Registrar, Alcohol and Gaming Commission of Ontario v. The Bank Barrie Inc., 2011 CanLII 64074

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-

The Bank Barrie Inc. operating as Bank (The) Licensee

DECISION ON SANCTION

Panel: David C. Gavsie, Former Chair, AGCO Jacqueline Castel, Board Member

Decision Date: August 24, 2011

Hearing Location: Barrie, 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 The Bank Barrie Inc., Licensee: Jerry Levitan, Representative

Allegations

1A hearing into Notice of Proposals numbers 17926 and 18069, dated March 9, 2010 and May 12, 2010, respectively, to suspend liquor licence number 813510 (the "licence") issued to The Bank Barrie Inc. (the "Licensee") operating as BANK (THE), 66 Dunlop Street East, Barrie, Ontario, L4M 4T3, (the "establishment" or the "premises"), on the basis of alleged violations of section 29 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.") made pursuant to the LLA, was held on July 20 and November 25, 2010, February 1 and 10, and May 4, 2011, in the City of Barrie.

2In its decision dated July 5, 2011, the Board found that the Licensee contravened subsection 45(1) of the O.Reg. on November 29 and December 19, 2009. The Board dismissed the allegation under subsection 45(1) of the O.Reg. on January 10, 2010. The Board also found that the Licensee contravened section 29 of the LLA and subsections 41(1) and 45(1) of the O.Reg. on January 16, 2010. The Board dismissed the allegations under section 29 of the LLA and subsection 45(1) of the O.Reg. in respect of one of the patrons on January 16, 2010. Parties were directed to provide written submissions on an appropriate sanction. The Board received and reviewed those submissions.

Registrar's Submissions on Sanction

3There are a number of aggravating circumstances. The Licensee was issued a licence in 2008. On October 27, 2009, the Licensee was put on notice by way of a warning letter from the Deputy Registrar that it should not serve minors.

4Notwithstanding this warning, on January 16, 2010 the Licensee's doorman failed to properly inspect the identification of WK, a young looking 18 year old who was using the identification of a 21 year old who did not look like him. The doorman allowed WK to enter the bar late on a Saturday night. The consequence of this breach was that the bartender then served the minor one or two alcoholic beverages and the minor was later observed by enforcement personnel drunk in the licensed premises.

5On October 3, 2009, the Licensee's staff failed to control its patrons as they left the establishment. On January 6, 2010, the Registrar issued an Agreed Order of Monetary Penalty in the amount of $1,000 for a breach of section 45.1 of the O.Reg. Clearly, by October 2009, the Licensee should have been aware that its staff was not meeting their obligations under the LLA to properly monitor patrons.

6However, on November 29, 2009, the Licensee permitted a drunken patron in the licensed premises. The drunken patron did not leave until the liquor inspector pointed her out to staff. The patron was so drunk that she became abusive to the inspector when she found out that she would have to leave the establishment. Staff in general and Mr. Berry in particular should have known as a result of the incident that they needed to be more alert to avoid drunkenness in the licensed establishment.

7Notwithstanding the November 29, 2009 incident, three weeks later, on December 19, 2009, the Licensee permitted another drunken patron in the licensed establishment. Again staff did nothing until the liquor inspector pointed out the drunken patron to Mr. Berry.

8Notwithstanding these two recent incidents, less than a month later, on January 16, 2010, a doorman allowed a drunken patron to enter the premises and a bartender then served her liquor. Again, it was enforcement personnel who had to point the drunken patron out to staff.

9In light of the number of incidents, the number of patrons, and the prior warning letter and Agreed Order of Monetary Penalty, a 14 day suspension would be appropriate as a matter of specific and general deterrence.

Licensee's Submissions on Sanction

10The Board dismissed the allegation under subsection 45(1) of the O.Reg., contained in NOP 18069, for which the Registrar was seeking a 14 day suspension. Based on the allegations contained in NOP 17926, the Board made five findings of contravention. The Board dismissed two of the allegations, contained in NOP 17926.

11Accordingly, counsel for the Registrar's submission that a 14 day suspension is warranted cannot stand and is patently unreasonable. Based on the findings of the Board, any suspension would have to be less than 14 days.

12The Board should not rely on the warning letter of October 27, 2009 since there was no finding of violation. The allegation was challenged and the Licensee denied any violation. The Licensee would have a lot to say about this incident given the opportunity. Just because the Registrar arbitrarily "warns" a Licensee does not mean, in the absence of a hearing or an Agreed Statement of Facts, that any violation occurred. It would be a denial of natural justice for the Board to take this warning letter into account.

13The Order of Monetary Penalty related to a disturbance outside the premises. There is no connection between that and the contraventions found in the present case, given the Board's dismissal of the allegation on January 10, 2010. In the absence of evidence related to the OMP, it would be a breach of natural justice for the Board to take it into account.

14The bulk of the hearing related to the January 10, 2010 incident. Registrar's counsel had ample time to review the DVD which corroborated the Licensee's position that a patron was not removed from the premises with excessive force causing injury to the patron and his brother. The Board found, based in particular on the evidence in the DVD, that no such violation occurred. The Registrar ought not to have issued the NOP or at very least should have withdrawn it after the detailed review of the DVD at the hearing and the evidence of the witnesses.

15A penalty in the order of 14 days would be oppressive and harsh. A suspension of seven days would be appropriate taking into account the dismissal of some of the allegations in NOP 17926 as well as the unnecessary issuance of NOP 18069 and/or the continuance of the hearing in the context of the clear and demonstrable evidence.

Registrar's Reply Submissions on Sanction

16Counsel for the Licensee seems to be implying that because the Board did not make a finding under subsection 45(1) of the O.Reg. relating to the January 10, 2010 incident, NOP #18069 should not have been issued and the Licensee should get a lesser sanction in relation to the multiple breaches on multiple dates that it did commit. This argument should not be given any weight.

17If the Licensee thought the NOP should not have been issued because it contained no cause of action, the Licensee should have raised the issue on a preliminary motion at the beginning of the hearing. The Licensee did not do so. The Licensee can hardly argue that this should be a mitigating circumstance in relation to the breaches it did commit.

18The Registrar did not rely on the warning letter as proof that a breach occurred, but rather as proof that the Licensee had been put on notice that it should not serve minors. In Armani's Night Club, the Board of the Liquor Licensing Board of Ontario ("LLBO") expressly relied on the existence of prior warnings when evaluating the Licensee's subsequent conduct. In the case at bar, there was a direct relationship between the prior warning and the breach of subsection 41(1).

19The Licensee's position appears to be that the OMP is irrelevant to the breaches found by the Board. Such a position would, if acceded to, make the Licensee a "first time offender" each time it breached a new section of the Act. In Armanis' Nightclub the Board of the LLBO looked at all prior conduct when assessing sanction, not just the same substantive breaches. The Board's right to do so was expressly affirmed by the Divisional Court in 1207745 Ontario Ltd. (c.o.b. Armani's Nightclub v. Ontario Alcohol and Gaming Commission).

Reasons and Decision on Sanction

20The Board has carefully considered the submissions of the Registrar and Licensee on sanction.

21At the outset, the Board placed no weight on the warning letter of October 27, 2009 since there was no finding of contravention. All Licensees are expected to comply with the Act and regulations. Therefore, a warning that the Licensee should not serve minors, when there has been no finding of contravention, does not hold the Licensee to a higher duty or standard of responsibility.

22The Board did consider that the Licensee was issued an OMP on January 6, 2010, in respect of a contravention of section 45.1 of the O.Reg. Contrary to what is suggested by Licensee's counsel, the fact that the contravention in the OMP is not the same as the ones for which the Board made findings in this case does not mean that it is irrelevant. It is relevant insofar as it indicates that this was not the first time the Licensee has contravened the Act or regulations. It is also relevant in that the contravention was recent.

23The Board also considered that, in this case, there were multiple contraventions which occurred during a relatively short time period (between November 29, 2009 and January 16, 2010). Three contraventions occurred under subsection 45(1) of the O.Reg. [permitting drunkenness] in respect of three different patrons, one contravention occurred under subsection 41(1) of the O.Reg. [serving liquor to a person apparently under 19 without checking identification], and another contravention occurred under section 29 of the LLA [selling or supplying liquor to a person who appears intoxicated]. As such, this is not a case where there was one isolated contravention on the part of an otherwise compliant Licensee. In addition, the Licensee has only held a licence since 2008.

24The Board considers all of the contraventions in this case to be serious and the contravention pertaining to the minor to be very serious.

25The Board does not consider it to be mitigating that the allegation on January 10, 2010, the evidence pertaining to which took up most of the time at the hearing, was dismissed. The Board agrees with Registrar's Counsel that it was open to the Licensee to bring a motion for non-suit if it believed the NOP contained no cause of action and the Licensee failed to do so.

26The Licensee did not propose or give evidence of implementing any remedial or corrective measures to reduce the likelihood of the types of contraventions which occurred in this case happening in the future.

27Nevertheless, the 14 day suspension being proposed by the Registrar would not be appropriate since the Registrar was seeking a 14 day suspension for all of the allegations contained in NOP 17926, and the Board dismissed two of the allegations (one allegation under section 29 of the LLA and one under section 45(1) of the O.Reg.)

28Given the number of contraventions in this case, the seriousness of the contraventions, and the fact that the Licensee did not propose or give evidence of implementing any remedial measures to minimize the likelihood of these types of contraventions occurring in the future, the Board FINDS that a nine (9) day suspension is appropriate, from the standpoint of specific and general deterrence.

ORDER

29Therefore, the Board ORDERS that liquor licence number 813510, issued to The Bank Barrie Inc., operating as BANK (THE), 66 Dunlop Street East, Barrie, Ontario, L4M 4T3, be suspended for a period of nine (9) days.

30The 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.