance with the LLA.
It is incumbent on the Licensee that the premises are operated and maintained in a safe and orderly manner, with honesty and integrity. The safety of patrons is paramount in the responsibilities of a Licensee.
It is the opinion of the Board that this Licensee did not practice due diligence in allowing a patron to become intoxicated and ultimately injuring herself while in the establishment. No medical assistance was offered to the patron, after she cut her head in a fall, she was simply told to leave the establishment because she was intoxicated.
The injury of the patron was such that she required hospital treatment for her wound.
The Board has taken into consideration in assessing the penalty that this is a first offence under the LLA of the Licensee.
Order
Therefore the Board orders liquor licence number 802685 issued to 1639857 Ontario Inc. operating as FUBAR NIGHTCLUB, 140 University Avenue West, Campus Court, Waterloo, Ontario, N2L 6J3, be suspended for a period of seven (7) 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 8th DAY OF MAY, 2008
BERYL FORD, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER
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