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-
3761061 Canada Limited O/A Barefax Licensee
DECISION ON Sanction
Panel: Beryl Ford, Board Member Allan Higdon, Board Member
Decision Date: May 19, 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 3761061 Canada Limited, Licensee ) John Cardill, Representative
Allegations
- A hearing into Notice of Proposal number 16607 dated September 5, 2008, to suspend liquor licence number 800818 issued to 3761061 Canada Limited, (the “Licensee”) operating as BAREFAX, 27 York Street, Ottawa, Ontario, K1N 5S7, (the “establishment” or the “premises”) on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (LLA), was held on February 3, 2009 in the City of Ottawa.
Decision
- In its decision dated March 18, 2009 the Board found the Licensee violated 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.
Registrar’s Submissions
Counsel for the Registrar noted it is a serious matter when the person in charge of an establishment does not understand one of the basic requirements of the LLA, that of not permitting drunkenness on the premises. A patron was passed out, had no idea where he was, and was taken care of by police and a liquor inspector, not the Licensee’s security staff.
Counsel noted the Licensee has either very poor training or selection of management staff as evidenced by the fact the manager did not know basic differences between the law in Quebec and Ontario with regard to intoxicated patrons.
Counsel expressed concern the manager attempted to convince the Board of facts the Board did not find believable. The patron was not left at his table due to safety concerns but due to poor management procedures which reflected ignorance and/or a lack of respect for the LLA.
Counsel submitted that the proposed eight (8) day suspension be imposed as a matter of both specific and general deterrence.
Licensee’s Submissions
Counsel acknowledged the Licensee had agreed that an intoxicated patron was in the premises. The Licensee was not attempting to avoid responsibility. A two day suspension was proposed.
Counsel stated the manager was trained in Quebec where the policy is to allow the patron to remain on premises and sober up, then ensure a safe ride home. Staff followed this policy.
The above is a mitigating factor which should be considered in considering disciplinary action.
Counsel raised issues discussed in pre-hearing consultations.
Registrar’s Reply
Counsel for the Registrar stated the drunken patron was taken care of by police and the liquor inspector, not staff of the establishment.
Issues regarding adjournment requests or pre-hearing consultations were not matters raised in evidence before the Board and have no place in submissions.
Of concern is the Licensee’s inability to see the seriousness of its conduct and its failure to present any plan to address the problems uncovered by this inspection.
The full eight (8) day suspension is appropriate given these circumstances.
Decision of the Board
The Licensee was found to have permitted drunkenness, contrary to subsection 45(1) of the O.Reg as alleged in Notice of Proposal 16607.
This fact was acknowledged by the Licensee at the hearing held on this matter.
Counsel for the Licensee raised matters in the Submissions on Disposition which were not presented as evidence during the hearing. This is not appropriate. Such matters were given no consideration.
A suggested mitigating factor put forward by Counsel was the fact that the manager was trained in Quebec and was unaware of some essential differences between the legislation of the two different jurisdictions.
The Board did not find this credible as the manager has been in charge of licensed premises in Ontario on two occasions, each for about three years. Even if this were true, ignorance of the law over such a prolonged period would be just as much a matter of concern as the current incident.
The Board was also disturbed the manager stated the intoxicated patron walked the length of the premises to visit the washroom just minutes before police and the inspector found him virtually unconscious and insensible at his table. The Board did not consider this a credible observation.
Registrar’s Counsel noted one possible mitigating factor – the Licensee has not been found to have committed any infractions since 1993.
The Board considers this fact indicative that the current incident is an isolated one and not reflective of the normal manner in which this establishment is run.
However, the Board must impose a sanction that reflects both the breach of the legislation, albeit an isolated incident, as well as its deep concern regarding the inadequate training of management.
The Board therefore ORDERS that the licence of Barefax be suspended for five (5) days.
Order
The Board ORDERS that liquor licence number 800818 issued to 3761061 Canada Limited, operating as BAREFAX, 27 York Street, Ottawa, Ontario, K1N 5S7, be suspended for a period of FIVE (5) consecutive days.
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 19th DAY OF May , 2009
BERYL FORD, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER