Registrar, Alcohol and Gaming Commission of Ontario v. 1343737 Ontario Ltd., 2009 CanLII 69687

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-

1343737 Ontario Ltd. O/A Fiddleheads (Licensee)

DECISION ON SANCTION

Panel: Allan Higdon, Board Member Alex McCauley, Board Member

Decision Date: November 3, 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 1343737 Ontario Ltd., Licensee: Richard Knott, Representative

Allegations

1A hearing into Notice of Proposal number 16881 dated November 28, 2008 (“NOP”), to suspend liquor licence number 807147 (the “Licence”), of 1343737 Ontario Ltd. (the “Licensee”), operating as FIDDLEHEADS, 53 Herriott Street, Perth, Ontario, K7H 1T5 (the “premises” or “establishment”) 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 (the “O.Reg”) made pursuant to the LLA, was held on July 23, 2009 in the City of Ottawa.

2On September 23, 2009 a panel of the Alcohol and Gaming Commission of Onatrio (“AGCO”) found the Licensee to have breached subsection 45(1) of the O.Reg and also to have breached section 29 of the LLA. Submissions for sanctions were invited from the Registrar and the Licensee. The Board has received and reviewed those submissions.

Registrar’s Submissions

3The Registrar submitted documentation showing the Licensee had previously served a 10 day suspension in November 2007 for permitting drunkenness in December 2006, January 2007 and May 2007.

4The Registrar stated the infractions currently under consideration took place in August 2008, a little more than a year after the previous infractions. In addition, the most recent infraction involved the service of liquor to a person showing signs of intoxication.

5The Registrar acknowledged the Licensee has implemented a policy of allowing only a maximum of five drinks. However, this policy would not prevent patrons from becoming intoxicated, particularly if they had been drinking prior to entering the premises or if drinks were bought for them by other patrons.

6In the case under consideration, staff failed to assess the condition of a patron. In particular, they failed to assess a patron as intoxicated before a beer bought by another patron was served to her.

7The Registrar noted the Board found on the balance of probabilities that the female patron became drunk in the establishment. The Board also found that a beer was only removed from in front of the patron after service had been noted by an AGCO inspector.

8The Registrar requested the imposition of the full 14 day suspension sought in the NOP, given the circumstances of the infraction and the Licensee’s prior record.

Licensee’s Submissions

9The Licensee considers a three day suspension appropriate.

10The Licensee has changed procedures at the premises to prevent late night intoxication.

11The Board notes that the Licensee made further statements contradicting the Board’s findings in its Decision of September 23, 2009. They have no place in assessing the consideration of sanctions.

12The Licensee has undertaken to ensure the manager communicates to staff if a patron has been cut off from service.

13The Licensee maintains a female patron was impaired but not intoxicated. The Licensee agrees the patron was cut off by bar staff.

Registrar’s Reply Submissions

14The Registrar in reply contested the points put forward by the Licensee contradicting the decision of the Board. The Panel has stated the comments are inappropriate in a discussion on sanctions.

Reasons / Analysis / Decision

15The Board finds the arguments put forward by the Registrar to be persuasive.

16The Registrar submitted an agreement dated August 27, 2007 between the Deputy Registrar and the Licensee which stated the Licensee permitted drunkenness on the premises in December 2006, January 2007, and in May 2007. The current incident took place in August 2008, a little over a year since the last infraction.

17The Board found that a woman was intoxicated on the premises. In addition, the Board found that the Licensee knew or ought to have known that the woman was drunk on the premises and therefore in breach of permitting drunkenness on the licensed premises.

18The Board also found that the Licensee supplied liquor to a person who was or appeared to be intoxicated.

19The Board commends the Licensee for moving last call to 11:45 p.m. to avoid late night intoxication. However, the initiative of serving a maximum of five drinks to any customer is of dubious merit, for the reasons stated by counsel for the Registrar. The Licensee must still remain vigilant for signs of intoxication despite their five drink rule.

20Given the Board’s findings in this matter and the Licensee’s very recent history of permitting drunkenness on three occasions prior to the current incident, but at the same time taking note of initiatives by the Licensee to prevent drunkenness on its premises, the Board considers a suspension of TEN DAYS to be an appropriate sanction for general and specific deterrence.

Order

21Therefore, the Board ORDERS that liquor licence number 807147, of 1343737 Ontario Ltd., operating as FIDDLEHEADS, 53 Herriott Street, Perth, Ontario, K7H 1T5, be suspended for a period of TEN (10) consecutive days.

22The 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.