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-
Dupin Holding Company Limited (Estate of Pavle (Paul) Bijelic) o/a Dupeen Café Bar Licensee
DECISION on sanction
Panel: David C. Gavsie, Chair, Alcohol and Gaming Commission of Ontario S. Grace Kerr, Board Member
Decision Date: February 27, 2009 Hearing Location: Niagara Falls, 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 Dupin Holding Company Limited (Estate of Pavle (Paul) Bijelic): Mara Bijelic, on behalf of the Estate
Allegations
A hearing into a Notice of Proposal number 16621 dated September 10, 2008 to suspend liquor licence number 807008 (the “Licence”), issued to Dupin Holding Company Limited (Bijelic, Estate of Pavle (Paul)), (the “Licensee”), operating as DUPEEN CAFÉ BAR, 6090 Main Street, Niagara Falls, Ontario L2G 5Z9 (the “establishment” or the “premises”), on the basis of alleged violations of section 29 of the Liquor Licence Act (“LLA”) and of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on January 6, 2009, in the City of Niagara Falls.
In its decision dated February 3, 2009, the Board found the Licensee contravened section 29 of the LLA as well as subsection 45(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 twelve (12) consecutive days. Reasons follow.
Registrar’s Submissions
The Registrar seeks a 10–12 day suspension as a matter of general and specific deterrence.
Regarding factors relating to specific deterrence, the Registrar’s counsel argues that the Licensee has failed to fulfill her responsibilities under the LLA, inasmuch as she intentionally left an inexperienced bartender in charge of the establishment on the night in question. She is responsible when, in turn, that staff person failed to assess the male patron’s condition properly. Registrar’s counsel also submits that the Licensee did not accept responsibility for the violation and, instead, she gave contradictory evidence as to her knowledge of the drunken patron. Finally, he points out that this Licensee served an eight day suspension in 2008 for violations involving minors and permitting drunkenness, suggesting an emerging pattern of non-compliance.
From a general deterrence perspective, the Registrar submits that the Board’s sanction must demonstrate that patterns of non-compliance and any repeated failures to ensure appropriate responsibility on the part of Licensees will not be tolerated. This is necessary if public confidence is to be maintained in the industry and matters of public safety are to be sufficiently addressed. Financial gains cannot be elevated above regulatory obligations.
Licensee’s Submissions
- The Licensee submits a warning and/or a suspension of 1-2 days is the appropriate sanction. The Licensee argues that the incident is isolated and does not indicate a pattern, given the specific circumstances relating to the night in question.
Reasons and Decision on Sanction
In determining its sanction, the Board has carefully considered the evidence in this matter as well as the submissions of the Registrar as well as the Licensee.
From a specific deterrence perspective, in the Board’s decision the following factors weighed in favour of a lengthier suspension than the Licensee has proposed:
there were a couple of infractions by the Licensee on the night in question;
in giving her evidence, the Licensee did not seem remorseful, but rather offered up an excuse, that while unfortunate, does not diminish the Licensee’s responsibilities at law. The Licensee could have closed the establishment for all or part of its evening hours of operation. In choosing not to do so and placing an inexperienced person in care and control of the establishment, she abdicated her responsibilities at law as a Licensee and simultaneously put her Licence and the public at risk; and,
the Licensee has a history of one previous infraction, the 8 day suspension in 2008 being very recent.
The “permit drunkenness” and “service to intoxicated patrons” findings are very serious offences. The length of the suspension must be towards the “heavier end” in order to properly reflect that fact from both a general and specific deterrence standpoint. The Board has done so in this case.
Also, in deciding to impose a 12 day suspension, the Board has rejected the mitigating factors which the Licensee has put forth. First, the events of the night in question are clearly not isolated, as suggested by the Licensee, since this is the second time the Board has found that drunkenness was permitted by this establishment. While not concluding that a definite pattern has emerged, the Board is also concerned that the Licensee has neither shown any remorse nor accepted any responsibility for the violations, but instead offered up an excuse for the happenings of the night in question. As well, neither has the Licensee presented any evidence of remedial measures having been put in place to minimize the likelihood that infractions, such as the ones found to have occurred on the night in question, will not occur in the future. All of the foregoing makes the Board uneasy that there will not be any repeat occurrences.
Thus, and for the reasons articulated above, the Board concludes that a significant suspension is both appropriate and required in this case and that a twelve (12) day suspension will properly satisfy the dual guiding principles as to disposition, given the particulars of this case.
Order
The Board ORDERS that liquor licence number 807008 (the “Licence”) issued to Dupin Holding Company Limited (Bijelic, Estate of Pavle (Paul)), operating as DUPEEN CAFÉ BAR, 6090 Main Street, Niagara Falls, Ontario L2G 5Z9, be suspended for a period of twelve (12) consecutive days.
The Licensee shall submit proposed suspension dates in writing to the Manager, 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 the 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 27th DAY OF FEBRUARY, 2009.
DAVID C. GAVSIE, CHAIR, AGCO S. GRACE KERR, BOARD MEMBER