Registrar, Alcohol and Gaming Commission of Ontario v. 1634811 Ontario Inc., 2011 CanLII 31532

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-

1634811 Ontario Inc., operating as Boston Pizza Sudbury

Licensee

DECISION ON SANCTION

Panel: Bruce S. Miller, Board Member Allan Higdon, Board Member

Decision Date: April 19, 2011

Hearing Location: Sudbury, 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 ) Phillip Morris, Representative 1634811 Ontario Inc., Licensee ) Gordon Conley, Representative

Allegations

1. A hearing into Notice of Proposal number 17851 dated February 9, 2010 to suspend liquor licence number 811598 (the “licence”) issued to 1634811 Ontario Inc. (the “Licensee”), operating as BOSTON PIZZA SUDBURY, 120 Donna Drive, Sudbury, Ontario, P3B 4K6, (the “establishment” or the “premises”), on the basis of alleged violations of section 29 of the Liquor Licence Act (the “LLA”) and section 25 and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg.”) made pursuant to the LLA, was held on October 21, 2010 in the City of Sudbury.

2. In its decision dated February 22, 2011 the Board found the Licensee contravened subsection 45(1) and section 25 of O.Reg 719/90 under the LLA in that it permitted drunkenness to occur on the premises and liquor to be sold and served outside prescribed hours.

3. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Registrar’s Submissions

4. The Registrar reviewed the events of the evening of October 18, 2009 and highlighted aggravating factors in considering sanctions. First, a person of Ms Shebeski’s size, sex and age would not be able to drive after having been served a 32 oz of beer at 1:30 a.m. No staff member inquired how she was getting home. This constituted reckless over-service. In addition, no staff member attempted to assess her condition. Finally, given the woman’s state of intoxication, it is clear the Licensee’s irresponsibility could have lead to the death of the woman and other innocent drivers.

5. In addition, the Board found that the woman was served after hours.

6. The Registrar is seeking a suspension of 30 days.

Licensee’s Submissions

7. The Licensee had policies in place to provide for the responsible service of alcohol. Regrettably, the sole employee in charge that night ignored the policies and training she had received and was terminated. The Licensee did admit to the charge of service after hours.

8. In this case, the Licensee has no previous suspensions. There was no unruly or violent behaviour. The Licensee made all reasonable efforts to ensure compliance and sincerely regrets what happened in this incident.

9. Given the lack of previous infractions and the regrettable behaviour of a sole employee a sanction of three to seven days or a fine would be appropriate.

Registrar’s Reply

10. It is not a mitigating factor to say a Licensee has policies. No explanation was given as to why two significant breaches of the LLA occurred.

11. Other decisions on issues related to this incident did not involve drunken patrons driving away from the establishment. The penalty suggested by the Licensee would amount to minimal deterrence and do not reflect the gravity of this case.

Decision on Sanction

12. The sale of liquor outside prescribed hours indicates a marked lack of competent training by management. The permitted hours of service should be part of the fundamental knowledge base of any licensee and staff. It is deeply troubling that a corporate entity such as Boston Pizza did not comply with one of the basic rules of responsible alcohol service.

13. However, the after hours service infraction pales in comparison to the breach of subsection 45(1) of O.Reg 719/90 of the LLA.

14. A petite woman, aged 20, weighing between 105-108 lbs entered the premises alone just after 1:00 a.m. and was served a 32 oz schooner of beer. There was no interaction between her and staff except to order and pay for the beer. She was served no food or water. No staff member spoke to her to assess her condition or offer a cab ride home.

15. In addition to the schooner of beer, evidence indicated she also drank a 12 oz glass of beer bought for her by another patron. The evidence of alcohol toxicologists indicates her blood alcohol level on leaving the premises would have been between 240-260 mg per 100 ml of blood, three times the legal limit for impairment. The signs of impairment would have been clear and distinct yet no staff member observed them.

16. The woman left the premises in an obvious state of intoxication and proceeded to drive her car. Evidence indicated her driving was dangerously erratic as she drove for a portion on the wrong side of the road, ignored a police cruiser that tried to stop her with the siren on and lights flashing, and was found to have a distinct odour of alcohol on her breath.

17. Tests conducted at the police station showed the woman had a blood alcohol count of 230 mg per 100 ml of blood just after 5:00 a.m., a level three times above the legal limit for an impaired driving conviction.

18. The evidence clearly indicates the woman was grossly intoxicated when she left the licensed premises. Yet she was not challenged by staff and no provision was made to ensure her safety or that of the public.

19. The Board considers the behaviour of the Licensee in this incident to be negligent and irresponsible. It is only through good fortune that the woman did not kill herself or some entirely innocent motorist who had the misfortune to encounter her on the road. It is clear the Licensee and staff did not live up to the obligation required by the LLA to ensure the responsible sale and service of alcohol.

20. The Board does consider the previous exemplary record of the Licensee to be a mitigating factor. The Board is also aware a sole employee was involved in this incident and her employment was terminated. There is no evidence of a systemic lack of responsible conduct by the Licensee and other employees over time.

Order

21. Therefore, as a matter of specific deterrence the Board ORDERS that liquor licence number 811598 issued to 1634811 Ontario Inc. operating as BOSTON PIZZA SUDBURY, 120 Donna Drive, Sudbury, Ontario, P3B 4K6, be suspended for FIFTEEN (15) consecutive days.

22. 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 19 DAY OF April , 2011

BRUCE S. MILLER, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER