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-
1240277 Ontario Inc. operating as Fanny’s Adult Entertainment
Licensee
DECISION ON sANCTION
Panel: David C. Gavsie, Former Chair, AGCO
Brian J. Ford, Board Member
Decision Date: July 4, 2011
Hearing Location: North Bay, 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
1240277 Ontario Inc., Licensee ) Bill Rees, On behalf of the Licensee
Allegations
A hearing into Notice of Proposal number 18398 dated November 5, 2010 to suspend liquor licence number 807624 (the “licence”) issued to 1240277 Ontario Inc. (the “Licensee”) operating as FANNY’S ADULT ENTERTAINMENT, 1420 Seymour Street, North Bay, Ontario, P1B 9P5, (the “establishment” or the “premises”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on January 25, 2011, in the City of North Bay.
In its decision dated April 8, 2011 the Board found the Licensee contravened 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.
Registrar’s Submissions
Mr. Kulis submits the Licensee's evidence was simply that a drunken patron was not in the licensed premises. This, in spite of evidence from Mr. Smith, the drunken patron, that he sat in plain view and interacted with a bartender and a waitress while ordering a beer.
Mr. Kulis states Exhibit #3, which was submitted by the Licensee, hurt the Licensee more than it assisted. Mr. Kulis states there were numerous indicators identifying a drunken patron, which would indicate that drunken patrons are a regular feature of the club.
Mr. Kulis further submits that Exhibit #3 and the Licensee's witnesses' responses to cross-examination indicate a laissez-faire attitude towards this problem. The exhibit is more of a tally sheet than a measure to address the problem.
Mr. Kulis submits a sole violation was found and no mitigating factors were introduced into evidence. A drunken patron was allowed to drive away from the licensed premises, the obvious danger averted by police intervention.
Mr. Kulis submits for all theses factors a 14 day suspension is appropriate, primarily for specific deterrence but also for general deterrence.
Licensee’s Submissions
Contrary to Mr. Kulis’ submission, which was that Exhibit #3 hurt the Licensee, Mr. Rees submits that the evidence he submitted does not support that assumption. He submits that if there is concern for an intoxicated patron, the doorman is notified and the patron is immediately cut-off.
Mr. Rees submits that this is not a laissez-faire attitude but one of concern. It shows that the management policy of the establishment is working.
Mr. Rees submits that the appropriate sanction would be, in the circumstances, a warning. Mr. Rees submits that the Board look not only at the facts and evidence in terms of what occurred on the evening in question, but also to take into consideration that Fanny's has been in business for 14 years and has not prior adverse record concerning subsection 45(1) of the O.Reg. Mr. Rees submits that the reason for no prior adverse record is because of the Licensee's alcohol management policies.
Mr. Rees submits that the incident which occurred is unfortunate and regrettable. He submits that the Licensee has taken the incident very seriously. Mr. Rees submits that the Licensee has and will continue to work diligently.
Mr. Rees submits that the appropriate sanction in the circumstances would be a warning. He submits a warning would act as a specific deterrent.
Decision on Sanction
Mr. Smith arrived at Fanny's between 11 and 11:30 p.m., after having consumed alcohol at another location from 5:30 p.m. A beer was ordered for him and he drank it. He then went to the bar, interacted with the bartender and ordered another beer. He also interacted with a female server on his way back to his table. Mr. Smith's friend ordered another beer for him, which he drank, and then left the establishment at 1 a.m.
Mr. Smith was seen leaving the parking lot in his vehicle by Cst. Parker of the North Bay police. Cst. Parker noted that Mr. Smith was driving his vehicle in an erratic manner, swerving from side to side. At 1:06 a.m. Cst. Parker pulled Mr. Smith over on Highway 11. Cst. Parker stated that Mr. Smith at times was going 90 km/h.
Cst. Parker stated that when Mr. Smith exited the vehicle he staggered backward and had to use the door and roof of the car to support himself. Mr. Smith was noticeably intoxicated. Mr. Smith's eyes were bloodshot, his speech was slurred and he was very unsteady on his feet.
Mr. Smith was taken to Police Headquarters and given a breathalyser. Mr. Smith's blood alcohol level was .245 milligrams (“mgs”) of alcohol in 100 millilitres (“ml”) of blood. The second reading was .247 mgs of alcohol in 100 ml of blood. The board notes that Mr. Smith’s BAC was three times the legal limit.
Cst. Rice, the breathalyser technician, stated the level of alcohol in Mr. Smith’s blood would equate to his having drank 10.92 beers (341 ml) containing five per cent alcohol.
Cst. Rice's evidence is that Mr. Smith was intoxicated.
The evidence is clear. Mr. Smith left the premises of Fanny's in an intoxicated state, got into his vehicle and was pulled over six minutes after leaving the establishment. His driving was erratic and could have posed a very serious danger to other drivers had it not been for the intervention of the North Bay Police.
The Board agrees with Mr. Kulis. There were no mitigating factors introduced into evidence.
However the Board also takes into consideration the fact that in 14 years of business, this is the only adverse record on file for the Licensee. The Board does not agree with Mr. Rees that a warning would be appropriate. The incident could have had very grave consequences.
Order
Therefore, as a matter of specific and general deterrence, the Board ORDERS that Liquor Licence number 807624 issued to 1240277 Ontario Inc., operating as FANNY’S ADULT ENTERTAINMENT, 1420 Seymour Street, North Bay, Ontario P1B 9P5, be suspended for TEN (10) 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 4th DAY OF July , 2011
DAVID C. GAVSIE, FORMER CHAIR, AGCO BRIAN J. FORD, BOARD MEMBER