Registrar, Alcohol and Gaming Commission of Ontario v. Zucca Bar Inc., 2009 CanLII 29787

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-

Zucca Bar Inc. O/A Zuccabar (The) Licensee

DECISION ON SANCTION

Panel: Jacqueline Castel, Board Member Beryl Ford, Board Member

Decision Date: April 3, 2009

Hearing Location: Hamilton, 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 ) Daniel Alakas, Representative Zucca Bar Inc., Licensee ) Jaime Stephenson, Representative

Allegations

1. A hearing into Notice of Proposal (“NOP”) number 16675, dated October 2, 2008, to suspend liquor licence number 809906 (the “Licence”) issued to Zucca Bar Inc. (the “Licensee”), operating as THE ZUCCABAR, 299 James Street North, Hamilton, L8R 2L4 (the “establishment”), on the basis of alleged violations of subsections 45(1) and (2) of the Liquor Licence Act (the “LLA” or the “Act”) and subsections 34(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg.”), prescribed under the LLA, was held on February 17, 2009 in the City of Hamilton.

2. In its decision dated March 6, 2009, the Board found the Licensee contravened subsection 45(2) of the LLA and subsections 34(1) and 45(1) of the O.Reg.. The Board dismissed the allegation of contravention under subsection 45(1) of the LLA. The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Submissions on Sanction

3. The Registrar submits that the fourteen day suspension proposed in the NOP is appropriate. There are public safety implications associated with the three contraventions, and the Board has consistently held that the safety of the public and of those conducting lawful inspections is a paramount consideration when imposing sanctions. There were no mitigating factors for any of the contraventions. The Licensee expressed no remorse at the hearing and instead relied on self-serving explanations, which the Board found to be lacking in credibility.

4. The Licensee submits that a fine and a written apology from the owners to the officers involved are appropriate penalties. The Registrar’s assertion that the Licensee showed no remorse for its actions is unfounded. The fact that the Licensee disputed the allegations does not mean it does not regret the actions of patrons (specifically JW) on the evening in question. The establishment is small, and on the night in question, only the co-owners were on duty, which meant that they had multiple duties. Bar owners and staff cannot be held to a standard of perfection as the Registrar seems to suggest; they can only do their best to uphold their responsibilities. The owners are good corporate citizens and have the support of businesses in the community. Three letters from local businesses, which praise the Licensee’s role in the community, were attached to the submissions. This is the first time the Licensee has been found in violation of the LLA and regulations, and the Licensee intends to ensure that incidents like the ones in this case do not happen in the future.

5. In Reply, the Registrar submits that the Licensee cannot take the position that the Registrar’s witnesses were mistaken and that the violations did not occur, and then suggest that they are remorseful once findings are made. The Licensee in this case is proposing to take corrective measures only after they failed to avoid findings. The Registrar recognizes the community element of the establishment, as evidenced by the letters, and appreciates that the Licensee has committed to ensuring such incidents do not occur again. However, it is not open to the Board to impose fines, and an apology letter would be inadequate. The Registrar did, however, modify its initial position on penalty, proposing a suspension in the range of ten to fourteen days.

Decision and Reasons

6. The Board finds that a ten day suspension is appropriate, in the circumstances of this case, for the following reasons.

7. The case involved three contraventions on the same date. The Board considers the contraventions to be serious in nature, particularly the contraventions of “permitting drunkenness” and “failure to facilitate”.

8. There were no extenuating circumstances which contributed to the contraventions. The Licensee presented no evidence of due diligence procedures it had in place to promote compliance with the prohibitions on drunkenness and on exiting the premises with beverage alcohol purchased off the liquor licence. In fact, the contraventions occurred because of an absence of such procedures. Licensees, regardless of the size of the establishment, are expected to have due diligence procedures to promote compliance with their obligations under the Act and regulations.

9. The Licensee indicated, only after the Board’s decision was released, that it is committed to ensuring similar infractions do not occur in the future. However, the Licensee did not give any particulars in its submissions on the remedial measures it has put in place or intends to put in place to prevent these types of contraventions from occurring in the future. Merely stating that it will ensure that the contraventions do not occur in the future gives the Board little confidence there will be no repeat occurrences. The Board would have liked to know the specifics of the corrective action, including implementation timelines.

10. The Board agrees with the Registrar that the Licensee was not remorseful at the hearing. Instead, the Licensee offered explanations for the events on the date in question which were self-serving and lacking credibility.

11. The Board does not have the jurisdiction to impose a fine or monetary penalty.

12. For the reasons outlined in paragraphs 7 to 10, the Board is of the view that a significant suspension is necessary to give effect to the principles of both specific and general deterrence. However, the Board finds that a ten day suspension is more appropriate than the fourteen day one initially requested by the Registrar. The Board has taken into consideration that this is the first time the Licensee has been found in contravention of the LLA or regulations and that the Licensee is a good corporate citizen and a valued member of the business community, as evidenced by the letters of support. In addition, the Board considered that the Registrar sought a fourteen day suspension in the NOP on the basis of four findings of contravention. Given that the Board dismissed one of the allegations of contravention, the full fourteen day suspension sought in the NOP would not be appropriate.

Order

13. The Board ORDERS that liquor licence number 809906 issued to Zuccabar Inc., operating as THE ZUCCABAR, 299 James Street North, Hamilton, L8R 2L4, be suspended for a period of TEN (10) days.

14. 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 3rd DAY OF APRIL, 2009

JACQUELINE CASTEL, BOARD MEMBER BERYL FORD, BOARD MEMBER