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-
475687 Ontario Limited O/A Horseshoe Tavern Licensee
DECISION ON Sanction
Panel: Jacqueline Castel, Board Member Bruce Miller, Board Member
Decision Date: May 20, 2009 Hearing Location: Toronto, 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 475687 Ontario Limited, Licensee: Jerry Levitan, Representative
Allegations
- A hearing into a Notice of Proposal number 16864 dated November 24, 2008, to suspend liquor licence number 90103 (the “Licence”) of 475687 Ontario Limited (the “Licensee”) operating as HORSESHOE TAVERN, 368 Queen Street West, Toronto, Ontario, M5V 2A2, (the “establishment”) on the basis of alleged violation of section 29 of the Liquor Licence Act (the “LLA”) and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) prescribed under the LLA, was held on April 6, 2009 in the City of Toronto.
Decision
- In its decision dated April 23, 2009 the Board found the Licensee violated section 29 of the LLA and subsection 45(1) of the O.Reg in respect of one patron. The parties were directed to provide written submissions on an appropriate sanction, within specified time frames. The Board has received and reviewed those submissions.
Submissions on Sanction
The Registrar submits that a suspension between 12 and 14 days would be appropriate. The Licensee served suspensions for overcrowding for 14 days in 2003 and for five days in 2002. The infraction was not a minor matter. The Licensee’s staff were oblivious to clear signs of intoxication, as they had numerous points of interaction with the drunken patron before serving him two more servings of beer. This does not give the Registrar a great deal of confidence in this Licensee’s diligence in taking measures to prevent drunkenness and ensure that drunk patrons are not served more liquor.
The Licensee submits that a warning would be appropriate in the circumstances of this case. The establishment is one of Toronto’s most historic music venues and bars, operating since 1947 and liquor licensed since 1981. The Licensee has never breached the “drunkenness” sections of the LLA. This is an extraordinary record. Prior suspensions are not recent and are for different contraventions, overcrowding. For the Registrar’s counsel to say that, “This does not give the Registrar a great deal of confidence …,” does not reflect the reality that an individual entered the establishment, was questioned and gave a plausible explanation of fatigue, and then the staff erred. The breach should not be viewed as serious, but rather as a mistake of staff that is utterly inconsistent with the operation of this first rate establishment. To order a punitive penalty would not serve general deterrence or meet the facts and record of this case. Rather, it would send a message of harsh dispensation.
Decision and Reasons
The Board considers the contraventions of permitting drunkenness and selling and supplying liquor to a customer who appears intoxicated to be serious. In this case, not only did the Licensee allow an intoxicated patron to enter and remain in the establishment, but he also served the intoxicated patron two beers. There were numerous points of interaction between the Licensee’s staff and the drunken patron, where staff should have taken appropriate action, in compliance with their responsibilities under the legislation, but failed to do so. There were also no extenuating circumstances for the contraventions. As such, the contraventions warrant more than a simple warning.
However, in the circumstances of this case, the 12 to 14 day suspension the Registrar is seeking would be much too harsh. The Board took into consideration that the Licensee has held a liquor licence since 1981 or for over 27 years, and this is the first time it has been found to have contravened the prohibitions on permitting drunkenness and on selling and supplying liquor to a person who appears intoxicated. As such, although the contraventions were serious, they are isolated in nature and the Licensee’s overall record, on compliance with the aforementioned prohibitions relating to intoxication, is a good one.
The Board acknowledges that the Licensee served two suspensions for a different type of contravention, overcrowding, but these suspensions are not very recent, occurring six and seven years ago, respectively. Given the amount of time which has elapsed since a prior contravention, and given that the prior contraventions do not relate to intoxication, the Board did not place much weight on them in determining the appropriate sanction.
In the circumstances of this case, given the seriousness of the contraventions, committed by a Licensee with a long history of complying with the liquor laws relating to intoxication, the Board finds that a six days suspension is appropriate to achieve general and specific deterrence.
Order
The Board ORDERS that liquor licence number 90103, issued to 475687 Ontario Limited, operating as HORSESHOE TAVERN, 368 Queen Street West, Toronto, Ontario, M5V 2A2, be SUSPENDED for a period of SIX (6) 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 20TH DAY OF May, 2009
JACQUELINE CASTEL, BOARD MEMBER BRUCE MILLER, BOARD MEMBER