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-
Legendary Red Rooster Vintage Cafe Inc. (The) operating as The Legendary Red Rooster Vintage Cafe Licensee
DECISION ON SANCTION
Panel: Jacqueline Castel, Board Member S. Grace Kerr, Board Member
Decision Date: August 18, 2011 Hearing Location: Hamilton, 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 Legendary Red Rooster Vintage Cafe Inc. (The), Licensee: Michael Aaron Rigby, Representative
Authorities
R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] S.C.J No.71 Gordon Capital Corp. v. Ontario (Securities Commission) (Ont. Div. Ct.), [1991] O.J. No. 934
Allegations
A hearing into Notice of Proposal (NOP) number 18307, dated September 22, 2010 to suspend liquor licence number 22267 (the "licence") issued to Legendary Red Rooster Vintage Cafe Inc. (The) (the "Licensee") operating as THE LEGENDARY RED ROOSTER VINTAGE CAFE, 484 Plains Road East, Unit 3, Burlington, Ontario, L7T 2E1 (the "establishment" or the "premises"), on the basis of an alleged violation of subsection 30(4) of the Liquor Licence Act (the "LLA" or the "Act"), was held on June 9, 2011 in the City of Hamilton.
In its decision dated June 23, 2011 the Board found that the Licensee contravened subsection 30(4) of the LLA. Parties were directed to provide written submissions on an appropriate sanction. The Board received and reviewed those submissions.
Registrar's Submissions
- The Registrar submitted that a fourteen day suspension is appropriate as a matter of general and specific deterrence, given that a security officer, the bartender and the Licensee failed to properly monitor the actions of CA in the premises, and given that the Licensee received a five day suspension for substantially the same breach six months prior to the date of this incident.
Licensee's Submissions
The Licensee submitted that the AGCO hearing should not have proceeded at all, given that the matter had already been dealt with in provincial court. The AGCO's finding also contradicted the ruling of the provincial court. Since the Ontario Court of Justice is a higher court or the court of appeal for the AGCO, the decision of the Ontario Court of Justice should stand and the AGCO's judgment should be considered null and void.
The Licensee further submitted that a fourteen day suspension would be too punitive and place an unfair responsibility on the licensed establishment when CA, who broke the law, was not charged.
The Licensee was fined $2,500 by the Ontario Court of Justice for failure to challenge identification. The proposed fourteen day suspension could cost the Licensee, at a minimum, an additional $16,000 in revenue. The Licensee submitted that the $2,500 fine would be sufficient to ensure that it does everything in its power to make sure the infraction does not occur again.
Registrar's Reply Submissions
The jurisdiction of the Board to hear the matter ought properly to have been raised at the beginning of the hearing, not in submissions on sanction. In any event, the jurisdiction of the Board to hold regulatory hearings in respect to suspensions and revocations of liquor licences is found in the Alcohol and Gaming Regulation and Public Protection Act and the LLA. It is a jurisdiction to determine fitness to hold a licence which is independent of the jurisdiction of the court to punish the licensee for breaches of the Act. A licensee's licence may be suspended whether or not it has been convicted, acquitted or not charged at all under the Provincial Offences Act (R. v. Wigglesworth and Gordon Capital Corp. V. Ontario (Securities) Commission).
It is inappropriate to file new evidence in submissions on disposition and to reargue findings of fact or the Board's findings.
It is irrelevant whether the minor or his friends were charged. The Act imposes an obligation on the licensee not to permit minors to consume liquor on the premises. Licensees, by virtue of their participation in a regulated industry which allows them to serve alcohol and do so for profit, must comply with their statutory obligation to monitor their patrons.
Reasons and Analysis
The Board has carefully considered the submissions of the Registrar and the Licensee on sanction.
Mr. Morris is correct that the issue of jurisdiction should have been raised at the outset of the hearing. Nevertheless, the Board will address the matter at this point, given that that the Licensee was self-represented.
As Mr. Morris noted in Reply Submissions, the Board has the jurisdiction to hold hearings under the Act regarding, among other things, the suspension of a liquor licence. This jurisdiction is found under the Alcohol and Gaming Regulation and Public Protection Act and the LLA and it is separate and distinct from the authority of the court to punish a licensee for breaches of the Act.
Section 11(h) of the Charter of Rights and Freedoms prohibits double jeopardy (being tried or punished for the same offence more than once, provided that the trial is finally concluded). However, the Supreme Court of Canada held in R. v. Wigglesworth that section 11(h) only applies to criminal matters:
"There is also a fundamental distinction between proceedings undertaken to promote public order and welfare within a public sphere of activity and proceedings undertaken to determine fitness to obtain or maintain a licence. Where disqualifications are imposed as part of a scheme for regulating an activity in order to protect the public, disqualification proceedings are not the sort of "offence" proceedings to which s. 11 [of the Charter of Rights and Freedoms] is applicable. Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of a statute are also not the sort of "offence" proceedings to which s. 11 is applicable. But all prosecutions for criminal offences under the Criminal Code for quasi-criminal offences under provincial legislation are automatically subject to s. 11." (R. v. Wigglesworth, para. 23) (emphasis added)
Therefore, the fact that a court may have acquitted a licensee in a criminal or quasi-criminal matter does not mean that its licence cannot be suspended in a regulatory hearing (R. v. Wigglesworth and Gordon Capital Corp. V. Ontario (Securities) Commission).
The proceedings before the Board are not criminal or quasi-criminal in their design, but rather relate to determining fitness to obtain or maintain a licence and to regulating the conduct of licensees. As a result, section 11 of the Charter would not apply, and the Licensee's argument that it has been the victim of double jeopardy is without merit.
There are many reasons why a licensee may not be charged at all or may be acquitted in a criminal or quasi-criminal matter before the courts, even though a regulatory body may take disciplinary action. For one thing, there is a different burden of proof for criminal or quasi criminal matters (beyond a reasonable doubt) than there is for regulatory hearings under the LLA (balance of probabilities).
As the holder of a licence under the Act, the Licensee has certain duties and obligations, including the obligation not to permit individuals who appear under the age of 19 to have or consume liquor. This was not a case where the minor used false or altered identification to secure entry to the establishment. The security officer at the door who checked CA's identification knew he was under 19 and failed to alert the Licensee or other staff of same. Further, the Licensee failed to ascertain who would be sharing the pitcher of beer, which is meant for sharing, before serving it. The Board does not condone CA's conduct, but the fact that he was not charged in no way reduces the Licensee's responsibilities under the Act.
The Licensee's written submissions challenged the Board's decision on findings and also introduced new evidence. The Board did not consider this new evidence, in reaching its decision on sanction, as it was not entered under oath or tested under cross-examination at the hearing. It is also not the appropriate time or place to challenge the Board's decision on findings.
The Licensee also noted that the proposed 14 day suspension would have significant financial consequences and be too harsh, particularly given the $2,500 fine it paid in provincial court for failing to challenge identification. In determining the appropriate sanction, the Board did not consider the financial ramifications on the Licensee. A suspension will always have financial consequences, which are a critical part of its deterrent effect. The Board also notes that the Licensee did not introduce any evidence to quantify or substantiate the financial impact of the suspension in terms of lost revenue.
The Board considers contraventions of subsection 30(4) of the LLA to be very serious, and also notes that this is not the first time that the Licensee has contravened this subsection. The prior contravention of subsection 30(4) was also recent.
The Licensee, in its submissions, tried to minimize its responsibility for the contravention by blaming others (e.g., the minor himself, the police, inspectors and smoking by-law enforcement officers who allegedly distracted the Licensee and its staff). At no time during the hearing or in submissions did the Licensee specify what it would do differently in the future to minimize the likelihood of this type of contravention reoccurring. The absence of any corrective or remedial measures is of concern to the Board, particularly given that it is not the first time the Licensee has breached this subsection of the Act.
However, the Board finds that the fourteen day suspension proposed by the Registrar would be too harsh in the circumstances of this case. In particular, the Board considered that: CA did not purchase the alcohol in question; the Licensee did verify the identification of the person who purchased the alcohol; and CA only consumed about ¼ of a glass of beer before detection by the AGCO inspectors.
In the context of this case, given the nature of the contravention, the surrounding circumstances, the Licensee's prior disciplinary hearing, and the absence of any corrective action, the Board finds that an eight (8) day suspension is appropriate, from the standpoint of specific and general deterrence.
Order
Therefore, the Board ORDERS that liquor licence number 22267 issued to Legendary Red Rooster Vintage Cafe Inc. (The) operating as LEGENDARY RED ROOSTER VINTAGE CAFE, 484 Plains Road East, Unit 3, Burlington, Ontario, L7T 2E1, be suspended for a period of eight (8) days.
The 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 18th DAY OF August , 2011
JACQUELINE CASTEL, BOARD MEMBER S. GRACE KERR, BOARD MEMBER