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-
1565611 Ontario Inc. O/A Roxxy Tap & Grill
Licensee
DECISION ON SANCTION
Panel: David C. Gavsie, Chair, AGCO Joan Lougheed, Board Member
Decision Date: September 17, 2008
Hearing Location: Sarnia, 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 ) Daniel Alakas, Representative 1565611 Ontario Inc., Licensee ) John Kirby, Representative
Allegations
A hearing into Notice of Proposal number 15830 dated February 19, 2008 to suspend liquor licence 0202592 (the “Licence”) issued to 1565611 Ontario Inc. (the “Licensee”) operating as ROXXY TAP & GRILL (“Roxxy’s”), 750 James Street, Wallaceburg, Ontario, N8A 2P5 (the “Premises”), on the basis of alleged violations of section 29 of the Liquor Licence Act (“LLA”) and subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on July 14, 2008 in Sarnia.
In its decision dated August 25, 2008, the Board made findings of breaches of section 29 of the LLA and subsection 45(1) of the O.Reg did occur. The Board requested the parties to make written submissions which were received and reviewed by the Board.
Registrar’s Submissions
Mr. Alakas indicated that Insp. Holman pointed out intoxicated patrons to Mr. Poissant who escorted at least three of them out of the Premises. Insp. Holman observed eight intoxicated male patrons, two of whom were served liquor at the bar.
Despite the contracting out arrangement which had commenced the day of the incident, the ultimate responsibility for compliance with the LLA and its regulations remains with the Licensee.
Although the Licensee has no prior adverse record with the AGCO, the Board must seek to achieve both general and specific deterrence in imposing sanctions.
Regarding specific deterrence, the Licensee failed to adhere to the principles of accountability and due diligence as required by the LLA and its regulations. There was an abrogation of responsibilities – no one was in charge.
Tammy Poissant testified she was in charge that night. She attempted to monitor patrons while working behind the bar. She walked about every half hour.
Mr. Poissant placed business decisions before compliance with the LLA. He made the decision to stay open due to the influx of patrons from the other bar and the opportunity for additional profits. Mr. Poissant did little to monitor the situation.
The Licensee failed to assess the age or state of intoxication of patrons.
As a matter of general deterrence, the sanctions must show that licensees in general ensure that business goals are pursued within the regulatory framework of compliance and due diligence.
The Registrar submits that a five to seven day suspension is appropriate in this case.
Licensee’s Submissions
Mr. Kirby stated that an unforeseeable influx of patrons occurred. There were sufficient staff present to handle the usual flow of patrons for that day of the week based on experience.
Given the events, the transferor of the Licence and the transferee made the decision within 25 minutes of the influx of patrons from the other bar, to stop service and close the Premises. This action showed consideration for public safety and integrity of the industry.
The Licensee has no prior adverse record with the AGCO in approximately four years of operation in Wallaceburg.
A warning would be appropriate, or in the alternative if a suspension is warranted, it should not be greater than one day.
Registrar’s Reply
Due diligence requires that a licensee have a plan in place as to how to deal with an unexpected influx of patrons.
Ms. Poissant was the only staff person being responsible, and that was limited because she was busy behind the bar.
The Licensee cannot both claim to have been overwhelmed while having staff make as many sales as they could.
Mr. Poissant ordered the Premises closed because he was overwhelmed by the number of intoxicated patrons Insp. Holman was pointing out to him. He only did so in reaction to Insp. Holman’s concerns.
Decision On Sanction
It was clear to the Board that the staff was overwhelmed when a large number of patrons came into the Premises late at night after the Kent Tavern had been closed down. Basically there were three bartenders serving as fast as they could to satisfy the demand for service from patrons.
The Board has also concluded that it was only at the repeated indications by Insp. Holman to Mr. Poissant of intoxicated patrons, including three who should have been removed from the Premises, that anyone did anything concrete to deal with intoxicated patrons.
The Board agrees with the Registrar’s submission that the Licensee through its staff did not display appropriate due diligence and compliance with the LLA in dealing with intoxicated patrons.
At least two intoxicated patrons were served. Mr. Poissant was standing at the bar. Ms. Poissant was serving from behind the bar. Although both had the opportunity to do so, neither noticed any intoxicated patrons in the Premises, yet Mr. Poissant escorted three out after these people were pointed out to him by Insp. Holman, and closed the Premises because things were getting out of hand.
On the other hand, as Mr. Kirby pointed out, the Licensee has no prior adverse record with the AGCO, a fact which should be taken into account in setting the appropriate sanction.
This may have been an isolated occurrence at the Premises, but it was a bad occurrence. As a matter of general deterrence, a suspension must be imposed to remind licensees that they should have a plan in place to deal with a contingency such as occurred in the present case.
Taking all of the above into account, the Board has determined that a suspension of four (4) days is appropriate, and makes an ORDER accordingly.
Order
Therefore, the Board ORDERS that liquor licence number 0202592 issued to 1565611 Ontario Inc. operating as ROXXY TAP & GRILL, 750 James Street, Wallaceburg , Ontario, N8A 2P5, be suspended for a period of FOUR (4) 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 17th DAY OF SEPTEMBER, 2008.
DAVID C. GAVSIE, CHAIR, AGCO JOAN LOUGHEED, BOARD MEMBER
DCG/cp