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-
1620306 Ontario Inc. O/A Jamaica’s Finest Restaurant and Bar
Licensee
DECISION
Panel: Kirsti Hunt, Vice-Chair Patricia McQuaid, Vice-Chair
Decision Date: July 26, 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 ) Richard Kulis, Representative
1620306 Ontario Inc., Licensee ) Harvey Dennis, Representative
Allegations
- A hearing into a Notice of Proposal dated June 6, 2007 to revoke a liquor licence and an Order dated June 6, 2007 to immediately suspend liquor license number 809917 issued to 1620306 Ontario Inc. (the “Licensee”) operating as JAMAICA’S FINEST RESTAURANT AND BAR, 3233 Brandon Gate Drive, Unit #3, Mississauga, Ontario, L4T 3V8 (the “premises”) on the basis of alleged violations of sections 29 and 43 and subsections 45(1) and 45(2) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), commenced on June 26, 2007 in the City of Toronto and continued on July 10 and 13, 2007.
Decision
- After considering all the evidence and submissions, the Board finds the Licensee violated sections 29 (on two occasions), 43 and subsections 45(1) and (2) of the O.Reg. The reasons follow.
Preliminary Matters
- An Order was made for the exclusion of witnesses.
Registrar’s Evidence
P.C. Robert Wilson, a police officer with Peel Regional Police, attended at the licensed premises on April 28 and May 26, 2007. On April 28th, he responded to a noise complaint at 3:50 a.m. Arriving in his police cruiser, he could hear loud thumping music emanating from the premises while still inside his vehicle. He requested the assistance of additional police officers. Upon their arrival, they approached the front door. There were about thirty patrons at the front entrance and an overwhelming smell of marijuana. Security personnel were standing outside.
As the officers entered the premises, they were met with a crowd. The crowd parted to allow them a narrow path through to the d.j. booth at the rear of the premises. Moving through the crowd, he observed patrons with bottles of Heineken beer or Smirnoff Ice in their hands. Some bottles were taken from the patrons. These bottles were still cold to the touch. The establishment is in a confined space. The smell of freshly burning marijuana was again overwhelming. P.C. Wilson also observed patrons attired in gang-affiliated clothing.
The officer weaved his way through the crowd to the d.j. He asked the d.j. to turn down the music which he did, though only slightly. The bar appeared to be still open for service. The area adjacent to the d.j. booth, a hallway leading to the washrooms and rear fire exit was completely blocked by a crowd of 30-40 people. He estimated that between 200-250 people were in the establishment which is licensed for 30.
P.C. Wilson spoke to Mr. Lindsay who was operating the grill. He was the only employee that they could find to speak to. He told Mr. Lindsay the reason for their attendance and advised that if the situation continued, the music and the bar would be shut down. Mr. Lindsay was accommodating.
On May 26, 2007, police received a call at approximately 10:44 a.m. from a d.j., Marcus Lyons who worked at Jamaica’s Finest. Mr. Lyons stated that there had been a shooting at the establishment between 4:30-5:00 a.m. Police had not been contacted about such an incident. Call records were checked. An anonymous call had been received about one hour prior, about a shooting, but the police were unable to trace the call. Hospitals in the area were contacted, but there were no records of attendances for gun shot wounds. P.C. Wilson was detailed to meet with Mr. Lyons. Mr. Lyons told him that he had been shot at inside Jamaica’s Finest. He had been approached by three males who were club promoters. They wanted him to create some hype about a certain club event. He refused and an altercation ensued. He retreated to the rear hallway, where parties were standing, at which point he was shot at. He thought 6-7 shots were fired. He was not hurt, but thought someone had to have been as the shots were fired into a crowd.
Mr. Lyons indicated that he had not called earlier because he thought that someone had reported the incident. Further, he was somewhat afraid to report it himself because of the violent nature of the incident. Mr. Lyons gave the police a statement. In it, he indicated that at the time of the incident, between 4:30-5:00 a.m., patrons were still dancing and drinking. He did not specify what they were drinking.
P.C. Wilson stated that one of three suspects is in custody and the investigation is ongoing. The establishment’s video surveillance tapes are in police possession.
Regarding the April 28, 2007 attendance, P.C. Wilson stated, on cross-examination, that there were two security personnel, from the Black Panther Security, standing outside the establishment. Security personnel generally stay outside. On that evening, he did not see anyone actually being served alcohol or anyone behind the bar. The only drinks he observed in patrons’ hand were alcoholic. He did not have a counter on him by which to count the number of persons, but he did recall that the rear hallway next to the d.j. booth was packed with patrons.
P.C. Gregory Chellow is currently a forensic identification officer with Peel Regional Police. A series of photographs, Exhibit 1-1 to 1-85 were taken by P.C. Chellow. These photographs depict the exterior of the premise from several vantage points, including a sidewalk where a shell casing was found, various pictures of the shell casing identified as a casing from a Winchester 40 calibre gun, the dumpster area at the rear of the premises where a second shell casing was found, identified as a 9mm Luger shell casing, as well as the interior of the premises. An examination of the shell casings by police indicated that they were from two different weapons.
The photographs depicting the interior of the premises, show, in particular, the hallway adjacent to the d.j. booth, and the utility room and washrooms which run along that hallway where evidence of the bullet holes and bullet strikes were located. The police recovered one bullet inside the premises and a jacketing from another bullet. One photograph showed, what appeared to the officer to be, a brand new door on one of the washrooms. They retrieved the old door from the rear of the premises.
The forensic examination suggests that four bullets were shot inside the premises, in the hallway area in the vicinity of the d.j. booth. Through their examination, the police were able to determine the trajectory of the shots.
P.C. Chellow stated that when he arrived at the premises at 1:07 p.m. on May 26, 2007, the premises had been cleaned. Refuse form the club was found in the rear dumpster including some flyers for another event at a different club. He understood that the premises had been cleaned prior to the police attendance. Police found no evidence of blood. They were not able to determine what kind of gun was used.
Sgt. Larry Gagnon received a call for service on the morning of May 26, 2007 at approximately 10:44 a.m. He spoke to Marcus Lyons who explained that early that morning, while working at Jamaica’s Finest as a d.j., three promoters asked him to announce their upcoming event. He refused. They got angry and one of the males struck him on the left side of his neck with the butt of what he believed to be a 45 calibre handgun. Sgt. Gagnon did observe redness and swelling on Mr. Lyons’ neck. Two of the males then shot at him. With this information, Sgt. Gagnon initiated the investigation. Officers were sent to the licensed premises to secure the scene. When he arrived shortly thereafter, two ladies were in the kitchen preparing food. Someone had been in earlier to clean the premises. When he walked through the premises, he located three bullet holes in the wall near the washroom. Their location was consistent with the events as described by Mr. Lyons. He noted that one of the washroom doors appeared to be brand new.
Sgt. Gagnon asked the women to clean up what they were doing and leave the premises. Several attempts were made to reach the Licensee without success. However, a short time later a male arrived who identified himself as Densel Jacques, the owner. Mr. Jacques stated that he was not at the premises when the incident occurred during an after hours party which his wife was supervising.
P.C. Jason Watson of Peel Regional Police spoke to Marcus Lyons on June 3, 2007 in furtherance of the police investigation. He asked him whether people were drinking when the shooting occurred at approximately 4:30 a.m. Mr. Lyons indicated they were and that this was normal during such events. When questioned on cross-examination as to whether these were alcoholic drinks, P.C. Watson stated that Mr. Lyons confirmed it was “booze”. P.C. Watson also investigated and confirmed that there were no incoming calls to the Peel Regional police between 4-5 a.m. on May 26, 2007 from the licensee’s location regarding any incident.
Detective Tom McNulty interviewed Marcus Lyons at 21 Division on May 26th. Mr. Lyons told him that he had been speaking to an individual by the street name of “Knuckles” in the weeks prior to this incident. Knuckles wanted him to do some work at another club he was promoting. Mr. Lyons had no interest in working for him. On May 26th, Knuckles was trying convince him to promote an upcoming event. When he declined, he was assaulted by Knuckles and two others. Mr. Lyons retreated down the hallway, through the crowd and tried unsuccessfully to enter the men’s washroom. As he was standing near the rear exit door of the club, Knuckles and one other male drew their firearms and, at a distance of 10-15 feet, started shooting at him. Several shots were fired. Knuckles and his associate then left the club. Mr. Lyons went home, but after thinking about the incident decided to call police.
Detective McNulty stated that Peel Police communications did receive a call from someone who identified himself only as “Peter” at 5:50 a.m. that morning, from a payphone about one kilometre from the licensed premises. The person stated that there had been a shooting at Jamaica’s Finest, but would not provide any further information. Peel officers attended at the club at 6:40 a.m. but found it to be locked.
After completing the interview with Mr. Lyons, Detective McNulty attended at the licensed premises where the identification officers advised that they had found two bullets, one behind a toilet in the women’s washroom and another in the door frame of the washroom. They believed that there were two more bullets within the walls. He advised them not to take the walls apart to retrieve them as it was not necessary to the investigation. He then spoke to Lovene Jacques.
Ms. Jacques stated that she was in charge the previous night. A number of people showed up, from another event, around 3 a.m. The security guard was not supposed to let them in as she intended to close down the club shortly thereafter. Ms. Jacques recalls hearing several loud bangs, a sound like firecrackers. People started running from the club. She also ran out, went to her car and drove home, where she told her husband about the incident. She was too scared to call the police.
The detective then spoke to Densel Jacques, who was cooperative with police. He allowed them to enter the premises and conduct their investigation without the need for a search warrant, for which police were appreciative. Mr. Jacques explained that he was the sole proprietor of the club, but the previous night his wife was in charge. When his wife returned home, she woke him and told him that she was not sure whether or not shots had been fired. She locked up the club and went home. Mr. Jacques then went back to sleep.
Detective McNulty expressed concern that there was a time delay between the actual incident, the notification to the police and their arrival on the scene. The bar had been cleaned up by staff. The integrity of the investigation was, as a result, compromised. During his discussion with Mr. Jacques, he was told that the bar did have a surveillance system though Mr. Jacques was unsure whether it was working as there had been problems with it. However, Mr. Jacques stated he would contact the installer to see if there were video images of the occurrence. He was also provided with the name of the security company, Maximum Security.
Detective McNulty eventually met with the security personnel. He spoke to Roxroy Rose on May 29th. Mr. Rose stated that he worked at Jamaica’s Finest on three prior occasions. He did not know who the owner/manager was nor did he seem to have any clear idea of who was in charge on May 25/26 though thought it was a woman who was the owner’s wife. He arrived at the bar at 11:00 p.m. that night. The d.j. was already set up and playing music. A few patrons were already inside the club. The majority of patrons arrive around 2 a.m. At approximately 5 a.m., he started to turn up the lights, as it was time to close the event. Between 5:05-5:10 a.m. he stepped outside for a few minutes. People started to rush out. He heard four shots from inside the club. After the rush of people exited, he went back inside. He was told that police had been called. He did not know the name of the person who told him that though he believed it to be one of the d.j.s.
Mr. Rose did take a walk through the club at this point to see if there were signs of blood. He then went outside to walk through the parking lot. When he returned to the club ten minutes later, the front doors were locked, at which point he left. Mr. Rose could not confirm whether alcohol was being served at 5 a.m. He estimated that between 250-300 people were inside the bar at that time.
Detective McNulty was not able to contact the second security personnel, Ms. Arja Donaldson, until June 19th. He took a statement from her at that time. May 25th was the first time she worked at the bar. She arrived at 10:50 p.m. About ten people were already inside the club. They had not been searched. People were coming and going between 2 and 3 a.m. She was working at the front door, searching the females as they entered. She did not know who was in charge that evening. Ms. Donaldson recalled seeing people running from inside, yelling “fight, fight”. She heard 4-6 pops. She knew someone was shooting a gun. After the shooting, a woman came out with three or four others and locked the door. She heard Mr. Rose ask the woman if anyone was hurt, to which the woman responded “no”. She left shortly thereafter as Mr. Rose indicated it was ok for her to do so. She thought he was waiting for the police to arrive.
Detective McNulty received a video disc from the company which provided the surveillance cameras at the licensed premises and then received a second one, from Mr. Jacques, while the hearing was ongoing. The disc shows video from inside the licensed establishment from different perspectives. The surveillance disc was entered into evidence (Exhibit 2) and viewed by the Board and the parties during the course of the hearing.
The video shows events within the bar around 5:02 a.m. From Detective McNulty’s perspective, the video showed several LLA infractions: the consumption of alcohol from beer bottles and service of alcohol by a female, identified as Ms. Jacques, as well as a very graphic portrayal of the fight described by Mr. Lyons. Guns were drawn, pointed and apparently shot and a mass exodus from the establishment took place along with two males with a gun in hand. The video also shows a male, locking the front door when everyone appears to have left. While noting Mr. Rose’s estimate of 250-300 in the establishment, the Detective McNulty stated that his review of the video suggests that a more accurate number was 80-100 persons. One suspect is in custody and the two other males are being sought.
On cross-examination, Mr. McNulty stated that he did not know the extent of the search conducted by security personnel. Regarding Mr. Rose’s comment that alcohol was being consumed at 5 a.m., he did not ask Mr. Rose if non-alcoholic drinks were being sold. He himself, recalls seeing the bar’s cooler, but did not turn his attention to what was inside.
Regarding his comments made while the video was being viewed that it appeared that several males were carrying guns, Detect McNulty drew that conclusion based on his years as a police officer. The individuals were walking or running from the scene holding the area of their body around their waistband. This raised certain assumptions in his mind though he conceded it was possible that someone was also touching their cell phone.
He conceded, too, that if people were inside the club with guns, one might conclude that security did not do their job, though people were already inside the club when security arrived. Detective McNulty acknowledged that it is not unusual for people not to come forward to police when shootings occur at clubs, but, in his view, it is incumbent upon licensees to act responsibly and report such incidents to authorities. The officer also indicated that he had no information regarding any prior LLA violations by this licensee.
Licensee’s Evidence
Edward Lindsay is one of the chefs at Jamaica’s Finest. He arrived at the establishment at 1:30 a.m. on May 26, 2007. He comes in at that hour to prepare the meats for the chef the following day. He usually stays until closing at 5:30 a.m. He was searched by security at the entrance when he arrived.
Food is sold from the counter area at the front of the premises, before the entrance to the bar area. There is, as well, a cooler in the front area from which he sells non-alcoholic drinks such as ginger beer. Mr. Lindsay indicated that some of the bottles resemble beer bottles. The bar stops selling alcohol at 2 a.m., at which point Sharon, the bartender, starts collecting the bottles. If someone has a beer bottle in their hand, the beer is poured into a red plastic cup and the bottle taken from them.
He recalled a rush of people running out of the premises at about 5 a.m. He was in the kitchen. The fan was on so he did not hear gunshots. He ran out to his car where he waited for everyone to leave the premises. About a half an hour later he then entered the establishment, yelled to determine if anyone was inside and when he got no response, turned off the light and locked up. Mr. Lindsay did not speak to security that night. He did not know what happened inside the bar. It was the responsibility of security to report the incident to the owner, Densel Jacques.
Though he works in the kitchen, all employees know the rule that there is to be no service of alcohol after 2 a.m. Empty bottles of beer, Heineken and Guinness being their top sellers, are stored in cases behind the bar. The bar cooler holds about 130 bottles of beer.
Mr. Lindsay has worked at Jamaica’s Finest for about three years. There has never been a problem with fights. Fridays (and May 26th was a Friday) are busy nights, with the busiest time being after 1 a.m. He stated he probably had sales of about $200 that night, selling lots of ginger beer.
On cross-examination, Mr. Lindsay stated that if Mr. Jacques is not present, he is in charge. Mrs. Jacques would come to him with questions. He is not, however, in charge of security personnel. Security was hired by Mr. Jacques and they are to report to Mr. Jacques if anything happens at the club. Security is usually at the front entrance, not inside the bar area. They were outside when he ran out.
Mr. Lindsay acknowledged, on cross-examination, that he was either in the kitchen or the front area of the premises all night. He did not go into the bar area, so would not know, in fact, if alcohol was served after 2 a.m.
Sharon Pearson is a bartender at Jamaica’s Finest. She had been working there for one month when this incident occurred. She started work at midnight on May 26th. She was searched before entering. About 20 people were there already. At that point, some of the beer and all of the “coolers” would be in the bar cooler. About six full cases of beer would be stored under the bar. Water would also be stored in the bar cooler. Until 2 a.m., beer or coolers are served in bottles, other alcoholic drinks would be served in clear plastic cups. Between midnight and 2 a.m. she would have replenished the beer in the cooler about three times. Beer can only be purchased at the bar area.
As 2 a.m. approaches, beer sold would be poured into a red cup. No alcohol is served after 2 a.m. She then picks up beer bottles and, if patrons are holding a bottle she asks them to pour it into a red cup and she takes the bottles from them. The d.j. will announce last call and advise that alcohol must be consumed by 2:45 a.m. Neither she nor Ms. Jacques would be behind the bar counter after 2:45 a.m. After she finishes this task, she parties with her friends.
Ms. Pearson recalls seeing people scuffling, but did not see who it was, then everyone began to run. She did not hear any shots. She ran into the kitchen with Ms. Jacques. From there, they ran outside. She ran back inside to retrieve her purse and then went home. She saw one of the security personnel outside at this time.
Ms. Pearson indicated that she, not infrequently, finds bottles of beer that are not sold at the bar as she is collecting bottles after 2 a.m. She tells Mr. Jacques or security if she finds such bottles.
On cross-examination, Ms Pearson stated that she finds bottles of beer that the bar does not sell every night, perhaps three, or as many as six. Security are told to search people for beer when they enter the premises. As well, Ms. Pearson reiterated that nothing is sold from the bar after 2 a.m. Neither she nor Ms. Jacques went behind the bar after 3 a.m. that night. As to the alcohol in red cups, she would collect those prior to 2:45 a.m. No red cups should be on the floor after that time. She was sure that she cleared all the red cups, though upon viewing the video during her cross-examination, where red cups could be seen, Ms. Pearson did state that red cups might be obtained at the front counter. Further, with respect to what appeared to be beer bottles visible on the video, Ms. Pearson thought them to be cream soda or ginger beer bottles.
Densel Jacques has owned Jamaica’s Finest for almost 3 years. He confirmed that the licensed capacity is 30 persons. He had hired security, Black Panther Security, as he wanted his patrons to be safe. However, he had terminated them a couple of weeks prior to the May 26th incident. He thought they were incompetent, one of the reasons being that people were bringing in their own alcohol. Mr. Jacques then hired Maximum Security. He had expected they would use a wand for searches, but understood they were doing pat downs instead. He indicated that there is always a police presence in the area, which he welcomes.
Either he or his wife buys the beer for the establishment. On Friday and Saturdays, they would stock 6-7 cases of beer as well as fill the cooler which has 120 bottles. On a daily basis, they would probably purchase 4-6 cases of beer. On Friday nights, bar sales are the highest, between $1,200-$1,400.
Mr. Jacques was not working at the bar on the night of the incident. He is a manager at Purolator Courier, and works from 2:30 p.m. to 2 a.m. He usually is at the bar on Saturday nights. He had a manager for the bar, but had parted company with him about a week before the May 26th incident. He asked his wife to work on the Friday night. He described his wife as a very nervous person. When she arrived home on May 26, she woke him up and told him that there had been a fight at the bar and that she had heard a sound like a firecracker. He assumed what she heard was a shot. He expected a call from security to tell him if there had been a problem. He fell back asleep. At the time, he was on medication that made him very sleepy.
In the morning, he left home and he received a call on his cell phone from his mother-in-law who was at Jamaica’s Finest. The police were there. He spoke to a police officer who told him that there had been a shooting at the club. He went to the club, met with the Sergeant and advised that he would cooperate. There would be no need for a search warrant. He made the video surveillance available to police.
Mr. Jacques explained that he is very strict about the rules when he is present. If he sees a violation, he will close down the party. Everyone should be out of the bar at 3 a.m. Mr. Lindsay locks up for him if he is not there.
In Mr. Jacques’ view, the events of May 26 resulted from security allowing a breach in the procedures. They should not have allowed a firearm on the premises. If anyone is inside before security arrives, they should still be searched and if they refuse, they should be asked to leave. As well, if there were more than thirty people present that also indicated a breach in security.
On cross-examination, Mr. Jacques acknowledged that he gave a statement to police (Exhibit 5). He did not mention in that statement that he went back to sleep after his wife told him about the incident because of his medication. He acknowledged that looking at the surveillance video there appeared to be more than 30 people in the premises. The video cameras were his safeguard to ensure security was doing its job. There are no written guidelines for security to follow. In his view, there were holes in security, given that patrons entered the premises with guns. His response would be to hire a manager as he is not there as often as he would like. In addition, he would hire a security company which uses a wanding system.
Reasons
With respect to the violations alleged on April 28, 2007, the Board heard evidence from only one witness, P.C. Foster. He testified that he attended at the licensed premises in response to a noise complaint. Upon arrival at the premises loud music was heard from outside. There was a crowd of approximately 30 people standing outside the premises, including two security personnel, and an even greater crowd inside. He testified that the crowd had to part to allow police a path to the rear of the premises where the d.j. was located.
P.C. Foster estimated a crowd of at least 200 people. The officer did not have a counter with him, and the Board accepts that the number may be overstated. However, the surveillance video, Exhibit 2 in respect of the May 26 incident, shows the premises busy with patrons, but not so overcrowded to make a walk through difficult. The Licensee acknowledged a crowd of more than 30, the licensed capacity, on that date. The officer’s description of the crowded nature of the establishment was not challenged. The party was, if the level of music was an indication, in full swing.
The Board finds, on a balance of probabilities that, the premises were, on April 28, 2007, in excess of licensed capacity, a violation of section 43 of O.Reg.
As the officer moved through the crowd, he testified to seeing bottles of Heineken beer in the hands of some males and Smirnoff Ice in the hands of some females. It was approximately 3:50 a.m. Again that evidence was uncontradicted. The bartender, Ms. Pearson, testified that Heineken beer is the bar’s biggest seller. Smirnoff coolers are also sold. Whether or not the bottles were cold to the touch and recently served is not relevant to the allegation. The unchallenged fact is that bottles were observed through the establishment a full hour after all signs of service of alcohol are to be absent. The Board therefore finds a violation of section 29 of O.Reg.
P.C. Foster testified there was an overwhelming smell of freshly burned marijuana, both at the front door of the establishment where there was a group of people, including the two security personnel, and inside the establishment during the April 28th investigation. The Board is satisfied police officers are familiar with the smell of marijuana. This is not a large establishment. He described it as a prominent smell in a confined space. The officer gave clear and cogent evidence on this point which was not contradicted. Based on the evidence, the Board, on a balance of probabilities, finds a violation of subsection 45(2) of the O.Reg.
Regarding the events of May 26, 2007, though the evidence, specifically Exhibit 2, suggests overcrowding and the Licensee concedes that fact, the Registrar did not make an allegation of a violation of section 43 in respect of this date. The video clearly shows a fight at the rear of the premises and at least two males with guns, shooting at a person or persons. The video corroborates the version of events as recounted by Mr. Lyons to police and it was his call to police which precipitated the investigation. There was clear and cogent evidence from police that as many as four shots were fired. The Licensee does not dispute the fact that guns where shot inside the premises. The Licensee does submit, however, that he did not permit this violent and disorderly conduct. He hired security to do a job and they failed in their responsibility to ensure the premises were safe and secure.
In interpreting the word “permit”, the Board has defined it as “a failure to prevent the proscribed behaviour.” A Licensee cannot abdicate the ultimate responsibility for conducting his or her business in accordance with the Act and its regulations by purportedly delegating responsibility to another. A very serious incident occurred on May 26th, fortunately without tragic consequences. The Licensee knew that security was not thoroughly checking patrons, bottles of beer not purchased on the premises were routinely found inside by the bartender. This is an establishment where the patrons arrive late. According to Mr. Lindsay it starts to get busy at 1 a.m. On May 26th patrons were still present at 5 a.m. Exacerbating the issue of abdication of responsibility is the fact that no one from the establishment reported the incident to police. Ms Jacques’ statement makes no mention of inquiring whether police had been called or whether any attempt was made to determine if someone was injured. Mr. Jacques, when told by his wife that shots were fired, went back to sleep. No attempt was made to contact his own security personnel or police. Instead, he assumed security would call him if there was a problem. That he may have been on medication that made him sleepy does not, in the Board’s view, excuse his lack of response to the situation. Underlying this incident is an abdication of responsibility by Mr. Jacques to his responsibility as a licensee. The Board, therefore, finds a violation of subsection 45(1) of O.Reg, permitting violent or disorderly conduct.
Finally, the video (Exhibit 2), shows bottles in the hands of patrons and on the floor at 5 a.m. According to Ms. Pearson, all alcoholic beverages would be in red cups after 2 a.m. Red cups would be collected by 2:45 a.m. Certain non-alcoholic drinks might also be in red cups. Thus, the presence of red cups on the video would not necessarily mean that alcohol was still present at that time. The video is not clear enough to enable the viewer to identify the label on the bottles although they are clearly a “beer” bottle shape. While again there is no allegation of service of alcohol after 2 a.m., the evidence from the licensee is that the biggest sale of beer is on Friday nights with sales between $1,200-$1,400 the majority of sales being after midnight or even 1 a.m. and, the Licensee submits, prior to 2 a.m. The Licensee, through Ms. Pearson’s evidence, suggests, that the party continued until 5 a.m. with ginger beer and cream soda. In light of all the evidence, the Board finds that scenario improbable and therefore finds, on a balance of probabilities, that the bottles observed were beer bottles or coolers and, therefore, a violation of section 29 of O.Reg.
Conclusion
Therefore, for the reasons given, the Board FINDS the Licensee violated section 29, 43 and subsections 45(1) and (2) of the O.Reg.
The Board on July 13, 2007, ordered that the Interim Suspension of licence number 809917 remain in place until the Board rendered its decision. Given the findings on each of the violations alleged by the Registrar, the Interim Suspension shall remain in place until the Board’s final decision on sanction is rendered. The Board invites written submission on penalty from the parties. In these circumstances, the Board will shorten the usual time line for those submissions.
The Registrar’s representative shall serve and file his written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have five (5) days to serve and file his written response. Registrar’s Representative may serve and file any reply within two (2) days of receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission at the address on the front page of this decision in accordance with the Board’s Rules of Practice.
DATED AT TORONTO THIS 26th DAY OF JULY , 2007
PATRICIA MCQUAID, VICE-CHAIR KIRSTI HUNT, VICE-CHAIR
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