Registrar, Alcohol and Gaming Commission Ontario v. 2027980 Ontario Limited O/A Jack’s, 2008 CanLII 35217

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-

2027980 Ontario Limited O/A Jack’s

Licensee

DECISION ON SANCTION

Panel: David C. Gavsie, Chair, AGCO Beryl Ford, Board Member

Decision Date: May 21, 2008

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 2027980 Ontario Limited, Licensee ) Michael Lerner, Representative

Authorities

Shangrila Club Service Ltd. (Club Shangrila Services) (Re), 2007 CanLII 58220 (ON A.G.C.) Flamboro Downs Tavern (Re), [2002] O.A.G.C.D. No. 179

3234720 Canada Inc. (Raxx Billiards & Bar), 2008 CanLII 6167 (ON A.G.C.)

501250 Ontario Inc. (Wally’s Roadhouse) (Re), 2007 CanLII 41548 (ON A.G.C.)

6443338 Canada Inc. (Stone House Bar & Grill) (Re), 2008 CanLII 16809 (ON A.G.C.)

Allegations

1. A hearing of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held in London on January 29 and 31, February 4, and March 7, 2008, regarding Notice of Proposal number 15131 to suspend a licence dated April 16, 2007 (the “NOP”) and Supplementary Notice of Proposal number 15416 to suspend a licence dated July 5, 2007 (the “SNOP”) both with respect to the liquor licence of 2027980 Ontario Limited operating as Jack’s, (the “Licensee”), 539 Richmond Street, London, Ontario, N6A 3E9, (the “Premises”), licence number 807140 (the “Licence”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (O.Reg) made pursuant to the Liquor Licence Act (LLA), and an alleged breach of conditions on the licence.

2. In its decision of dated April 21, 2008, the Board made findings of a violation of subsection 45(1) of the O.Reg and violations of conditions 5 and 6 of the Licence. The parties were directed to provide written submissions as to penalty. The Board has received and reviewed those submissions.

Decision on Sanction

3. Mr. Alton for the Registrar stated that the violations found by the Board emphasize a serious public safety issue at Jack’s.

4. Mr. Alton submitted that staff failed to properly monitor patrons on the night of February 11, 2006, and had police not attended and cut off intoxicated patrons, more severe consequences could have occurred. A clear message has to be sent to bar owners that they need to be more diligent not to allow drunkenness in their licensed premises.

5. Regarding the breaches of conditions 5 and 6, Mr. Alton stated that these were made knowingly and wilfully. The Licensee consented to them. Also, the Licensee was warned on prior occasions, yet continued to violate the conditions. Also, the line-ups at the side doors produced fees for the Licensee by way of cover charges.

6. Mr. Alton urged the Board to weigh the fact that this is the first time the Licensee was before the Board against the number and severity of the offences that occurred.

7. Mr. Alton submitted that an 18 – 21 day suspension would be appropriate.

8. Michael Lerner for the Licensee pointed out that this was the first time the Licensee has appeared before the Board.

9. Mr. Lerner stated that the patrons found to be intoxicated were passive and there was no breach of the peace requiring police attendance or intervention. They did not present a risk to themselves or to others. One patron was escorted from the Premises. The others said to be intoxicated by police witnesses were not asked to leave.

10. Mr. Lerner continued that two witnesses, Dr. Trevor Smith and Martin Dol, both of whom had opposed the patio licence application. They testified favourably towards the Licensee’s responsibility towards its residential neighbours. In fact, out of concern for these neighbours, the patio has never been opened although its use was authorized.

11. Mr. Lerner pointed out that the Licensee employs paid duty police officers, a further sign it is responsible.

12. Regarding violations of conditions 5 and 6 of the Licence, Mr. Lerner submitted that this issue in its entirety involves intention and interpretation. The conditions were intended to apply to the patio. They were placed on the Licence so the patio application could be granted with the consent of the objectors.

13. The AGCO Inspectors did not know the intent behind the conditions, just that they related to the patio application.

14. Mr. Lerner said that when it became apparent to the Licensee that the Inspectors’ interpretation of the conditions was different from the intention, the Licensee attempted to resolve the situation through discussions, meetings and e-mails with the AGCO. Then, an application to amend the conditions was made to the AGCO prior to the issue of the NOP and SNOP. The application was held in abeyance pending the outcome of this hearing.

15. The Board should take into account the conduct of the Licensee which was consistent with its belief that the conduct of its business was in accordance with the conditions that had been imposed.

16. Mr. Lerner stated that in evidence, Mr. Dehu said he never would have agreed to conditions 5 and 6 as interpreted by the Inspectors. Mr. Dehu also said prior to the patio application hearing, all three floors of the Premises had been licensed without restriction. His evidence and that of Dr. Smith and Mr. Dol all pointed to the belief that all of the conditions were imposed for use of the rear patio.

17. Mr. Lerner said that no public complaint has ever been lodged by the neighbouring residents regarding the conduct of its business by the Licensee.

18. Mr. Lerner concluded by stating that a minimal sanction would be appropriate after applying the usual principals of sentencing, and suggested a three day suspension. Mr. Lerner referred the Board to the cases of Shangrila Club Service Ltd., Flamboro Downs Tavern, 3234720 Canada Inc. (Raxx Billiards & Bar), 501250 Ontario Inc., (Wally’s Roadhouse), and 6443338 Canada Inc., (Stone House Bar & Grill), regarding an appropriate sanction.

19. In his reply, Mr. Alton stated that the violations found by the Board are not unique. The Licensee wanted a patio licence and agreed to conditions so he could get it. The conditions were reviewed by his legal representative prior to the Licensee consenting to them. The fact that Mr. Dehu is not happy with the wording or how they were interpreted is irrelevant. It is self-serving to claim they are not what the Licensee intended.

20. Mr. Alton stated that the wording of the conditions is clear and the Licensee was warned several times prior to the events stated in the NOP and SNOP. The Licensee disregarded the interpretation of the Inspectors. This was blatant and wilful.

21. Mr. Alton pointed out that the Registrar has in other cases sought revocation of the licence for a breach of one or more conditions, but said the Registrar is not seeking revocation of the Licence in this case.

22. Mr. Alton distinguished all of the cases as referred to in Mr. Lerner’s submissions, and stating that none were of assistance in determining an appropriate sanction.

Decision

23. Mr. Dehu, the principal of the corporate Licensee and the owner of other licensed establishments in Guelph, is appearing before the Board for the first time in a discipline matter. This was not refuted by the Registrar. He has an unblemished record of no violations of the LLA or regulations thereunder to date.

24. As the Board held in its decision of April 21, 2008, there were violations of subsections 45(1) of the O.Reg at Jack’s in the early morning hours of February 11, 2006. The evidence with respect to these violations is clear. The Licensee’s staff had ample opportunity to deal with the intoxicated patrons, but did not. The behaviour of these patrons, whether passive or aggressive, cannot excuse the fact that the Licensee permitted intoxicated patrons to remain in the Premises.

25. As a matter of specific and general deterrence, a suspension is appropriate, but the length of the suspension should take into account the past clean record of the Licensee and its principal, Mr. Dehu.

26. For these violations of subsection 45(1) of the O.Reg, the Board believes a five day suspension of the Licence is the appropriate sanction.

27. The violations of the conditions to the Licence are more perplexing.

28. There is no doubt the conditions to the Licence were added as a resolution to the concerns of public interest objectors regarding the application for a patio addition to the Licence.

29. Mr. Dehu testified at that time, Diesel was not open and that renovations to the basement area were taking place. Witnesses said that it was only at the Hearing of the patio area application did they find out about the basement area being renovated.

30. However, as the Board has said, the conditions were very clear, and that includes the wording of conditions 5 and 6 on the Licence.

31. The Board’s decision incorporating the conditions was dated June 24, 2005 (Ex. 13). A liquor licence issued to 2027980 Ontario Limited for Jack’s – licence no. 807140 – dated September 22, 2004, showed separate capacities for three areas, including a capacity of 426 for the “Basement: Entire South West Section” (Ex. 3). Therefore it is clear that the basement area was licensed at the time of the patio application hearing and agreement on the wording of conditions.

32. On January 26, 2006, Licensee’s representative started an exchange of correspondence (Ex. 8, 9 and 10) that culminated in an application for Removal or Change of conditions signed by Mr. Dehu on December 4, 2006 (Ex. 11) being sent to the AGCO.

33. Prior to January 26, 2006, the Licensee was told by the AGCO Inspector that the use of the side alleyway or north doors was in breach of condition 5 as an entrance to the Premises and that there were to be no line-ups in that alleyway pursuant to condition 6.

34. These warnings were not heeded by the Licensee, and almost a year later, the Licensee submitted a formal application to change the conditions to the AGCO.

35. To compound matters even further, the NOP and SNOP were issued well after December 4, 2006, on April 16 and July 5, 2007, respectively. The NOP alleged violations of the conditions on September 15, 2006 and on September 30, 2006, whereas the alleged violation in the SNOP occurred on March 17, 2007.

36. Mr. Dehu made a good point in his evidence that, assuming the only entrance to the Premises for patrons was through the front door on Richmond Street, this would lead to an absurd result given that the Licence shows different capacities for three floors – basement, main floor and second floor. If main floor capacity of 560 was reached, the next patron entering the Premises with the intent of proceeding directly upstairs or to the basement, would create an over capacity situation coming through the entrance onto the main floor. Mr. Dehu used this argument to point out he always had the use of the side alley way or north doors as an entrance in mind to avoid what would otherwise lead to an absurd result.

37. While the Board understands this argument, the wording of the conditions is quite clear, and prior to the Board ordering the conditions be attached to the Licence in June of 2005, the Licensee had ample opportunity to review the wording and make it read correctly to its way of thinking.

38. Taking all of the above into consideration including the Licensee’s unblemished record, the Board is of the view that a further suspension of five days for the breach of the conditions on the Licence is the appropriate sanction

39. Accordingly, the Board ORDERS that the liquor licence of 2027980 Ontario Limited operating as Jack’s, 539 Richmond Street, London, Ontario, N6A 3E9, be suspended for a total of TEN (10) consecutive days.

40. 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 21^st DAY OF MAY, 2008

DAVID C. GAVSIE, CHAIR, AGCO BERYL FORD, BOARD MEMBER

DCG/ee