Registrar, Alcohol and Gaming Commission Ontario v. Tinker’s Billiards & Bar Inc., 2008 CanLII 6171

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-

Tinker’s Billiards & Bar Inc. O/A Tinker’s Billiards & Bar Licensee

DECISION ON SANCTION

Panel: Eleanor Meslin, Chair of Panel David C. Gavsie, Chair of AGCO

Decision Date: February 7, 2008 Hearing Location: Ottawa, 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 Tinker’s Billiards & Bar Inc., Licensee ) James Arthur Barkey, sole director, officer and shareholder of the Licensee

Allegations

1A hearing of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held on August 3 and October 10, 2007 to consider a Notice of Proposal number 15099 issued by the Deputy Registrar on March 22, 2007 (the “NOP”) and a Supplementary Notice of Proposal issued by the Deputy Registrar on July 5, 2007 (the “SNOP”), on the basis of alleged violations of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg.”) regarding the liquor licence of Tinker’s Billiards & Bar Inc. (the “Licensee”), operating as TINKER’S BILLIARDS & BAR, 17 – 19 Renfrew Avenue West, Renfrew, Ontario, K7V 2X8 (the “Premises”), licence number 805904.

2In its decision dated December 18, 2007, the Board found the Licensee to have violated subsection 45(1) of the O.Reg on February 10, 2007. The parties were invited to make written submissions on penalty. The Board has received and reviewed those submissions.

Submissions

3Ms. Taylor submitted that a 18 to 21 day suspension of the Licensee was appropriate given that the Board had made a finding in its decision that multiple intoxicated patrons were in the Premises on February 10, 2007.

4Ms. Taylor attached to her submissions a previous decision of the Board dated in 2005 in which based on an agreed statement of facts signed by James Arthur Barkey on behalf of the Licensee, the Licensee was suspended for 6 days for 2 breaches of the O.Reg, including a breach of subsection 45(1) of the O.Reg.

5Ms. Taylor said that the Licensee did not appear to have learned from the 2005 suspension of the Licensee, as a result, a substantial suspension is warranted in this case as a matter of general and specific deterrence.

6Mr. Barkey in his submissions on behalf of the Licensee argued that for the 3 intoxicated patrons found by the Board to be in the Premises on February 10, 2007, 2 days per person would be appropriate, or a 6 day suspension in all.

7Mr. Barkey said that what happened in the past was dealt with then and should not be considered in this case, since the penalty has been served. That incident was several years ago.

8Ms. Taylor, in reply, pointed out that the Licensee did not appear to have changed policies and procedures since the suspension. Discipline before the Board is intended to be progressive. A substantial suspension is necessary to tell the Licensee that drunkenness cannot be tolerated any longer in the Premises.

Decision

9The Licensee was suspended in June of 2005 for 5 days for 2 breaches of the O.Reg, one of which was a breach of subsection 45(1). The event giving rise to the suspension occurred on July 24, 2004.

10On February 10, 2007, another series of events gave rise to multiple violations of subsection 45(1) of the O.Reg.

11While Mr. Barkey may argue that 6 days is an appropriate suspension in the current situation, the Board does not agree with him. A second violation of the same provision of the O.Reg within 3 years of the first speaks loudly that the Licensee has not changed policies and procedures to better monitor and deal with these situations.

12On the other hand, the Board disagrees with Ms. Taylor’s position that as a matter of general and specific deterrence, a suspension of 18 to 21 day is appropriate. In the Board’s view, this would be too severe for the violations of subsection 45(1) of the O.Reg which occurred on February 10, 2007.

Order

13Accordingly, the Board ORDERS that liquor licence number 805904 issued to Tinker’s Billiards & Bar Inc., operating as TINKER’S BILLIARDS & BAR be suspended for a period of twelve (12) consecutive days.

14Licensee 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.