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-
1521141 Ontario Ltd. O/A The Niblick Licensee
DECISION ON SANCTION
Panel: David C. Gavsie, Chair, AGCO Eleanor Meslin, Board Member
Decision Date: November 26, 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 ) Richard Kulis, Representative 1521141 Ontario Ltd., Licensee ) Randall Barrs, Representative
Allegations
A hearing into a Notice of Proposal number 15960 dated January 28, 2008 to suspend liquor licence number 810064 (the “Licence”) issued to 1521141 Ontario Ltd. operating as THE NIBLICK, 1011 Upper Middle Road, Building E, Oakville, Ontario, L6H 4L1 (the “Premises”), on the basis of alleged violations of subsections 30(2) and 30(4) of the Liquor Licence Act (“LLA”) and subsections 41(1), 45(1) and 45(2) of Ontario Regulation 719/90 (“O.Reg 719/90”) made pursuant to the LLA, was held on May 7 and September 29, 2008 in the City of Toronto.
In its decision dated November 7, 2008, the Board found the Licensee had violated subsections 45(1) and 45(2) of O.Reg 719/90. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed these submissions.
Registrar’s Submissions
The Registrar submitted that drug trafficking and drunken patrons are two of the most serious violations under the liquor licence regulating scheme. He indicated that the licence holder had little practical knowledge of the problems that could occur in the licensed premises and had done little to educate himself and his staff.
He submitted that the licence holder did not deliberately breach his responsibilities, but was negligent and blind to the problems.
The Registrar recommended a suspension in the range of 12 to 14 days as a specific and general deterrent in order to encourage the licence holder to educate himself in the practical aspects of patron supervision and to educate his employees.
Licensee’s Submissions
Counsel submitted that the licence holder did not deliberately breach the Regulations nor was he reckless. Since there was no history of any violations, he was not “blind to the problems”. He was less than perfect.
He indicated that drunkenness is subjective where young people are enjoying themselves. Without hearing from the two “drunken” patrons it would be difficult to know the extent of impairment or whether the licence holder was negligent.
Counsel stated that drug trafficking is not and has never been an issue at Niblick. Whatever occurred stemmed from the police knowing something that the Licensee could not have known.
Counsel pointed out that Niblick is an upscale, full time lunch and dinner operation, with 20 to 30 employees and is often attended by police officers, who would not attend if drunkenness or drug dealing was an issue.
He stated that the licence holder has worked and will continue to work with police and do everything possible to monitor “pre-drinkers” and/or people who have ingested drugs before entering.
Counsel submitted that a suspension would exact a devastating financial toll in these difficult economic times and negatively impact all employees.
He did not believe the licence holder has to be specifically deterred, as this was not a general deterrence case vis-à-vis the drug dealer.
Counsel suggested a 3 day suspension.
Reply
- The Registrar submitted no reply to the Licensee’s submission.
Reasons and Decision on Sanction
The Board has carefully considered the submissions.
Drug trafficking and drunkenness are serious contraventions of the Regulations. Although the Board agrees that the licence holder did not deliberately breach the Regulations, however, because of his lack of training (no Smart Serve), he did not know all the signs of intoxication. Also in his belief that there was no drug activity outside Toronto, he was negligent and blind to the problems.
The Board has already indicated that, regarding the two drunken patrons, it accepted the evidence of the police. The fact that those patrons did not give evidence at the hearing is irrelevant.
To say that drug trafficking has never been a problem at Niblick is moot. Neither the licence holder nor his staff were sufficiently trained to spot any drug transaction that may have occurred in the past.
The Board takes note of the licence holder’s intention to work with the police and do everything possible to monitor patrons in the future. It is also cognizant of the financial toll a long suspension will have in these difficult economic times. However, a specific and general deterrent is in order to minimize the likelihood of infractions of this nature occurring in the future.
Therefore, the Board FINDS a seven (7) day suspension is warranted.
Order
The Board ORDERS that liquor licence number 810064 issued to 1521141 Ontario Ltd. operating as THE NIBLICK, 1011 Upper Middle Road, Building E, Oakville, Ontario, L6H 4L1, 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 26th DAY OF NOVEMBER, 2008.
DAVID C. GAVSIE, CHAIR, AGCO ELEANOR MESLIN, BOARD MEMBER