Registrar, Alcohol and Gaming Commission of Ontario v. 1577107 Ontario Inc., 2009 CanLII 4467

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-

1577107 Ontario Inc. O/A The Place Bar & Grill

Licensee

DECISION ON SANCTION

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

Decision Date: January 15, 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 ) Daniel Alakas, Representative

1577107 Ontario Inc., Licensee ) Christopher Stevens, Representative

Allegations

1. A hearing into Notice of Proposal (“NOP”) number 16568, dated August 18, 2008, to suspend liquor licence number 90915 (the “Licence”), issued to 1577107 Ontario Inc. (the “Licensee”) operating as THE PLACE BAR & GRILL (the “establishment” or the “premises”), 8 Rambler Drive Village Square Shopping Centre, Unit 11, Brampton, L6W 1E2, on the basis of alleged violations of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg.”), prescribed under the Liquor Licence Act (the “LLA”) was held on December 8, 2008 in the City of Toronto.

2. In its decision dated December 18, 2008, the Board found the Licensee contravened subsection 45(1) of the O.Reg. in respect of two patrons. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Registrar’s Submissions

3. The sale and service of beverage alcohol is a highly regulated industry in the province of Ontario. This level of regulation is necessary to protect the public interest and the public safety. It is for these reasons that licence holders are expected to act with a high level of responsibility, in accordance with the Act and Regulations. The Registrar would submit that this level of responsibility and cooperation is fundamentally linked to a licensee’s positive duty to ensure that proper diligence and attention is exercised in taking positive steps to prevent violations from occurring.

4. This incident is concerning to the Registrar because both patrons were in the establishment for an extended period of time, displaying pronounced signs of intoxication, and neither of these patrons were approached or monitored by staff members. This is a clear and irresponsible abrogation of the Licensee’s responsibility to take effective measures to ensure the safety of their clientele and to provide effective and proactive monitoring. The Licensee’s failure to act indicates a disturbing lack of regard for its responsibilities under the Act.

5. Acting in the public interest, the Board must seek to achieve both general and specific deterrence in imposing sanctions. Regarding the principles of specific deterrence, there was a clear lack of due diligence exhibited in these circumstances. The Registrar would respectfully submit that there are no mitigating facts, in this situation, upon which the Licensee can rely. The intoxicated patrons were only dealt with after they were pointed out by the Alcohol and Gaming Commission of Ontario (“AGCO”) inspectors. The Licensee has offered no evidence as to any changes or improvements he has made to ensure that this does not happen in the future. The Licensee has also failed to demonstrate remorse for his actions, instead relying on self-serving evidence which was found by the Board to lack credibility.

6. It is well established that the Licensee must bear responsibilities for the actions of his staff, and the Registrar would submit that the Licensee is beginning to demonstrate a disturbing pattern of failing to prevent drunkenness in the establishment. The Licensee has previously served a 14 day suspension in January 2008, a 3 day suspension in March 2007 and a 7 day suspension in December 2006 for incidents which included permitting drunkenness. Clearly, the Licensee continues to fail to grasp the level of responsibility and due diligence required of it by the Act.

7. It is the Registrar’s respectful submission that the potential public safety implications of the Licensee’s repeated failure to exercise the appropriate level of responsibility requires a strong response in terms of administrative action.

8. In terms of general deterrence, the Board has consistently taken the position that permitting violations of the Act and Regulations through a failure to take any steps to prevent undesirable behaviour and activities will not be tolerated. Clearly, permitting drunkenness, by failing to act responsibly, has public safety implications. Due diligence and responsible action by licensees is the cornerstone of ensuring public safety. Responsible action by the licence holder is an integral part of this principle; without it, public perception regarding the safety and integrity of licensed establishments is damaged.

9. Based upon the aforementioned factors and in order to give effect to the obligations, responsibilities and level of diligence required by the LLA, the Registrar respectfully submits that a liquor licence suspension in the range of 25 to 28 days is appropriate in these circumstances.

Licensee’s Submissions

10. The night in question was a busy one and Mr. Young is totally remorseful for the incident. He has since implemented a stricter policy for monitoring patrons within the establishment. Mr. Young and his manager have conducted several meetings, in an effort to continue monitoring the patrons during their stay. They have secured a taxi service to have patrons driven home should the need arise. A security company has been retained to assist in ensuring that this incident does not re-occur.

11. As indicated at the hearing, the staff was always in compliance with the AGCO inspectors’ wishes and welcomed any suggestions from the inspectors. They have been on good terms with Inspector Joseph for many years and would like this to continue.

12. It has been over ten months since the incident occurred and much has been put in place to prevent drunkenness. The Licensee has taken a proactive approach to ensure the safety of patrons and the community, from which it receives its support.

13. The Registrar has indicated a suspension of 28 days is appropriate. However, in light of all that has transpired, it is the Licensee’s respectful submission that a more lenient sanction be imposed.

Reply Submissions

14. The Registrar acknowledges the positive changes that the Licensee states it has made to avoid such incidents from occurring in the future. However, the Licensee has had ample time to make the aforementioned changes long before the current violations occurred. To satisfy the principle of specific deterrence, the suspension should reinforce to the Licensee that it must act expeditiously and proactively in dealing with issues, not wait until it is facing significant sanctions before taking action.

15. The same reasoning applies to the principle of general deterrence. Public confidence and the integrity of the industry depends on licensees taking proactive measures to prevent problems and deal with issues effectively when they arise rather than hoping that they do not get “caught” again.

16. Corrective action and remorse on the part of licensees are important factors; however, their relevance to sanction diminishes proportionately to the demonstrated history of the licensee and the previous missed opportunities to make positive changes.

Decision

17. The Board has carefully reviewed and considered the submissions of the Registrar and Licensee on sanction.

18. The Board considers violations of subsection 45(1) of the O.Reg. to be serious. The nature of the violations in this case were particularly serious. The Licensee permitted drunkenness on the part of two patrons, and both patrons exhibited very pronounced signs of intoxication. We know that the female patron, by her own admission, exhibited pronounced signs of intoxication for at least 50 minutes prior to detection by the AGCO inspectors. We do not know the precise length of time in which the male patron exhibited signs of intoxication, but given that the signs were pronounced, he must have been exhibiting them for some time. The Licensee only intervened after the patrons were approached by the AGCO inspectors. Clearly, the Licensee did not have effective due diligence procedures in place to ensure patrons do not become intoxicated, to monitor for signs of intoxications and to ensure that patrons exhibiting signs of intoxication are promptly removed from the premises.

19. The Board also considered, in determining the appropriate sanction, that this is not the first time the Licensee contravened subsection 45(1) of the O.Reg. The Licensee has been found in contravention of this subsection on three prior occasions in the last two years. As such, this is not a case of an isolated infraction by an otherwise compliant Licensee. Repeat occurrences of the same type of contravention are indicators that the Licensee has not learned from its mistakes and reformed its practices.

20. The Licensee submitted that it has implemented proactive corrective measures since this incident, including engaging a new Security company, to promote more effective monitoring for signs of intoxication. The Board notes none of the Licensee’s witnesses gave evidence about the corrective measures which were implemented following the contraventions. In addition, the corrective measures outlined in the submissions lacked specificity on the Licensee’s actual procedures to effectively monitor for signs of intoxication. Due diligence procedures, to ensure that patrons do not become intoxicated, to monitor for signs of intoxication, and to ensure that patrons exhibiting signs of intoxications are promptly removed from the premises, should have been in place at the time of the contravention, particularly given that the Licensee had been found to have permitted drunkenness on three prior occasions. In the circumstances, the Board views the Licensee’s corrective measures as reactive rather than proactive. As such the Board did not place much weight on these measures when determining the appropriate sanction.

21. Given the seriousness of the contravention and the fact that this is the fourth time the Licensee has contravened subsection 45(1) in the last two years, in order to achieve specific and general deterrence, the Board finds that a twenty-five (25) day suspension is appropriate.

Order

22. The Board ORDERS that liquor licence number 0090915 issued to 1577107 Ontario Inc., operating as The Place Bar & Grill, 8 Rambler Drive Village Square, Brampton, be suspended for a period of twenty-five (25) consecutive days.

23. 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 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 20 days from the date of this decision and must be completed within 90 days of the date of this decision.

DATED AT TORONTO THIS 15th DAY OF JANUARY, 2009.

JACQUELINE CASTEL, BOARD MEMBER BERYL FORD, BOARD MEMBER