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-
1443614 Ontario Inc. O/A Tila Tequila Bar Licensee
DECISION ON SANCTION
Panel: Kirsti Hunt, Vice-Chair Alex McCauley, Board Member
Decision Date: March 26, 2009
Hearing Location: Ottawa, 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 ) Joyce Taylor, Representative 1443614 Ontario Inc., Licensee ) Jerry Levitan, Representative
Authorities
El Mocambo Rocks Inc. (c.o.b. El Mocambo Rocks) (Re), [2008] O.A.G.C.D. No. 259
Allegations
A hearing into Notice of Proposal number 15601 dated August 22, 2007 to suspend liquor licence number 805577 (the "Licence") issued to 1443614 Ontario Inc., operating as TILA TEQUILA BAR, 104 – 108 Clarence Street, Ottawa, Ontario, K1N 5P6, (the "establishment") on the basis of alleged violations of section 29 of the Liquor Licence Act ("LLA") and section 43 and subsection 45(1) of Ontario Regulation 719/90 ("O. Reg") made pursuant to the LLA, was held on April 8, July 2 and October 16, 2008 in the City of Ottawa.
In its decision of January 27, 2009 the Board made a finding of a breach of section 29 of the LLA, and section 43 and subsection 45(1) of the O. Reg and asked the parties for written submission on an appropriate sanction. The Board has received and reviewed those submissions.
The Registrar submitted that the Notice of Proposal proposes a 28-day suspension.
A 21 to 25-day suspension is appropriate in the circumstances of this case based on a number of aggravating factors:
A 7-day suspension was served by the Licensee for overcrowding and permitting drunkenness on two dates in 2004, only two to two and one-half years before the present infractions which took place over a period of several months.
The Board found a lack of diligence by staff in dealing with drunken patrons on February 9, 2007.
Customer relations took precedence over compliance in the owner's dealing with the patrons on May 12, 2007.
The patio was over-capacity on two dates and no one was monitoring the patio on either date. The inspector saw no disturbance in front of the establishment on June 3, 2007 as was claimed by the owner.
In the case of El Mocambo Rocks, the Licensee was ordered to serve twenty days of a proposed twenty-five day suspension. In that case, permitting drunkenness and service to intoxicated patrons took place on one evening. In this case it took place over several evenings spread over several months. In that decision, there was also a breach of subsection 34(1) for permitting liquor in the unlicensed hallway, for which the Licensee was eligible for an endorsement that he subsequently applied for. In this case, the Licensee additionally permitted overcrowding on two dates which could not have been permitted by making an appropriate application to the Registrar.
- The Licensee submitted that a minimal penalty or a fine would be appropriate for the following reasons:
The Registrar cites a suspension back some three years prior with no evidence of any incidents in the interim. The time period is sufficient enough to be disregarded.
Inspector Godard's description of the Licensee and his attitude is at odds with that of the Registrar's counsel.
The El Mocambo case is unhelpful because the history of infractions is more severe than that of Tila Tequila.
In El Mocambo, the attitude of the Licensee as well as violence that was involved were also reasons for a significant suspension.
The attitude of that Licensee is utterly inconsistent with this Licensee and his bona fide efforts.
With respect to February 9, 2007 there was no evidence of finding of deliberate malfeasance on the part of the Licensee.
On May 12, 2007 the Licensee was distracted by dealing with the Inspector and officers and cooperated to the best of his abilities by immediately cutting off the patrons involved. He also had to deal with the heated argument between one police officer and his patron outside. These are not the actions of an irresponsible Licensee.
With respect to the overcrowding incidents, the evidence of the Licensee is forthright regarding the extraordinary situation on the streets because of the Ottawa Senators' play-off run.
- In reply, the further submissions for the Registrar are that:
The Board has no jurisdiction to order a monetary penalty.
The Licensee was personally involved in the circumstances of the breach respecting the two females which is an aggravating, not a mitigating factor.
The fact that the breaches took place over several dates over a four to five month period is yet another aggravating factor.
There is no evidence that the Licensee is anything other than re-active. The Licensee did not present evidence of proactive steps he has taken to ensure that these infractions will not take place again.
Analysis, Reasons and Decision on Sanction
The Board has carefully reviewed and considered the evidence in this matter as well as the written submissions received.
From a specific deterrence perspective, the Board weighed the following factors:
The Licensee previously served a 7-day suspension for similar infractions which occurred in 2004. That factor is mitigated to a certain extent by the fact that from that time until the present infractions, there is no evidence of problems.
The "permit drunkenness" and "service to intoxicated patrons" findings involved a number of patrons on two different dates.
Staff was not diligent in monitoring patrons on January 9, 2007 and observed none of the patrons identified by the inspector as showing signs of intoxication.
The intoxicated patron on May 12, 2007 was served more liquor after being cut off because the Licensee left the patron in the care of a regular customer rather that dealing with her himself or have staff do it.
Regarding the case cited by the Registrar, the Board notes that while previous decisions of the Board may be instructive each case has its own specific circumstances and must be decided accordingly.
The Board does not find the El Mocambo Rocks case particularly helpful. Although some similar findings to this case were made the fact scenario regarding the patrons was more serious in that case since violence was also a factor.
The Board draws no negative conclusion from the fact that the Licensee did not or could not make an application to increase the capacity of the patio in order to alleviate overcrowding.
The Board agrees with the Licensee that the attitude of this Licensee is not consistent with the attitude of the Licensee in the cited case or the submissions for the Registrar. The evidence of the Inspector Godard speaks very favourably about this Licensee indicating that this Licensee is cooperative. For example, the Licensee immediately cut off the two patrons when the Inspector pointed them out on March 12, 2007. He also admitted to the overcrowding on the patio on both dates and immediately sent security to monitor the patio after the problem was pointed out to him.
Inspector Godard also agreed that this Licensee is proactive and asks about things he can do to operate better and is receptive to suggestions made. For example, the Licensee set up a cord across the front of the patio area to control patrons' access. However, overcrowding continued to happen.
While Licensees have the obligation to follow the LLA and its regulations at all times, the Board recognizes that there are on occasion unusual circumstances such that it becomes more of a challenge than usual such as during the Senators' play-off run when streets are crowded with fans, which was the case when the two overcrowding incidents took place.
The patio, which is licensed for 11 persons, was overcrowded on May 13, 2007 by five people on the Inspector's first count and by three on the second count. In the view of the Board, this incident on its own would merit a warning and does not weigh gravely against the Licensee since there was no major public safety concern with such a small overcapacity on an outdoor patio.
The overcrowding on June 3, 2007 was more significant. However, the Board accepts the Licensee's explanation regarding the extraordinary circumstances that resulted in the overcrowding. In the view of the Board, pulling security from monitoring a patio licensed for 11 people in order to deal with the potential violence of a dozen people trying to force their way in the front door and keeping security there for fear that those individuals would return was a reasonable decision to make. The safety of patrons and staff should always be a priority.
The Notice of Proposal seeks a 28-day suspension. The Board made no finding of a breach with regard to three of the allegedly drunk patrons. The Registrar seeks a suspension of 21 to 25 days in the circumstances. Given the reasons above, the Board finds that proposed period of suspension proposed to be a bit excessive.
The Licensee asked for a minimal suspension or a fine. The Board agrees with the Registrar's representative that the Board has no jurisdiction to order a monetary penalty. Only the Registrar has jurisdiction to order a monetary penalty as an alternative measure to a Notice of Proposal to suspend a licence in cases where the infraction is a minor one. In any event, the intent of a monetary penalty is not to apply in cases such as this one where there are multiple drunken patrons, and not available at all when the Licensee has breached section 29 of the Liquor Licence Act. Given the number of findings regarding "permit drunkenness" and "serving patrons who appeared intoxicated", more than a minimal suspension is warranted as a specific as well as a general deterrence.
Thus, for the reasons articulated above, The Board finds that a seventeen (17) day suspension is appropriate not only as a specific but also as a general deterrence.
Order
The Board orders that liquor licence number 805577 issued to 1443614 Ontario Inc., operating as TILA TEQUILA BAR, 104 – 108 Clarence Street, Ottawa, Ontario, K1N 5P6, be SUSPENDED for a period of SEVENTEEN (17) 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 26th DAY OF March, 2009
KIRSTI HUNT, VICE-CHAIR ALEX MCCAULEY, BOARD MEMBER