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-
697638 Ontario Ltd. O/A The Raven’s Nest Pub and Grill Licensee
DECISION ON SANCTION
Panel: Jacqueline Castel, Board Member; Alex McCauley, Board Member Decision Date: January 9, 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
Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative 697638 Ontario Ltd., Licensee ) Ainslie Dunstone, Representative
Allegations
1A hearing into Notice of Proposal number 16072 dated February 26, 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 subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the Liquor Licence Act (“LLA”), was held on November 19, 2008, in the City of Ottawa.
2In its decision dated December 8, 2008 the Board found the Licensee violated 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
3There were a number of aggravating factors in this case. There were three drunken patrons, all of whom were in advanced stages of intoxication. Patron #2 was still holding one drink at 2:20 a.m. He was so drunk he later fell heavily going down the stairs outside the establishment. Patron #3 was still nursing two beers at 2:20 a.m., and was so drunk he slid off the bar stool and later put the wrong end of a lit cigarette into his mouth. Both left and re-entered the establishment in an intoxicated state. Patron #4 was so drunk he left the establishment and immediately returned appearing confused.
4The owner was very intoxicated as well. He was not fully capable of looking after himself let alone a licensed establishment for which he was in charge. He was in no position to monitor signs of intoxication or control the activities of the other three drunks. The inspector did not feel he could discuss the situation with the owner because he was drunk. Mr. Saikaley admitted he had consumed alcohol while working, contrary to his own staff policy. J.M., an experienced doorman, testified that he never drinks on duty because his judgment would be affected and it would be difficult to spot an intoxicated patron if he himself were drinking. Instead, he would become just like a patron.
5The Board found that the Licensee permitted drunkenness on April 17, 2007. The incident in the case at bar occurred four months later.
6A 10 day suspension is appropriate as a matter of specific and general deterrence.
Licensee’s Submissions
7There were no aggravating factors as suggested by the Registrar. No harm came to any person in connection with this incident. In addition, there was never a risk to public safety or order, last of all to Inspector Beaudry.
8The Licensee has a heavy monthly commitment to rent, utilities, payroll, and incidental operating costs. A suspension of the licence for any great length of time will cause a severe hardship to the business. In addition, those employees who will be affected will carry an extra burden in light of the present economic climate.
9The Licensee has agreed to retain Mr. Dunstone on an on-going basis to provide guidance and advice on its responsibilities and duties under the Act. This will include conducting random inspections to independently measure compliance and making recommendations.
10A suspension of 10 days is insensitive and out of touch with what a Licensee operating a small business can withstand. The Licensee submits that a suspension of three or four days will provide adequate specific and general deterrence.
Reply
11The state of the general economy is irrelevant. The Licensee is expected to comply with the law in good times and bad, and to suffer the consequences when it breaches the law. Small business or large, a Licensee ought to foresee that it may be required to forego income and still be required to pay its business expenses if it breaks the law.
Analysis/Reasons/Findings
12The Board considers violations of subsection 45(1) of the O.Reg. to be serious. The facts surrounding the violation in this case were particularly serious. First, the contravention involved four intoxicated individuals. Second, at least three of the intoxicated individuals were exhibiting advanced or pronounced signs of intoxication. Third, and of greatest concern to the Board, the owner or manger was himself intoxicated. The owner clearly could not fulfill his obligations of ensuring that customers do not become intoxicated when he was intoxicated himself; he also set a very bad example for other employees of the establishment.
13There were no mitigating or extenuating factors which might apply to the Licensee on the night in question.
14In determining the appropriate sanction, the Board also considered that the Licensee contravened subsection 45(1) (permitted drunkenness) in April 2007, approximately four months before the incident giving rise to this case. As such, this is not a case of an isolated contravention by an otherwise compliant Licensee. Repeat occurrences of the same type of contravention are indicators that the Licensee did not learn from prior mistakes and reform its practices.
15The Licensee indicated, in its submissions, that it has agreed to retain Mr. Dunstone to provide advice on LLA compliance. The Board notes that the Licensee did not tender evidence about corrective measures it has implemented to prevent this type of contravention from occurring in the future. Further, there is a difference between obtaining advice and implementing effective remedial action. There is no mention of actual remedial action.
16No evidence was tendered to substantiate the Licensee’s claim that, given its monthly commitment to rent, utilities, payroll and incidental operating costs, a lengthy suspension would cause severe business hardship. Consequently, the Board did not take this assertion into consideration when determining the appropriate sanction.
17Mr. Dunstone submits that a suspension of 10 days sought by the Registrar is insensitive and out of touch with the requirements of running a small business. The Board disagrees. The sale and service of alcoholic beverages is a highly regulated industry in the Province of Ontario. This level of regulation is necessary to protect the public interest and public safety of patrons and the general public. Licensees are expected to provide a high level of due diligence in ensuring their establishments meet these requirements. Allowing extremely intoxicated patrons to be in the establishment, which at the time is being overseen by an intoxicated manager, does not even come close to reaching the criteria set out by the LLA and the corresponding Regulations thereto.
18Accordingly, given the serious nature of the contravention, the fact that there is another recent contravention under the same subsection, and the fact that there were no mitigating or extenuating circumstances for the contravention, the Board FINDS that a suspension of 10 days is necessary to achieve specific and general deterrence in the circumstances.
Order
19Therefore, the Board ORDERS that liquor licence number 202208 issued to 697638 Ontario Ltd. operating as THE RAVEN’S NEST PUB AND GRILL, 1034 Merivale Road, Ottawa, Ontario, K1Z 6A7, be suspended for a period of ten (10) consecutive days.
20The 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 9th DAY OF JANUARY, 2009.
JACQUELINE CASTEL, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER