Registrar, Alcohol and Gaming Commission Ontario v. 697638 Ontario Ltd., 2009 CanLII 29762

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-

697638 Ontario Ltd. O/A The Raven’s Nest Pub and Grill Licensee

DECISION ON SANCTION

Panel: Guy Maurice, Board Member Eleanor Meslin, Board Member

Decision Date: April 15, 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 ) Phillip Morris, Representative 697638 Ontario Ltd., Licensee ) Ainslie Dunstone, Representative

Authorities

Central Bar & Grill (Re), [2007] O.A.G.C.D. No. 147 Menard's Seafood Tavern (Re), [2007] O.A.G.C.D. No. 77

Allegations

1. A hearing into Notice of Proposal number 15865 dated January 9, 2008 to suspend liquor licence number 202208 (the “Licence”) issued to 697638 Ontario Ltd. (the “Licensee”), operating as THE RAVEN’S NEST PUB AND GRILL, 1034 Merivale Road, Ottawa, Ontario, K1Z 6A7, (the “establishment” or the “premises”) on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (LLA) and subsections 45(1) and 18.2(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the LLA, was held on June 12, 2008, in the City of Ottawa.

2. In its decision dated October 23, 2008, the Board found the Licensee violated subsections 45(1) (on April 17, 2007) and 18.2(1) of the O.Reg and dismissed the alleged violations of subsections 45(1) and 45(2) of the LLA and subsection 45(1) of the O.Reg on February 23, 2007. The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Registrar’s Submissions

3. Mr. Morris submitted that the Board found that the Licensee breached subsection 45(1) of the O.Reg by permitting a drunken patron in the licensed premises on April 17, 2007. The Licensee also breached subsection 18.2(1) of the O.Reg, by permitting a contest which involved the purchase of liquor.

4. There were a number of aggravating features to the permit drunkenness. The patron had been served a mini-pitcher of beer. He sat at the service bar and still had the beer in front of him when the inspector observed signs of intoxication. Staff did not remove the pitcher or ask him to leave until the inspector pointed him out. He was so drunk that not only did staff have to call police to attend but also the patron wasted emergency resources by calling 911.

5. The Registrar submitted that in light of the aggravating circumstances, a suspension of 14 days as a matter of specific and general deterrence would be appropriate.

Licensee’s Submissions

Subsection 45(1) of the O.Reg

6. In its Submissions on Findings, the Licensee conceded to the allegation and accepted the Board’s finding regarding the incident of permitting drunkenness on April 17, 2007, however, the Licensee submitted that there were no aggravating circumstances whatsoever surrounding the incident.

7. The female bartender acted appropriately in the interest of safety for herself, the inspector, and for other patrons when she dialled 911 to have the subject patron removed from the premises.

8. The mindset of the patron was not known when he dialled 911, but when police arrived, the individual was simply removed, and not charged with being intoxicated. Similarly, there is no evidence that the individual was charged with mischief for calling 911.

9. There is no evidence that the patron was overserved.

10. There is no evidence that any harm came to anybody in relation to this incident.

11. The Licensee has no prior record of permitting drunkenness.

Subsection 18.2(1) of the O.Reg

12. In respect of the finding of permitting contests involving liquor in connection with the incident of April 26, 2007, the Board heard Inspector Beaudry’s evidence that the issue was immediately corrected and no further such breach occurred since.

13. The only remedial action required in respect of this matter was executed in the field with Inspector Beaudry’s order to immediately cease and desist the practice.

14. The Licensee submitted that a warning is sufficient for this type of administrative infraction.

15. Raven’s Nest is a small, quiet, neighbourhood establishment, which neither particularly attracts the notice of the public or other licence-holders. As such, the principle of general and specific deterrence ought not to apply in this matter.

16. The licence-holder agrees that some corrective measure is required in respect of the April 17, 2007 incident.

17. A lengthy suspension in the order of which the Registrar seeks will cause severe hardship for both the licence-holder, but particularly its employees.

18. The Board has a range of sanction which it may impose. Mr. Dunstone submitted that a suspension of three days would be an appropriate sanction, and more in line with the circumstances of this matter.

19. Licensee’s counsel attached decisions of Central Bar & Grill and Menard’s Seafood Tavern. While both were joint agreements on findings and sanctions, and provided no elements for comparison, they indicate that a three day suspension is a fair and reasonable sanction in this case.

Registrar’s Reply

20. Mr. Morris submitted that the two cases cited by the Licensee are irrelevant, as acknowledged by the Licensee in his submissions. Both cases involved agreed statements and joint dispositions for which remorse and cooperation were taken into account, nor were there any aggravating factors as were present in this case.

Analysis/Reasons/Findings

21. The Board is mindful that this is the first time the Licensee has been found in breach of the LLA. As well, the Licensee does not appear to have committed any further breaches of the LLA since that time.

22. The Board considers the events at The Raven’s Nest Pub and Grill to have been a serious breach of the responsibility of the Licensee to abide by the LLA and thereby ensure the safety of patrons and the general public, particularly with respect to the breach of subsection 45(1) of the O.Reg and the circumstances of that particular breach. The sanction for such breaches must accordingly be more than the three days proposed by the Licensee. At the same time, the Board finds that the 14 day suspension proposed by the Registrar is too harsh, in considering that the Licensee appears to have shown remorse and was cooperative during the hearing by not disputing the breach of subsection 18(2) of the O.Reg and as well key elements of subsection 45(1) of the O.Reg with regard to the male patron.

23. Given the above, the Board considers a suspension of seven days to be appropriate.

Order

24. Therefore, Board orders that liquor licence number 202208 issued to 697638 Ontario Ltd., operating as THE RAVEN’S NEST PUB AND GRILL, 134 Merivale Road, Ottawa, Ontario, K1Z 6A7, be suspended for a period of SEVEN (7) consecutive days.

25. 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 15th DAY OF April , 2009

ELEANOR MESLIN, BOARD MEMBER GUY MAURICE, BOARD MEMBER