Registrar, Alcohol and Gaming Commission of Ontario v. 516532 Ontario Limited, 2009 CanLII 29740

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 of Ontario Registrar

-and-

516532 Ontario Limited O/A Jameson’s Restaurant Licensee

DECISION ON SANCTION

Panel: David C. Gavsie, Chair, AGCO Beryl Ford, Board Member

Decision Date: April 29, 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 516532 Ontario Limited, Licensee: Richard Knott, Representative

Allegations

1A hearing into a Notice of Proposal number 16315 dated June 18, 2008 to suspend liquor licence number 92380 issued to 516532 Ontario Limited (the “Licensee”) operating as JAMESON’S RESTAURANT, 27 Wilson Street West, Perth, Ontario, K7H 2M8, (the “premises” or the “establishment”), on the basis of alleged violations of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the Liquor Licence Act (“LLA”), was held on February 4, 2009 in the City of Ottawa.

2In its decision dated March 6, 2009 the Board found the Licensee contravened 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

3The Registrar seeks a 10 day suspension citing the Licensee had a previous suspension for five days for permitting drunkenness in October 2004. This is the second time that the Licensee is being disciplined for the same type of infraction.

4Registrar’s Counsel argues that this current violation is somewhat more serious than the previous breach where the Licensee admitted to only permitting a drunken patron into the establishment without any disorderly conduct.

5The Board made findings in the present breach that the patron was intoxicated and behaved in a quarrelsome, disorderly manner by assaulting a uniformed police office and another patron while in the establishment.

6Registrar’s Counsel submitted that the Licensee failed to have a system in place to continually monitor patrons whose condition or behaviour may deteriorate while in the establishment.

7There was no evidence, either at the hearing or in the submissions, from the Licensee that any measure has been taken to ensure this type of infraction will not reoccur.

Licensee’s Submissions

8Licensee’s counsel submits that a suspension of five days would be appropriate in the circumstances.

9Counsel argued that staff of the Licensee had served one bottle of beer to Donald Kirkham on the evening in question and there was no allegation that the Licensee over served Mr. Kirkham.

10Mr. Kirkham’s condition deteriorated rapidly and by his own evidence he began to feel disoriented while walking to the washroom as a result of a combination of medication and the alcohol he had consumed. He was observed by the bartender going to the washroom.

11It is the Licensee’s submissions that upon Mr. Kirkham’s return from the washroom he made contact with a young person at the pool table; this contact was observed by a police officer. He further submitted that this conduct was out of character for Mr. Kirkham.

12Licensee’s Counsel submitted that the time period for the inappropriate conduct was less than five minutes. Mr. Kirkham was co-operative with the officers and left the premises.

13Licensee’s Counsel submitted that the Licensee employs six or seven staff when the establishment is busy on Friday and Saturdays, but on Sunday through Thursday, all alcohol is served through a single bartender who is on duty behind the bar. The Licensee rotates staff so that each staff member can evaluate patrons’ behaviour when they change zones. Mr. Kirkham’s behaviour changed rapidly and without warning.

Registrar’s Reply

14Counsel for the Registrar submitted that it does not make sense that the Licensee rotates staff to evaluate patrons’ behaviour, as the new staff in the area will not know how much a patron has already consumed, how long they have been in the premises and would not be able to determine if there were any changes in a person’s behaviour.

15Furthermore, the only evidence that Mr. Kirkham’s behaviour changed suddenly came from Mr. Kirkham, whose evidence was not accepted by the Board.

Reasons and Decision on Sanction

16In determining the sanction, the Board has carefully considered the evidence in this matter as well as the submissions for the Registrar and the Licensee.

17From a specific deterrence perspective, in the Board’s decision the following factors weighed in favour of a lengthier suspension than the Licensee proposed.

18There was no evidence that any staff member spoke to or took any action despite Mr. Kirkham’s intoxicated or disorientated state.

19Mr. Kirkham, by his own admission, said that when he went to the washroom he had already felt disoriented, yet, a staff person who had observed him go to the washroom failed to notice any unusual behaviour. Mr. Kirkham assaulted a police officer initially and went on to assault a young patron shortly after leaving the washroom. This behaviour is not consistent with a person who has suddenly become disoriented.

20It is the Board’s opinion that the rotation of staff throughout the establishment does not allow for continuity in observing patrons, the amount they drink or their behaviour. There was no evidence to suggest this method of supervision has been modified or re-evaluated by the Licensee to prevent a further similar occurrence.

21It is unknown whether alcohol was purchased for Mr. Kirkham by another patron, or if in fact, he had only consumed one beer at the establishment as claimed by the Licensee as there was no consistent supervision of patrons due to rotating staff.

22It was claimed by the Licensee and Mr. Kirkham that Mr. Kirkham had consumed medication that contributed to his intoxicated condition. Whether intoxication occurs because of alcohol or a combination of medication and alcohol is immaterial. The Board made findings that Mr. Kirkham exhibited strong signs of intoxication while in the establishment.

23This is the second breach of the LLA by the Licensee for permitting drunkenness, having permitted drunkenness again and this time with disorderly conduct. It is not apparent to the Board that this Licensee has a monitoring system in place that would prevent such infractions.

24The Licensee and staff must be mindful that the primary responsibility for safety in the establishment and compliance with the LLA is theirs.

25Therefore, the Board considers a ten day suspension to be appropriate in this matter.

Order

26Therefore, the Board ORDERS that liquor licence number 92380 issued to 516532 Ontario Limited operating as JAMESON’S RESTAURANT, 27 Wilson Street West, Perth, Ontario, K7H 2M8, be suspended for a period of TEN (10) consecutive days.

27Licensee 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.