Registrar, Alcohol and Gaming Commission of Ontario v. 1647874 Ontario Inc., 2010 CanLII 36767

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-

1647874 Ontario Inc. operating as Corner Pocket (Licensee)

DECISION ON SANCTION

Panel: David C. Gavsie, Chair, AGCO Bruce S. Miller, Board Member

Decision Date: May 28, 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 1647874 Ontario Inc, Licensee: Joseph Saraco, On his own behalf and on behalf of the Corporate Licensee

Allegations

1A hearing into Notice of Proposal number 17515 dated September 4, 2009 to suspend liquor licence number 0806683 issued to 1647874 Ontario Inc. (the “Licensee”), operating as CORNER POCKET, 45 Prince Street, Oshawa, Ontario, L1G 4C9 (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 March 16, 2010 in the City of Toronto.

2In its decision dated April 12, 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

3This is not the Licensee’s first infraction nor is it the first time the Licensee has been sanctioned for permitting drunkenness. The Licensee breached section 29 of the LLA in December 2008 by serving an apparently intoxicated patron and by permitting two drunken patrons in the establishment. The Licensee paid a $1,000 monetary fine for permitting drunkenness and agreed to a three day suspension for serving liquor to an intoxicated person. The Licensee has been licensed since March 2005.

4It is the Registrar’s position that this incident is towards the more serious end of the spectrum within the range of permitting drunkenness. The patron in question, M.A., was intoxicated to the point where he fell into the roadway and was unable to stand without assistance. He was so grossly intoxicated that he was unable to care for himself. The police officers chose to arrest M.A. rather than leave him in the care of another person who was with him and who was not intoxicated.

5There was also no evidence of any staff training since this incident or any initiatives taken by the Licensee to try to ensure further infractions will not take place.

6It is the Registrar’s position that a seven (7) day suspension would be appropriate as a matter of both specific and general deterrence.

Licensee’s Submissions

7In his submissions, Mr. Saraco stated he had owned the Corner Pocket for the past five years. Two and a half years ago, a city councilor complained to him that she had been accosted by one of his patrons in the parking lot. Since that date there has been constant police harassment to the point where it is almost impossible for him to make a living.

8Police are constantly coming in and out of the bar. They park their cruisers in front of the bar. They are constantly harassing staff and patrons. He complained to the police and was told to clean up or they will close him down.

9On the date in question, M.A. and a female came into his bar and had a few drinks and then called a cab to go home. M.A. walked outside and fell in front of the police cruiser. Mr. Saraco stated he would be afraid if a car came on the sidewalk in front of him.

10PC Zebrak testified that M.A. understood everything that the officer told him. So how drunk was M.A. if he understood everything?

11Mr. Saraco would summons M.A. if he could appeal this matter. The Board would see what M.A. looks like and how he talks. M.A. slurs his words when he is sober and he definitely has a limp. There are always three truths to a story, our truth, the police truth as they see it and the real truth.

12Corner Pocket sends all of its employees to the Durham Region Safer Bar Coalition for training three to four times a year.

13Corner Pocket wants to run a safe environment for its patrons. There are regular meetings with staff to discuss all aspects of serving alcohol and other matters. The Licensee and staff do care and are responsible servers.

Registrar’s Reply

14It is unfortunate that the Licensee feels he is being singled out by the Durham Regional Police Service. The Licensee must understand that police officers and liquor inspectors are entitled to inspect his establishment at any time and, if there are problems, they are likely to make more frequent inspections.

15The Licensee and his staff still do not have a proper understanding of their responsibility to ensure that patrons do not become drunk in the establishment. Mr. Saraco is still attempting to find excuses for M.A.’s conduct and challenges whether M.A. was indeed drunk.

16It is the Registrar’s position that it is not appropriate to blame the police for what took place. It is the Licensee’s responsibility to ensure patrons do not drink alcohol to the point where they cannot care for themselves. And while it may be good to send staff to the Durham Region Safer Bar Coalition for training there was no information as to what type of training was provided and whether Mr. Saraco attended or not. There was also no evidence of any attempt to provide additional training following this incident.

17It remains the Registrar’s position that a seven (7) day suspension would be appropriate as a matter of both specific and general deterrence.

Analysis/Reasons/Findings

18The Board has carefully considered all the evidence and the submissions presented. The Board, in its decision of April 12, 2010 found the Licensee permitted drunkenness contrary to subsection 45(1) of the O.Reg. The Board believes that a five (5) day suspension in this case is appropriate as a matter of both specific and general deterrence.

19The Board agrees with Ms Taylor that it is unfortunate that the Licensee feels he is being singled out for special treatment by members of the Durham Regional Police Service. Police officers and AGCO inspectors have a legislated role to ensure that Licensees are in compliance with the law. There are venues for Licensees to address concerns if they feel they are being treated unfairly.

20The Board has already issued its decision on its findings in this matter. The Board considers violations of this nature to be serious. It was clear that the patron in question, M.A., was very intoxicated. He fell into the roadway and was unable to stand without assistance. PC Zebrak was so concerned about M.A.’s safety that he arrested him for being intoxicated in a public place rather than sending M.A. home in the care of a friend who was not intoxicated.

21The high level of M.A.’s state of intoxication is clearly an aggravating factor. This is coupled with the fact that the Licensee acknowledged that M.A. had been in the premises for three to four hours. The Board also notes the bartender saw M.A. stumble and fall down however she stated she was too busy to go out and check on his welfare. It seems inconceivable that staff would not go out and check on a patron’s welfare unless they knew the patron was intoxicated.

22The Board is also concerned that this is not a first offence and that there was a previous breach for permitting drunkenness in 2008. The Board took into account the concept of progressive discipline.

23The Board acknowledges that the Licensee has taken some additional steps with regards to training. The Board would urge the Licensee to examine this incident and the operation of his licenced premises to ensure that any needed additional training or operational changes are put in place immediately. Any further similar breaches could result in a more serious sanction.

Order

24The Board orders that liquor licence number 0806683 issued to 1647874 Ontario Inc., operating as CORNER POCKET, 45 Prince Street, Oshawa, Ontario, L1G 4C9, be suspended for a period of five (5) consecutive days.

25The 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.