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 Ontario
Registrar
-and-
1681736 Ontario Inc. O/A Hoops Sports Bar & Grill
Licensee
DECISION
Panel: Kirsti Hunt, Vice-Chair Beryl Ford, Member
Decision Date: , 2007
Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone (416) 326-0366 Fax (416) 326-5566 Website:www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Sujin Chan, Representative 1681736 Ontario Inc., Licensee ) Jerry Levitan, Representative
Allegations
- A hearing into a Notice of Proposal dated April 12, 2007 to suspend liquor licence number 811989 (the Licence) operating as Hoops Sports Bar & Grill, 4207 Keele Street, Unit #1, North York, Ontario, M3J 2W1, on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (O.Reg) made pursuant to the Liquor Licence Act (LLA), was held on July 9, 2007 in the City of Toronto.
Decision
- After considering the evidence and submissions the Board DISMISSES the alleged breaches of subsection 45(1) of the O Reg. The reasons follow below.
Preliminary Matters
A motion was approved to exclude witnesses.
Police Officer Sushil Saini testified that Police Officer Ginie also attended the establishment on October 1, 2006 and took a statement from an individual who was present that evening. The Licensee’s Representative objected on the grounds this was the first he had heard of the statement. Registrar’s Representative stated that the statement had not been provided to the Registrar so could not be disclosed and Officer Ginie was not being called as a witness. Mr. Levitan asked the Board to approach this issue carefully and keep in mind that the Registrar ought not to be permitted to decide what or whose evidence it would disclose to the Licensee. The Board ruled that it would not hear any evidence with respect to the statement which had not been disclosed.
Evidence
Ivan Novillo testified he arrived at Hoops Bar and Grill around 8:00 pm to watch a Sunday night football game on T.V. with his friends Jason and Rick. He described himself as a frequent visitor to Hoops, a place he considers a safe and well run establishment. It was a quiet evening with approximately l0 – l5 patrons and staff present.
Mr. Novillo sat at the bar with his friend Rick. He noticed two males playing at a portable trivia game located at the bar. One person was described as a white male, and the other a brown skinned male whom he thought was Sri Lankan. The dark skinned person made a comment to the white male and laughed when the white male swore at him. Mr. Novillo intervened in the conversation at this point and he believed the matter resolved. The white male then left the service bar area and went to the pool table.
Mr. Novillo testified he overheard the brown skinned male, who remained at the bar, make a cell phone call, speaking on the phone in a foreign language. The white male returned to the bar and appeared to apologize to the other person, and then went out to the patio.
Within ten minutes of the phone call Mr. Novillo saw three persons jump the patio fence, and punch the white male. Moments later, 5 or 6 males entered the front door picked up beer bottles and ash trays and headed to the patio. Mr. Novillo spoke to the Sri Lankan male at the bar and told him “this is not worth it”. They both went to the front door to try and stop the intruders and he thought the matter was over. At this point the white male, who had returned from the patio, started making comments again and the fight started all over again. Mr. Novillo turned to walk onto the patio when he was hit on the head with a beer bottle. He heard the Manager shout “someone call 911”. He was later taken to hospital to have the cut on his head treated.
Mr. Novillo testified that someone called the police, who arrived along with an ambulance sometime later. He was transported to the hospital where he was treated for the head injury. Mr. Novillo testified that he had given a statement to a police officer on what had happened before leaving for the hospital. The Manager had attempted to stop the fight. He stated that the staff and Manager could not control what occurred; the individuals came in through the front door and over the patio fence and started the fight.
Daniel Guerra testified he arrived at Hoops with two male friends to watch the televised football game. He is a regular at Hoops and considers it safe place and continues to patronize the establishment.
While ordering drinks and talking to the waitresses at the bar he heard a commotion. He observed a group of males entering through the front doors of the establishment and two males jump over the patio fence. He initially did not pay much attention until a beer bottle flew over his head. The Manager, Mr. Barker, told him not to get involved. Mr. Barker attempted to stop the fight and separate people and he told one individual to “leave, just go.”
A waitress told him there was an injured person on the patio bleeding from the head. Mr. Guerra discovered it was his friend Ivan. He tended to his friend and called 911 for an ambulance. Mr. Barker told him a 911 call had already been made. The victim was taken to the hospital by ambulance with Mr. Guerra following in his car. Mr. Guerra estimated the whole incident was over in approximately l5 minutes from the time the individuals entered the establishment to exiting.
Police Officer Sushil Saini, testified that he and his partner, P.C. Ginie, were dispatched to Hoops Bar and Grill after two phone calls were received reporting a fight had broken out and an assault had occurred with injuries. The suspects had left the establishment before police arrived. Officer Saini testified that his partner, Officer Gini, had spoken to the victim and taken a statement from him. Officer Saini took a statement from Mr. Avery Barker, the Manager of Hoops, who witnessed the incident that he estimated occurred around 9:15 pm.
The evidence of Officer Saini mirrored the evidence of other witnesses according to the statements he had taken. The suspects were described as brown skinned and possibly Sri Lankan. Officer Saini testified he spoke with Daniel Guerra and took statements from the Manager, Avery Barker, and Daniel Guerra at the hospital. According to Officer Saini, there were no surveillance cameras or security staff on duty that evening. In cross examination, Officer Saini stated that he did not observe any signs of intoxication of any patrons while at the establishment.
Esan Subramaiam, General Manager at Hoops, testified that he was not present at Hoops on the evening of October 1, 2006. Mr. Avery Barker was the Manager on duty. Two waitresses and a cook were also present. Mr. Barker has since left the employment of Hoops and his whereabouts are unknown. Mr. Subramaiam received a telephone call from Mr. Barker advising him that a fight that had taken place at the establishment earlier that evening. Police had been called and an injured person was taken to the hospital. He was fully apprised of the incident by the Manager. Individuals had entered the establishment through the front doors and some had jumped the 48 inch high fence onto the patio. A fight broke out and police and ambulance were called.
It was a Sunday evening, which is traditionally relatively quiet. They only employ security staff on Thursday, Friday and Saturday evenings. This decision is by choice and not a condition of their licence. They have never had an incident like this in the past, his staff are fully trained on the procedures to follow in the event of a situation occurring. All staff are Smart Serve trained and, upon employment, sign a document that outlines the rules and regulations of the management.
Submissions
In submissions, the Registrar alleged that the Licensee permitted disorderly conduct to occur and failed to prevent the incident from happening. Ms. Chan stated the police were not called until after the fight had ended, a time span of l5 – 20 minutes.
Mr. Levitan, for the Licensee, submitted that the staff was all Smart Serve trained and followed procedures that would have been expected of them in the circumstances. He submitted that the fight was totally unexpected and was a ‘bar invasion’ by a group of unknown persons. The act was unpredictable and unpreventable. The verbal dispute between two individuals at the bar was not obvious or loud, it was spoken words between two individuals who disagreed with each other.
Mr. Levitan maintained his concern that the Registrar had failed to disclose another police officer was present that evening and had taken a statement from the victim.
Analysis
The Board carefully considered the evidence and the submissions for both parties in making its decision.
The Board is concerned Mr. Novillo’s statement to Officer Ginie was not obtained by the Registrar and disclosed to the Licensee. The Board is certain this was not an attempt to withhold or manipulate the evidence in any way. However, given Mr. Novillo’s testimony about the role of the Manager in response to the incident, had the statement been available, it might well have allowed the parties to resolve the dispute without a hearing.
The evidence of all the witnesses was that the Manager responded quickly once the “invasion” began and attempted to stop the fighting. While it was unclear whether the Manager called the police, there was no dispute he had called out “someone, anyone, call 911”. In fact, two calls were made to 911 from the establishment in a short time frame. There is no evidence the Manager permitted a dispute to escalate into a fight or did anything other than respond as quickly as possible to control the situation once the fight began.
The establishment provides security on Thursday, Friday and Saturday evenings, although this is not a requirement of their liquor licence. It indicates to the Board that the management takes their responsibility for the safety of patrons seriously. It was evident to the Board that this incident was unprovoked; it appeared to be a surprise attack on an establishment by persons unknown. In all the circumstances, the Board is satisfied, on a balance of probabilities, the Licensee did not permit a breach of ss. 45(1) of the O.Reg.
Conclusion
- The alleged breach of subsection 45(1) of the O. Reg. is DISMISSED.
DATED AT Toronto, this 18th day of July , 2007.
BERYL FORD, MEMBER KIRSTI HUNT, VICE-CHAIR
BF/mw