Editor’s Note: Corrigendum released on August 31, 2007. Original judgment has been corrected with text of corrigendum appended.
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-
6536476 Canada Inc. O/A Heaven Nightclub
Licensee
DECISION
Panel: Alex McCauley, Board Member
Guy Maurice, Board Member
Decision Date: August 27, 2007
Hearing Location: Ottawa & 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 ) Joyce Taylor, Representative
6536476 Canada Inc., Licensee ) Jerry Levitan, Representative
Authorities
Urban Well Lounge and Bistro, [2006] O.A.G.C.D. No. 536
Centre Street Country Kitchen, [2000] O.A.G.C.D. No. 328
Bobby Jo's Red Parrot, [2000] O.A.G.C.D. No. 59
Lion on the Beach, [2005] O.A.G.C.D. No. 375
Allegations
- A hearing into a Notice of Proposal number 14710 dated November 24, 2006 refuse to remove a condition and to add a condition to liquor license number 804886 issued to 6536476 Canada Inc. (the “Licensee”) and operating as HEAVEN NIGHTCLUB, 160 Rideau Street, Ottawa, Ontario, K1N 5X6 on the basis the applicant corporation has applied to the Commission to remove a condition on the licence, was held on March 21, May 22 and August 10, 2007 in the City of Ottawa.
Evidence
- The Licensee asks to have the condition on the license of Heaven Nightclub excluding Nicholas Reichenbach from the premises removed and replaced with the following condition:
Nicholas Reichenbach shall not be involved in the operations of the licenced establishment, as officer, director, shareholder or manager or in any capacity other than as a consultant and a promoter of entertainment events.
It not contested that Mr. Reichenbach, a former licensee of a nightclub known as Atomic Nightclub, voluntarily surrendered his liquor licence on January 31, 2002 after incurring a substantial amount of unpaid retail sales tax. The Board understands that some or all these amounts remain outstanding.
The Board heard evidence from Mr. Villeneuve and Mr. Sicotte, principals of the Licensee, that Mr. Reichenbach is a very successful promoter for the type of music events they present in the club. They testified that Mr. Reichenbach currently provides his services to other licensed clubs in and around Ottawa.
Mr. Villeneuve testified that, while waiting for their licence to be approved, an anonymous letter was sent to the AGCO (Ex. # 5). This letter alleged that Mr. Villeneuve and Mr. Reichenbach had been co-owners of Atomic nightclub and still owed a substantial retail sales tax debt to the Province. While not true, the letter resulted in a more in-depth review of the application and the applicants.
Mr. Villeneuve and Mr. Sicotte were advised they could shorten the investigative review process if they agreed to totally exclude Mr. Reichenbach from any activities with the club. By this time they were becoming desperate to obtain their licence because the monies invested were drying up. They had hoped to be able to open sooner and the delay caused by the problems around Mr. Reichenbach had severe financial implications to the corporate owners. They believed they could probably get by without Mr. Reichenbach’s services and agreed to the condition excluding Mr. Reichenbach. However, very shortly thereafter and after dismissing two other promoters, they realized that Mr. Reichenbach’s services were necessary to their overall success.
The Registrar’s witness, Mr. Baxter, testified that to allow Mr. Reichenbach on to the premises sends the wrong message to others in the industry. Registrar’s counsel points to the fact that nothing has changed to have caused the original condition to be put on the licence in the first place. In that regard Registrar’s counsel relied on Urban Well Lounge and Bistro, Centre Street Country Kitchen, Bobby Jo’s Red Parrot and Lion on the Beach in support of her position.
Reasons
The Board has carefully considered the arguments of both counsel and considered the circumstances.
First, the Board is absolutely satisfied that this is not some nefarious scheme to get Mr. Reichenbach back into business as a licensee with the current Licensees acting as a front for him. Further the Board heard no evidence of any past/present conduct of the present Licensees that causes any concern about their honesty and integrity now or in the future.
Mr. Reichenbach’s problems are his. It is suggested that there are legal remedies to deal with him available to his creditors. If keeping Mr. Reichenbach out of Heaven nightclub is intended as some sort of punishment, the Board wonders who is being punished.
The circumstances that led to the original condition being put on the licence beg for comment. If the anonymous letter had not come about it is safe to assume the licence would have been granted without any conditions. The timing of the situation put the then applicants literally between a rock and a hard place. They needed to make a decision quickly because of financial constraints and perhaps naively thought they did not need Mr. Reichenbach’s services. In this regard the Board notes that none of the decisions relied on by the Registrar are similar to this fact situation. Some dealt with familial matters in an attempt to bring someone into the business proper who had been excluded and in others noise considerations were a factor.
The condition now proposed by the Licensee is very restrictive on the services that Mr. Reichenbach can perform for the Licensee. It totally keeps him clear of all financial matters. The Board is satisfied that, under the proposed condition, Mr. Reichenbach will not have any influence in the management of the club or its financial affairs. We do not agree that using the services of Mr. Reichenbach at Heaven Nightclub in the manner requested will bring the administration of the Liquor Licence Act into disrepute.
The Board is satisfied there has been a change in circumstances given these very unusual facts. The change is that the Licensee is facing a distinct disadvantage from other licensees by not being able to utilize the services of Mr. Reichenbach as they thought they would be able to when they agreed to the condition.
Order
- The Board therefore orders that the existing condition concerning Nicholas Reichenbach be removed from the licence and replaced with:
Nicholas Reichenbach shall not be involved in the operations of the licenced establishment, as officer, director, shareholder or manager or in any capacity other than as a consultant and a promoter of entertainment events. Nicholas Reichenbach shall not control any revenues or receipts collected at the licensed establishment. All business contracts between Nicholas Reichenbach and the Licensee will reflect this condition.
DATED AT TORONTO THIS 27th DAY OF AUGUST, 2007.
ALEX MCCULEY, BOARD MEMBER GUY MAURICE, BOARD MEMBER
AM/sm
Amending Letter
August 31, 2007
Joyce Taylor
Registrar’s Representative
Alcohol and Gaming Commission of Ontario
90 Sheppard Avenue East
Toronto, Ontario M2N 0A4
(Fax: 416-326-5574)
Martin Andre Villeneuve
Heaven Nightclub
160 Rideau Street
Ottawa, ON K1N 5X6
Re: Heaven Nightclub, Licence Number 804866, Decision of August 27, 2007.
Based on the Board’s Decision of August 27, 2007, it was ordered that the existing condition concerning Nicholas Reichenbach be removed from the licence. In the Decision, due to a clerical error, the licence number was incorrect.
Pursuant to Rule 17.1 of the Board’s Rules of Practice the decision has been corrected to read as follows:
“…and to add a condition to liquor licence number 804886 issued to 6536476 Canada Inc…”
No action is required on your part.
Sincerely,
Paula Konstantinidis
Manager of Hearings and
Executive Assistant to the Chair
PK/ee
Cc: Jerry Levitan, Licensee’s Representative