Registrar, Alcohol and Gaming Commission of Ontario v. 1015111 Ontario Limited O/A Club T’Zers, 2009 CanLII 55559

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-

1015111 Ontario Limited O/A Club T’Zers Licensee

DECISION ON SANCTION

Panel: Brian J. Ford, Board Member Bruce Miller, Board Member

Decision Date: September 11, 2009 Hearing Location: Windsor, 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 1015111 Ontario Limited, Licensee: Anthony Debly, Representative

AUTHORITIES:

Hague v. Billings, 1989 CanLII 4065 (ON HCJ), [1989] O.J. No. 630 Club T’Zers (Re), [2005] O.A.G.C.D. No. 448 1070879 Ontario Inc. (c.o.b. Zodiac Lounge)(Re), [2009] O.A.G.C.D. No. 175 1186540 Ontario Inc.(c.o.b Rack & Q)(Re), [2008] O.A.G.C.D. No. 286 516532 Ontario Limited (c.o.b. Jameson’s Restaurant)(Re), [2009] O.A.G.C.D. 132 Garvida (c.o.b. Kalan Chow)(Re), [2009] O.A.G.C.D. No. 135 Rejeanne’s Bar and Grill Ltd.(c.o.b. Rejeanne’s Bar and Grill)(Re), [2008] O.A.G.C.D. No. 86 Ingratta (c.o.b La Molisana Café)(Re), [2009] O.A.G.C.D No. 11 120775 Ontario Ltd. (c.o.b. Armani’s Nightclub) v. Ontario (Alcohol and Gaming Commission), [2007] O.J. No. 5317

1A hearing into Notice of Proposal number 16761 dated October 24, 2008 to suspend liquor licence number 90044 issued to 1015111 Ontario Limited (the “Licensee”), operating as CLUB T’ZERS, 1638 Drouillard Road, Windsor, Ontario, N8Y 2S3 (the “establishment” or the “premises”), on the basis of alleged violations of section 29 of the Liquor Licence Act (the “LLA”) and subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the LLA was held on March 11, March 12, May 12 and May 13, 2009, in the City of Windsor.

2In its decision dated July 16, 2009, the Board found the Licensee violated subsection 45(1) of the O.Reg and dismissed the alleged violation of section 29 of the LLA. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Registrar’s Submissions

3The Board found that the Licensee breached subsection 45(1) by permitting drunken patrons in the licensed premises.

4There are a number of aggravating circumstances. The staff knew that both patrons in question were drunk. The patrons were allowed to stay on the premises for an extended period of time until they became involved in an altercation with other patrons. They were allowed to remain even after one of the patrons called the waitress a “bitch”.

5Staff then “dumped” the patrons outside without determining how they would get home. The staff’s evidence that the patrons left at 12:30 a.m. was fabricated to avoid responsibility. Mr. Bodechon’s evidence that he watched them walk away was dishonest as the patrons clearly left shortly before the accident in a car.

6Staff’s responsibility was to ensure these patrons were not driving away as staff knew they were drunk. Staff had a duty to call police to prevent Mr. Brown from driving as demonstrated in Hague v. Billings.

7The Licensee has a prior record with the Commission. In 2005, the Board suspended their licence for 10 days for a breach of subsection 45(1) of the O.Reg in relation to a fight. In 2007, the Deputy Registrar suspended their licence for 14 days for a breach of subsection 45(2) of the O.Reg among other sections in relation to a patron smoking marijuana.

8Mr. Morris submitted a copy of the Board’s decision and a copy of the Deputy Registrar’s decision.

9A 60 day suspension would be appropriate as a matter of specific and general deterrence.

Licensee’s Submissions

10The Board found that the Licensee breached subsection 45(1) of the O.Reg by permitting drunken patrons in the licensed premises.

11There were no aggravating circumstances. The staff was unable to prevent the drunken individuals from entering the premises. Staff took steps to ensure they left the premises safely once they were inside the establishment. Staff exercised their due diligence.

12There was no evidence that staff “dumped” the two individuals outside the premises without determining how they would get home. The evidence was clear that staff watched the individuals walk away for a couple of blocks. This was consistent with the evidence where the two individuals advised staff that they lived in the neighbourhood and were not driving. It is improper to suggest that one individual’s testimony under oath is to be believed less than another person’s testimony under oath, and certainly no more weight is to be given to an enforcement official or to the evidence of a witness for the Alcohol and Gaming Commission of Ontario (“AGCO”).

13The Hague v. Billings case is not on point with the case before this Board as the Licensee knew the individuals in question had arrived at the premises in an automobile and then were seen to leave by automobile. The staff at Club T’ZERS had no idea the individuals had a vehicle and there is certainly no evidence that the staff watched them drive away.

14While the previous finding against the Licensee involved subsection 45(1) of the O.Reg, the infraction did not involve permitting drunkenness. The first suspension was done by an Agreed Statement of Facts and involved a fight between two patrons fifteen minutes after midnight on New Year’s Eve. The second suspension was based on three unrelated complaints involving a sign and licence not being posted, liquor being removed from the premises and smoking marijuana on the premises. There were mitigating factors involved as the signs had been removed for painting, people were carrying liquor outside to a smoking area and the manager who smoked the marijuana was fired.

15It is improper for Registrar’s Counsel to ask for a sixty day licence suspension when that was the same quantum of suspension outlined in the Notice of Proposal for what is in effect, three separate charges:

1. Permitting drunkenness.
2. Permitting riotous, quarrelsome, violent or disorderly conduct.
3. Supplying liquor to a person who appeared to be intoxicated.

16The original suspension of 60 days that was requested should be reduced considerably as a finding was made only in relation to permitting drunkenness. The Board recognized this fact in 1070879 Ontario Inc O/A Zodiak Lounge. The Board also spoke of the need for the Licensee to exercise due diligence and that was done in the case of Club T’ZERS.

17In 1186540 Ontario Inc. O/A Rack & Q the Board felt that a 10 day suspension for permitting drunkenness would be appropriate for a second finding within two years for the same offence.

18In 516532 Ontario Limited O/A Jameson’s Restaurant the Licensee was disciplined for the same type of offence within five years, including a component of disorderly conduct and only received a 10 day suspension.

19In Garvida O/A Kalan Chow the Board found the Licensee’s previous suspension not to be relevant as it was not related to the current offence the Board was dealing with. In the case of Club T’ZER’s, the Licensee has dissimilar previous convictions and these should not be considered as previous convictions as per Garvida.

20In Rejeanne’s Bar and Grill the Board noted the Licensee had a history of violations with the most recent being for 7 days. The Board decided that a suspension of 10 days was appropriate.

21In Ingratta O/A La Molisana Café the Board noted the Licensee had previous violations for the same offence however the Board felt that a suspension of seven days was appropriate. Even if the Board feels that the Licensee has previous convictions and the Board feels there is a need to send a message then a suspension period of seven days is as appropriate for the Licensee based on Ingratta.

22A 7 to 10 day suspension would be appropriate as a matter of specific and general deterrence.

Registrar’s Reply

23Mr. Bodechon was the only witness to testify that the two individuals walked down the street.

24Mr. Bodechon lied about his statement to Inspector Holman. It is not improper to suggest that one individual’s testimony is to be believed less than another’s. Boards and courts make finding on credibility all the time.

25The Licensee cannot refer to facts not included in the Agreed Statement of Facts.

26There was never an allegation of disorderly behaviour, only drunkenness.

27Kalan Chow did not decide that dissimilar convictions could not be used as previous convictions. It did the opposite; it relied on them but gave them less weight than similar prior convictions. The argument that dissimilar convictions could not be used as previous convictions was rejected by the Divisional Court in 120775 Ontario Ltd. (c.o.b. Armani’s Nightclub) v. Ontario (Alcohol and Gaming Commission) [2007] O.J. No. 5317.

28None of the cases cited by the Licensee involve drunk driving and an accident that led to serious injuries.

Analysis and Reasons

29The Board finds that a 30 day suspension is appropriate, in the circumstances of this case, for the following reasons.

30The case involves a finding on permitting drunkenness. There was substantial evidence with respect to both patrons who were clearly intoxicated. The Board considers violations of this nature to be serious. Both patrons were shortly after involved in a motor vehicle accident that resulted in serious injuries.

31The accident occurred at 1:30 a.m. on March 26, 2008. There was a question of when the two involved patrons left Club T’ZERS. Mr. Morris argued it was directly prior to the accident. The Licensee’s staff testified the intoxicated males left at 12:30 a.m. or about an hour prior to the accident. The Board notes that both scenarios are close in time to the accident.

32The Board agrees with Mr. Morris that there was never an allegation of disorderly behaviour although it is included, along with a number of others, in subsection 45(1) of the O.Reg which reads as follows:

“The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.”

33The Board’s finding related directly to permitting drunkenness.

34The Board did not make a finding of supplying liquor to a person who appeared to be intoxicated. There is no doubt that such a finding would have been an aggravating factor.

35The Board did take the Licensee’s two relatively recent prior suspensions into consideration. In 2005, the Board suspended their licence for 10 days for a breach of subsection 45(1) of the O.Reg in relation to a fight. In 2007, the Deputy Registrar suspended their licence for 14 days for a breach of subsection 45(2) of the O.Reg in relation to the manager and a patron smoking marijuana, among other breaches. The Board agrees with Mr. Morris that dissimilar contraventions go to what weight should be given to them. While the nature of the contraventions is different, both previous contraventions were serious. They do not suggest that the Licensee should be treated as a first-time offender. This reasoning is certainly supported by the Ontario Divisional Court decision in Armani’s Nightclub.

36Mr. Morris pointed to Hague v. Billings and stated that staff had a responsibility to ensure that patrons who the Licensee knew were drunk were not going to drive away. Mr. Morris argued the Licensee had a duty to call police.

37Mr. Debly responded that Hague v. Billings is not on point as the Licensee knew that the patrons in that case were drunk and had arrived in a motor vehicle. The Licensee also knew that the patrons were intoxicated and that they left the premises in a motor vehicle.

38The Board examined the due diligence performed by the Licensee. Ms. Natywary, the waitress, stated the men were “staggering” when they came in and were both “drunk”. She refused to serve them when they attempted to order a beer and gave them water instead. In cross-examination she agreed they were “hammered”. She also gave evidence that the two males argued at one point, that one of them called her a “bitch” and that they were involved in an altercation before they were ejected.

39In cross-examination Mr. Bodechon, the manager, admitted he knew the males were intoxicated after they walked in and were refused service by the bartender. He also knew they were intoxicated when he talked to them just after they came in. Staff did testify they had asked the males if they wished a cab and were told by the males that they lived in the neighbourhood.

40Staff, inexplicably, allowed the two intoxicated males to remain in the premises for at least 20 to 30 minutes before they were ejected and only after they caused problems.

41The Board notes that when they were finally ejected the manager stayed at the door and watched the males to make sure they did not “fall into” traffic. He watched them until they were a couple of blocks away. If the Board were to have found that the Licensee knew or believed that the drunken patrons were going to drive, it would have imposed a greater suspension.

Order

42Therefore, the Board ORDERS that liquor licence number 90044 issued to 1015111 Ontario Limited operating as Club T’ZERS, 1638 Drouillard Road, Windsor, Ontario, N8Y 2S3, be SUSPENDED for a period of THIRTY (30) consecutive days.

43The 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 DAY OF , 2009.