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-
2088675 Ontario Inc. operating as Zu Bar
Licensee
DECISION ON SANCTION
Panel: Jacqueline Castel, Board Member Bruce S. Miller, Board Member
Decision Date: March 31, 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 2088675 Ontario Inc., Licensee ) Pradeep Chand, Representative
Allegations
A hearing into Notice of Proposal number 16993 dated January 23, 2009 to suspend liquor licence number 200843 issued to 2088675 Ontario Inc. (the “Licensee”), operating as ZU BAR (the “establishment”), 4170 South Service Road, Burlington, Ontario, L7L 4X5, on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the Liquor Licence Act (“LLA”), was held on January 21, 2010 in the City of Toronto.
In its decision dated February 9, 2010 the Board found the Licensee violated subsection 45(1) of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Registrar’s Submissions
The liquor licence suspension should be in the range of 10 to 14 days.
The Licensee has a prior record which includes permitting drunkenness. The Licensee was charged by the Halton Regional Police Service in August 2008 which was just shortly before the September 26, 2008 infraction that is now before the Board. The Licensee has only held a liquor licence since December 2007 and therefore has had more than one incident of permitting drunkenness in the first year of operation.
The Licensee’s staff should have observed the male that Inspector MacDougall located as soon as she entered the premises. There was evidence that the number of customers was lower than usual and the failure of the Licensee’s staff to notice the drunken male indicates a “laxness” on the part of the Licensee’s staff that cannot be allowed to continue.
The Licensee’s security manual also raises concern. The manual is not focused on preventing patrons from becoming drunk in the premises but rather it is focused on what to do with patrons after they have already become drunk. The Licensee cannot continue to operate with the apparent attitude that the focus of training must be to deal with drunkenness after it has occurred.
There was no evidence that the Licensee has ever addressed the issue of preventing patrons from becoming drunk with any of his serving staff.
Licensee’s Submissions
In correspondence dated February 23, 2010 Mr. Chand stated that the Registrar’s counsel did not file written submissions on penalty until after the close of business on February 19, 2010 contrary to the Board’s direction to file them by February 16, 2010.
Given this tardiness in filing submissions, the Licensee submitted that the Board should disregard the submissions from Registrar’s counsel and should also bar Registrar’s counsel from submitting any reply submissions.
Ms Taylor responded on February 24, 2010 that Mr. Chand’s request should be dismissed as the Board is allowed to control its own process and may allow a party a small amount of extra time to make submissions after setting a deadline without consultation particularly when there is no prejudice to either party.
Mr. Chand replied on February 24, 2010 and stated Ms Taylor had not provided the Board with any explanation for her non-compliance. Natural justice is a two-way street and the Licensee is entitled to expect that the Board will follow the rules that have been put in place. Ms Taylor’s concerns about the deadline date and the lack of consultation should have been raised prior to the expiration of the deadline date.
Mr. Chand also tendered his submissions in the correspondence dated February 23, 2010 and stated the appropriate penalty would be a warning.
This was Zu Bar’s first offense of permitting drunkenness.
Zu Bar was only charged with one instance of permitting drunkenness.
There was no evidence that the patron was causing a disturbance or any other problem.
There was no evidence the patron was served any alcohol after he became intoxicated or that there was any alcohol on the table in front of him.
There was ample evidence that Zu Bar had procedures in place to prevent and detect intoxication including five doormen, a security team of 11 or 12 staff to work on the inside of the premises, procedures in place to refuse admission to intoxicated persons, a security manual and mandatory refresher training for staff every three months.
Mr. Chand referred to Ms Taylor’s discussion of the Licensee’s “prior record” as “highly improper” and “misleading”. The Licensee was never convicted of permitting drunkenness. The Licensee was charged in August 2008, but it was later withdrawn. The Board should disregard this “outrageous reference”.
Registrar’s Reply
The Licensee’s submissions demonstrate a lack of understanding of the serious nature of this infraction. The Licensee has characterized this infraction as minor. However it is a major infraction particularly as it can, and often does, lead to injury or a loss of life.
The Licensee does not have an excellent record of compliance.
The Licensee had only held a liquor licence for approximately 10 months prior to this infraction.
The Registrar takes serious issue with any implication that there have not been any problems at this establishment.
The Licensee needs to be sharply reminded that drunkenness is a serious offence.
The liquor licence suspension should be in the range of 10 to 14 days.