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-
2136627 Ontario Inc. operating as Wild Wing Wasaga Beach Licensee
DECISION ON SANCTION
Panel: Allan Higdon, Board Member S. Grace Kerr, Board Member
Decision Date: October 27, 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 2136627 Ontario Inc., Licensee ) Lisa White, Representative
Allegations
A hearing into Notice of Proposal number 18079 dated May 19, 2010 to suspend liquor licence number 812803 (the "licence") issued to 2136627 Ontario Inc. ("Licensee"), operating as WILD WING WASAGA BEACH, 321 Main Street, Unit 3, Building F, Wasaga, Ontario, L9Z 0B6, (the "establishment" or the "premises"), on the basis of alleged violations of section 29 of the Liquor Licence Act (the "LLA") and subsection 45(1) of Ontario Regulation 719/90 (the "O.Reg.") made pursuant to the LLA, was held on November 29 and 30, 2010, January 21, 2011 and February 24, 2011 in the City of Barrie.
In its decision dated September 7, 2011 ("the Board's Decision"), the Board found that the Licensee served liquor to a patron who was or appeared to be intoxicated, contrary to section 29 of the LLA, and that the Licensee permitted him to be drunk in the licensed premises, contrary to 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.
Submissions on Sanction
The Registrar cited a number of aggravating factors in that the Licensee sold the patron five (5) double brandies in the space of 1.5 hours, an obviously large amount of liquor. The patron demonstrated clearly exhibitionist behaviour which should have been a clear warning to the two servers responsible that the patron was intoxicated. The patron then exited the premises with his car keys clearly in hand. No member of the staff attempted to stop him.
The Registrar stated that the Licensee and her staff did not meet the minimum standards expected of a licensee. A 30 day suspension would be appropriate.
Counsel for the Licensee stressed mitigating factors for the events that took place on the premises. The Licensee has never faced charges under the Liquor Licence Act before. The Licensee is the sole proprietor of the business, and a lengthy suspension would have a very serious financial effect. She also co-operated fully with police in their investigation and provided surveillance footage. The Licensee has tightened up procedures at her premises since the incident. An appropriate suspension would be 14 days.
The Registrar in reply stated no evidence had been provided to substantiate the claim that a 30 day suspension would cripple the business. The issue of being a first time offender is irrelevant to a determination of general deterrence.
Decision on Sanction
The Liquor Licence Act and its regulations provide a framework for the responsible service of alcohol. It is absolutely essential for public safety that licensees and staff in the hospitality industry abide by its provisions. The results otherwise can be tragic, as was the case in this instance.
In determining the appropriate sanction, in matters like this one, where there have been findings that a Licensee has violated the provisions of the governing legislation, the Board must ensure that the sanction acts as a deterrent to licensees generally, and additionally, as a specific deterrent to this Licensee.
Here, the evidence showed that a patron was served and consumed 10 ounces of brandy (or, five double brandies) in 1.5 hours and became intoxicated. Also, service continued despite clear signs the patron was drunk (Note: the signs are detailed in paragraph 341 of the Board's Decision).
The Board is concerned that, not only on the night in question, but also at the hearing itself, the Licensee (and her staff members) showed limited to no awareness of the extent of the over-service that had occurred. The classic signs of the patron's progressive intoxication should have been known to the Licensee and her staff members, but weren't.
In submissions, the Licensee purports that procedural changes have been made to minimize the likelihood of the types of infractions that occurred from happening in the future.
However, the Licensee did not present evidence at the hearing as to what those remedial measures are. Evidence of the same would have given the Board more assurance that there will not be any repeat occurrences of the serious violations at issue.
Also, on the night in question as well as at the hearing, the Licensee and her staff members did not seem to fully appreciate their responsibilities for not permitting the patron's intoxication in the first instance or for not continuing to serve him once they had allowed him to become intoxicated.
Again, there was no evidence presented to allay the Board's fears about their failure to appreciate the significance of their responsibilities.
In all of the circumstances of this case the Licensee demonstrated woefully inadequate judgment and failed to meet her responsibilities deriving from her participation in a regulated industry which allows her to serve alcohol and do so for profit.
What's more, the Licensee has not shown any remorse or accepted any responsibility for the violations.
Instead, the Licensee offered up a number of excuses, attempting to divert blame, for why she and her staff did not notice the patron's intoxication or should not have been expected to have noticed it.
Significantly, the death of an innocent pedestrian resulted from the Licensee's irresponsible service of alcohol.
This terrible outcome, the Licensee's poor judgment and her failure to accept responsibility for the over-service, together with the nebulousness of the purported corrective measures, have been factored into the Board's decision on sanction. Also, the Board has taken into account the fact that its findings constitute very serious breaches of the LLA.
For these reasons, the Board finds that a 14-day suspension is insufficient to meet the principles of general and specific deterrence.
That said, the Board also finds that the 30-day suspension proposed by the Registrar would be too harsh, for the following reasons.
The Board is aware that the Licensee has a clean record prior to this incident. Her co-operation with police is also acknowledged, and in the hearing, the Board benefitted from having some of the evidence she provided them. These are mitigating factors that should be, and also have been, taken into consideration.
In conclusion, therefore, in the context of this case, given the nature of the contraventions and the surrounding circumstances, offset by the Licensee's lack of a prior disciplinary record and her co-operation with the police (and thereby, indirectly with the Board), the Board finds that a 20-day suspension would be appropriate as a matter of specific and general deterrence.
Before closing, the Board notes that it has not specifically taken into account the Licensee's suggestion that a lengthy suspension will have a serious, deleterious financial effect upon the Licensee.
First, no evidence was tendered to substantiate that claim. Also, it goes almost without saying that negative financial ramifications will follow any licence suspension, and importantly, that this is an intended effect, meant to impress upon licensees the need for them to comply with the governing legislation.
Order
The Board ORDERS that liquor licence number 812803 issued to 2136627 Ontario Inc., operating as WILD WING WASAGA BEACH, 321 Main Street, Unit 3, Building F, Wasaga, Ontario, L9Z 0B6, be suspended for TWENTY (20) 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 27TH DAY OF OCTOBER , 2011
ALLAN HIGDON, BOARD MEMBER S. GRACE KERR, BOARD MEMBER