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-
Lake Affect Patio Bar & Grill Inc. Licensee
DECISION ON SANCTION
Panel: S. Grace Kerr, Board Member
Decision Date: August 1, 2008
Hearing Location: Toronto, 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 ) Dan Alakas, Representative Lake Affect Patio Bar & Grill Inc., Licensee ) Bruce Forth, Representative
Allegations
- A hearing into a Notice of Proposal number 15840 dated December 6, 2007 to suspend liquor licence number 28322 (the “Licence”) issued to Lake Affect Patio Bar & Grill Inc. (the ‘Licensee’) operating as LAKE AFFECT PATIO BAR & GRILL (‘the establishment’), 1 Port Street East, Mississauga, Ontario, L5G 4N1, on the basis of alleged violations of subsection 30(4) of the Liquor Licence Act (LLA) and subsection 41(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA was held on March 27, 2008 in Toronto, Ontario.
Decision
- The Board found the Licensee breached subsection 30(4) of the LLA and subsection 41(1) of the O. Reg. Parties were directed to provide written submissions on appropriate sanction. The Board has received and reviewed those submissions and ORDERS the licence be suspended for a period of seven (7) consecutive days. Reasons follow.
Submissions
- The Registrar asks for the Licence to be suspended for 10 days on grounds that:
The Licensee failed to exercise the required level of responsibility required of it;
The Licensee’s server did not ask for identification and served a minor person who would have appeared under age to a reasonable and prudent licence holder and there are no mitigating factors for having failed to do so;
The Licensee admitted that patrons are not automatically asked for identification and there was no evidence that the establishment has any policy or guidelines to prevent underage consumption;
The incident giving rise to the charges was not handled appropriately by the Licensee’s staff. Avoidance of liability as well as personal and business concerns came before compliance with their obligations and responsibilities under the LLA; and,
For general deterrence reasons, the presence in and service of alcohol to minors by establishments is a serious issue and violations damage the public’s perception regarding the safety and integrity of licensed establishments.
- The Licensee submits a 3-day suspension would be appropriate because:
The minor served was only about three months short of the legal drinking age in Ontario;
The minor was deceitful to the Licensee as well as the AGCO Inspector, having false identification in her possession and producing it to the Inspector when asked for identification;
The minor was deceitful to the Inspector, saying that she had been asked for identification by the server and then changing her testimony in her evidence to the Board at the hearing;
The consequences of this deceitful behaviour are only to be suffered by the Licensee as the minor was never charged with underage drinking;
Failure of Licensees to “self-police” the minimum drinking age for consumption of alcohol in licensed establishments can have dire consequences for Licensees;
The principles of specific and general deterrence penalize only the Licensee and not the minor;
The foregoing mitigating factors should be considered in determining the penalty to be imposed. Further minimizing factors are: consumption was limited to one glass of wine; safety was not an issue, either to the minor or to the public in general; and, there is no evidence that the public’s perception in the safety or integrity of the licensed establishment was damaged.
- The Registrar does not agree that the minor’s deceitful practices should in any way be a mitigating factor. Further, he submits that, in this forum, the Board is tasked with assessing the level of the Licensee’s compliance with the governing legislation.
Analysis/Reasons/Decision on Sanction
The Board has carefully considered the submissions of both parties on this issue. It concludes that a seven (7) day suspension of the establishment’s liquor licence is appropriate. While not to minimize the necessity for general deterrence in coming to a decision on sanction, in this case in particular, specific deterrence is a significant factor in the result, for the following reasons.
Service of underage patrons and the related offence of failing to inspect the identification of a person apparently under the age of nineteen years before serving them are very serious matters. Yet, the Licensee does not seem to appreciate this fact, based on its evidence at the hearing and judged by its submissions with respect to sanction. Throughout these proceedings, the Licensee has largely adopted a ‘blame the patron’ position. To date, it has not acknowledged and does not seem to understand or accept in any meaningful way its sole and separate responsibilities as Licensee from those of their patron under the LLA. This is even after the Board’s rulings on credibility in coming to its findings on the issues. Remarkably, it complains that the patron did not continue her subterfuge at the hearing. Additionally, the Licensee seeks to minimize the incident.
The Board also addresses the factors put forward by the Licensee in alleged mitigation. The fact that the incident involved just the one patron, that she was a few months shy of her nineteenth birthday, and that she had consumed one, and had only just started her second glass of wine do not alleviate the seriousness of these offences. Further, this Licensee had no policies or procedures in place to address its responsibilities under subsection 30(4) of the LLA and subsection 41(1) of the O. Reg. Nor was any evidence presented to show that it had turned its mind to these responsibilities or would be doing so in the (immediate) future for preventive and/or deterrent purposes.
Thus, and for all of the reasons articulated above, the Board concludes that a significant suspension is appropriate in this matter. However, in coming to its decision to impose a 7-day rather than a 10-day suspension, as sought by the Registrar, the Board also takes into account that the Licensee’s establishment is small and that these are its first offences. The Board concludes that a seven day suspension will appropriately satisfy the guiding principles of specific and general deterrence, given the particulars of this case.
Order
The Board ORDERS that liquor licence number 28322, issued to LAKE AFFECT PATIO BAR & GRILL INC., 1 Port St. E., Mississauga, Ontario, be suspended for a period of seven (7) consecutive days.
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 1st DAY OF AUGUST, 2008
S. GRACE KERR, BOARD MEMBER
SGK/sm