Registrar, Alcohol and Gaming Commission of Ontario v. Shooters Sports Bar Inc., 2010 CanLII 25992

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-

Shooters Sports Bar Inc. operating as Shooters Sports Bar (Licensee)

Decision on Sanction

Panel: Jacqueline Castel, Board Member Alex McCauley, Board Member

Decision Date: April 22, 2010 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 Shooters Sports Bar Inc., Licensee: Clive Preddie, On his own behalf and on behalf of the Corporate Licensee

Authorities Thompson v. Canada (Attorney General), [2009] B.C.J. No. 2688 Ontario (Registrar of Alcohol and Gaming) v. Hosseini-Rad, [2004] O.J. No. 1273

Allegations

1A hearing into Notice of Proposal (“NOP”) number 16261 dated May 9, 2008 to suspend liquor licence number 804183 (the “licence”), issued to Shooters Sports Bar Inc. (the “Licensee”), operating as SHOOTERS SPORTS BAR, 980 Central Park Drive, Unit 10, Brampton, Ontario, L6S 3L7 (the “establishment” or the premises”), 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”), was held on December 11, 2009 in the City of Toronto.

2In its decision dated February 23, 2010, the Board found that the Licensee contravened subsection 45(1) of the O.Reg. by permitting drunkenness on the part of three customers. The Board declined to make a finding under subsection 45(1) for permitting unlawful gaming. The parties were invited to make written submissions on sanction within specified time frames. Those submissions have been received and reviewed by the Board.

Registrar’s Submissions on Sanction

3The Registrar submits that a suspension between 18 and 21 days is appropriate, as a matter of general and specific deterrence.

4The Licensee has owned the establishment since 1999 and has had its liquor licence suspended for 7 days in 2003 for permitting drunkenness (1 patron), for 13 days in 2007 for permitting drunkenness (1 patron) and the removal of liquor from the premises, and for 14 days in 2009 for permitting overcrowding and narcotics. The Board’s decision, in respect of the 2009 suspension, is under appeal.

5The Board found that all three patrons observed by Inspector Joseph were exhibiting clear signs of drunkenness. The Board also found that Ms Preddie, the majority owner of the establishment, knew or ought to have known, that all of them were drunk. They were all sitting at the bar in front of her and she served them all during the evening. Ms Preddie clearly failed to set a proper example for her employees, particularly Mr. Peterson, who was also present in the establishment that night, by failing to properly deal with her drunken patrons. The Licensee requires a strong message, directed at the owners of the establishment, that their current operations are not satisfactory and that the Board expects both Ms and Mr. Preddie to set a proper example for their employees respecting the operation of their establishment. If the owners cannot comply with the LLA and regulations, then it is unlikely that their employees, acting under the owners’ direction, will do so.

6The Licensee did not provide any evidence respecting its policies and procedures for preventing drunkenness in the establishment. The Licensee simply presented a blanket, non-credible denial of the drunkenness. Given that this Licensee has a history of permitting drunkenness, the fact that the Licensee has made no efforts to deal with these breaches on an on-going basis does not bode well for future compliance. The Registrar, therefore, submits that this is an aggravating factor, as it indicates that the Licensee does not take the infractions seriously at this time.

7The fact that neither Ms Preddie nor Mr. Peterson gave any assistance to Inspector Joseph during the course of his inspection of the poker game, and that Mr. Peterson did not assist Inspector Joseph in dealing with the drunken patrons, are further factors which the Registrar asks the Board to take into consideration in determining the appropriate sanction.

8The Board also found that the evidence of those closely connected to the establishment, namely Ms Preddie, Mr. Preddie and Mr. Peterson, to be self-serving and generally lacking in credibility. This assessment indicates that the Licensee was attempting to put forward a less than truthful, if not outright false, version of the events of January 17, 2008. Just as a Licensee should receive credit for coming forward and taking responsibility for what took place, so too should a Licensee be sanctioned for attempting to evade responsibility for its failings. This conduct also demonstrates a failure by the Licensee to take the liquor enforcement process seriously and respectfully.

Licensee’s Submissions on Sanction

9The Licensee submits that the appropriate sanction should be 5 days.

10The Registrar’s counsel is incorrect in stating the Licensee was suspended for permitting the removal of liquor in 2007. The Licensee did not permit the activity, but agreed to the statement of facts and sanction to avoid a hearing. As such, the Licensee’s only negative history stems from the January 23, 2003 incident. The matter which is currently under appeal before the Divisional Court should not be considered.

11The Licensee suspended Poker subsequent to the inspector’s arrival even though the tournament game was not unlawful. In doing so, the Licensee decided to err on the side of caution. The decision to no longer allow this Poker game has resulted in the Licensee’s sales being reduced. The fact that Mr. Peterson knows more about Poker than Ms Preddie should not be considered by the Board. Ms Preddie merely needed to know that it was not an unlawful game of chance including a cash payout and/or cash buy-in.

12The patrons who were deemed intoxicated were immediately barred after the inspector left the premises and, to date, only two have been permitted re-entry with guarded supervision. Mr. Preddie immediately removed patron #3 from the premises, based on his disrespectful behaviour, which shows the Licensee was quick to support the authority figure and quell a situation which may have escalated. The Licensee’s quick action illustrates it is respectful of its obligations under the LLA.

13If a 5 day suspension was an appropriate sanction for the January 23, 2003 incident then a sanction of the same duration should be appropriate for the present case. It is not codified that the sanction has to be greater for subsequent contraventions.

14A 5 day suspension would be a deterrent for the Licensee. A longer suspension would be excessively harsh and move the Licensee into receivership.

15The Licensee has on-going training for staff and anyone exhibiting signs of intoxication is asked to leave and is not permitted re-entry into the establishment for the remainder of the day. The Licensee maintains a daily journal to apprise each staff member of any incidents with customers which may result in them attempting to return after being barred. It is also the Licensee’s practice to err on the side of caution when assessing levels of intoxication.

Reply Submissions

16The Licensee’s submissions demonstrate that he is not capable of acknowledging his own poor disciplinary record and accepting responsibility for that record. The decision of the Board dated January 29, 2007 clearly states that the Board found three drunken patrons were permitted in the licensed establishment on November 24, 2005 and a further drunken patron was permitted in the establishment on February 25, 2006. The additional infraction that the Licensee admitted to was the failure to clear the signs of service and consumption of liquor within the prescribed time, not permitting the removal of liquor, which was a misstatement in the Registrar’s original submissions. The Board’s decision speaks for itself. Mr. Preddie’s attempt to go behind the Board’s decision by providing an “explanation” for the decision is not proper. The Board must take the decision at face value and Mr. Preddie cannot refuse to accept the consequences of the admissions by trying to explain them away.

17Respecting the Board’s decision of February 2009, in which the Board found that the Licensee overcrowded the establishment and permitted narcotics, as stated by Madam Justice Rowles of the British Columbia Court of Appeal in the recent decision of Thompson v. Canada (Attorney General), at paragraph 18, the decision of a judge (or, in this case, a panel of the Board) “...is presumed to be correct unless overturned on appeal. The fact that a Notice of Application for Leave to Appeal has been filed does not alter that presumption.” Therefore, although it is under appeal, the Board must presume that the Board’s decision of February 2009 is correct and take that decision into consideration in assessing the appropriate sanction in this case.

18There was no evidence of on-going training of staff before the Board, nor of any journal for staff members, and on the facts before the Board there was no evidence that drunken patrons are asked to leave the establishment, let alone that the Licensee errs on the side of caution when dealing with intoxicated patrons.

19The Licensee has claimed it cannot survive anything more than a 5 day suspension. The financial consequences of a Board decision are not relevant considerations under the LLA. In the Divisional Court’s decision of Registrar of Alcohol and Gaming v. Hosseini-Rad, the Court stated at paragraph 19, that financial considerations do not play any part in the Board’s determination of the appropriate outcome of the case, which in that case was whether a licence would be granted or not.

Decision on Sanction

20The Board considers the contravention of permitting drunkenness to be serious and in this case there were three drunks, who the owner of the premises admitted to observing (although denied that they were drunk). There were no mitigating factors or extenuating circumstances for the contravention.

21In submissions, Ms Taylor asked the Board to consider the fact that Mr. Peterson was present and did not assist with the three drunken patrons. The Board did not place any weight, in determining the appropriate sanction, on Mr. Peterson’s inaction on the date of the incident, given that he had attended the premises as a customer on this evening. The Board explained in its decision on findings why it did not find his evidence to be credible. However, the Board does not fault him or the Licensee because he did not assist Inspector Joseph on the night of the incident, given that he was not working and, unlike Ms Preddie, he is not an owner of the establishment.

22The Licensee devoted quite a bit of its submissions on sanction to explaining how it reacted after Inspector Joseph questioned the Poker game (i.e., stopped allowing the game). The Licensee also attempted to justify Ms Preddie’s limited knowledge of how the game was played. Given that the Board did not make a finding of unlawful gaming, the Board also did not consider the submissions on sanction pertaining to the Poker game to be relevant.

23This is not the first time the Licensee has been found by the Board to have permitted drunkenness. The Licensee served suspensions in 2003 and 2007 for, among other things, permitting drunkenness. The Board agrees with Ms Taylor that where a Licensee signs an agreed statement of facts and disposition, it is not appropriate for the Licensee to provide new or additional mitigating circumstances for the contraventions for the purpose of submissions on sanction in a subsequent case. The Board must accept the agreed statement of facts and disposition at face value. The Board also agrees with Ms Taylor that based on the British Columbia Court of Appeal’s decision in Thompson v. Canada (Attorney General), a decision is presumed to be correct, unless overturned on appeal, and the fact that a Notice of Application for Leave to Appeal has been filed does not alter that presumption. Nevertheless, the Board did not place much weight on the Licensee’s 2009 suspension which is under appeal, when determining the appropriate sanction in this case, since the case did not involve the contravention of permitting drunkenness.

24The Licensee did not present any evidence of remedial measures it put in place, following this incident, to prevent or minimize the likelihood of the breach of committing drunkenness occurring in the future.

25The Licensee indicated, in submissions, that it has on-going training, bars customers who exhibit signs of intoxication from returning for the remainder of the day, keeps a journal of incidents relating to customers who are barred, and errs on the side of caution in determining whether customers are intoxicated. No evidence was introduced at the hearing regarding this training or these procedures being in place; no specifics were provided regarding the nature or content of the on-going training; nor did the Licensee follow its stated policy of erring on the side of caution, in respect of the three intoxicated patrons in this case. Accordingly, the Board did not place any weight on the Licensee’s stated training or compliance procedures, in determining the appropriate sanction in this case.

26The Board also did not find the Licensee to be forthright at the hearing. As explained in its decision on findings, the Board found the Licensee’s evidence to be contradictory, inconsistent and contained omissions for which there were no reasonable explanations.

27The Licensee also did not take ownership for the breaches or show remorse, either at the hearing or in submissions on sanction. Indeed, Mr. Preddie stated that the only reason he removed patron #3 was because he was rude to the inspector.

28The factors in paragraph 20 and 23 to 27 warrant a significant suspension, from the standpoint of both specific and general deterrence. The five day suspension proposed by the Licensee would be inadequate, from the standpoint of specific or general deterrence, in the circumstances of this case.

29The Board agrees with the Licensee that there is no hard and fast rule that discipline must always be progressive. Where there is a prior disciplinary history, the Board takes into consideration the nature of the contravention, all the surrounding circumstances, whether the prior contraventions were for the same type of infraction, and the length of time which has elapsed since the prior contraventions, in determining the appropriate sanction and whether the discipline should be progressive. Most importantly, the Board must assess whether the sanction will be a deterrent for the Licensee in question, as well as a general deterrent for other licensees.

30In this case, given the seriousness of the contravention, the absence of any mitigating or extenuating circumstances for the contravention, the failure of the Licensee to take ownership of the contravention and show remorse, and the fact that there has been a relatively recent history of non-compliance with the LLA and regulations, including a history of permitting drunkenness, it is appropriate, as a specific deterrent, that the discipline be progressive.

31Accordingly, for the above reasons, the Board FINDS that a sixteen (16) day suspension is appropriate, to give effect to the principles of both specific and general deterrence.

32In determining the appropriate sanction, the Board did not consider the financial ramifications on the Licensee. A suspension will always have financial ramifications, which are a critical part of its deterrent effect. Moreover, the Licensee presented no evidence to substantiate the assertion that a suspension of longer than 5 days would put it into receivership.

Order

33The Board, therefore, ORDERS that liquor licence number 804183, issued to Shooters Sports Bar Inc., operating as SHOOTERS SPORTS BAR, 980 Central Park Drive, Unit 10, Brampton, Ontario, L6S 3L7, be suspended for a period of sixteen (16) days.

34The Licensee shall submit proposed suspension dates in writing to the Manager, 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 the 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 22nd DAY OF April, 2010