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-
Leroy Adolphus Ashley O/A Jamrock Bar and Grill
Licensee
DECISION ON SANCTION
Panel: Patricia McQuaid, Vice-Chair Alex McCauley, Board Member
Decision Date: October 31, 2008
Hearing Location: Hamilton, 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
Leroy Adolphus Ashley, Licensee ) Michael Figol, Representative
Allegations
A hearing into a Notice of Proposal (“NOP”) number 16343 dated May 27, 2008 to revoke a liquor licence and an Order dated May 27, 2008 to immediately suspend a liquor licence on an interim basis issued to Leroy Adolphus Ashley operating as JAMROCK BAR AND GRILL, 1429 Main Street East, Hamilton, Ontario, L8K 1C2 (the “Premises”), licence number 90129 (the “Licence”) on the basis of alleged violations of section 29 and subsections 31.1(1), 45(1) and 45(2) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on June 12, July 14, 16 and 17, 2008 in the City of Hamilton.
In its decision dated September 26, 2008, the Board found the Licensee violated section 29 and subsections 31.1(1), 45(1) and 45(2) of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Decision On Sanction
Mr. Kulis, in his submissions reiterates the request in the NOP for a revocation of the liquor licence, stating that, but for the finding of a violation of subsection 45(2) of the O.Reg, the suspension time served under the interim suspension would be adequate disciplinary action. However, given the finding of a violation of subsection 45(2) and the lack of managerial and operational competence shown by Mr. Ashley a revocation is, in this instance, the appropriate penalty. This is, as well, the second time that Mr. Ashley has faced disciplinary action. By agreement made in April, 2008, a ten day suspension was to be served from June 29 to July 9, 2008.
Mr. Figol, on behalf of the Licensee, submits that revocation is not appropriate and that no further period of suspension should be ordered given the time period the establishment was closed pursuant to the interim suspension order. He submits that the evidence does not clearly show that Mr. Ashley was the owner of the marijuana or that he was actively engaged in the sale of drugs. Further, Mr. Ashley intends to take a more proactive approach in operating his establishment in the future, including resolving ownership issues regarding the Premises.
With respect to Mr. Figol’s submissions, the Board, as stated in its decision, made its finding of a violation of subsection 45(2) of the O.Reg based on the balance of probabilities. It was not incumbent upon the Registrar to establish “clearly” ownership of the marijuana. However, as the Board noted in paragraph 95 of its decision, there was no evidence to suggest that drugs were being actively sold at Jamrock.
Mr. Figol, in his submissions, reiterates arguments about access to the basement by others, and raises the possibility of entry by person who lived above the establishment. These submissions are more appropriate to submissions on the findings of violations and, again, as noted in the Board’s decision, are speculative at best given the dearth of reliable evidence on these points.
The Board concluded that the evidence suggested that Mr. Ashley was ill-prepared to run a licensed establishment. That lack of preparedness is further illustrated by the fact that the prior suspension was in respect of incidents in November 2007, approximately 9 months after Mr. Ashley received his liquor licence. The effectiveness of that suspension period as a deterrent may have been limited given that prior suspension period fell within the time the interim suspension order was in place.
The Board agrees with Mr. Kulis. The competence of Mr. Ashley is a concern, and was, unfortunately, not an issue fully canvassed at the time of issuance of the licence to him in February 2007. The Board agrees, too, that a finding of involvement of the licence holder in the sale of drugs, or even a wilful blind eye to transactions usually results in a revocation of the licence. However, there were none of the hallmarks of trafficking noted by D/Sgt. Cattle in his evidence, and that particular issue will be dealt with in another forum.
The Board, therefore, on the facts before it, has determined that a revocation is not appropriate. Mr. Ashley’s questionable competence is a concern, but the Board feels that a lengthy suspension should serve both specific and general deterrence, and further conditions on the Licence would provide a tool by which to ensure compliance in the future. The Board in reaching its decision has put some weight on Mr. Ashley’s cooperation, apparent willingness to run a responsible and compliant establishment. It will be for Mr. Ashley to meet his responsibilities under the LLA and the regulations having been given a second chance. Should he fail to meet these obligations, he may not be given a further chance.
Regarding the suspension period, the establishment was closed from May 27th, the date of the interim order of suspension, and permitted to re-open by the Board’s Order of July 18, 2008, lifting the interim order on terms. The period of suspension served was therefore fifty-two (52) days. A fifty-two (52) day suspension is by any measure a lengthy suspension and generally imposed only for the most serious and egregious violations. Absent the finding of a violation of subsection 45(2) of the O.Reg, a fifty-two (52) day suspension would have been more than adequate. Given the seriousness of the violations found, and the fact that the Licensee was, during that time to be closed in any event, to serve a ten (10) day suspension, the Board has determined that a further thirteen (13) day suspension is appropriate, for a total suspension, including the period of the interim suspension, of sixty-five (65) days. The Board, by ordering this period of suspension, wishes to underline the seriousness with which it regards breaches involving drugs, especially where there is a significant amount as found here, even absent evidence of sale at the establishment itself.
The Board, in its Order of July 18, 2008, imposed conditions as terms of lifting the interim suspension. The third condition regarding security, specifically that there shall be five qualified security persons on duty on Friday and Saturday nights, did, as relayed by letters to the Board by Mr. Ashley, subsequently pose a significant financial burden. The Board was unwilling at that time to vary the condition. However, the Board having reviewed all the evidence in reaching its decision on this matter is prepared to amend the condition and impose additional conditions to ensure compliance going forward. These conditions speak both to security issues and to the parameters of the licensed premises, which was an issue in the hearing.
Order
The Board orders that liquor licence number 90129, issued to Leroy Adolphus Ashley operating as JAMROCK BAR AND GRILL, 1429 Main Street East, Hamilton, Ontario, L8K 1C2, be suspended for sixty-five (65) days which period of suspension shall comprise the fifty-two (52) days of the interim suspension and an additional thirteen (13) consecutive days.
Further, the Board ORDERS that the following conditions be attached to the liquor licence:
a) The licence holder or a designated manager, whose name is to be provided to the AGCO, shall be on the Premises at all times the licensed premises is open for business.
b) All staff working in the licensed premises shall have a current certificate (or until the final certificate is received, written confirmation of successful completion of the course) confirming successful completion of a server training course approved by the Board of the AGCO.
c) There shall be one qualified security person on duty each day the premises is open for business except for Friday and Saturday evening when there shall be two (2) qualified security persons on duty from 10:00 p.m. to 2:00 a.m. of the following day.
d) Security personnel shall wear clothing readily identifying them as security.
e) The Licensee shall meet with AGCO inspectors, to review and then file with the AGCO a current detailed floor plan of the licensed premises including any of the basement areas to which the Licensee has access. This floor plan shall depict all points of access to all licensed areas (including the basement), and identify which persons have access to these areas. Any changes to the floor plan will be communicated to the AGCO immediately and a meeting scheduled to review the changes with a AGCO inspector.
f) A set of keys will at all times be available on site to gain access to any area set out in the floor plan, whether or not the Licensee is present.
- The 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 31st DAY OF OCTOBER, 2008.
PATRICIA MCQUAID, VICE-CHAIR ALEX MCCAULEY, BOARD MEMBER
PM/cp