Registrar, Alcohol and Gaming Commission of Ontario v. 1750653 Ontario Inc., 2012 CanLII 12166

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-

1750653 Ontario Inc. operating as Pub 31 Licensee

DECISION ON SANCTION

Panel: Kirsti Hunt, Vice-Chair, AGCO Joan Lougheed, Board Member

Decision Date: February 14, 2012 Hearing Location: Ottawa, 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 ) Aviva Harari, Registrar’s Representative 1750653 Ontario Inc., Licensee ) Marthe Mpendubundi, On her own behalf

Allegations

1. A hearing into Notice of Proposal (“NOP”) number 18521, dated February 15, 2011 to suspend liquor licence number 21841 (the “licence”) issued to 1750653 Ontario Inc. (the “Licensee”) operating as PUB 31, 5375 Bank Street South, Ottawa, Ontario, K1X 1H1, on the basis of alleged violations of section 29 of the Liquor Licence Act (the “LLA”) and clause 31(1)(c) and subsections 34(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA was held on June 6, 7 and 8, 2011 in the City of Ottawa.

2. In its decision dated November 21, 2011 the Board found the Licensee contravened subsections 34(1), 45(1) and clause 31(1)(c) of the O.Reg, and dismissed the allegation of a violation of section 29 of the LLA.

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

Decision and Reasons on Sanction

4. In making a determination of specific and general deterrence, the Board finds that a suspension of twenty-eight (28) days is appropriate. Reasons follow.

5. The NOP originally sought a suspension of forty-five (45) days, based on a number of alleged violations. The Board made a finding in three of the allegations.

6. In submissions the Registrar’s Representative requested a forty-five (45) day suspension acknowledging the sensitivity of the case, with the loss of the life of a young person, and also the history of infractions.

7. Ms Harari indicated that there had been a warning issued on December 16, 2009 for liquor purchased off licence, a monetary penalty issued on April 4, 2010 for failing to clear signs of service, and a five day suspension on May 8, 2010 for having intoxicated patrons on the premises.

8. In her submissions, the Licensee stated that she has already paid a price, that she has taken action to improve management of the bar, that she was compromised by Mr. T, who did not disclose the condition or his concerns relating to the condition of Ms D when they arrived at Pub 31 and that she did not permit drunkenness. She stated that she has been co-operative with the Inspector. The Licensee suggested that a penalty of 15 days is just.

Re: subsection 34(1) of the O.Reg

9. In regards to subsection 34(1) of the O.Reg, the Licensee admitted that the infraction had taken place. In making a decision, the Board accepted the evidence that the Licensee took immediate remedial action, working co-operatively with the AGCO Inspector.

10. The Board accepts that the Licensee was and continues to be co-operative during inspections. The Board commends the Licensee for being co-operative, but notes that it is incumbent on the Licensee to take action when an Inspector identifies a concern or an infraction.

11. Given that remedial steps were taken, that the situation was immediately corrected and that the Licensee has been made aware of the seriousness of her responsibilities, a letter of warning is sufficient to ensure compliance regarding this infraction.

Re: Clause 31(1)(c) and subsection 45(1) of the O.Reg

12. Early in the proceedings, the Board heard that all parties agreed that the Licensee had liquor on the premises that was not purchased under the licence, breaching clause 31(1)(c) of the O.Reg.

13. Although the Licensee expressed regret, the Board remains concerned that the Licensee had received a previous warning in relation to clause 31(1)(c) of the O.Reg. but still did not fully accept the responsibilities that are integral to holding a liquor licence.

14. The Board believes that a warning is not appropriate given that the Licensee has already had a previous warning. Therefore, the Board has determined that a penalty is required as a matter of general and specific deterrence.

15. In considering the breach of subsection 45(1) of the O.Reg., the Board notes that the Licensee, in submissions, indicated that she does not agree with the findings. The Board is concerned that the Licensee did not acknowledge that once a patron shows signs of intoxication, the licensee has an obligation to take immediate steps to resolve the situation, ensuring the safety of staff, patrons and the general public. In this case, the actions of a patron who had been disorderly and who was not acting like her normal self, resulted in the tragic death of an innocent victim.

16. Also of concern to the Board is the fact that Ms Mpendubundi, in her submissions, did not take responsibility for what happened in her establishment with Ms D. Instead she shifted blame to another licensee. Also she did not provide in her submissions any specific policies and procedures that have been put in place to ensure that patrons and their activities will be strictly overseen in the future.

17. The Board agrees with the Registrar that protection of the public is paramount. The loss of life, as occurred in this case involving the death of a young person, illustrates the profound consequence of not taking immediate, appropriate action, when a patron, who is showing signs of intoxication, is on the premises.

18. In reaching a decision on sanction, the Board gave serious consideration to the history of previous infractions as outlined in paragraph seven above.

19. It must also be noted that the Board does not have the authority to deal with the matter of the tragic death, but only deals with an administrative sanction related to non compliance under the Liquor Licence Act.

20. The suspension must impart the seriousness of the violation on the Licensee and recognise the unique circumstances surrounding this violation. Therefore, for the above reasons, in the circumstances of this case, the Board FINDS that a twenty-eight (28) day suspension is appropriate not only as a specific but also as a general deterrence.

Order

21. Therefore, as a matter of specific and general deterrence the Board ORDERS that liquor licence number 21841, issued to 1750653 Ontario Inc. operating as PUB 31, 5375 Bank Street South, Ottawa, Ontario, K1X 1H1, be SUSPENDED for a period TWENTY-EIGHT (28) 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 14th DAY OF February , 2012

KIRSTI HUNT, VICE-CHAIR JOAN LOUGHEED, BOARD MEMBER