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-
Summit Place (Thorold) Limited operating as Summit Place (Thorold) Limited Licensee
DECISION ON Sanction
Panel: Jacqueline Castel, Board Member Beryl Ford, Board Member
Decision Date: January 21, 2010
Hearing Location: Niagara Falls, 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 ) Richard Kulis, Representative Summit Place (Thorold) Limited, Licensee ) Joseph Vargovic, Jr., On behalf of ) the Corporate Licensee
Allegations
1A hearing into Notice of Proposal (“NOP) number 17210 dated April 24, 2009 to suspend liquor licence number 91251 (the “Licence”), issued to Summit Place (Thorold) Limited (the “Licensee”), operating as SUMMIT PLACE (THOROLD) LIMITED, 4-8 Front Street South, Thorold, Ontario, L2V 1W9, (the “establishment” or the “premises”), on the basis of alleged violations of subsection 30(4) of the Liquor Licence Act (the “LLA” or the “Act”) and subsections 41(1) and 45(1) of Ontario Regulation 719/90 (the “”O.Reg.”) prescribed under the LLA, was held on November 4, 2009 in the City of Niagara Falls.
2In its decision dated December 3, 2009, the Board found the Licensee contravened subsection 30(4) of the LLA and subsections 41(1) and 45(1) of the O.Reg. The Board has received and reviewed submissions on sanction.
Submissions on Sanction
3Mr. Kulis submitted that a 14 day suspension is appropriate, in particular, as a specific deterrent, but also as a general deterrent. The violations were easily within the view of the Licensee and staff and were within their control. With respect to two drunken patrons, the Licensee intentionally did not intervene. The Licensee has offered no mitigating circumstances, but instead spuriously alleged misconduct on the part of the inspectors. The Licensee’s conduct during the hearing demonstrated a lack of regard for its responsibilities as a licence holder, a degree of recklessness with respect to the truth, and some contempt for the regulatory process.
4The Licensee submitted that the proposed 14 day suspension is extremely harsh, considering: the number of allegations the Registrar failed to prove; the Licensee has been in business since 1990 and has no other disciplinary record; and in this incident, the patrons were dealt with as soon as it became apparent to the Licensee and staff that they may be intoxicated.
5The Licensee has enacted some tough new rules: minors are not allowed on the premises without a parent present; when a minor is with a parent, no one at the table is allowed an alcoholic beverage; no minors are allowed in the premises after 8:00 p.m.; and all patrons who have been served elsewhere are no longer allowed service at the premises.
6The Licensee submitted that it showed no contempt for the regulatory process, but rather it was ignorant of the procedures at hearings because it has never appeared before the Board before.
7The Licensee submitted that the whole process has acted as a specific deterrent, given the new rules enacted and enforced by the Licensee and staff. The Licensee proposes a monetary penalty in the amount of $1,000 to $2,000 or a two to three day suspension.
Decision
8The Board considers the three violations in this case (permitting someone who appears under 19 to have or consume liquor; failure to check the identification of someone apparently under 19 before selling or serving him liquor; and permitting drunkenness on the part of four patrons) all to be very serious, particularly the contraventions involving persons under 19 years of age. Contrary to the Licensee’s assertion in submissions, the Board made findings on all of the allegations in the NOP. There were also no extenuating circumstances for any of the violations.
9The Board rejects the Licensee’s submission that the patrons were dealt with as soon as it became apparent to staff that they may be intoxicated. This was not borne out by the evidence at the hearing. The Licensee testified at the hearing that it called a cab for two of the intoxicated patrons (patrons #1 and 2), but the Board found no credible evidence substantiating same. Further, patrons #1 and 2 were still present when the inspectors left the establishment. There was no evidence whatsoever that the Licensee or its staff took any action with respect to the other two intoxicated patrons, one of whom was also a minor. All of the contraventions, in the circumstances of this case, should have been readily apparent to the Licensee and its staff, had they been acting diligently and responsibly, given their obligations under the Act. Indeed, the establishment was not busy on the night in question and the intoxicated patrons and underage patron were immediately apparent to the inspectors by their appearance and behavior.
10The above factors all warrant a significant suspension, from the standpoint of both specific and general deterrence. The two or three day suspension proposed by the Licensee would not be at all adequate in the circumstances of this case.
11The Board considered it mitigating and gave some weight to the fact that the Licensee has been in business for 19 years and this is the first time it has ever come before the Board. The Licensee’s compliance history, which is otherwise without blemish, however, does not warrant much leniency in this case, given the number of contraventions, one of which occurred on the part of four patrons (i.e., permitting drunkenness), the nature and seriousness of the contraventions, and the absence of any extenuating circumstances for the contraventions.
12The Board also considered, but did not give much weight to the new rules implemented by the Licensee, as described in paragraph 5 above. For one thing, no mention was made of this remedial action at the hearing. As such, the Board believes that the new rules were only implemented after the decision was issued in this case. Indeed, at the hearing, the Licensee seemed focused on directing attention towards the alleged inappropriate conduct of the inspectors (allegations the Board placed no weight on for reasons outlined in paragraph 131 of the decision), rather than taking responsibility for the Licensee’s actions on the night in question. Further, the Licensee did not provide any particulars on what, if any, procedures it has or would be implementing to ensure compliance with the new rules.
13It bears mentioning, given that the Licensee proposed a monetary penalty or fine, that the Board has no jurisdiction under the legislation to impose a monetary penalty. Only the Registrar has authority under the Alcohol and Gaming Regulation and Public Protection Act, 1996 to impose a monetary penalty, in accordance with a schedule created by the Board and guidelines approved by the Board. Moreover, monetary penalties are not included in the schedule for offenses involving minors (e.g., subsection 30(4) of the LLA and subsection 41(1) of the O.Reg.), which are considered to be very serious. In the circumstances of this case, the Registrar also properly determined that a monetary penalty would not be appropriate for the contravention of subsection 45(1), which involved four patrons and, in the case of at least two of the patrons, very pronounced signs of intoxication.
14Therefore, the Board FINDS that a twelve day suspension is appropriate, from the standpoint of specific and general deterrence.
Order
15The Board ORDERS that liquor licence number 91251, issued to Summit Place (Thorold) Limited, operating as SUMMIT PLACE (THOROLD) LIMITED, 4-8 Front Street South, Thorold, Ontario, L2V 1W9, be suspended for a period of twelve (12) days.
16The 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 21st DAY OF January , 2010
JACQUELINE CASTEL, BOARD MEMBER BERYL FORD, BOARD MEMBER