Registrar, Alcohol and Gaming Commission of Ontario v. 1186540 Ontario Inc., 2009 CanLII 55591

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-

1186540 Ontario Inc. O/A Rack & Q Licensee

DECISION ON Sanction

Panel: David C. Gavsie, Chair, AGCO Eleanor Meslin, Board Member

Decision Date: September 23, 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 1186540 Ontario Inc., Licensee ) Albert Smelko, Representative

Allegations

1. A hearing into Notice of Proposal number 17146 dated March 30, 2009, to suspend liquor licence number 803510 (the “licence”), issued to 1186540 Ontario Inc. (the “Licensee”), operating as RACK & Q, 63 – 67 Norfolk Street South, Simcoe, Ontario, N3Y 2W1 (the “premises” or the “establishment”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg 719/90”) made pursuant to the Liquor Licence Act (the “LLA”), was held on June 18 and July 31, 2009, in the City of Brantford.

2. In its decision dated September 1, 2009, the Board found the Licensee violated subsection 45(1) of O.Reg 719/90 in respect of one patron, and dismissed the alleged violation of subsection 45(1) of O.Reg 719/90 in respect of a second patron. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Registrar’s Submissions

3. The Representative for the Registrar submitted that a high level of regulation is necessary to protect the public interest and public safety. This level of responsibility on the part of the licence holder is fundamentally linked to a licensee’s positive duty to ensure that proper diligence and attention is exercised in taking steps to prevent violations to occur.

4. The Registrar is concerned because, although the patron displayed pronounced signs of intoxication in the establishment, he was not approached, monitored or assessed by the Licensee, who admitted he had not checked the establishment for violations in areas that he could not observe from his position at the bar.

5. The Registrar’s Representative further submitted that regarding the principles of specific deterrence, there was a clear lack of due diligence and no mitigating factors upon which the Licensee can rely. The Licensee refused to admit that the intoxicated male was a patron on that night. He had not offered any information or measures to be taken to prevent future incidents from occurring.

6. The Registrar’s Representative stated that the Licensee demonstrated a disturbing pattern of failing to prevent drunkenness in the establishment since he had previously served suspensions of five days in March 2005 and 10 days in September 2007, which included violations of permitting drunkenness.

7. The Registrar submitted that to ensure that the Licensee understands that due diligence and responsible action by the Licensee are the cornerstone of public safety, the Registrar requested a liquor licence suspension of between 10 to 12 days, which would be appropriate in these circumstances.

Licensee’s Submissions

8. The Licensee’s Representative submitted that Mr. Pereira’s conduct regarding the intoxicated patron should be considered in the following context:

• there is no evidence to contradict Mr. Pereira that he did not serve the patron;
• the bar wasn’t busy, at most 10 patrons;
• the officers could view the whole premises when they arrived, except for the washrooms, which they did not enter and they did not see the patron enter;
• because of his position at the bar, Mr. Pereira may have been unaware of the patron entering.

9. The Licensee’s Representative suggested that either the patron had just entered the establishment before bumping the officer or that he had entered shortly before the officers to use the washroom facilities.

10. The Licensee’s Representative conceded that serving the patron is not necessary in order to make out the charge of intoxication.

11. The Licensee’s Representative also suggested that it was clearly Mr. Pereira’s responsibility to be aware of the condition of all persons on the premises and that the penalty should reflect that degree of responsibility since the arguments presented on Mr. Pereira’s behalf are possible.

12. The Licensee’s Representative submitted that, therefore, a written warning would be appropriate.

Registrar’s Reply

13. In response to the Licensee’s submission, the Registrar’s Representative pointed out that whether the Licensee did not see or was not aware of the patron’s presence, the Licensee is expected to take effective proactive measures to be aware of and to control what occurs in the establishment.

14. Despite showing signs of intoxication, the patron was not monitored by the Licensee and there were no measures or practices in place to ensure that the Licensee could control areas of the establishment that are out of his view.

15. The Licensee’s Representative further submitted that a warning is inappropriate, because the Licensee has already two suspensions of five and 10 days for this violation. A reduction in sanction for repeat violations negates the purpose of progressive discipline and fails to demonstrate to the Licensee that a greater level of diligence and responsibility is required.

Analysis and Reasons

16. The Board has carefully considered the submissions by both parties.

17. It is incumbent on the Licensee to take effective measures to ensure the safety of its patrons and to provide effective and proactive monitoring of the premises. The Licensee did not do so. The Licensee had opportunity to do so, but failed to periodically check the establishment to ensure no violations were occurring in areas he could not see.

18. The Licensee has not admitted that the intoxicated male was a patron at the time and has not outlined any measures that will be taken to prevent future violations.

19. The Board has also taken into account the fact that this Licensee has served two previous suspensions of five and 10 days, which included violations of permitting drunkenness. To allow a warning in this case would not serve the purpose of progressive discipline nor send the Licensee a clear message that licence holders are expected to act with a high level of responsibility to ensure that proper diligence and attention is exercised to prevent future violations from occurring.

Order

20. Therefore, the Board ORDERS that liquor licence number 803510 issued to 1186540 Ontario Inc., operating as RACK & Q, 63 – 67 Norfolk Street South, Simcoe, Ontario, N3Y 2W1, be suspended for TWELVE (12) consecutive days.

21. The 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 this decision.

DATED AT TORONTO THIS 23rd DAY OF September , 2009

DAVID C. GAVSIE, CHAIR, AGCO ELEANOR MESLIN, BOARD MEMBER