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-
3234720 Canada Inc. O/A Raxx Billiards & Bar
Licensee
DECISION on sanction
Panel: David C. Gavsie, Chair of AGCO Allan Higdon, Chair of Panel
Decision Date: February 7, 2008
Hearing Location: Kingston, 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 3234720 Canada Inc., Licensee ) Joel Kuchar, Representative
Authorities
Salty Dawg Roadhouse Restaurant, [2002] O.A.G.C.D. No. 21
Allegations
A hearing of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held in Kingston on December 4, 2007, regarding a Notice of Proposal dated June 28, 2007 being number 15361 (the “NOP”) proposing to suspend the liquor licence of 3234720 Canada Inc. (the “Licensee”) operating as RAXX BILLIARDS & BAR, 655 Development Drive, Kingston, Ontario, K7M 4W6 (the “Premises”), licence number 804926, on the basis of alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”).
In its decision dated January 10, 2008, the Board found the Licensee violated subsection 45(1) of the O.Reg on February 18, 2007. The parties were invited to make written submissions on penalty. The Board has received and reviewed those submissions
Submissions
Mr. Kulis referred to the decision of the Board in the case of Salty Dawg Roadhouse Restaurant. A 14 day suspension was imposed by the Board in that case for a similar matter.
The Licensee in this case has had the licence since 2000 without incident.
The manager, Mr Bannister was, according to Mr. Kulis, apparently lax in his duties the night of the infraction and less than forthcoming in his evidence. On the other hand, Mr. Schunk, a security employee of the Licensee, played a significant role in preventing the intoxicated male from driving away.
Based on the Licensee’s good record and the intervention of Mr. Schunk, Mr. Kulis suggests that a 10 day suspension of the Licensee would be appropriate.
Mr. Kuchar distinguishes the Salty Dawg Roadhouse Restaurant decision from the present one. In the former, there was evidence of an intoxicated patron in the Premises for a length of time, the number of drinks served to the patron in the Premises, and the patron’s significant degree of interaction with staff.
Those factors are missing in this case. The only evidence of time in the Premises was about an hour, and no evidence was given as to the number of drinks consumed in the Premises.
In Mr. Kuchar’s view, in the present case there is far less compelling evidence than that led in the Salty Dawg Roadhouse Restaurant case.
Mr. Kuchar submits that a warning to the Licensee would be the appropriate sanction.
Decision
Mr. Paquette was identified by Mr. Schunk to be intoxicated when he drove his car into the snow bank/ditch, by others referred to in Mr. Schunk’s testimony, and by police officers.
Mr. Paquette also tested 3 times the legal blood: alcohol limit approximately 2 to 2 1/2 hours after the closing time of the Premises.
All of the foregoing lead to the conclusion that Mr. Paquette was clearly intoxicated while in the Premises and this should have been noticed by Licensee’s staff if, in fact, it was not. The failure to do so or say nothing if they did notice the condition of Mr. Paquette, cannot be ignored by the Board, notwithstanding the subsequent commendable action of Mr. Schunk in the parking lot which may have saved a more serious situation from occurring.
This type of blindness or ignorance exhibited by the Licensee is a matter for both specific and general deterrence, and a suspension of the Licensee is appropriate in these circumstances.
On the other hand, the clear record of the Licensee since 2002 should also be taken into account by the Board.
Order
The Board ORDERS that liquor licence number 804926 issued to 3234720 Canada Inc. operating as RAXX BILLIARDS & BAR, 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 7th DAY OF FEBRUARY, 2008
DAVID C. GAVSIE, CHAIR OF AGCO ALLAN HIGDON, CHAIR OF PANEL
DCG/sm