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-
902209 Ontario Limited O/A Magnum’s Pub Licensee
DECISION ON SANCTION
Panel: Patricia McQuaid, Vice-Chair, AGCO Beryl Ford, Board Member
Decision Date: August 27, 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 ) Phillip Morris, Representative 902209 Ontario Limited, Licensee ) Greg Burd, Representative
Allegations
1A hearing into a Notice of Proposal (“NOP”) number 16861 dated November 24, 2008 to suspend liquor licence number 804451 (the “Licence”) issued to 902209 Ontario Limited (the “Licensee”) operating as MAGNUM’S PUB, 21 McMurchy Avenue North, Brampton, Ontario, L6X 1X4 (the “establishment” or “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 March 31 and April 24, 2009 in the City of Toronto.
2In its decision dated July 17, 2009, the Board found the Licensee violated subsection 45(1) of the O.Reg, with respect to two patrons and dismissed the allegations of violation of subsection 45(1) of the O.Reg with respect to a third patron. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Decision On Sanction
3In submissions, Mr. Morris proposes a suspension of 14 days as appropriate. There was little or no evidence that either patron had been assessed by staff. Further, on April 6, 2007, approximately a year prior to this incident, drunken patrons were in the premises and a seven day suspension was served in January, 2008 in respect of that violation of subsection 45(1) of the O.Reg.
4Mr. Burd, in submissions, cites several factors in proposing a monetary penalty and/or three day suspension. These include significant and expensive remedial measures undertaken by the Licensee, the removal of three employees present on the night of August 8, 2008, the Licensee’s past record of responsible conduct (but for the 2007 incident) and the fact that the NOP sought a 14 day suspension but not all allegations were found by the Board.
5With respect to the request for a monetary penalty, the Board has no jurisdiction to order one. Pursuant to subsection 14.1(2) of the Alcohol and Gaming Regulation and Public Protection act, 1996, only the Registrar has jurisdiction to order a monetary penalty. In this instance, given the seriousness with which the Registrar viewed these allegations, he made a decision not to order a monetary penalty but rather to issue a Notice of Proposal for a 14 day suspension. The Licensee, as was its right, then requested a hearing.
6The Notice of Proposal stated that four intoxicated patrons were in the licensed premises and another intoxicated patron shouted obscenities (an allegation of permitting disorderly conduct). However, at the hearing, Mr. Morris did clarify that in fact the NOP ought to read “three intoxicated patrons” not four, and that one of those patrons was Mr. Stivani, who had also shouted obscenities. So, there were not, in fact, 5 delicts alleged as suggested by Mr. Burd in submissions. The Board does agree with Mr. Burd, however, that a 14 day suspension, when findings were made in respect of only two of the three patrons, would be too harsh in the circumstances.
7The Board found that the Licensee’s staff did not do a reasonably diligent assessment of either MK or CM’s condition on the night in question. As noted by Mr. Morris, in the recent past intoxicated patrons had been found in the premises. This is troubling and the Board has consistently stated that it considers violations of subsection 45(1) of the O.Reg to be serious. Balanced against this is the otherwise commendable record of this Licensee over an 18 year period. Regarding the 2007 incident, the Licensee acknowledged responsibility in his agreement with the Registrar. He did not shirk responsibility.
8The Board gives weight to the remedial measures in determining the appropriate sanction. This is not a licensee who has merely asserted that he will ensure that contraventions do not occur in the future. He has provided particulars of actions taken in remediation. Effective diligent measures were not in place on August 8th, but the Board has confidence that real efforts are being made to prevent a repeat occurrence. Ultimate effectiveness will have to be demonstrated over time, measured by no further attendances before the Board or, at the very least, very infrequent attendances. Weighing these factors with the past record of the Licensee, and the particular facts of this case, the Board finds that a nine day suspension is appropriate as a matter of specific and general deterrence.
Order
9The Board orders that liquor licence number 804451 issued to 902209 Ontario Limited operating as MAGNUM’S PUB, 21 McMurchy Avenue North, Brampton, Ontario, L6X 1X4, be suspended for a period of NINE (9) consecutive days.
10The 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 27th DAY OF AUGUST, 2009
PATRICIA MCQUAID, VICE-CHAIR, AGCO BERYL FORD, BOARD MEMBER