Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-05-31

FILE:

9799/LLA

CASE NAME:

9799 v. Registrar of Alcohol and Gaming

Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 - to Suspend a Licence

1687774 Ontario Inc. o/a Swazzee’s Restaurant and Bar

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

DECISION ON SANCTION AND ORDER

ADJUDICATOR:

Jacqueline Castel, Member

For the Appellant:

Michael McArthur, Counsel

For the Respondent:

Phillip Morris, Counsel

DECISION AND ORDER ON SANCTION

1. In its decision dated May 12, 2016, the Tribunal found that the Appellant contravened section 29 of the Liquor Licence Act (the “Act”) and section 45(1) of Ontario Regulation 719/90 (the O.Reg.) on two dates and in respect of two patrons. The parties were directed to provide written submissions on an appropriate sanction. The Tribunal received and reviewed these submissions.

2. Mr. Morris submitted that a 60 day suspension is necessary, as a matter of specific and general deterrence, given the seriousness of the contraventions, the “catastrophic” consequences of the contraventions for PD and her family, the near tragic consequences for KM, and the fact that the Appellant committed the same contraventions within five days of each other.

3. He referred to two cases, Moose Winooski’s, (Decision on Findings dated June 6, 2013) and Ramekins Casual Fine Dining (Decision on Findings, dated November 21, 2002), where the Board of the Alcohol and Gaming Commission of Ontario imposed 30 and 45 day suspensions, respectively, on licensees which had no prior record. Both of these cases involved the deaths of one or more individuals because of motor vehicle accidents which occurred after over-service at the licensed premises.

4. Mr. McArthur submitted that a suspension of 20 to 22 days (15 to 17 days in respect of contraventions relating to PD, and 5 days in respect of the contraventions relating to KM), would be appropriate. He emphasized that the Appellant and its staff cooperated fully with police investigators and authorities and were respectful throughout the proceedings. He also stressed that the Appellant was not reckless, and this was not a case of negative behaviors on the part of patrons at the establishment. He submitted that in the context of the operational history of the Appellant, the contraventions were “isolated, independent and anomalous actions that were lapses in individual judgment”.

5. He also submitted that the Moose Winooski’s and Ramekins cases are distinguishable. In Moose Winooski’s, the patrons were served too much alcohol in a short period of time, and the Ramekins case involved 3 patrons being served to a state of extreme intoxication. In contrast, PD and KM both consumed a significant amount of of alcohol before attending Swazzees, and the alcohol they were served became “too much” late into the evening over a number of hours. The PD case was also not one of extreme intoxication. Further, unlike the Moose Winooski’s and Remekins cases, PD and KM did not operate a motor vehicle, which increases the danger and consequences to other persons, after leaving the licensed premises in a state of intoxication.

6. The Tribunal considers the contraventions to be very serious in and of themselves. However, the seriousness is accentuated in this case because the contraventions occurring on February 28, 2015 led to the death of PD, who was permitted to leave Swazzees on her own (on foot) while drunk and ultimately died of hypothermia while attempting to return to her daughter’s home in the neighbourhood.

7. The Appellant did not appear to have learned anything from the tragic outcome of the contraventions which occurred on February 28^th, as it committed the same two contraventions 5 days later with respect to KM. KM was extremely fortunate that Const. Burns happened to find him unconscious in a snow bank near Swazzees at 12:55 a.m.; if he had not been located until the morning, he could easily have had a fate similar to PD.

8. The Tribunal disagrees with Mr. McArthur that the fact that PD and KM consumed a significant amount of alcohol before arriving at the premises somehow reduces the seriousness of the contraventions. The Tribunal also rejects Mr. McArthur’s arguments pertaining to PD only showing limited signs of intoxication and it not being a case of “extreme intoxication”. The Tribunal found that PD was showing numerous signs of intoxication by the end of the evening including impaired small motor skills, disorientation, staggering, and inability to walk in a straight line.

9. The Tribunal gave some mitigating weight to the facts that this is the first time administrative action has been taken against the Appellant under the Act and that the Appellant also cooperated fully with the police. However, these facts do not outweigh the seriousness of the contraventions which occurred within close proximity of each other.

10. While the Tribunal agrees with Mr. McArthur that general deterrence is more important than specific deterrence in this case, the Tribunal nevertheless finds it disturbing that the Appellant did not include in its submissions any information on disciplinary action imposed on the two servers or on remedial action to ensure that staff are better trained in their responsibilities under the Act. In addition to not monitoring carefully for signs of intoxication, it did not appear as though the two servers understood that they had a responsibility to ensure that PD and KM, who became intoxicated at Swazzees under their watch, got home safely. This goes beyond “temporary lapses in judgment” and would warrant some corrective measures. Given that no information about disciplinary or remedial action was included in the submissions, the Tribunal can only conclude that none was imposed or taken.

11. The Tribunal took into consideration that Ms. Campbell made some efforts to do the right thing when she cut off KM and offered to drive him home. However, it was ultimately too little too late. She should have been monitoring KM throughout the evening, and she should have cut him off before his signs of intoxication became so extreme. When she realized KM had left in an advanced state of intoxication, she also should have called the police or made other efforts to ensure that he was safe. The fact that he was not driving did not put him out of danger.

12. Ms. Vezseny’s actions, when it came to her attention that PD was drunk, were very deficient. Mr. McArthur suggested that she demonstrated genuine concern for PD’s wellbeing when she followed up with BJR about whether PD would be ok. By this time, PD had already left and BJR, by her own admission, was very intoxicated. In these circumstances, consulting with BJR was of no value and fell far short of the Appellant’s duties under the Act.

13. Taking into consideration the nature and seriousness of the contraventions, the tragic outcome of the contraventions for PD, the repetition of the same contraventions within 5 days of the PD occurrence, the absence of evidence of any remedial measures to minimize the likelihood of these types of contraventions occurring again, as well as the fact that it is the first time administrative action has been taken against the Appellant under the Act, the Tribunal finds that a 40 day suspension is warranted to achieve specific and general deterrence.

ORDER

14. The Tribunal orders that the Appellant’s liquor licence be suspended for a period of forty (40) consecutive days. The Appellant shall submit proposed suspension dates in writing to the Registrar, Alcohol and Gaming, within seven (7) days of this decision. If the Appellant fails to do so, the Registrar shall set suspension dates without further notice to the Appellant.

LICENCE APPEAL TRIBUNAL

Jacqueline Castel, Member

Released: May 31, 2016