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 Ontario
Registrar
-and-
681311 Ontario Limited o/a Shots Sports Tap & Grill
Licensee
DECISION on sanction
Panel: David C. Gavsie, Chair, AGCO S. Grace Kerr, Board Member
Decision Date: September 25, 2009
Hearing Location: Ottawa (Kanata), 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 681311 Ontario Limited, Licensee ) Christopher Kelly, Representative
Allegations
A hearing into Notice of Proposal number 16034 dated February 19, 2008 and Amended Notice of Proposal number 16613 dated September 8, 2008, to suspend for 28 days and to add a condition to liquor licence number 91379 (the “Licence”), issued to 681311 Ontario Limited (the “Licensee”), operating as SHOTS SPORTS TAP & GRILL (the “premises” or the “establishment”), 185 Pembroke Street East, Pembroke, Ontario, K8A 3J6, on the basis of alleged violations of section 29 and subsections 45(1) and 45(2) of the Liquor Licence Act (the “LLA”) and section 45.1 and subsections 34(1) and 45(1) of Ontario Regulation 719/90 (the “O. Reg”) made pursuant to the LLA, was held on September 10, 11, 12 and November 21, 2008, and February 18 and 19, and May 25, 2009 in Ottawa (Kanata), Ontario.
In its decision dated July 13, 2009, the Board found that the Licensee violated subsection 45(1) of the LLA on two occasions, that is, on May 12, 2007 and November 16, 2007. Also, the Board made a finding that the Licensee breached subsection 34(1) of the O. Reg with respect to a November 2, 2007 incident. Parties were directed to provide written submissions on an appropriate sanction. The Board has reviewed those submissions, the last of which was received on September 6, 2009.
In the result, the Board ORDERS the Licence be suspended for a period of ten (10) consecutive days. In addition, it ORDERS that the following condition be added to the Licence:
The Licensee shall at all times monitor its video surveillance (security) cameras and maintain them in good working order and shall retain all digital records from the security cameras for a minimum of seven (7) days. Any recording (or the Digital Recording unit) must be available immediately upon request, and at no cost, to police officers and AGCO inspectors.
Reasons follow.
Sanction Sought by the Registrar and the Licensee
The Registrar is seeking a fourteen day suspension in relation to the Board’s findings and, in addition, that a condition be added to the Licence, stating “The licensee shall retain all video surveillance tapes and records for thirty days.”
The Licensee suggests that a warning with respect to the May 12, 2007 breach and a suspension of six days for the November 16, 2007 violation be imposed by the Board. In addition, the Licensee asks that an additional one day suspension be ordered, instead of adding a condition to its Licence as suggested by the Registrar in relation to the November 2, 2007 incident.
Registrar’s Submissions
The Registrar advises that, in 2003, the Licensee served a 21-day suspension for, on two dates, permitting drunkenness in the establishment and serving liquor to patrons who appeared to be intoxicated.
As well, the Registrar suggests that there are problems with security at the establishment (i.e. that it either lacks or has insufficient security relative to its capacity (323 persons)). The Registrar also points out deficiencies in staff training (e.g. the Licensee’s staff’s apparent inability to identify intoxicated patrons and then deal with them appropriately.)
Furthermore, the Registrar urges that the Board’s findings are in relation to serious offences. Also, aggravating circumstances are alleged in relation to the May 12/13, 2007 incident (i.e. that the drunken patron was neither refused services, or asked to leave, or given assistance by any staff to ensure that when he left he did so safely) .
The Registrar also argues that the Board’s findings regarding the Licensee’s staff’s conduct on November 16, 2007 in relation to the three drunken patrons are also very serious. It suggests that the staff’s conduct on the night in question was lacking in a number of ways vis-à-vis each of the three intoxicated patrons, respectively.
The Board’s finding that the Licensee allowed patrons to remove liquor also reflects the Licensee’s (under-) staffing problems, in the Registrar’s submission.
The Registrar suggests that it will not be difficult or financially onerous for the Licensee to comply with the condition it seeks to add to the Licence. In fact, one of the Licensee’s witnesses testified that the capacity of the Licensee’s video system could easily be increased to retain all video surveillance for at least 30 days. Furthermore, the condition will assist both the Licensee and the Registrar in the event of future (potential) incidents of a similar nature to the subject infractions.
Licensee’s Submissions
The Licensee submits that a one-day suspension would be appropriate in respect of the findings in relation to the November 2, 2007 incident. It opposes the addition of the condition to its Licence for financial reasons, submitting that it would cost the Licensee $5,000 to implement the condition suggested by the Registrar. The Licensee agrees in general that the availability of video surveillance could be helpful for preventative or investigative purposes for the parties, vis-à-vis future incidents of the type at issue.
The Licensee argues that the May 12/13, 2007 incident was the first such breach in almost five years, that it was an isolated incident involving one patron, and that this patron’s level of intoxication did not increase the risk for disorderly conduct. As well, it argues that the drunken patron was only “modestly” drunk. As such, a warning is the appropriate sanction in relation to this incident, the Licensee submits.
Concerning the November 16, 2007 incident that involved three drunken patrons in the establishment, the Licensee suggests that the appropriate sanction is two days per drunken patron (for a total suspension of six days), to be imposed consecutively. In mitigation, the Licensee urges the Board to consider several factors, as follows. First, that the Licensee had then, and has since had trained, experienced and conscientious staff in addition to appropriate policies and procedures to ensure that the establishment complies with its obligations under the LLA. As well, the Board should contextualize the presence of three drunken patrons in an establishment that is a popular venue in a high traffic area. Finally, the November 16th incident represents a lapse on the Licensee’s part, rather than an established pattern of irresponsibility.
The Licensee asks that the suspension ordered be served at approximately the same time as the breaches occurred.
Registrar’s Reply Submissions
The Registrar submits that the Licensee’s supplemental Submissions dealing with the cost to upgrade the hard drive on its video surveillance system should be disregarded. The Licensee knew that the Registrar was seeking to impose that condition on the Licence yet did not tender any evidence at the hearing on that issue.
The Registrar also argues that it is inappropriate for the Board to consider the possible financial consequences of its decisions (in relation to the Registrar’s request for a condition to be added to the Licence).
The Registrar rejects the notion that the drunken patron involved in the May 12/13, 2007 incident was “modestly drunk”. This patron testified at the hearing and did not have a good recollection of the events of the night in question given his state and level of intoxication.
A six-day suspension is insufficient given the Licensee’s previous history. Also, the evidence regarding the Licensee’s staffing and its policies and procedures was not convincing. Neither has the Licensee recognized the need for change nor has it presented evidence that such change has been effected, in the Registrar’s submission.
Reasons and Analysis
After careful consideration of the evidence and the submissions as to sanction in this matter, the Board concludes that a 10-day suspension is appropriate. In addition, the Board orders that a condition be added to the Licence.
Several factors support a penalty of this length, which has been based on the specific infractions for which the Board made its findings and on the facts in relation to those findings. First, the infractions of permitting drunkenness and of selling and supplying liquor to persons who appear intoxicated are serious. In this case, on two dates the Licensee allowed a total of four patrons to become intoxicated and remain in the establishment and, on another occasion, the Licensee permitted a patron to remove alcohol from the establishment, showing a serious lapse in staff training/response and in its security on all of the nights in question.
Furthermore, in all three incidents there were numerous points of interaction between the Licensee’s staff and the patrons involved in those incidents, where staff should have taken appropriate action, in compliance with their responsibilities under the legislation, but failed to do so. What’s more, there were also no extenuating circumstances for any of the contraventions in this case.
The Board has not been presented with any mitigating circumstances that it accepts would suggest a warning for the May 12/13, 2007 incident is appropriate in the circumstances. Again, permitting drunkenness in an establishment is a serious matter. Additionally, a matter of mere (approximately) seven months later, three patrons were allowed to become intoxicated in the establishment and to remain there. In other words, two similar and significant breaches occurred within a very short period of time.
The Board also does not accept the Licensee’s suggestion that its location and popularity acts in any way to mitigate its obligations as a Licensee in relation to the November 16, 2007 incident.
The Board has considered and taken into account the evidence it had before it about due diligence procedures the Licensee had in place to promote compliance with the legislation’s prohibition on permitting drunkenness. While the Board believes in Ms. Brown, the principal of the Licensee’s, generally good intentions, unfortunately on the nights in question any responsible policies the establishment had in place were breached. As such, specific deterrence is a necessary ingredient to the sanction imposed in this case.
Finally, in coming to its decision, the Board was also cognizant that the Licensee has held a liquor licence for a number of years. In 2003, or about four years before the within incidents, the Licensee served a considerable suspension for a subsection 45(1) infraction. Otherwise, the establishment has no other history of contraventions. Thus, the Board placed less weight on the Licensee’s record in determining the appropriate sanction than might have been the case if the infraction had occurred more recently or if the Licensee had an additional history of non-compliance with its responsibilities under the LLA.
For all of these reasons, the Board finds that a ten day suspension is appropriate to satisfy the guiding principles of general and specific deterrence on the particulars of this case.
The evidence at the hearing was that on occasion the Licensee’s video surveillance cameras were not in good working order. Also, the digital tapes generated by the Licensee’s video surveillance system erase every 24 hours: this is too frequently given the establishment’s capacity and the evidence the Board heard as to the establishment’s popularity and location in an area of high traffic. To mitigate the risks imposed by these factors, the Board concludes that it is reasonable and necessary to impose a condition that requires the Licensee to maintain its surveillance cameras in good working order at all times and, further that it retains all digital records from those cameras for a minimum of 7 days. Additionally, the Licensee shall be required to present these digital records to police officers and AGCO inspectors, as may be necessary from time to time.
Furthermore, as the Licensee suggests, that the availability of video surveillance could be instrumental in the prevention of potential, or investigation of alleged future incidents by the Licensee or the Registrar.
In determining sanction for a specific finding in relation to one offence, it is not appropriate for the Board to consider whether the Licensee may have financial exposure as a result. Thus, the Board rejects the Licensee’s request to impose a suspension instead of a (reasonable) condition on the Licence because of the cost involved in complying with that condition.
The Board did not disregard the Licensee’s Supplemental Submissions in this case, as urged by Registrar’s counsel, for several reasons: the Licensee’s delay in submitting its Supplemental Submissions was minimal and the Registrar did not suffer any prejudice either as a result of the delay or in its ability to respond to the issues raised in them.
Specifically in this case, the Supplemental Submissions were provided seven (7) days after the Licensee’s initial Submissions, which had been provided on a timely basis. Also, Registrar’s Counsel, who had not yet submitted Reply Submissions, requested and was granted an extension to prepare her Reply Submissions, which included an opportunity to address the Licensee’s Supplemental Submissions.
Order
The Board ORDERS that liquor licence number 91379 issued to 681311 Ontario Limited operating as SHOTS SPORTS TAP & GRILL, 185 Pembroke Street East, Pembroke, Ontario, K8A 3J6, be suspended for a period of TEN (10) consecutive days.
The Board further ORDERS that the following condition be added to the Licence:
The Licensee shall at all times monitor its video surveillance (security) cameras and maintain them in good working order and shall retain all digital records from the security cameras for a minimum of seven (7) days. Any recording (or the Digital Recording unit) must be available immediately upon request, and at no cost, to police officers and AGCO inspectors.
- 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 the date of this decision.
DATED AT TORONTO THIS 25th DAY OF September , 2009
DAVID C. GAVSIE, CHAIR, AGCO S. GRACE KERR, BOARD MEMBER