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-
1132959 Ontario Ltd. o/a NRG/Kingdon Night Club Licensee
DECISION ON SANCTION
Panel: Alex McCauley, Board Member Brian J. Ford, Board Member
Decision Date: November 29, 2007 Hearing Location: Burlington, 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 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative 1132959 Ontario Ltd., Licensee ) John Lefurgey, Representative
Authorities
Jupiter Café and Sports Bar Inc., [2006]OAGCD No. 495 (QL)
A hearing into a Notice of Proposal number 14335 dated August 3, 2006 to revoke liquor license number 800727 (the “Licence”) issued to 1132959 Ontario Ltd. operating as NRG/Kingdon Night Club, 1400 Plains Road East, Burlington, Ontario, L7R 3P8, on the basis of alleged violations of subsections 45(1), 45(2) and 34(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) and Supplementary Notices of Proposal dated January 12, 2007 and February 19, 2007 to revoke the Licence on the basis of an alleged violation of section 29 of the LLA, was held May 1, 2, 3, 2007 and June 28, 29, 2007 in the City of Burlington.
In its decision dated October 22, 2007 the Board found the Licensee committed numerous violations of section 29 of the LLA and subsections 34(1), 45(1) and 45(2) of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Preliminary Matter
- Mr. Tony Marotta, the sole officer, director, and shareholder of the Licensee, wrote to the Board on November 5, 2007 asking that the submissions of his then representative, Robert Plouffe, be struck from the Board’s record. Registrar’s representative did not oppose the request. Mr. Lefurgey subsequently provided submissions on sanction on the Licensee’s behalf. In these circumstances the Board directs that submissions made by Mr. Robert Plouffe on behalf of NRG/Kingdom be struck from its record.
Decision On Sanction
The Board views the offences committed to be serious. There were a number of intoxicated patrons on various nights some of whom were severely intoxicated and all of whom were obviously intoxicated.
Licensee’s representative suggests that the situations were not all that serious as no one was arrested for being intoxicated. Counsel is reminded that the evidence revealed that in virtually all instances the intoxicated persons were in company of someone who was assisting them or turned over to security within the establishment who dealt with the intoxicated persons.
In relation to the matter of the trafficking of narcotics within the establishment, the Board is not moved by Licensee’s counsel’s statement that drug use is at an epidemic level and will always be around. Trafficking in narcotics is taken very seriously by this Board as evidenced by the Board’s ruling in Jupiter Café and Sports Bar Inc.
In the matter of NRG, the drug trafficking referred to was open and blatant. The drug trafficker had a variety of illegal drugs on his person including the required paraphernalia to conduct business. Granted there was no evidence that the Licensee or their staff were complicit in the trafficking of narcotics. The Board is, however, satisfied the evidence showed the staff were willfully blind to these activities. Drug use is serious and extra efforts have to be made to ensure licensed premises do not become a safe haven for drug trafficking and drug use. There is an expectation that licensed establishments will be proactive to the fullest extent possible to ensure an establishment is drug free.
The Board is pleased that Mr. Marotta is committed to make changes and work closely with law enforcement. This was not communicated to the Board at the hearing. Throughout the hearing the thrust of the Licensee’s defense to the allegations was to openly criticize the officers of the AGCO as openly targeting his business. None of these criticisms were ever sustained.
The cooperation with the Halton police claimed is sketchy at best. The Board was not impressed with the evidence of Cst. Larson. There is no doubt that Cst. Larson is supportive of Mr. Marotta, but to use Cst. Larson as evidence of cooperation with the Halton Police Service is a stretch.
The conduct of Mr. Marotta’s son, Tyler, in the giving of his evidence was very disconcerting given he is a principal in the Licensee corporation. The Board found his demeanor under cross-examination to be cavalier and dismissive. This is of concern to the Board because it indicates an attitude on the part of the Licensee of contempt for the rules and processes required of a responsible licensee.
On the other hand, the Board does not agree that revoking the licence is appropriate. We feel that if the Licensee puts into place the proposed changes that will work towards creating positive improvements in the establishment.
Order
Therefore, having considered the parties’ submissions, and the Board’s need to send a strong message that continued illegal behavior at NRG will not be tolerated and, further, considering the need for general and specific deterrence the Board ORDERS that liquor license number 800727 issued to 1132959 Ontario Ltd. operating as NRG/Kingdon Night Club, 1400 Plains Road East, Burlington, Ontario, L7R 3P8, be suspended for forty-five (45) consecutive days.
Proposed suspension dates are to be submitted in writing to the Manager of Hearings of the Alcohol and Gaming Commission of Ontario at the address set out on the front of this decision within seven (7) days of the date of this decision, failing which the Board shall set the dates for suspension without further notice to the licence holder. The suspension shall not commence for at least 20 days after the date of this decision, shall be completed within 90 days of the date of this decision, and shall be completed on days that the establishment is normally operating.
In addition, the Board hereby ORDERS the following conditions be attached to the licence:
a) there will be a list of all staff and managers’ names and addresses kept on file and available for inspection;
b) staff will receive instruction and training in regard to proper dealings with law enforcement and regulators. There will be a record kept of these instruction sessions;
c) every patron that wants to enter NRG/Kingdom must be searched;
d) every night the venue is open, at least four security officers must be posted at the front door to ensure all patrons are watched and observed to detect signs of intoxication before entering the establishment and that all are properly searched for weapons and narcotics, and that identification is verified;
e) Halton Police Service will be provided with a letter of authority from the establishment as set out in the Licensee’s submissions;
f) at least two (2) plain-clothes security officers must be employed during all hours of operation and must keep logs of what they do while working;
g) any outside security company that patrols parking lots at NRG/Kingdom must provide copies of their notes to the establishment;
h) although gates at either end of the smoking area cannot be locked, they must be kept closed and staffed at all times the establishment is open;
i) the Licensee will keep a copy of its log book available for inspection every night it is open;
j) any person caught in possession of narcotics or attempting to consume narcotics must be identified, if possible, and the identity provided to Halton Police Service. This must be noted in the log book as well as complete an incident report to be sent to the Halton Police Service; and
k) NRG/Kingdom must make its best efforts to utilize the TreoScope system to ensure accuracy of identification and tracking of patrons.
- The Board, further cautions the Licensee that further violations may well result in the revocation of the liquor licence.
DATED AT TORONTO THIS 29th DAY OF NOVEMBER, 2007
ALEX MCCAULEY, BOARD MEMBER BRIAN J. FORD, BOARD MEMBER
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