LIQUOR LICENCE ACT, R.S.O. 1990

In the Matter of: PASSIONS LOUNGE & RESTAURANT

320 King Street West

Kitchener, Ontario

N2E 1B4

Licensee: Natasha Kimberly Thomas

Licence Number: 810786

Notice of Proposal: To SUSPEND a licence

Dated April 6, 2005

Supplementary

Notice of Proposal: To REVOKE a licence

Dated February 21, 2006

The Proposals allege that:

(a) contrary to subsection 45(1) of the Liquor Licence Act (the “LLA”), the licence holder obstructed a person carrying out an inspection under the Act.

(b) contrary to subsection 45(2) of the LLA, the licence holder failed to facilitate an inspection relevant to the licence.

(c) contrary to subsection 45(1) of Ontario Regulation 719/90 (the “O. Reg.”) under the LLA, the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under the control of the licence holder.

(d) contrary to subsection 25(1) of the O. Reg. under the LLA, liquor was sold and served in the licensed premises outside of prescribed hours.

(e) contrary to section 29 of the O. Reg. under the LLA, the licence holder failed to clear the signs of service and consumption in the licensed premises within 45 minutes after the end of the period during which liquor may be sold and served under the licence.

Hearing: Alcohol & Gaming Commission of Ontario

Holiday Inn

30 Fairway Road South

Kitchener, Ontario

May 25, 2006

Presiding

Board Members: Brian J. Ford, Member

Allan Higdon, Member

Counsel for the

Registrar: Brad Alton

Counsel for the

Licensee: J. Brennan Smart

Attendance: Constable Eugene Fenton, Waterloo Police Service

Constable Jody Kidd, Waterloo Police Service

Constable Lesley McConnell, Waterloo Police Service

Constable Jeff Merrigan, Waterloo Police Service

Craig Murray, Special Constable, Wilfred Laurier University Constable Lisa Irwin, Waterloo Police Service

Constable Stephen Sadler, Waterloo Police Service

Sergeant Paul Perchaluk, Waterloo Police Service

Natasha Thomas, Licensee

Exhibits: None presented

On May 25, 2005, a hearing of the Alcohol and Gaming Commission of Ontario (the “AGCO”) was held regarding the liquor licence of Natasha Kimberly Thomas operating as Passions Lounge & Restaurant, 320 King Street West, Kitchener, Ontario, licence number 810786. Based on the evidence present to the Board, the Board found that there had been a breach of subsection 45(1) of the LLA and subsection 29 of Ontario Regulation 719/90 under the LLA.

The Board requested submissions on sanction from both the Registrar’s Counsel and Counsel for the Licensee. As of February 9, 2007, the Board has only received a response regarding sanction from Registrar’s Counsel, which was received on January 12, 2007.

The Board has been advised that a copy of the Decision on this matter was mailed to the licensee and that it was returned to the Hearings Department of the AGCO as “unclaimed”. A copy of the decision was also faxed to the office of Mr. Brennan Smart, Counsel for the Licensee.

On January 18, 2007, and January 22, 2007, a staff member of the Hearings Department of the AGCO contacted Mr. Smart’s office by telephone requesting submissions on sanction. On January 23, 2007, a further notice indicating submissions were due was faxed to Mr. Smart’s office. The fax also advised that the Board may proceed without submission from the Licensee.

On January 24, 2007, the office of Mr. Smart was again contacted by telephone and Mr. Smart’s assistant advised that they had tried on several occasions to contact the licensee, Ms. Thomas, and had be unsuccessful. She further advised that Ms. Thomas had not paid her retainer and that Mr. Smart’s office was of the opinion that Ms. Thomas had not retained them as counsel any further.

It is further noted that all attempts to contact the Licensee have met with negative result. The phone at the licensed establishment is no longer in service as of January 22, 2007.

Registrar’s Submission on Sanction

Mr. Alton notes that the infraction of obstruction of Police while conducting a liquor licence investigation is a very serious breach and of grave concern to the Registrar. It is his feeling that the obstruction creates a public safety issue as well a serious safety issue for police officers and AGCO liquor inspectors who attend licensed premises. The LLA is clear in Mr. Alton’s submission that police officers and liquor inspectors must be allowed to conduct an investigation unimpeded.

Mr. Alton also noted that the clearing of all signs of service after closing time is expected of licensees to have completed within forty-five minutes of the cessation of liquor sales.

Mr. Alton submits that any sentence imposed by the Board should reflect and be proportionate to the gravity of the offence and the degree of responsibility of the licensee. Mr. Alton notes that the licensee was present when the obstructions occurred which were carried out by her employees and that she did nothing to stop them or dissuade them in their unlawful conduct.

Mr. Alton notes that Mr. Byron Elliot repeatedly yelled at the police and prevented them from entering certain areas of the bar. His actions were of a serious nature. However they pale in comparison, in Mr. Alton’s opinion, to the actions of Merika Brown. Mr. Alton notes that Ms. Brown obstructed officers from entering certain areas, but far worse was that she purposely bumped into a police officer knocking her to the floor and causing the officer serious injury all the while yelling at her to “get the fuck out of here”. Mr. Alton notes that both Ms. Brown and Mr. Elliot were arrested by the police for their belligerent actions. He further notes that all the while Ms. Thomas stood by and did nothing. It is the opinion of the Registrar that the premises are out of control and that this licensee is not worthy of holding liquor licence.

Mr. Alton notes for the Board that it is the position of the Registrar that the Board must seek to achieve the objective of both general and specific deterrence in imposing sanctions. General deterrence to prevent others from acting in a similar matter towards police and others and specific to prevent the licensee from committing similar acts in the future. As a matter of general deterrence, the Board must send a strong message to all licence holders’ that obstruction of an investigation and causing injury to the police, especially by their own employees, is not acceptable. Ever! The licence holder is one hundred percent responsible for the actions of its employees, and as a matter of specific deterrence, the Board, in Mr. Alton’s view, must send an equally strong message to this Licensee for those actions as egregious as this are not to be condoned.

Mr. Alton feels that the Licensee should be disciplined for a serious situation created by her lack of control over the premises and her staff. Mr. Alton points out that the licensee has clearly demonstrated that she cannot control her staff and will not abide by the provision of the LLA. Therefore, Mr. Alton concludes that as a matter of general deterrence, and in order to give effect to the spirit and the objectives of the LLA, he submits that the Board order the revocation of liquor licence number 810786. Alternatively, should the Board conclude that the violations found do not warrant a revocation Mr. Alton believes that a lengthy suspension of between forty-five and sixty days be issued against the Licensee.

Decision and Order

The Board has not had the opportunity to hear from the licensee, who did not submit a submission on sanction.

The Board in considering the submission of the Registrar notes that the offence of obstructing an inspection or investigation of a licensed establishment is a serious matter. It is particularly serious when that obstruction is overt and aggressive rather than just passive. In this particular case the obstruction was overt and aggressive. Mr. Byron Elliot physically barred Cst. Fenton from doing his inspection and yelled at him in an aggressive tone, and Merika Brown deliberately bumped into Cst. McConnell and knocked her off balance. Ms. Brown did not knock Cst. McConnell to the floor or cause injury as Mr. Alton notes in his submission. However she did deliberately bump into her and at the same time yelled at her to “GET THE FUCK OUT OF HERE”. During this time the owner did not do anything to calm the situation down nor did she instruct her staff not to interfere with the Police. Both of these individuals were arrested and removed from the premises. Both were also later released without charge.

The Board notes that Ms. Thomas, the licensee, was present and had knowledge that the police were doing an inspection and yet she did not intervene when here employees were obstructing the police.

The Board also notes that the failure to clear signs of service within forty-five minutes is important particularly when the establishment continues to operate after the time allowed for the service of alcohol has passed. The licensee in this particular case offered no explanation during her testimony for this violation.

Registrar’s counsel in this case has asked for revocation of the liquor licence of Natasha Thomas because of the seriousness of the office of obstruction. The Board concurs that the obstruction was serious and that a strong message must be conveyed that obstruction of a liquor licence inspection is very serious offence. The Board also notes that no evidence was presented indicating any prior adverse record of discipline before the Commission.

Therefore the Board ORDERS that liquor licence number 810786, issued to Natasha Kimberly Thomas, for premises operating at Passions Lounge & Restaurant, 320 King Street West, Kitchener, Ontario be SUSPENDED for a period of SIXTY (60) consecutive days.

The suspension dates are to be submitted in writing to the manger of Hearings section of the Alcohol & Gaming Commission of Ontario, 90 Sheppard Avenue East, Suite 200, Toronto, Ontario, M2N 0A4, facsimile 416-326-5566 within seven (7) days of today’s date, failing which the Board shall set the dates for suspension without further notice to the licence holder. The suspension shall not commence for at lease 20 days after the date of this decision and shall be completed within 90 days of the date of this decision, and shall be completed on days that the establishment is normally operating.

DATED AT TORONTO THIS 19th DAY OF FEBRUARY, 2007.

__________________________________ __________________________________

BRIAN J. FORD, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER

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