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-
1605511 Ontario Inc. operating as The Drink
Licensee
DECISION ON SANCTION
Panel: David C. Gavsie, Chair, AGCO Alex McCauley, Board Member
Decision Date: May 19, 2010
Hearing Location: Ottawa, 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 1605511 Ontario Inc., Licensee ) Norman Boxall and Ian Carter, ) Representatives
Authorities
Crabby Joe’s Tap & Grill, [2009] O.A.G.C.D. No. 195 The Frosty Mug, [2004] O.A.G.C.D. No.84 501250 Ontario Inc. a/b/a Wally’s, court file no. 09-DC 1500, April 9, 2010
Allegations
A hearing into Notice of Proposal number 17214 dated May 19, 2009 to suspend for 14 days liquor licence number 200690, issued to 1605511 Ontario Inc. (the “Licensee”), operating as THE DRINK, 130 George Street, Ottawa, Ontario, K1N 5W4, (the “establishment” or the “premises”), on the basis of alleged violations of subsection 30(4) of the Liquor Licence Act (the “LLA”) and subsections 41(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg”), made pursuant to the LLA, was held on September 8, October 8 and December 21, 2009 in the City of Ottawa.
In its decision of March 10, 2010, as corrected on March 24, 2010, the Board found that the Licensee breached subsection 30(4) of the LLA and subsection 41(1) of the O.Reg.
Registrar’s Submissions
The Registrar is seeking a suspension of 10 to 14 days.
The doorman’s review of the identification of the minors was cursory. No investigative techniques described by the doorman was employed by him on the nights in question.
Once inside, the minors proceeded to a booth without any further review of identification. Some went to the service bar and were served without a request for identification. No staff monitored the booth with bottles on the table, except to serve more alcohol.
While these may be the first infractions for this corporate Licensee, the principals behind it, Todd Brown and Eugenia Roumeliotis, together or with others, hold a dominant position in the Ottawa Byward Market, owning 11 other establishments in this area. Of the 11, five have had recent infractions, while three only had been licensed for a year or less. Only three of the 11 have a continuing recent record of no infractions.
None of the infractions in other establishments relate to minors. While this is the first case involving minors, this is one of the most egregious cases involving minors to come before the Board, certainly in recent history.
Given the number of young people permitted to consume in this establishment, it is hard to find comparable Board decisions. In a 2009 decision of the Board in Crabby Joe’s Tap & Grill [2009] O.A.G.C.D. No 195, four minors were found to be drinking and were served liquor on one night, and the licensee failed to clear signs of service on another, the licensee admitted the infractions and agreed to a 14 day suspension. In the case of The Frosty Mug [2004] O.A.G.C.D. No. 84, three minors were found to be drinking and one was served on one night. The Board after a full hearing imposed a 10 day suspension.
In this case, numerous minors consumed liquor over two nights. The sanction should show other licensees in Ottawa the importance of not permitting minors to have and consume liquor in any licensed establishment.
Licensee’s Submissions
An appropriate penalty would be a three day suspension.
The Registrar sought a suspension of 14 days in the NOP, but the Board failed to make a finding of a violation of subsection 45(1) of the O.Reg.
The following reasons show that a three day suspension would be appropriate:
i) the Board declined to make a finding that the Licensee had permitted violent conduct to occur, the most serious of the allegations;
ii) the evidence showed the Licensee had a system in place to ensure no minors entered the establishment. The violations were the result of employee error;
iii) the establishment has had its Licence for five years with no prior infractions; and
iv) there have been a number of spot inspections since May 2008 and no problems were reported.
Permitting a “vicious assault” as alleged in the NOP is far more egregious than inadvertently permitting minors to consume alcohol in the establishment, particularly when the minors are purposely deceiving staff by showing valid identification belonging to someone else.
The Board heard extensive evidence from Messrs. Brown and Gorry with respect to the measures put in place to ensure minors were not permitted entry to the establishment. A licensee who puts these steps in place is less morally culpable than one who does not. While the Licensee accepts responsibility for the actions of staff the sanction should reflect the fact of reduced culpability.
It is the infractions of The Drink that are before the Board. It has had no previous infractions in five years of operation. The past record of other establishments is irrelevant.
Even if the past record of the principal behind the corporate licensee had some limited relevance, none of the other infractions involved minors.
The establishment is located in Ottawa’s Byward Market. This area has received increased attention from enforcement officers as a result of “risk-based enforcement as covered in an article in the Ottawa Citizen. Increased attention inevitably results in a greater number of infractions. None of Mr. Brown’s establishments made the list of the top 25 establishments in Ottawa and area with regard to infractions under the LLA, per another article in the Ottawa Citizen.
There have been no further infractions at The Drink since the summer of 2008 when the violation in this case occurred. Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector Godard conducted spot inspections at The Drink on August 30, September 13 and November 8, 2008 and on March 27 and April 6, 2009 without finding any infractions.
Registrar’s Reply Submissions
The Licensee submitted no precedent for its position that a three day suspension is appropriate for allowing six minors to consume liquor in its establishment.
The Divisional Court has very recently upheld a seven day suspension for permitting one minor to consume where that licensee had never had a problem with minors before – 501250 Ontario Inc. a/b/a Wally’s, court file no. 09-DC-1500, decision dated April 9, 2010.
The Registrar disagrees with the Licensee’s submission that the most serious infraction was not proven. The Registrar did not allege that the Licensee deliberately permitted the assault to take place. There was no allegation of involvement of Licensee’s staff in the assault. The Licensee’s staff ought to have known of the fight between the minors they ought to haven taken steps to prevent it, and they ought to have assisted the female who was injured.
The Licensee’s staff were far more involved in the infractions of permitting numerous minors to have and consume liquor, and serving minors without requesting proper identification. These infractions were much more predictable. The Registrar’s position is that these were the most serious infractions alleged.
The Licensee’s attempts to downplay the serious nature of what happened puts into question whether it is taking these infractions seriously. The Licensee attempts to disassociate itself from the actions of its staff, particularly the door person. It has also failed to put forward any steps it has taken to correct the procedures that failed on the two nights in question.
Reasons for Decision
The Board has reviewed the submissions of the parties.
The articles in the Ottawa Citizen were not placed into evidence. As the result of that, the Board gives no value to them in dealing with the appropriate sanction in this matter.
As a general comment, the Board disagrees with Licensee’s submission that permitting a “vicious assault” is far more egregious than permitting a person under 19 to have or consume liquor and not inspecting identification before liquor is sold to a person under 19. The Licensee is using that submission to support its position that a three day suspension is appropriate.
The evidence established multiple violations of subsection 30(4) of the LLA and subsection 41(1) of the O.Reg on two nights – May 24/25 and August 16, 2008. The former was particularly serious because young people under 19 were left alone at a booth with multiple bottles of vodka on a table, and able to free pour drinks. No staff was seen at the table except to inquire whether more drinks or bottles of liquor were required.
Further, when members of the group at the VIP table went to the service bar, they were served what they ordered without being asked to produce identification.
K.K was served a drink on the patio on August 16, 2008 when she was 16 years old, and accompanied by a friend H.C. who was then 17 years old. Neither was asked for identification.
The Licensee’s evidence at the hearing made it clear that it has a policy whereby patrons have to be over 21 years of age. In light of that, it is very difficult to fathom how on the two nights in question, minors, some as young as 16, were admitted to the premises.
The doorman on duty at the front door both nights has good experience in the security field and in acting as a doorman at the door of the licensed establishment. He uses other tricks of the trade, so to speak, to verify a person’s identification. However, on the nights in question he permitted several 16 and 17 year olds to enter with only a cursory glance at their identification pieces, and on one of the nights, two different females entering in a group used the same piece of identification.
In the Licensee’s favour, the Board notes that subsequent spot inspections by the AGCO resulted in no issues at the establishment.
The Board also notes that no infractions were found at the establishment for five years prior to the night of May 24/25, 2008.
While the Board notes that the Registrar’s representative pointed out the principals of the corporate Licensee have interests in other licensees in the Ottawa area that have had suspensions, none of those violations had to do with minors or the provisions of the LLA or O.Reg which were breached in the present case. Further, the full circumstances of the breaches leading to the other suspensions were not before the Board and the parties could not properly question those matters.
A sanction must have both a general and specific deterrence effect. In this case, the message regarding general deterrence is that the Board regards breaches of subsection 30(4) of the LLA and subsection 41(1) of the O.Reg as serious. The legislation and regulations have specific rules regarding persons under 19 years of age, and licensees are expected to ensure those rules are adhered to.
Regarding specific deterence, the Board heard no evidence nor received any submissions that the Licensee will do anything different from what it is now doing regarding seeking proper identification of patrons at the door and before serving alcohol to them. Perhaps a more vigorous approach to current policies is a start in this direction.
In the circumstances, and as a matter of general and specific deterrence, the Board is of the opinion that a suspension of seven (7) consecutive days is appropriate.
Order
Therefore, the Board ORDERS that liquor licence number 200690 issued to 1605511 Ontario Inc. operating as THE DRINK, 130 George Street, Ottawa, Ontario, K1N 5W4, be suspended for SEVEN (7) consecutive days.
The 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 19th DAY OF MAY , 2010
DAVID C. GAVSIE, CHAIR, AGCO ALEX MCCAULEY, BOARD MEMBER