Registrar, Alcohol and Gaming Commission of Ontario v. Rockwood Nightclub Inc., 2009 CanLII 78691

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-

Rockwood Nightclub Inc. O/A Rockwood/Grass Licensee

DECISION ON SANCTION

Panel: Patricia McQuaid, Vice-Chair, AGCO Joan Lougheed, Board Member

Decision Date: December 17, 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 ) Phillip Morris, Representative Rockwood Nightclub Inc., Licensee ) Nicholas Macos, Representative

Allegations

1A hearing into Notice of Proposal number 17306 (the "NOP") dated June 12, 2009, to suspend liquor licence number 805164 (the "licence"), issued to Rockwood Nightclub Inc. (the "Licensee"), operating as ROCKWOOD/GRASS, 31 Mercer Street, Toronto, Ontario, M5V 1H2 (the "premises" or "establishment"), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the "O.Reg") made pursuant to the Liquor Licence Act (the "LLA" or the "Act"), was held on September 24, 2009, in the City of Toronto.

2In its Decision dated November 5, 2009, the Board found the Licensee violated subsection 45(1) of the O.Reg in respect of one patron on December 6, 2008 and directed the parties to provide written submissions on an appropriate sanction. The Board received and reviewed those submissions.

Decision on Sanction

3The NOP alleged violations of subsection 45(1) of the O.Reg in respect of two patrons, for which the Registrar was seeking a 30 day suspension. Mr. Morris, in submissions, proposes that a 30 day suspension is appropriate as a matter of specific and general deterrence. He cites two aggravating factors: the staff did not intervene to take control of the patron and the amount consumed by the patron in a two hour period resulting in severe signs of intoxication. Further, the liquor licence was suspended for 18 days in January 2009, as a result of an agreement negotiated on December 30, 2008. The four violations agreed to encompass four dates between February and August 2008. One of the violations in issue related to "drunken" patron(s) on three of the four dates.

4Mr. Macos, in his submissions, states that a warning to the Licensee, and a direction that the Licensee codify practices and procedures with respect to intoxicated patrons and submit this to the Registrar, would be an appropriate sanction. Mr. Macos queries whether it could be concluded on the facts that the Licensee "knowingly permitted drunkenness," and suggests that an issue regarding what incidents were or should have been included in the agreement of December 30, 2008, negotiated subsequent to the date in issue in this NOP, should mitigate the penalty in this instance.

5To the latter point, the Board cannot draw any conclusions on what may have been intended in those negotiations, nor is it appropriate that it consider what may or may not have been discussed at the pre-hearing on this NOP regarding those negotiations as raised by Mr. Morris.

6As stated in its decision, the Board heard that the Licensee had certain procedures in place for removal of intoxicated patrons, though noted that the evidence was scant in that regard. The evidence regarding M.N. was that the procedures seemed to be followed: Inspector Sandiland observed her being escorted out.

7Accepting that there was a procedure, there was no evidence before the Board that the procedure was adhered to for K.S. The distinction on the evidence between the Licensee's response or lack thereof, to the two patrons was set out by the Board in paragraphs 33 and 34 of its decision. There, the Board enunciates the evidence – not the presumption – leading to the conclusion of a violation of subsection 45(1) of the O.Reg.

8In deciding on the appropriate disciplinary action in a particular case, the Board considers many factors. One of those factors is a prior disciplinary history, if any. In this instance, the Licensee, in business since 2006, clearly has a recent history of violations. An 18 day suspension is not insignificant. However, in context, the 18 day suspension agreed between the parties in December 2008 encompassed four dates and multiple violations, two of which involved minors. Those violations also included three instances of drunken patrons. And now there is a fourth such finding, suggestive of a pattern. There may be a procedure in place to address such issues. It was, however, either not consistently applied or ineffective. Given this history, a warning as suggested by Mr. Macos would not meet the need for specific deterrence. The suggestion that the procedure be codified is an excellent one, however, it should not require a direction from the Board to do so, rather it should be a measure taken by a responsible licensee to ensure that the kind of instances that have occurred do not recur. Such measures to ensure future compliance are mitigating factors the Board considers. This Licensee has offered no concrete steps it has taken for consideration as mitigating factors.

9That being said, while a warning is not appropriate, a 30 day suspension is too harsh in these circumstances. Even in the context of the NOP itself, a 30 day suspension was sought for two violations; one was found by the Board. The Licensee was not operating devoid of any procedures to prevent drunkenness. As indicated above, those procedures need to be consistently and effectively applied. Disciplinary action is a continuum taking into account the number and seriousness of the findings, the past history and mitigating factors such as steps put in place to ensure compliance in the future. Weighing these factors, the Board FINDS that a fourteen (14) day suspension is appropriate.

Order

10Therefore, the Board ORDERS that liquor licence number 805164 issued to Rockwood Nightclub Inc., operating as ROCKWOOD/GRASS, 31 Mercer Street, Toronto, Ontario, M5V 1H2, be suspended for FOURTEEN (14) consecutive days.

11The 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.