Registrar, Alcohol and Gaming Commission Ontario v. 1565611 Ontario Inc., 2009 CanLII 20287

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-

1565611 Ontario Inc. o/a Roxxy Tap & Grill Licensee

DECISION on sanction

Panel: S. Grace Kerr, Board Member; Guy Maurice, Board Member Decision Date: March 6, 2009 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

1. A hearing into a Notice of Proposal number 16475 dated July 21, 2008 to suspend liquor licence number 202592 (the “Licence”), issued to 1565611 Ontario Inc., (the “Licensee”), operating as ROXXY TAP & GRILL, 750 James St., Wallaceburg, Ontario, N8A 2P5 (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 December 16, 2008, in the City of Sarnia.

2. In its decision dated February 5, 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 eight (8) consecutive days. Reasons follow.

Registrar’s Submissions

3. The Registrar seeks a 10–12 day suspension for purposes of general and specific deterrence.

4. Registrar’s counsel submits that the drunken patron was not stopped or assessed by any staff member as he entered the establishment. An altercation between the impaired patron and police ultimately ensued. Registrar’s counsel relies upon the Board’s findings that the Licensee’s staff members were not well trained and/or that reasonable policies were not in place to prevent drunkenness from occurring in the establishment.

5. The Registrar’s counsel argues that the Licensee has failed to fulfill its responsibilities under the LLA. Specifically, he urges that the Licensee is responsible for the actions of its staff and that, in this case, not only did the particular staff person fail to assess the male patron’s condition properly, if at all, but that staff person also served the patron a beer. As a result, this Licensee fell below the standards of diligence expected of a responsible Licensee, in the Registrar’s counsel’s submission. As well, he points out that in November 2008 this Licensee served a four day suspension for the same violations arising out of an incident that occurred on the first day of the contracting out arrangement.

6. 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

7. The Licensee’s counsel submits that a warning only is a sufficient sanction or, alternatively, should the Board decide that a suspension of the Licence is warranted, that no greater than four (4) days be ordered as the appropriate sanction.

8. The Licensee’s counsel argues that the AGCO Inspectors enjoyed an inordinate amount of time in which to draw reasonable and probable conclusions as to the patron’s state of intoxication that were not available to the Licensee. In contrast, it is submitted that the Licensee had only about 1–2 minutes to make the same observations, evaluations and conclusions. The Licensee’s counsel urges that the Licensee demonstrated due diligence in its care and control of the establishment on the day in question, in that within 2-3 minutes of the patron’s entry, staff persons on behalf of the Licensee observed, evaluated and concluded the patron was intoxicated and removed him from the establishment.

9. The Licensee’s counsel also submits that the police officer’s testimony confirms his arrival at the establishment after the patron had been escorted out of it and that he had an extended period of time, under conditions exclusive to him, to observe, evaluate and conclude that the patron was intoxicated.

10. Finally, Licensee’s counsel urges that the 10-12 days proposed by the Registrar’s counsel is excessive and does not take into account the Licensee’s due diligence and its quick response.

Registrar’s Reply Submissions

11. The Registrar’s counsel submits that the Licensee continues, wrongly, to argue against the sufficiency of the Registrar’s evidence in the hearing when the Board has already decided to the contrary and made findings under section 29 of the LLA and subsection 45(1) of the O. Reg. In any event, it is the clarity and accuracy of the Inspector’s observations that are at issue, not the temporal context, according to the Registrar’s counsel.

12. Furthermore, the Licensee has not provided any mitigating circumstances warranting a reduction on sanction.

Reasons and Decision on Sanction

13. In determining its sanction, the Board has carefully considered the evidence in this matter as well as the submissions of counsel for the Registrar and the Licensee.

14. 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;
• the Licensee did not have any reasonable measures or adequately trained staff in place to properly assess patrons’ sobriety. In failing to do so, the Licensee abdicated its responsibilities at law as a Licensee and simultaneously put its Licence and the public at risk; and,
• the Licensee has a history of one previous infraction, the 4 day suspension in November, 2008 being very recent.

15. 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.

16. Furthermore, 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 service was made to an intoxicated patron and 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.

17. 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.

18. In deciding to impose a eight (8) day suspension rather than the 10-12 days sought by the Registrar, however, the Board has taken into account the following mitigating factors in this case, that is, that there was only the one drunken patron, that he was in the establishment for only a short while, and that the Licensee quickly responded to remove that patron albeit after that person was pointed out to the manager in charge of the establishment on the night in question.

19. 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 eight (8) day suspension will properly satisfy the dual guiding principles as to disposition, given the particulars of this case.

Order

20. The Board ORDERS that liquor licence number 202592 (the “Licence”) issued to 1565611 Ontario Inc., operating as ROXXY TAP & GRILL, 750 James St., Wallaceburg, Ontario, N8A 2P5, be suspended for a period of EIGHT (8) consecutive days.

21. 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 6th DAY OF MARCH, 2009

S. GRACE KERR, BOARD MEMBER GUY MAURICE, BOARD MEMBER