ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission Ontario Registrar
-and-
1305333 Ontario Inc. O/A O’Grady’s Tap & Grill Licensee
DECISION ON SANCTION
Panel: Brian J. Ford, Board Member S. Grace Kerr, Board Member
Decision Date: October 31, 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 1305333 Ontario Inc., Licensee ) Jeff Lieberman, Representative
Allegations
1A hearing into a Notice of Proposal number 15936 dated January 15, 2008 to suspend liquor licence number 91944 issued to 1305333 Ontario Inc. operating as O’GRADY’S TAP & GRILL, 171 College Street, Toronto, Ontario, M5T 1P7, on the basis of alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on April 2, 2008 in the City of Toronto.
2In its decision dated August 28, 2008, the Board made a finding of a violation of subsection 45(1) of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions and ORDERS the licence be suspended for a period of fourteen (14) consecutive days. Reasons follow.
Submissions
3On behalf of the Registrar, Mr. Kulis notes that in early January, 2008 the licence holder served a 12-day suspension for violations of subsection 30(4) of the LLA and section 43 and subsection 45(1) of the O. Reg. He also urges that either due to inadequate staffing or poor staff training, or both, the Licensee failed to deal with the two drunken patrons in this instance.
4In accordance with the within Notice of Proposal, the Registrar asks for a 14-day suspension as a specific deterrent to this Licensee.
5On behalf of the Licensee, Mr. Lieberman submits that the testimony of the two drunken patrons was almost 10 months old at the time of the hearing and lacked particulars as to their interactions with the Licensee’s staff, given their intoxicated states. No employees remembered serving these two particular patrons either, notwithstanding it was not a busy night for the establishment.
6Furthermore, Mr. Lieberman urges that neither patron was exhibiting any discernable signs of intoxication when they were in the establishment. As such, the Licensee’s employees were not given the opportunity to assess their conditions or to respond accordingly.
7Mr. Lieberman also notes that the Licensee’s previous suspension was for multiple violations and suggests that a 10-day suspension would be appropriate in the circumstances.
Analysis/Reasons/Decision on Sanction
8After careful consideration of the evidence in this matter as well as the submissions as to sanction and for the reasons set out below, the Board has concluded that a 14 day suspension is appropriate.
9The Board views this offence as serious. On the night in question, two patrons were intoxicated in the establishment. The Board agrees with the Registrar that, if the Licensee’s staff had been adequately trained or had adequate numbers been working that night, or both, then it would or should have been noticeable to the staff that these two patrons were drunk, one extremely so. Only good fortune for both the patron and the establishment, through the police officers’ intervention, prevented the night from likely ending in tragedy.
10Of concern, this Licensee has a very recent, past history for a violation of the same section of the O. Reg. While not concluding that a ‘pattern’ has developed, a disturbing ‘tendency’ is emerging with this Licensee and it needs to be nipped in the bud. That the previous suspension was in respect of multiple violations, rather than a single contravention of the legislation as occurred in this instance, does not distinguish the present case from its history in a positive way as is reasoned by Licensee’s counsel. Rather, it adds to the Board’s disquiet. The Licensee must understand that holding a liquor licence is a qualified right; all Licensees must abide the dictates of the LLA and its Regulations.
11Thus, a significant suspension is appropriate in this matter. The factors outlined in paragraphs 9 and 10, above, require that the suspension must be longer than the 12-day suspension imposed for the Licensee’s prior offence and the 10-day suspension suggested by the Licensee. The Board concludes that a fourteen day suspension appropriately satisfies the guiding principles of specific and general deterrence on the particulars of this case.
Order
12The Board ORDERS that liquor licence number 91994 issued to 1305333 Ontario Inc. operating as O’GRADY’S TAP & GRILL, 171 College Street, Toronto, Ontario, M5T 1P7, be suspended for a period of FOURTEEN (14) consecutive days.
13The 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
BRIAN J. FORD, BOARD MEMBER S. GRACE KERR, BOARD MEMBER
GK/sm