Registrar, Alcohol and Gaming Commission of Ontario v. 2103872 Ontario Inc., 2009 CanLII 47500

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-

2103872 Ontario Inc. O/A Boston Pizza Licensee

DECISION

Panel: Guy Maurice, Board Member; Alex McCauley, Board Member Decision Date: July 27, 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 2103872 Ontario Inc., Licensee: John Cardill, Representative

Allegations

1A hearing into Amended Notice of Proposal number 16976 dated January 14, 2009 which amended and replaced Notice of Proposal number 16400 dated July 10, 2008, to suspend and add a condition to liquor licence number 809463 (the "Licence") issued to 2103872 Ontario Inc. (the "Licensee"), operating as BOSTON PIZZA, 1681 Green Bank Road, Nepean, Ontario, K2J 4Y6, (the "premises" or the "establishment"), on the basis of alleged violations of sections 45.1, 45.2 and 46 and subsection 34(1) of Ontario Regulation 719/90 (the "O.Reg") made pursuant to the Liquor Licence Act (LLA), was held on June 16 and 17, 2009 in the City of Ottawa.

Preliminary Matters

2An Agreed Statement of Facts was submitted and entered as Exhibit #1. Counsel made oral submissions as to sanction.

3The Board FINDS there was a breach of section 46 of the O.Reg by permitting noise, a breach of section 45.1 of the O.Reg, failing to ensure reasonable measures were in place to deter disorderly conduct in the parking lot of the establishment, and a breach of subsection 34(1) of the O.Reg, permitting the removal of liquor from the premises. The Board received no evidence regarding, nor was there an agreement admitting, a breach of section 45.2 of the O.Reg, failure to maintain control over the premises, and therefore the Board DECLINES to make a finding of a breach of section 45.2 of the O.Reg.

4The Licensee consented to the following conditions being placed on the liquor licence:

• No music or sound from any audio/video equipment or any other electronic equipment of any kind on any outdoor licensed area shall be audible outside of the parking lot that is immediately adjacent to the licensed premises.
• The sale and service of liquor on the licensed patio shall cease at 12:00 a.m. (midnight) each night and the patio shall be cleared of all persons by 12:30 a.m. each night.

Evidence

5It was agreed by the parties that on the night of August 23/24, 2007, at approximately 12:15 a.m., a City of Ottawa by-law enforcement officer attended at the premises in response to a noise complaint. Upon arrival the officer heard excessive noise coming from the patio area, loud voices swearing, etc. In addition, a hard object was thrown from the patio striking the officer's vehicle.

6On September 14, 2007 and October 20, 2007, loud noise from the outdoor patio disturbed a local resident. As the result of the October 20th incident the establishment was charged and convicted under the City of Ottawa's noise by-law.

7On September 18, 2007, an Alcohol and Gaming Commission of Ontario ("AGCO") inspectors attended the premises regarding a noise complaint from a neighbour. The inspectors observed drunken patrons causing a disturbance and observed intoxicated patrons removing beer from the premises unobstructed by staff members. The inspectors further observed apparently intoxicated patrons being allowed access to the licensed premises.

Registrar's Submissions

8Ms Taylor argued in her submissions that the liquor licence should be suspended for a period of 10 to 14 days.

9She stated that the incidents at the licensed establishment were numerous and made the life of a least one local resident very miserable.

10She stated that the Licensee has no previous history, but having said that the premises have only been licensed since the summer of 2007.

11Ms Taylor submitted that although the Licensee has taken steps to correct the problem that alone cannot expunge what has occurred. She referred to the events which had resulted in the findings as demonstrating total disregard for the community. In addition, the non-action of staff dealing with patrons acting in a disorderly manner and removing liquor from the licensed premises is a licensed premises out of control.

Licensee's Submissions

12Mr. Cardill submitted a book of documents (Exhibit #2) which illustrated the actions of the Licensee to date in rectifying the problems of the past. In addition, the Book contained a letter from Jan Harder, Barrhaven councillor, dated September 2, 2008. Ms Harder's letter is addressed to area residents and speaks supportively of the efforts of Boston Pizza's manager to work with the community.

13Mr. Cardill, on behalf of the Licensee, Michael Potter, advised the Board that Mr. Potter was a new franchisee in August 2007. He had no prior experience in the business and had entered into a partnership with Grant Anderson. Mr. Anderson had a 5% interest in the business, but was also responsible for the hands on management of the licensed premises.

14When he became aware of the problems, Mr. Potter took action. He bought out his partner and made several staffing changes. He employed older, more experienced staff. He has restricted admittance to the licensed premises after 9:00 p.m. to persons over the age of 19 years.

15Further, he has taken a hard line on any rowdy behaviour. He has put policies in place and meets regularly with his staff to reinforce the rules and policies.

16Management is now the responsibility of Mitch Consultants. This firm works with other Boston Pizza establishments in the Ottawa area.

17There have been no complaints or incidents of the type or nature as those which resulted in the matter before the Board.

18This Boston Pizza franchise is very much involved proactively in the community for the betterment of the community.

19Mr. Cardill submits that a five to seven day suspension would be in order.

Reply

20Ms Taylor submitted that Mr. Potter's responsibilities are not mitigated because Grant Anderson was not up to the task. This is a corporate responsibility and Mr. Potter is accountable.

Decision

21The Board has carefully reviewed the submissions of counsel. The matters that occurred during the period from August until October 2007 are serious and disturbing. Left on their own without any effort to correct the situation would have led to a lengthy period of licence suspension.

22That though, is not the case here. Since these offences have come to light, serious efforts on the part of the franchise holder, Mr. Potter, have taken place. He has taken steps that, from all indications, have corrected the problem. There is no doubt in the mind of the Board that Mr. Potter's previous lack of experience in this type of business was a factor which led him to give up control. This apparently does not exist today.

23The previous partner, Grant Anderson, appears to have been a problem and Mr. Potter has taken action to remove that problem. Ms Taylor correctly points out that Mr. Potter cannot be absolved of all blame because of Mr. Anderson, the corporation was clearly responsible and Mr. Potter is a principal of that corporation. The Board though, has taken this into consideration and must consider Mr. Potter's actions post events and post Mr. Anderson.

24The Board is very impressed by the actions taken by this Licensee since these events. It is clear that ideas have transcended into actions which have affected the community and this Licensee very positively. It appears to the Board that Mr. Potter has learned from the mistakes of the past and is eager to be a productive law abiding licence holder in the community.

Conclusion

25Therefore, the Board ORDERS that liquor licence number 809463 issued to 2103872 Ontario Inc., operating as BOSTON PIZZA, 1681 Green Bank Road, Nepean, Ontario, K2J 4Y6, be suspended for SIX (6) days.

26Further, the Board ORDERS that the following conditions be attached to the licence as consented to by the Licensee:

1. No music or sound from any audio/video equipment or any other electronic equipment of any kind on any outdoor licensed area shall be audible outside of the parking lot that is immediately adjacent to the licensed premises.

2. The sale and service of liquor on the licensed patio shall cease at 12:00 a.m. (midnight) each night and the patio shall be cleared of all persons by 12:30 a.m. each night.

27The 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.