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-
6477291 Canada Inc. operating as Hooley’s Restaurant
Licensee
DECISION ON Sanction
Panel: Alex McCauley, Board Member
Bruce S. Miller Board Member
Decision Date: November 2, 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
6477291 Canada Inc., Licensee ) Dale Hill, On behalf of the Licensee
Authorities
6477291 Canada Inc. (Hooley's Restaurant) (Re), 2007 CanLII 47125 (ON A.G.C.)
6477291 Canada Inc. (Hooley's Restaurant) (Re), 2007 CanLII 58231 (ON A.G.C.)
6477291 Canada Inc. v. Alcohol and Gaming Commission of Ontario, 2009 ONCA 711
Allegations
A hearing into Notice of Proposal number 16733 dated October 20, 2008 to suspend liquor licence number 20638 issued to 6477291 Canada Inc. (the “Licensee”), operating as HOOLEY’S RESTAURANT, 292 Elgin Street, Ottawa, Ontario, K2P 1M3 (the “premises” or the “establishment”), 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 June 10, 2009 and October 13, 2009 in the City of Ottawa.
In its decision dated December 11, 2009, 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.
Two post-hearing motions were filed by the Licensee after the submissions on sanction were received by the Board but prior to the Board releasing its decision on sanction. The Board heard the motion for disclosure on August 31, 2010 and the motion to re-open the hearing on September 7, 2010, both in the City of Ottawa. The Board DISMISSED both motions.
Registrar’s Submission
The liquor licence suspension should be in the range of 18 to 21 days.
The Licensee has a prior record which includes permitting drunkenness. This resulted from a Notice of Proposal for infractions that took place between October 2006 and March 2007. The current infraction took place on March 31, 2008 – just over a year after the last incident of permitting drunkenness and five months after the Board’s decision which imposed a 21 day suspension.
The Licensee appealed the Board’s previous decision which was eventually dealt with by the Ontario Court of Appeal which restored three of the five infractions that the Divisional Court had struck down, and imposed instead a 14 day suspension. The final result was that the Licensee was found to have permitted drunkenness on five occasions, promoted the immoderate consumption of liquor on one date and served liquor to an intoxicated patron on one occasion. Ms Taylor submitted a copy of the Board’s decision and the decision of the Ontario Court of Appeal.
The current matter is a further example of the laxity of the Licensee towards drunken patrons.
The evidence showed that Mr. Kelly-Mor interacted with at least two staff members, responsible for refusing to admit drunken patrons, prior to being allowed in the premises.
Unlike the previous matter, the Licensee did not provide any evidence of disciplinary action with regard to the involved staff nor offer any evidence on training to deal with this recurring problem.
The Board had stated in their prior decision that they wanted to “instill in the management that because a liquor licence has been issued it does not mean that the regulations can be ignored after the fact”. The Licensee clearly did not take the necessary steps to prevent these types of infractions and a significant period of suspension should be imposed.
Licensee’s Submission
The Licensee sent in submissions prior to the Registrar’s submissions being received. As a result the Board permitted the Licensee to submit a follow up set of submissions in reply to those of the Registrar. The Licensee raised the following points in the first set of submissions dated December 18, 2009:
The business is a maritime pub with approximately 90% of its revenue coming from the sale of alcohol and the business would be unable to function without this component.
Any closure would be devastating in the current economic climate.
There are 40 employees who rely on their income from tips. A closure would result in tremendous hardship for them.
Mr. Hill submitted 15 letters from staff members which outlined the economic impact that a licence suspension would have on them.
The Licensee delivered “superior” training to their staff. The Licensee enlisted the assistance of the Ottawa Police Service and the Alcohol and Gaming Commission of Ontario (“AGCO”), before and after this incident, to provide further training.
Any action against the Licensee is very punitive when the Registrar has the tools to punish the individuals who committed the infraction. The Registrar chose not to do this and as a result the suspension should be for a shorter period of time.
The Registrar also has the power to ask for a monetary penalty. The Registrar chose not to do so and this should be considered when assessing the penalty.
It should be noted that the patron involved was not served any alcohol and that nobody was harmed.
The Licensee’s staff acted responsibly when they were made aware of the situation and provided the individual with cab fare to go home.
The Board made a decision to choose the evidence of the AGCO inspectors over that of the Licensee’s witnesses. The Board was unaware that Inspector Rowntree was disciplined by the AGCO for making a false allegation about a senior police officer in order to further a prosecution. This information should have been made available to the Licensee as part of the disclosure.
There was also a complaint against Inspector Lambert. This is based on information that came into the Licensee’s hands shortly before the second day of the hearing. The Licensee did not recall Inspector Lambert to testify as it needed to do its own investigation.
Mr. Hill submitted the following:
A copy of an email from Dr. Binny Kuriakose to Dale Hill dated December 18, 2009. The email contains email correspondence between Dr. Binny Kuriakose and an individual identified as an Ottawa Police Staff Sergeant who was critical of Inspector Rowntree’s conduct.
A copy of correspondence from the Chief Executive Officer of the AGCO addressed to Dr. Binny Kuriakose, dated November 20, 2009. The letter was in response to a complaint made by Dr. Kuriakose about Inspector Rowntree which was made on February 4, 2009. The letter also referenced a second complaint made on October 20, 2009.
An undated and unsigned letter to the AGCO from “T.A.”, who purported to own 5 % of Hooley’s Restaurant, complaining of the conduct of Inspector Lambert with regards to his actions at another licensed premises.
An undated handwritten letter from T.A. addressed to “whom this may concern” complaining about the conduct of Inspector Lambert.
An email from Dr. Binny Kuriakose to Dale Hill dated December 18, 2009 which includes a copy of an email from the Chair of the AGCO to T.A. acknowledging the receipt of the complaint and notifying T.A. the matter will be investigated.
The Licensee has been infraction free since the incident in question despite multiple inspections.
A licence suspension is not warranted considering the infraction. The time and money spent is punishment enough.
The Licensee would consider accepting a 1 to 3 day suspension.
The Board is not necessarily bound by precedent.
The establishment has no history of violence and is not a problem location.
The Board should visit Hooley’s to see what type of place it is.
The second set of submissions dated January 11, 2010 contained the following submissions from Mr. Hill:
Hooley’s has been open for four years.
I accept full responsibility for the actions of my employees.
The prior infractions occurred during the first year of operation.
I was a first time Licensee.
The prior violations were not brought to our attention until after a number of them had already occurred. As a result Hooley’s was never given the opportunity to address the issues after the first infraction.
I appealed the Board’s decision on the prior violations to the Ontario Divisional Court which reversed many of the Board’s original findings and reduced the suspension to a week. The Registrar appealed that decision and Hooley’s was asked to prepare for yet another court case. We were forced to have a lawyer stand in for us at the hearing but he did not make any arguments because we could not pay him. As a result the Court of Appeal reversed the Divisional Court’s decision and ordered a two week suspension.
The Registrar has unlimited tax dollars from Ontario to fund its prosecutions and knows that it can use this power to force submission – which it did.
Ms Taylor suggested that the Licensee had not taken appropriate steps after the first infraction to properly train staff. There have been a number of staff training programs since then, some of which involved the AGCO and the Ottawa Police Service.
There has been only one infraction in the last three years.
Hooley’s is a very busy place with 2,000 persons passing through the doors every week.
No suspension is warranted.
Registrar’s Reply
The fact that the Registrar has the ability to impose a monetary penalty and chose not to do so, where the Licensee already has a significant suspension record, is no reason for the Board to refuse to impose a suspension.
The Registrar’s jurisdiction under the LLA is over those who have applied for or who hold liquor licences. The fact that provincial charges were not laid against those over whom the Registrar has no jurisdiction is completely irrelevant.
The letters from the employees should not be considered by the Board in determining the appropriate sanction. It is up to the Licensee to determine whether employees should be paid during any suspension. The Board is required to exercise its powers in the public interest. Furthermore none of the employees gave evidence at the hearing.
The Licensee’s attack on the Court of Appeal is inappropriate. The Court of Appeal reversed the Divisional Court’s errors of law and whether the Licensee chose to pay counsel is completely irrelevant.
There was no evidence of any training session after May 31, 2008. It would be an error in law for the Board to consider unsworn assertions.
The Licensee, through its submissions on sanctions, is attempting to slander the inspectors in a manner where they are left unable to defend themselves. The Registrar cannot cross-examine on any of these matters.
Nothing in the allegations has anything to do with Hooley’s.
None of the allegations were brought up at the hearing.
There was no application by the Licensee to re-open the hearing (at the time of the Registrar’s Reply) to have any of this new evidence properly tendered by the Board. However, if there had been an application it would have been vigorously opposed as none of this had any bearing on what occurred at Hooley’s on May 31, 2008.
There was no notice given to the Registrar as per the Board’s Rule of Conduct (AGCO Revised Rules of Practice, Rule 13) that the character and conduct of the inspectors would be an issue.
This is an attempt to discredit the inspectors in a manner which avoids anyone being subjected to a credibility test.
There is no evidence that the Ottawa Police Staff Sergeant gave any authorization to use the email as part of the submissions to the Board. Furthermore the Ottawa Police Staff Sergeant was not called to give evidence on what essentially is a case of hurt feelings.
The complaint from T.A. should also be disregarded. T.A. did not give evidence and the allegation has nothing to do with this matter and in fact deals with another establishment.
There are no allegations with respect to Hooley’s.
This is a collateral attack of the lowest order and should be considered by the Board in support of a longer suspension.
A licence suspension is for the Board to impose and should not be determined by what the Licensee is “willing to accept”. This is a further indication that Mr. Hill and his partners do not accept the Registrar’s and the Board’s authority.
The liquor licence suspension should be in the range of 18 to 21 days.
Analysis/Reasons/Findings
The Board received additional late submissions on sanction from Mr. Greenspon. The Board will not accept these submissions on sanction as the Decision on Findings was issued in December 2009. Submissions were requested and received shortly after that time. Mr. Greenspon gave no explanation for the proposed additional submissions. In any event the additional proposed submissions would not be material to the Board’s decision on sanction.
The Board finds that a 5 day suspension is appropriate, in the circumstances of this case, for the following reasons.
The Board is sympathetic to the challenges posed by the current economic environment. However, a suspension at any time has financial ramifications for a licensee, which is part and parcel of the deterrent effect.
The Board takes a number of factors into consideration when making a decision on sanction. These include, but are not limited to, such things as the public interest, the seriousness of the offence, prior history and community safety. The Board also considers submissions made by the Licensee and the Registrar. However, the Board does not consider what the Licensee is “willing” to accept as a penalty. The Board does consider suggestions or recommendations on penalty from the Licensee as it does from the Registrar.
The intoxicated patron in question interacted with at least two of the Licensee’s security staff prior to being allowed entry into the premises.
Mr. Hill pointed out that the male in question was never served while he was on the premises. This is true as the inspector intervened before the male had an opportunity to order. The Board also took into account that the patron was in the premises for a very short period of time.
The Board accepts that additional training and measures were put in place as a result of the incidents that occurred between October 2006 and March 2007. The Licensee referred to additional steps that had been taken since the May 31, 2008 incident and these need to be continually assessed by the Licensee to ensure that they are effective.
The Board has taken into account that the Licensee has a prior suspension for 14 days for incidents that occurred on several different dates between October 2006 and March 2007. There was a finding that the Licensee permitted drunkenness on five occasions, promoted the immoderate consumption of liquor on one date and served liquor to an intoxicated person on one occasion. The Board agrees with the principle of progressive discipline and has taken this into account along with the fact that the finding in this matter was for only one infraction.
The Licensee stated in submissions that the Licensee took full responsibility for the actions of his employees. In fact, in its first set of submissions, the Licensee suggests that no penalty be imposed but that the Licensee would “consider” accepting a 1 to 3 day suspension.
The Licensee also questioned the credibility of the inspectors in his submissions. The material submitted was cursory at best. The Licensee admitted that some of the information was available during the hearing but the Licensee chose not to pursue it. The Licensee later submitted a motion for disclosure and a motion to re-open the hearing following the Board’s Decision on Findings. The two motions were dismissed by the Board.
The Licensee was also critical of the role of the Registrar. The Licensee pointed to their own staff members who were involved and stated that the rest of the staff would be victimized by the actions of only a few. Finally, the Licensee questioned the role of the Ontario Court of Appeal.
The Board is in strong agreement with the Licensee’s submission that the ultimate responsibility is borne by the Licensee. The Licensee needs to be proactive to prevent further violations. The Licensee needs to regularly re-examine training, staffing, policies and procedures to ensure they are adequate.
Order
Therefore, the Board ORDERS that liquor licence number 20638 issued to 6477291 Canada Inc., operating as Hooley’s Restaurant, 292 Elgin Street, Ottawa, Ontario, K2P 1M3, Ontario, be SUSPENDED for a period of FIVE (5) 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 2nd DAY OF November , 2010
ALEX MCCAULEY, BOARD MEMBER BRUCE S. MILLER, BOARD MEMBER