Registrar, Alcohol and Gaming Commission of Ontario v. 1340305 Ontario Limited, 2011 CanLII 19760

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-

1340305 Ontario Limited operating as All Star Tap & Grill House

Licensee

DECISION ON SANCTION

Panel: David C. Gavsie, Former Chair Beryl Ford, Board Member

Decision Date: March 2, 2011

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 ) Dan Alakas, Representative 1340305 Ontario Limited, Licensee ) Patrick Little, Representative

Allegations

1. A hearing into Notice of Proposal number 18186 dated July 5, 2010 to suspend liquor licence number 201510 (the “licence”) issued to 1340305 Ontario Limited (the “Licensee”) operating as ALL STAR TAP & GRILL HOUSE, 115 Highway 20 East, Fonthill, Ontario, L0S 1E0 (the “establishment” or the premises”), on the basis of alleged violations of subsection 30(4) of the Liquor Licence Act (the “LLA”) and subsection 41(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA was held on September 27, 2010 in the City of Niagara Falls.

2. In its decision dated January 11, 2011, the Board found the Licensee contravened subsection 30(4) of the LLA and subsection 41(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

3. Counsel for the Registrar emphasized the sale and service of beverage alcohol is a highly regulated industry in the Province of Ontario in order to protect the public interest and public safety.

4. It is the responsibility of the licence holder to ensure the prevention of underage consumption of alcohol does not occur in a licensed establishment.

5. The law requires the licence holder or designates to inspect the identification of a person who is “apparently” or “appears” under the age of 19 years.

6. This obligation exists whether or not the Licensee has actual knowledge of the patron’s age. At the very least, an apparently youthful patron ought to attract the scrutiny of the Licensee or the Licensee’s employees.

7. In this particular case, the underage patron (JH) was apparently underage by all accounts.

8. A witness who had been with the patron on previous occasions at the establishment testified that (JH) had been asked for identification on those occasions, although she had produced false identification.

9. The night of the incident was the first time that (JH) had not been asked to produce identification while in his company.

10. Another witness stated that although JH was 17 years old, she looked younger. In fact the employee who served her admitted under cross-examination that JH looked young, and had always doubted that she was of age.

11. Although the employee testified that JH had been asked for identification and produced it on the night in question, JH’s escort was adamant that she was not asked for identification.

12. Board found that the evidence of witnesses for the Registrar was more credible; in fact, the Board held that one witness for the Licensee was making up her testimony as she went along.

13. Based on the findings, the Registrar submitted that although the Licensee has no prior adverse record with the Commission, a suspension of the liquor licence for a period of twelve to fourteen days is appropriate to give effect to the obligations, responsibilities and requirements under the Act.

Licensee’s Submissions

14. The Licensee is an experienced operator of three licensed establishments and has never appeared before the AGCO prior to now.

15. The Licensee has strong policies for employees to follow and is active in the management of his licensed establishment.

16. The incident only came to light due to the unfortunate demise of a youth in a manner and at a location unconnected with the licensed premises.

17. An employee failed to follow an employer’s established policy.

18. The conduct of minors in actually seeking to undermine the system with false identification – which witnesses for both the Registrar and Licensee testified the youth had previously used at this establishment – cannot be overlooked as a contributing factor in lulling a server into an admitted error in establishment workplace procedure.

19. The Licensee submitted, under the circumstances, that an appropriate disposition of this matter is a suspension at the low end of the range to reflect the previously unblemished record of the Licensee, the failure to inspect the identification did not give rise to any other licence infraction or breach of the peace.

Registrar’s Reply Submissions

20. Counsel for the Registrar submitted that the fact that the Licensee has no prior disciplinary record and the principle of progressive discipline were already taken into account by the Deputy Registrar in assessing a 12 to 14 day suspension period as appropriate circumstances.

21. The Deputy Registrar is shocked by the fact that Counsel for Licensee would assert that the terrible circumstances under which this incident came to light should have any mitigating or positive reflection upon the Licensee. In fact, the opposite impact effect is more fitting.

22. The Deputy Registrar is again shocked that Counsel for the Licensee would attempt to raise a general societal issue of minors behaving poorly as some sort of defense for his client. False identification was not produced to the employee in this incident.

23. It is agreed that the employee failed to follow the employer’s policy.

24. Based on the aforementioned points, the Deputy Registrar maintains a suspension period in the range of 12 to 14 days is appropriate in these circumstances.

Decision on Sanction

25. The Board considers the contraventions in this incident to be extremely serious. In this case the server served a considerable amount of liquor over a period of more than two hours to a minor. The minor sat at the bar and consumed the alcohol in full view of the server.

26. Although the server testified that she had checked the identification of the minor that evening, it was obvious to the Board from testimony of a witness deemed more credible by the Board, that this was untrue.

27. The Board considered the submissions of Counsel for the Licensee that had there not been a tragic event involving the youth later that night after she left the establishment, this incident would not have come to light. The Board finds that statement in poor taste and insensitive to the circumstances.

28. The Board recognizes that the Licensee has not had any prior violations at any of his three licensed establishments that would have caused him to appear before the AGCO.

29. The Board also considered that the Licensee had established policies and practices for his staff. The Board, however, is of the opinion that the Licensee relied heavily on the ‘Smart Serve’ training and a signed pre-written document of expectations of staff.

30. It is obvious to the Board that although the Licensee truly cares about the rules and regulations of the LLA and the importance of compliance, it is necessary for the Licensee to assume a more pro-active role and be diligent in ensuring that his staff fully understand and comply with their responsibilities as employees in a licensed establishment.

31. The Licensee is ultimately responsible for all infractions that take place in any of his licensed premises. It is incumbent on the Licensee to ensure that all employees receive continuous updated training on a regular basis to understand the importance of total compliance with the LLA.

Order

32. For the reasons stated, the Board ORDERS that liquor licence number 201510, issued to 1340305 Ontario Limited operating as ALL STAR TAP & GRILL HOUSE, 115 Highway 20 East, Fonthill, Ontario, L0S 1E0 be suspended for TWELVE (12) consecutive days.

33. 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 MARCH , 2011.

DAVID C. GAVSIE, FORMER CHAIR BERYL FORD, BOARD MEMBER