Registrar, Alcohol and Gaming Commission of Ontario v. 1100947 Ontario Inc. O/A The Kilt and Clover, 2008 CanLII 91835

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 of Ontario

Registrar

-and-

1100947 Ontario Inc. O/A The Kilt and Clover

Licensee

DECISION

Panel: Kirsti Hunt, Vice-Chair

Decision Date: October 15, 2008

Hearing Location: St. Catharines, 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 1100947 Ontario Inc., Licensee ) Patrick Little, Representative

Allegations

1. A hearing into Notice of Proposal number 16383 dated June 9, 2008, to suspend liquor licence number 280843 (the “Licence”), issued to 1100947 Ontario Inc., (the “Licensee”), operating as THE KILT AND CLOVER, 17 – 19 Lock Street, Unit 1, St. Catharines, Ontario, L2N 5B6, (the “establishment” or the “premises”), on the basis of an alleged violation of subsection 25(1) of Ontario Regulation 719/90 (the O.Reg) made pursuant to the Liquor Licence Act (LLA), was held on September 9, 2008, in the City of St. Catharines.

Decision

2. The Board makes a finding that the Licensee violated subsection 25(1) of the O.Reg. Reasons follow.

Registrar’s Evidence

3. Inspector Brian Sharpe of the Alcohol and Gaming Commission of Ontario gave evidence that on January 27, 2008, he visited The Kilt and Clover after receiving an anonymous tip that alcohol was being served before hours. He arrived at 10:38 a.m. and entered the patio from the main street entrance. On the patio, he observed the following:

• a male with an empty pint glass,
• four males standing around a patio table with seven bottles of Moosehead beer in front of them with various levels of beer in the bottles,
• a bottle of Molson Canadian on one table,
• a female about 5’4” tall with an open bottle of Molson Canadian in her hand.

The Inspector entered the establishment and observed the following:

• a male at the end of the bar with an open Coors Light beer in his hand,
• two older males at a table with bottles of Molson Canadian in front of them,
• a male around 27 years old at the bar with a pint glass of beer and two shots of Jagermeister in front of him. He knew what was in the shot glasses because he heard the male say, “Jagermeister,”
• a male with a mailman’s hat, whom the Inspector knew as Dave, asked Dave Prentice,the bartender and owner, to take his drink, a Jagermeister bomb. That is a drink with Jagermeister and red bull,
• a male with a black leather jacket order a pitcher of beer. A male server with shaggy hair wearing a grey t-shirt poured a pitcher of Steam Whistle and gave it to the male,
• Dave Prentice get a bottle of white wine from a cooler behind the bar and pour a glass of wine and then put the bottle back into the cooler,
• a female server, with long blond hair and about 5’9”, pour a pitcher of Coors Light.

4. The bartender asked the Inspector if he could get the Inspector anything and the Inspector replied that he was okay for now.

5. When the Inspector told Mr. Prentice that he had observed a number of signs of service before 11:00 a.m., Mr. Prentice said that he was sorry and that he had lost track of time. He had been getting the ice ready outside since 6:00 a.m.

6. The Inspector observed alcoholic beverages being asked for and given but could not recall seeing payment being made in cash or by credit card. He was not aware that a Chicken Chuckin’ Contest was happening that day. He did not know what Mr. Prentice meant by preparing the ice.

Licensee’s Evidence

7. David Prentice, the owner and General Manager of the Kilt and Clover, submitted as Exhibit #1 a letter to the Commission dated April 22, 2008, in which he acknowledged the observations of the Inspector, took full responsibility for the infraction and gave an explanation of how that happened during their 8th annual Chicken Chuckin’ Competition. The proceeds went to the Niagara-on-the-Lake Kinsmen Club for its fundraising on behalf of children with cystic fibrosis.

8. A package of newspaper articles (Exhibit #2) describes this charity event over the years. The event is held on Martindale Pond which is about 500 yards from the premises.

9. On the date in question, Mr. Prentice was at the pond at 5:30 a.m. and volunteers arrived after 6:00 a.m. to help prepare the ice on the pond. It was cold and the preparation took until 10:15 a.m. When the volunteers arrived at the Kilt and Clover to do registration, he offered to buy them the first beverage in return for their time and work. At 10:30 a.m., there were 15 to 20 people in the premises which included staff and volunteers. The premises were not open for business.

10. He explained to the Board that he usually arrives at the premises at 10:00 a.m. That day he had been at the pond before 6:00 a.m. and thought that it was around noon. He was also in a rush to get things done so the competition could get started. He knows what the hours of service are but he lost track of time and didn’t really think about it when he served the drinks. He apologized to the Inspector and told him that he had lost track of time. He told the Inspector that it would not happen again. It had never happened before.

11. They raised $1,327 in registration fees and the Kilt and Clover matched that amount. There was also a food drive and an anonymous donation to the Kinsmen Club. They have held the Chicken Chuckin’ Contest for eight years and have raised $7,000 to $8,000 for charity.

12. On cross-examination, Mr. Prentice explained that in 2005 an employee had been carelessly dispensing alcohol after 2:00 a.m. and was fired for doing that. After 2005, they had an incident for failing to clear signs of service and consumption by 2:45 a.m.

13. It was his understanding that giving free servings of liquor is allowed if they are recorded and purchased by him. He is aware now after reviewing the excerpts from the Regulations (Exhibit #3) that whether it is paid for or not, it is illegal. He agreed that the money from the sale of liquor did not directly go to charity but the Licensee matched the registration fees so indirectly it did. No set portion of the liquor sales went to charity.

Registrar’s Submissions

14. The Registrar submitted essentially that there is ample evidence, and it is admitted by the Licensee, that liquor was sold and served to people in the licensed premises before 11:00 a.m. The Licensee is not disputing the allegation but is relying on the charity event being a mitigating circumstance.

15. The Registrar asked for a finding of a violation of subsection 25(1) of the O.Reg.

Licensee’s Submissions

16. The Licensee accepted the responsibility of the service of alcohol before 11:00 a.m. on January 5, 2008. Mr. Prentice told the Inspector that and admitted it in the letter of April 22, 2008.

17. To emphasize the mitigating circumstances, Mr. Prentice gave evidence that the sale was on his tab and only to the volunteers. The premises were not open to people who came off the street to purchase alcohol. Volunteers were offered sustenance, warmth and comfort in the context of a charity event.

18. Mr. Prentice treated the establishment as his home after the volunteer event which was a mistake.

Decision on the Facts

19. After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 25(1) of the O.Reg.

20. The Board reviewed the evidence and the submissions as a whole and finds that there is clear evidence and it is admitted by Mr. Prentice, that service and sale of alcohol on his tab occurred before 11:00 a.m. on January 5, 2008.

Decision on Sanction

21. The Board finds that a five-day suspension is appropriate as a specific as well as a general deterrence.

Reasons

22. The Board reviewed the submissions on sanction made by the parties.

23. It does not accept the submission of the Registrar that an eight-day suspension is appropriate based on accumulative discipline as a result of a ten-day suspension in 2005 for serving minors and failing to clear signs of service and consumption by the prescribed time. It agrees with the Registrar that the latter infraction, which occurred in 2005 as well as the present one, are similar in that they occurred outside the prescribed hours. However, the 2005 latter infraction was an infraction of section 29 of the O.Reg and the present event is an infraction of subsection 25(1) of the O.Reg. The Board does not consider this infraction to be a repeat of the previous one. Further, there is no evidence that either of the previous infractions have recurred in the last three years.

24. The Board does not agree with the Licensee that a reprimand is appropriate as a general deterrence.

25. The Licensee asked the Board to consider the following as mitigating circumstances with regard to the Licensee:

• this infraction occurred during a charity event that the Kilt and Clover was holding;
• the Licensee had admitted the infraction to the Inspector at the time and later admitted it to the Deputy Registrar and explained that the infraction occurred because the Licensee lost track of time because of being involved with the preparations for the charity event;
• the premises were not open to the public;
• liquor was served on the owner’s tab only to volunteers as a reward for their work;
• the infraction did not occur for a long time or for profit.

26. The Board commends the Licensee for hosting charity events in the community and appreciates the work done by staff and volunteers during such an event. Undoubtedly a Chicken Chuckin’ Contest on the local pond is an event enjoyed by many and the funds raised help worthy causes. It appreciates the forthrightness of the Licensee in admitting that the infraction occurred.

27. However, subsection 25(1) of the O.Reg is very clear in stating that “liquor may be sold and served only between 11 a.m. on any day and 2 a.m. on the following day.” There is no allowance made in the regulation for special events, be they for charity or for profit, whether the sale and service of alcohol is to volunteers or the public in general, whether an infraction occurs over a short or a long time. Sale and service of alcohol in licensed premises is not permitted before 11 a.m.

28. The Licensee submitted that the premises were not open to the public. However, the Inspector walked in and was asked what he would like to drink. It is not a valid explanation that he seemed to be just another volunteer. No procedures were in place to ensure that the public in general did not enter.

29. The Board cannot accept losing track of time as an excuse no matter how hectic an event might be.

30. Considering all the circumstances of this case, the Board finds that a five-day suspension is appropriate as a specific as well as a general deterrence.

Order

31. The Board hereby ORDERS that liquor licence number 280843 issued to 1100947 Ontario Inc., operating as THE KILT AND CLOVER, 17-19 Lock Street, Unit 1, St. Catharines, Ontario, L2N 5B6, be SUSPENDED for a period of FIVE (5) consecutive days.

32. 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 15th OF October , 2008

KIRSTI HUNT, VICE-CHAIR

KH/ee