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-
Legendary Red Rooster Vintage Café Inc. O/A The Legendary Red Rooster Vintage Café Licensee
DECISION ON SANCTION
Panel: Joan Lougheed, Board Member Eleanor Meslin, Board Member
Decision Date: November 6, 2009 Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario 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 The Legendary Red Rooster Vintage Café Inc., Licensee: Michael Allen Rigby, on behalf of the Corporate Licensee
Authorities
977619 Ontario Inc. v. Ontario (Registrar of Alcohol and Gaming), [2000] O.J. No. 5297
Allegations
1A hearing into Notice of Proposal (“NOP”) number 17201 dated April 20, 2009, to suspend liquor licence number 22267 issued to The Legendary Red Rooster Vintage Café Inc. (the “Licensee”) operating as THE LEGENDARY RED ROOSTER VINTAGE CAFÉ, 484 Plains Road East, Unit 3, Burlington, Ontario, L7T 2E1 (the “premises” or “establishment”) on the basis of alleged violations of subsection 30(4) and 38(1) of the Liquor Licence Act (the “LLA”) and subsections 41(1) and 87(2)(h) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on August 24, 2009 in the City of Toronto.
Overview
2The Board notes that at the Hearing on August 24, 2009, the Licensee stated that he was not disputing the allegations, only the length of the suspension. On further questioning by the Panel to ensure clarification, the Licensee stated he understood the allegations and agreed that minors were served and had false identification.
3There being agreement that the Licensee breached subsection 30(4) of the LLA and subsection 42(1) of the O.Reg, witnesses were dismissed and the Panel directed that the length of the suspension be dealt with through sanctions.
Registrar’s Submissions
4Registrar’s Council, Ms J. Taylor submitted that a suspension of seven to 10 days is appropriate in the circumstances. The Licensee has been found to have breached subsection 30(4) of the LLA and subsection 42(1) of the O.Reg.
5Ms Taylor noted that this is the first infraction since the Licensee opened in November 2006. Referring to the Heart & Crown decision of 2000, Ms Taylor pointed out that a seven day suspension was upheld by Divisional Court. She stated that this matter is more serious because two minors were consuming liquor on the premises and three were not properly identified. Although a first infraction, it is a serious infraction.
Licensee’s Submission
6Mr Rigby, the Licensee, submitted that the establishment has a good working relationship with all agencies including public health, fire, local police, and AGCO inspectors. As well, they are active in numerous community organizations, such at the Aldershot Business Improvement Area.
7On the night in question, he stated that a new security person had been assigned to check identification and for a brief time was working on his own. This security person became flustered with the arrival of the AGCO inspectors and police and did not properly check identification. As well, he acknowledged that the bartender failed to recheck the minor’s identification before serving.
8The Licensee outlined the steps he has taken since this incident to ensure compliance and make sure the mistake does not occur again. He has held staff meetings, reviewed policy, and improved tools such as black light flashlights and internet access to better check identification. In addition to this there is a new regime of reviews, training and licensing.
9Mr. Rigby also expressed his concern about fairness in the process of the hearing citing the late arrival of the Registrar’s Representative and issues of preparedness.
10Mr. Rigby stated that the minors in question repeatedly and flagrantly broke the law and were not fined, or charged for their use of false identification. He expressed concern that nothing is done to discourage minors from committing an act of fraud against a licensee.
11The Licensee cited a number of authorities and examples of incidents within licensed establishments, expressing concern about fairness and possible “unduly harsh punishment” relating to his business. He submitted that a letter of warning would be adequate.
Registrar’s Reply
12Ms Taylor replied stating that some of the information submitted by the Licensee was not relevant, in particular were references to incidents in a casino and a matter that is still before the Board.
13Ms Taylor stated that the Licensee admitted he knew or ought to have known that the minors were present and drinking. She stated that the training and control of door staff is within the control and responsibility of the Licensee.
14Ms. Taylor noted that the Board does not have jurisdiction over imposing any fine and a warning letter is inappropriate under the circumstances.
Reasons and Decision
15The Board has carefully reviewed the submissions on sanctions. In making a determination of specific and general deterrence, the Board finds that a suspension of five days is appropriate.
16The Board notes that Mr. Rigby admitted to these breaches at the hearing on August 24, 2009 and understood that the length of suspension would be dealt with through submissions on sanctions.
17The Board agrees with Ms Taylor’s objections to the introduction of new evidence through submissions by the Licensee. The Board, in reaching a decision, disregards those portions of the submission that proposes to introduce new evidence.
18Although the Licensee expressed concern about fairness and the late arrival of Ms Taylor, the Board notes that Registrar’s Counsel had extended an apology, which was accepted by the Board.
19The Board does not support the Licensee’s submission that a letter of warning or monetary penalty is adequate given seriousness of the breaches, particularly with respect to the minors.
20It should also be noted that a monetary penalty is not within the jurisdiction of the Board. 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, a decision was made not to order a monetary penalty but rather to issue a Notice of Proposal for a 14 day suspension.
21The Board does not accept the Registrar’s submission that a seven to 10 day suspension is appropriate for a first time offence. The Board is satisfied that the Licensee admitted to the breaches and has extended his apologies for the infractions.
22The Licensee admitted that two minors were permitted to consume liquor in the establishment and failed to request proper identification and were using false identification.
23In reaching a decision, the Board remains concerned that identification checks were not adequate on the night in question and patrons were not being properly monitored thereby allowing a minor to consume liquor on the premises. The Board considers violations breaching subsection 30(4) of the LLA and subsection 41(1) of the O.Reg to be very serious.
24The Board understands the financial impact of a suspension on both the Licensee and employees. However compliance is, at all times, the responsibility of the Licensee and financial ramifications are part of the deterrent effect of a suspension.
Order
25Therefore, the Board ORDERS that liquor licence number 22267 issued to The Legendary Red Rooster Vintage Café Inc., operating as THE LEGENDARY RED ROOSTER VINTAGE CAFÉ, 484 Plains Road East, Unit 3, Burlington, Ontario, L7T 2E1, be suspended for FIVE (5) consecutive days.
26The 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 6th DAY OF November, 2009
JOAN LOUGHEED, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER