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-
Rockwood Nightclub Inc., operating as Rockwood/Grass Licensee
DECISION ON SANCTION
Panel: Jacqueline Castel, Board Member Allan Higdon, Board Member
Decision Date: December 20, 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 ) Rena Khan, Representative Rockwood Nightclub Inc., Licensee ) Nicholas Macos, Representative
Allegations
1. A hearing into Notice of Proposal (“NOP”) number 18113, dated June 4, 2010 to suspend liquor licence number 805164 (the “licence”) issued to Rockwood Nightclub Inc. (the “Licensee”), operating as Rockwood/Grass (the “establishment” or the “premises”), 31 Mercer Street, Toronto, on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg.”), prescribed under the Liquor Licence Act (the “LLA”), was held in the City of Toronto on September 21, 2010.
2. The Board found, in its decision dated October 29, 2010, that the Licensee contravened subsection 45(1) of the O.Reg. The parties were invited to provide written submissions on sanction within specified time frames. Those submissions were received and reviewed.
Registrar’s Submissions on Sanction
3. There are a number of aggravating factors in this case. First, the patron was exhibiting extreme signs of intoxication and would have been exhibiting such signs for some period of time, given the degree of intoxication.
4. Second, the Licensee and staff did not take reasonable steps to effect the safe departure of the intoxicated patron from the establishment once it had been detected.
5. Third, the Licensee, which has been in business since 2006, has a recent history of violations. On December 30, 2009, the Board ordered the suspension of the liquor licence, based on agreement between the parties, for 21 days for permitting drunkenness on two separate occasions. On December 17, 2009, the Board ordered a suspension of the liquor licence for 14 days, again for permitting drunkenness in the licensed premises. In addition, on December 30, 2008, the licence was suspended for 18 days, based on an agreement between the parties, for various contraventions of the LLA and the O.Reg., including permitting drunkenness.
6. A 30 day suspension would therefore be appropriate, as a matter of general and specific deterrence.
Licensee’s Submissions on Sanction
7. The patron was in the process of leaving when intercepted by the inspectors.
8. The Licensee has policies and procedures in place for the determination of intoxicated patrons and their removal.
9. Police officers on the scene did not notice that the patron was intoxicated.
10. The order of the Board, respecting a suspension to be served March 3, 2010 to March 17, 2010, is being appealed to the Divisional Court.
11. In these circumstances, the sanction should be a monetary penalty or a suspension of three days or less.
12. The submissions of the Registrar’s counsel were late.
Registrar’s Reply Submissions
13. The Licensee did not adduce evidence at the hearing about its policies and procedures.
14. The Registrar’s submissions on sanction were timely.
Decision on Sanction
15. The Board considers contraventions of subsection 45(1) to be serious, and in this case, the Licensee has served three suspensions in the last three years for, among other things, contraventions of subsection 45(1). As such, this is not an isolated contravention by an otherwise compliant licensee. There is a recent and serious pattern of non-compliance for the same contravention by this Licensee. Further, it would appear that the suspensions served to date have not had the desired deterrent effect on the Licensee.
16. In submissions, the Licensee’s representative made reference to compliance procedures for determining intoxicated patrons and ensuring their removal. However, no evidence of these procedures was introduced at the hearing. Nor did the Licensee’s representative submit these procedures or describe their particulars in submissions on sanction. Furthermore, if the Licensee’s procedures for ensuring the removal of intoxicated patrons involve handing over responsibility for escorting intoxicated patrons out of the premises to promoters or patrons, as occurred in this case, then the procedures are lacking.
17. The Licensee also did not introduce any evidence of remedial action implemented after this case to suggest that it has learned from its mistakes. Indeed, the Licensee gave no indication at the hearing or through its representative in submissions that it understands what it did wrong.
18. It appears that the Registrar’s submissions were received by the Licensee’s representative on November 12, 2010, which would be three days late, although the Board received the submissions on time. Regardless, the Licensee was in no way prejudiced by this short delay.
19. The Board does not have the authority under the legislation to impose a monetary penalty. Only the Registrar may impose a monetary penalty, and normally monetary penalties are only imposed by the Registrar for minor contraventions, where a Licensee does not have a non-compliance history.
20. Given the Licensee’s recent and serious history of non-compliance, including non compliance with subsection 45(1), and the absence of any evidence of remedial measures, the proposed three day suspension would be inadequate. Instead, for the above reasons, in the circumstances of this case, a significant and progressive sanction is necessary, from the standpoint of both specific and general deterrence.
Order
21. Therefore, the Board ORDERS that liquor licence number 805164 issued to Rockwood Nightclub Inc., operating as ROCKWOOD/GRASS, 31 Mercer Street, Toronto, Ontario, be suspended for a period of twenty-one (21) days.
22. The 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 20th DAY OF DECEMBER, 2010
JACQUELINE CASTEL, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER