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 of Ontario Registrar
-and-
2113753 Ontario Ltd. O/A Sugar Island Restaurant & Bar Licensee
DECISION ON FINDINGS
Panel: Patricia McQuaid, Vice-Chair Dianne Axmith, Board Member
Decision Date: November 27, 2008
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 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative 2113753 Ontario Ltd., Licensee ) Jerry Levitan, Representative
Allegations
A hearing into a Notice of Proposal (“NOP”) number 16738 dated October 17, 2008 to revoke a liquor licence and an Order dated October 17, 2008 to immediately suspend a liquor licence on an interim basis to licence number 804439 issued to 2113753 Ontario Ltd. (the “Licensee”) operating as SUGAR ISLAND RESTAURANT & BAR, 1455 Britannia Road, Unit 1, Mississauga, Ontario, L4W 1C7 (the “Premises”), on the basis of an alleged violation of section 45.1 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act ("LLA"), was held on October 28, 2008 in the City of Toronto.
At the conclusion of testimony in this matter, the Board rescinded the interim suspension imposed on this establishment by the Registrar dated October 17, 2008. Reasons were provided in the order dated October 30, 2008 and new conditions imposed. The Board reserved its decision on the allegations set out in NOP number 16738 dated October 17, 2008 pending a thorough review of the evidence.
Evidence for the Registrar
Registrar’s Representative, Mr. Morris, provided Exhibits #1 through #5 to demonstrate the history of past problems with this establishment.
Constable Jason Watson has been with the Peel Regional Police Service for thirteen years, the last four with the Vice Unit and he knows the Sugar Island establishment. He described the incident of June 14, 2008 and the licence holder’s subsequent attempts to cooperate with efforts to ensure public safety.
Constable Watson provided details of the homicide investigation into the incident of October 12, 2008. At approximately 3:46 a.m., a patron exited Sugar Island. Another male was observed walking with a handgun which he fired repeatedly, striking the exiting patron and causing his death. The victim’s body was found on a grassy knoll that separates Sugar Island from a Burger King establishment. The body was approximately 30 feet from Sugar Island’s front door.
Constable Watson described the proximity of the two establishments as well as the fact that when the investigating officers attempted to retrieve video tapes mandated by a licence condition, and which may have assisted the investigation, they were not available.
It was Constable Watson’s testimony that the promoted DJ events at the establishment seem to attract patrons with a potential for violence and who have attempted to bring weapons into the Premises. Security guards “wanding” patrons have rejected patrons with weapons and reported those incidents to police.
On August 31, 2008 at approximately 3:35 a.m. police were informed that a male fired shots in the air in the proximity of Sugar Island. This individual then attempted but was denied entry to Sugar Island. Eight shell casings were recovered.
On September 14, 2008, security at Sugar Island reported that a male with a handgun was denied entry.
On September 22, 2008, an anonymous call from a person who said they were a Sugar Island employee reported a suspicious vehicle near the Premises and that they had overheard someone mention a shooting.
Constable Watson expressed concern about the continuing presence of firearms at or near the establishment.
On cross-examination, Constable Watson agreed that the problem with surveillance tapes was not that they hadn’t been installed but that there was insufficient memory in them. It was subsequently determined that they only had the capacity to record for 3 hours.
It was Constable Watson’s testimony that the “shooter” left the establishment before the victim but could not say how long before. The victim was the last person to exit.
There was no evidence that the gun was ever inside the Premises. The body was found at the dividing line between Sugar Island and Burger King just outside the fence. He agreed that even if the security camera had had enough capacity, it may not have recorded where the victim finally fell because of its location but thought it may have captured the shooter on film. He stated that cameras can have a deterrent effect whether they are recording or not.
Constable Watson agreed that there are other problem establishments in the area and most incidents are associated with special promotion events there also. When asked if the Police would welcome having veto rights for any promoted events/DJs, he could not say. They do monitor the entire area for these events and while the information would be good to have, the ability to veto certain people could result in legal problems.
Constable Watson affirmed that by reporting incidents when security found people with weapons, they were doing exactly what is required. On July 21, 2008 they did the right thing. On September 22, 2008 when the phone call came, the Police responded with five officers. There were about 30 patrons in the establishment and no further action was required.
As for the August 31, 2008 incident involving shots and the recovery of shell casings, Constable Watson agreed that there was no evidence to suggest it was a Sugar Island patron who was involved. He had no information about the location of the shell casings and it could have happened on Burger King property.
The officer described his meeting with the licence holder on October 10, 2008, just prior to the October 12, 2008 incident. Mr. Parbhu was, in his opinion, trying to be pro-active and he was comfortable with the new plan proposed by Hardcore Security Incorporated (Exhibit #6).
He was sympathetic with Mr. Parbhu’s problem with Condition #2 on the licence that required six security guards even when no special event was planned. He confirmed that Exhibit #7 was an e-mail that he drafted after discussing the situation with other officers. He also agreed that until July 25, 2008 Mr. Parbhu was under the mistaken impression that the security detail described in Condition #2 was only necessary when special promoted DJ events were taking place at the establishment.
The officer confirmed the fact that another source of video taken inside the Premises on October 12, 2008 was collected by the investigating officers in this homicide case. He has seen a photo of the alleged shooter inside the Premises on the night in question but has no direct knowledge that the individual had a weapon with him at the time.
On re-direct, Officer Watson confirmed his belief that if the footage had been available, the outside camera would have at least shown the shooter exiting Sugar Island. He also agreed that patrons of Sugar Island may sometimes park on Burger King property as could have been the case on August 31, 2008.
The officer acknowledged that the proposed replacement security plan provided by the licence holder on October 11, 2008 was essentially the same as that on file and provided by Defence Force Security (Exhibit #9).
On questioning from the Board, the officer confirmed that while there is no firm protocol in place, the police advocate calling them when a weapon is discovered and entry to an establishment by that individual is denied.
On October 12, 2008 when the homicide occurred, there was a specially promoted DJ event at Sugar Island.
Detective Sargeant David Van Allen is with the Peel Regional Police Vice Unit and has been an officer for 26 years.
On July 25, 2008 at approximately 11:05 p.m. as he was driving by Sugar Island, he observed four males exiting the establishment. No security guards were observed and upon entering he found one couple and another person inside. The Premises appeared to have been set up for a DJ with a sound system in place but no music playing. He was told that the DJ had not shown up and they were thinking of closing. When he asked about the lack of security, he was told they believed it was not necessary except for specially promoted events. He left at 11:15 p.m.
On July 26, 2008 he again attended the establishment at 11:15 p.m. He noted 8 to 10 cars in the parking lot and observed only two security guards who were not “wanding” patrons. He spoke to Mr. Parbhu who informed him he was expecting a total of six security personnel and when he left, four were present. The licence holder agreed to call for an additional two.
Officer Van Allen told the licence holder that he would be reporting both incidents and Mr. Parbhu explained that he thought the security guard requirement was only for nights when there were specially promoted DJ events. He left at approximately 11:35 p.m.
On cross examination, officer Van Allen agreed that he had not objected to Officer Watson’s e-mail dated October 10, 2008 (Exhibit #7) and that he concurred with the views expressed regarding possible amendments to the conditions regarding security for non-promoted events.
On re-direct, Officer Van Allen stated that the only way they know about promoted events is by monitoring the internet, newspapers or flyers. In his opinion, there is little difference between DJ events whether they are promoted or not.
Officer Ryan Berrigan has been with the Peel Regional Police Service for 11 years and is attached to the Homicide and Missing Persons Bureau.
He has interviewed many people in relation to the October 12, 2008 homicide. Video and still photos were obtained of the activities inside Sugar Island that night. The event promoter had hired personnel to perform these services. There were apparently multiple shooters outside that night and they were able to confirm that at least one male shooter was inside the establishment prior to the incident although there was no evidence that any weapons were in the Premises.
One individual with a bullet wound was arrested later and was found to be in possession of a weapon. He acknowledged being in the vicinity of the fatal shooting and was arrested and charged with gun and drug related offences. He was not charged with the fatality and at the time of this hearing, the officer was unable to confirm whether that shooter was inside the club.
Officer Berrigan elaborated on the number of interior security cameras and his experience in attempting to secure footage from them. He described the licence holder’s wife’s explanation that she did not know how to operate the system and the fact that it was subsequently learned that the machines record over themselves every 24 hours.
Exhibit #8 was tabled. This is a memo from Detective Donald Ross confirming the details of his conversation with officer Shawn Brabant who indicated that he sat with the Licensee in an attempt to review footage from the video system on the night in question but despite the fact that several hours of footage were there, it was never viewed.
Carla Noseworthy is an Inspector with the AGCO who described her observations on the night of July 25 2008 when she attended Sugar Island at approximately 23:16 hours. It was her testimony that the licence holder was present as was one other person at the bar. No security personnel were observed at the front door or inside the establishment and it was her conclusion that no “wanding” had taken place.
In discussions with the licence holder, he stated it was his understanding that security personnel were not necessary except for specially promoted events. She explained that this was not so. Mr. Parbhu advised that he would discuss this with his lawyer. There were no other patrons present in the establishment but Ms. Noseworthy advised him she would be submitting a report on the incident. Mr. Parbhu then showed her the security cameras and she left at approximately 23:46 hours.
On September 17, 2008 at approximately 14:10 hours, she was present at Sugar Island with Ontario Provincial Police (“O.P.P.”) Detective Sargeant Andrew Pierre and had a discussion with the manager of the establishment Ms. Bebee Budhal about “promoted” events.
Ms. Budhal advised that they were not happy with their current security provider and were contemplating a change. Ms. Noseworthy cautioned Ms. Budhal to ensure that a new security firm should be made aware of the licence conditions. Ms. Budhal also informed her that they would not be holding any “all ages” events in the future because of past problems.
Detective Andrew Pierre testified about his visit to Sugar Island on September 17, 2008.
He reviewed the licence conditions with Ms. Bebee Budhal and enquired about any special events coming up. Ms. Budhal informed him she was unable to operate the security camera system and confirmed Ms. Noseworthy’s testimony that she advised they were not happy with their current security provider and thinking of a change. They were in the process of getting proposals from M & M and Hardcore Security Inc. She also informed him that they were considering the cancellation of an upcoming event on November 1 because they were unable to secure paid duty officers to monitor it.
The only other person present at the time of this visit was the cook. He did a walk around and then left at 15:00 hours.
Evidence for the Licensee
Neel Parbhu has been the owner of Sugar Island for two years. He testified that he agreed to the conditions imposed on his licence regarding security personnel and cameras. He was under the impression that he did not need six security guards or “wanding” unless a special event was happening. On the July 25, 2008 occasion, there were only two people present in the establishment and he was planning to close early.
On July 26, 2008, four security personnel were present and they did not have the appropriate equipment to conduct “wanding” according to the licence conditions. That error was one of the reasons he wanted to change his security provider.
He spoke to Detective Sargeant Van Allen and Constable Jason Watson prior to October 12, 2008 and explained the problems he was having. They informed him that they understood and would support his proposed changes. He was told that he could change security providers as of the following Sunday.
Subsequent to the incident on October 12, 2008 he learned that the video recording system he had purchased and installed was inadequate. He was informed that his computer hard drive was not big enough to satisfy the 30 day requirement. That has now been changed.
On the night of October 12, 2008, six security guards were on duty. The security cameras were operational and there was no incident inside the establishment. He was informed by one of the security guards that there had been a shooting outside at 3:45 a.m. while he was cleaning up.
Mr. Parbhu stated that he would be agreeable to any reasonable conditions for his establishment and offered to install two more cameras; one that would capture footage on the Burger King side and another at the back. These cameras would film everything that goes on at that restaurant.
Mr. Parbhu also testified that if allowed to keep his licence, he would give notice to the Peel Regional Police prior to any future special event advising them of all individuals engaged to promote and operate it.
On cross examination, Mr. Parbhu stated that he was not interviewed by any police officers on the night of the homicide and left for Miami at noon the next day on business related to exhibits for trade shows. He agreed that his wife did not and still does not know how to operate the security camera system. He is the only person who knows how to retrieve recorded footage and he is present for almost all of the special events at the Premises.
There are never any DJs at Sugar Island unless there is a special promoted event and because of past experiences, they are getting away from Reggae dances. He intends to install more television sets and operate more as a sports bar.
On July 25, 2008 there were no security personnel and no “wanding” because he believed it was not necessary since there was no special event booked. On July 26, 2008 there were only four security guards present but two more were called after the police insisted despite the fact that there were only about 20 to 30 patrons present.
Bebee Budhal testified that she runs Sugar Island’s bar and food service. On July 25, 2008 they turned away four patrons because they were about to close. The police were sitting outside and saw them leave. When they entered, she explained that nothing was going on and she was planning to close early.
On July 26, 2008 they had ordered six security guards but only four showed up until two more were called. This was done in the presence of the police. It was her testimony that two more security guards did arrive.
Ms. Budhal related her conversation with the officers on September 17, 2008. It was her testimony that Ms. Noseworthy said they did not want them to hold any more “all age” events.
She was present on the night of October 12, 2008 and stated that six security personnel were also present. There were no incidents inside the establishment. When they were informed about a shooting, she was told the victim was the last patron to leave the Premises.
On cross examination Ms. Budhal testified that she was contacted by police who asked if they could pick up the security camera tapes. She informed them that only Neel Parbhu knew how to retrieve the footage.
As for the July 25 incident, no patrons were served and the four boys who entered were told the place was closed. She was only there to clean up.
In her capacity as manager, she does not hire DJs. That is the job of the event promoters. The sound system and speakers that were observed on July 25, 2008 are part of their house system and always there.
Ms. Budhal agreed that on September 17, 2008 Ms. Noseworthy advised her that someone who knows how to operate the camera system must always be present at the establishment.
She stated that the police visited on October 13, 2008 and asked for the camera footage.
On re-direct, Ms. Budhal stated that even if not present, Mr. Parbhu was always available by telephone.
Registrar’s Submissions
On behalf of the Registrar, Mr. Morris submits that this establishment has a history of problems that stem from engaging promoters of events that attract a problem clientele. Further, this Licensee has breached conditions put in place to mitigate the activities of these problem patrons.
On October 12, 2008 the very important video footage was not available to assist the police in their homicide investigation. This is a serious public safety issue. The licence holder has been cooperative with the police but the establishment’s history should be taken into consideration.
A previous 21 day suspension with conditions imposed on the licence was a result of four stabbings and two people injured by a vehicle. This is serious.
On July 25, 2008 four people were inside the establishment and no security personnel were present. Police were informed that the arranged DJ had not shown up and they were about to close. This is a clear breach of condition.
On July 26, 2008 there were only four security guards present. Another breach of condition.
On September 17, 2008 a clear warning about the camera system was given but it was still not operating according to specific requirements.
On October 12, 2008 the homicide victim was a patron who exited the establishment. He was found within 30 feet of the door of Sugar Island. Clearly, the security inside and outside the Premises is not effective. The licence holder is unable to make this establishment a safe place and, therefore, the licence should be revoked.
Licensee’s Submissions
On behalf of the Licensee, Mr. Levitan submits the facts of this case are not in dispute. He contends that the licence holder has dealt with past problems with honesty and integrity.
Section 45.1 demands that reasonable measures be taken and the licence holder has done so. On the night of the homicide, the prescribed number of security personnel were present. The only thing missing was the camera security footage through no fault of the Licensee. The system had flaws but this was a mistake and nothing more. Since then, the system has been upgraded to the standard specified.
Based on testimony from the police who have interacted with Mr. Parbhu, the Board cannot conclude he lacks honesty and integrity. In fact, just the opposite is true. He recognized a deficiency with his security provider and sought to correct it.
Even the police acknowledged that one of the conditions imposed was unreasonable and that explains the events of July 25 and 26, 2008. This resulted in Officer Watson’s e-mail. Further, both officers testified that they believed what the Licensee said about July 25, 2008.
The licence holder should not be held accountable for something that did not happen inside the Premises. There was no evidence that weapons were allowed in the establishment.
Additionally, Mr. Parbhu has offered not to use any of the promoters or DJs that have been involved in previous incidents. He is also willing to give prior notice to Peel Regional Police about future proposed events prior to signing contracts. This should significantly alleviate the situation.
The facts do not support the notion that this establishment is out of control. Officer Watson’s e-mail confirms that the police were sympathetic to Mr. Parbhu’s proposed condition change.
Mr. Levitan reminds the Board that there has been no City Resolution to revoke this licence and that Peel Regional Police did not ask to be a party in this matter. He believes that no evidence has been presented that would justify revoking this licence.
On reply, Mr. Morris reminds the Board that even with the conditions imposed on this licence a homicide occurred. This is because the licence holder has chosen to hold events that attract a violent crowd. These people follow certain DJs and promoters.
It is not appropriate for the police to “veto” future events. This could result in an unnecessary liability.
Decision and Reasons
The Board has thoroughly reviewed the testimony of all parties and the exhibits provided in this matter.
The Registrar asks for revocation of this licence pursuant to subsection 15(1) of the LLA and alleges that contrary to section 45.1 of Ontario Regulation 719/90 under the LLA, the licence holder failed to ensure that reasonable measures were in place and reasonable efforts were made to deter disorderly conduct on property adjacent to and in the vicinity of the Premises by patrons or people attempting or waiting to enter the Premises or leaving the Premises.
The Board must ask itself what constitutes “reasonable efforts”.
To substantiate this allegation, the Registrar cites several breaches of conditions. These are:
a) Failure to “wand” all patrons before entering the Premises.
b) Failure to employ six security guards from 10:00 p.m. to 3:30 a.m. on Thursday, Friday and Saturday nights.
c) Failure to install and maintain security cameras inside and outside the Premises along with video equipment in accordance with the security plan along with the location and hours of operation of the cameras.
d) Failure to maintain the security cameras and video and retain a copy of the video on site for 30 days and provide a copy of the video to police and liquor licence inspectors upon demand.
There was clearly a failure to “wand” patrons on the nights of July 25 and 26, 2008 as well as an absence or lack of appropriate numbers of security personnel as required in Conditions #1 and #2. The Board heard testimony that until July 25, 2008, the Licensee believed the security requirements were only necessary when a special event was taking place. Testimony from the police suggested they believe that he did misunderstand the requirement. Furthermore, the memo from Officer Watson (Exhibit #7) suggests the police were sympathetic to not requiring security personnel on nights when promoted events were not taking place. This leads the Board to find that this breach was not intentional.
On July 26, 2008 it appears to have been a failure of the security provider to place the appropriate number of security guards in the establishment with “wanding” equipment as outlined in their own security plan dated September 22, 2008. This was rectified after a telephone call from the licence holder.
Regarding the failure of video equipment, here too we have a situation where the Licensee thought he was installing equipment that would satisfy the requirements prescribed in Condition #8. We heard no testimony that would suggest the number or location of cameras was deficient. The problem appeared to be related to computer capacity. It is also unfortunate, although understandable, that the police did not attempt to retrieve the video footage until October 13, 2008. But the Board does not believe that there was any real intent not to comply with Condition #8.
Based on testimony from Officer Watson and Detective Sargeant Van Allen, it seems clear that they considered the licence holder to be cooperative and pro-active in efforts to change the security provider for the establishment. Additionally, they were sympathetic to his problem in complying with Condition #2 on nights when no special events were taking place. The e-mail from Officer Watson (Exhibit #7) confirms this attitude.
On the night of October 12, 2008, the conditions regarding the number of security personnel and “wanding” were met. Apparently, at least one person was refused entry after being “wanded” so that procedure appears to have been effective. The parking lot incident occurred at 3:46 a.m., some considerable time after the sale and service of alcohol ceased.
No disturbance occurred inside the Premises and there was no evidence that any weapon was allowed inside. Aside from the deficient camera system, the Board must ask itself what more could the Licensee have done to prevent this tragedy. No evidence was put forward that there were other reasonable measures that could have been taken in addition to those in place.
It is the Board’s opinion that on this occasion, the Licensee did make reasonable efforts to deter disorderly conduct on property adjacent to and in the vicinity of the Premises.
While no tragedy similar to the incident of October 12, 2008 occurred on either July 25 or 26, 2008, the Licensee did breach Conditions #1 and #2. Despite the fact that there appears to have been a genuine misunderstanding regarding the need for “wanding” and six security guards on nights when no special event was taking place, it is the Licensee’s responsibility to fully comprehend the requirements of any and all licence conditions when they are imposed.
Similarly, and while apparently not intentional, the Licensee failed to comply with the prescribed technical specifications for the establishment’s video recording system. This was only discovered after the tragic incident of October 12, 2008 and has apparently been remedied. The Board also heard evidence that interior video was made available from another source and that the value of exterior footage may have been negligible due to the location of the incident.
Based on the evidence presented, the Board FINDS that the licence holder breached conditions #1, #2 and #8 of the licence.
After thoroughly reviewing the circumstances of the breached conditions and particularly the fact that all conditions except the video retention capability were met on the night of October 12, 2008, the Board DISMISSES the allegation that there has been a breach of section 45.1 of the O.Reg that the licence holder failed to ensure that reasonable measures were in place and reasonable efforts were made to deter disorderly conduct.
Having made this determination and relying on police testimony about the Licensee, the Board also DISMISSES the allegation with respect to section 6(2)(d) that this business will not be carried on in accordance with the law and with integrity and honesty.
Conclusion
- The Board invites written submissions on penalty from the respective parties. Further, since new, temporary conditions were imposed in the Board’s Order of October 30, 2008, the Board also requests that the parties include recommendations for additional or revised conditions that it may consider in the event that the proposal for revocation of this licence is denied. 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 seven (7) days to serve and file his written response. Registrar’s representative may serve and file any reply within three (3) 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 27th DAY OF NOVEMBER, 2008.
PATRICIA MCQUAID, VICE-CHAIR, AGCO DIANNE AXMITH, BOARD MEMBER