Registrar, Alcohol and Gaming Commission of Ontario v. 2113753 Ontario Ltd., 2008 CanLII 91912

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 SANCTION

Panel: Patricia McQuaid, Vice-Chair Dianne Axmith, Board Member

Decision Date: December 18, 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

1. 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 (the “Licence”) 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 alleged violations of clause 6(2)(d) of the Liquor Licence Act ("LLA"), section 45.1 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, and breaches of conditions on the Licence, was held on October 28, 2008 in the City of Toronto.

2. At that hearing by Order dated October 30, 2008, the Board rescinded an interim suspension order placed on this establishment and imposed interim conditions to replace those consented to in July, 2008.

3. The Board reserved its decision on the allegations that the Licensee had breached subsection 15(1) and clause 6(2)(d) of the LLA and section 45.1 of the O.Reg.

4. In its decision dated November 27, 2008, the Board found there had been a breach of conditions pursuant to subsection 15(1) of the LLA but dismissed the alleged infraction of section 45.1 of the O.Reg as well as clause 6(2)(d).

5. Based on the above findings, the Board asked for submissions on penalty from both parties and requested input on appropriate conditions going forward in the event that the Board should decide not to revoke the Licence. The Board found that the breach of conditions resulted from a misunderstanding on the part of the Licensee and proposed revisions to conditions had been discussed in some detail with Peel Regional Police Services personnel.

6. The Board received and reviewed the submissions and has considered them carefully.

Registrar’s Submissions

7. On behalf of the Registrar, Mr. Morris submits that revocation of this licence is appropriate because of the clientele that frequents the establishment at specially promoted events that the Licensee has chosen to allow. Further, he submits that no set of conditions, and no willingness on the part of the Licensee to comply can be assured of preventing violence among the Licensee’s clientele in the area around the establishment.

Licensee’s Submissions

8. Licensee’s representative, Mr. Levitan, submits there is no basis for a licence revocation because the tragedy that occurred on October 12, 2008 was not as a result of malfeasance or neglect of the Licensee on that night and that he ought not to be held accountable or pay a penalty for events that occurred outside his control.

9. He submits that such a penalty would not be supported on the facts, in law or under the rules of natural justice and administrative fairness.

Registrar’s Reply

10. On reply, Mr. Morris states it is wrong to suggest that the events of October 12, 2008 were out of the Licensee’s control when it is within the Licensee’s control to choose what clientele it wishes to attract and what entertainment it wishes to provide. The Board should not be asked to ignore the safety implications of the Licensee’s own choices.

Reasons and Analysis

11. After carefully considering the circumstances, the Board does not believe it is appropriate to revoke this licence based on a breach of conditions that occurred on July 25 and 26, 2008.

12. All licence conditions, except the video retention capability, were met on the night of October 12, 2008 when the fatal shooting took place outside of the establishment, in the parking lot at the edge of the Licensee’s property, at approximately 3:46 a.m. The Board does not concur with Registrar’s submission that because the Licensee has chosen to hold special DJ events at the establishment, that this is a valid reason for revocation.

13. While such events may attract an undesirable clientele, they are not illegal and no evidence was presented that there were any violations of the LLA in the establishment on that date. The required number of security personnel were on duty, all patrons were wanded and no disturbance took place inside the establishment.

14. In considering an appropriate penalty in this matter, the Board has considered Mr. Levitan’s submission that the restricted conditions under which the Licensee has been operating since October 30, 2008 amount to a de facto suspension, and therefore a further suspension would be cruel and unusual punishment. The Board disagrees with this premise.

15. The Licensee had the right to serve alcohol as of 11:00 a.m. on October 30, 2008 despite the fact that he was not allowed to hold any specially promoted DJ events. This is not a de facto suspension and in determining an appropriate penalty, the Board does not consider that the licence has been under suspension for more than the original 13 day period from the interim suspension dated October 17, 2008 until the order was rescinded on October 30, 2008. Have made that determination, the Board need not deal with Mr. Levitan’s submissions regarding “cruel and unusual punishment”, or Mr. Morris’ response.

16. In its decision of November 27, 2008, the Board asked for recommendations for additional or revised conditions for this licence in the event that revocation was denied.

17. Mr. Levitan has provided several suggestions. Mr. Morris declined to do so and submits that the request to amend conditions was not before the Board nor is it required as part of any sanction the Board may impose arising from its findings of a breach of the conditions of the licence.

18. Further, Mr. Morris suggests that the appropriate procedure is for the Licensee to apply for a change in the conditions pursuant to section 14 of the LLA. He also states that Exhibit #7 does not deal with limiting condition No. 2 only to special events. He submits that further discussion with the police and the AGCO would be required before either party could be seen as signing off on any change in conditions.

19. The Board disagrees with this premise and relies on subections 23 (11) and 23(12) of the LLA which state:

23(11) Following a hearing to consider any other proposal referred to in subsection 21(1), (2), or (3), the Board may decline to carry out the proposal or may carry out the proposal, in whole or in part and with any changes that the Board considers appropriate…

23(12) Following a hearing, the Board may attach to a licence or permit any condition that the Board considers proper to give effect to the purposes of this Act. (emphasis added)

20. This is not a situation where conditions might be amended with no consultation with police, who are very concerned with public safety generally, and in the vicinity of the Premises in particular.

21. Based on Exhibit #7 submitted at the hearing, the Board is satisfied that substantial discussions were held with the Peel Regional Police Services, In that Exhibit, P.C. Watson states:

“On Friday October 10^th, 2008 at 10am, Det. Van Allen and I met with the Sugar Island licence holders (Neal and Bibi). We took the time to discuss various issues including security, licence conditions, public safety, etc.

It is recognized that Neal has taken many steps to ensure compliance with the newly imposed conditions and to heighten the public safety level in and around the premise.

Since the hearing, the Peel Regional Police Service, the AGCO, and the licence holders have also had an opportunity to make observations in relation to the conditions and their effectiveness and to whether or not any amendments need/could/should be made.”

On behalf of the Peel Regional Police – Vice Unit, I would like to share our thoughts on any amendments to the conditions currently imposed on the premise.”

P.C. Watson then addresses specific amendments noting as well that the conditions as drafted did not include Sunday nights which is the most popular night for promoted events, the inference being a gap in the conditions which should be addressed. The memo from P.C. Watson also includes valuable information for this Board regarding inadequate security measures imposed for events taking place on nights of the week other than Thursday, Friday or Saturday.

22. In their evidence, P.C. Watson and Detective Van Allen reiterated their concurrence with amendments set out in Exhibit 7.

23. The Board takes this evidence into consideration when exercising its discretion under section 23 of the LLA in attaching conditions “to give effect to the purposes of this Act.” These conditions should aid in minimizing risk to public safety. Unfortunately there are no perfect assurances, nor, in our current reality, can all risks be eradicated.

24. Regarding a period of suspensions, while no finding under section 45.1 of the O.Reg was made, and breaches of conditions were found on occasions when, fortunately, no serious consequences occurred, the Board must emphasize that a licensee is responsible for operating in accordance with the law and its licence conditions, and it is incumbent upon the Licensee to be aware of the meaning and impact of those conditions. Further, this Licensee has previously served 10 and 21 day suspensions. In light of this, a 25 day suspension (including 13 days already served) is deemed appropriate to serve the purposes of general and specific deterrence.

Order

25. The Board therefore ORDERS that liquor licence number 804439 issued to 2113753 Ontario Ltd. operating as SUGAR ISLAND RESTAURANT & BAR, 1455 Britannia Road, Unit 1, Mississauga, Ontario, L4W 1C7 shall be suspended for twenty-five (25) days, which period of suspension shall comprise the thirteen (13) days of the interim suspension and an additional twelve (12) consecutive days.

26. Further, the Board ORDERS that the following conditions shall be attached to the Licence and replace all other conditions imposed prior to this decision:

27. The Licensee shall notify Peel Regional Police Services of any specially promoted and/or DJ events at least 72 hours prior to the commencement of such events. This notification shall include the names of all personnel engaged to perform or provide support services for such an event.

28. The Licensee shall employ six security guards from 9:00 p.m. until 3:00 a.m. on every night that there is a specially promoted and/or DJ event at the establishment.

29. The Licensee shall employ two of the six security guards in the parking lot from 2:45 a.m. until 4:00 a.m. on every night that there is a specially promoted and/or DJ event at the establishment.

30. The Licensee shall ensure that all lights are turned on inside the establishment and that all patrons and performers vacate the premises by 3:30 a.m. on every night that there is a specially promoted and/or DJ event at the establishment.

31. The security guards shall be in uniform and bonded, insured and licensed by the Registrar of Private Investigators and Security Guards in the Province of Ontario.

32. The Licensee shall ensure that all patrons, performers and support staff are “wanded” by security guards before entering the premises when there is a specially promoted and/or DJ event at the establishment.

33. The Licensee shall ensure on those nights when there is no specially promoted events, that there is at least one security guard present for every 45 persons after 10:00 p.m. “Wanding” will be conducted by security, and at least one security officer will be on duty until the premises are closed.

34. The Licensee shall ensure that it has a security plan in place that is acceptable to the Peel Regional Police Services. Peel Regional Police Services shall indicate their approval of the security plan in writing and provide a copy of this approval to the AGCO.

35. The Licensee shall install two additional security cameras on the exterior of the building that will ensure recorded video coverage of all parking areas both at Sugar Island and at the Burger King property next door. The location of the additional cameras shall be set out in the security plan.

36. The Licensee shall install lighting in the parking area that brightly illuminates the parking lot of the establishment from 2:00 a.m. to 4:00 a.m. subject to any municipal zoning requirements.

37. The Licensee shall maintain the security cameras and video and retain the video footage on site for 30 days and provide a copy of the video to the police and AGCO inspectors upon demand.

38. At least one staff member who is knowledgeable about the security camera system and able to retrieve footage as required shall be on duty at all times.

39. The Licensee shall install and maintain signage, advising patrons that the indoor and outdoor premises are under video surveillance and of the requirement to leave the premises and disperse quietly once the premises is closed. The wording, number and location of the signs shall be set out in the security plan.

40. The Licensee shall submit proposed suspension dates in writing to the Manager of Hearings, Hearings Department, Alcohol and Gaming Commission of Ontario at the address on the front of this decision within seven (7) days of the date of this decision. The Board will set suspension dates without further notice to the Licensee if proposed dates are not provided within that time. The suspension must be served on days the establishment normally operates. The suspension may not start earlier than twenty (20) days from the date of this decision and must be completed within ninety (90) days of the date of this decision.

DATED AT TORONTO THIS 18^th DAY OF DECEMBER, 2008.

PATRICIA MCQUAID, VICE-CHAIR, AGCO DIANNE AXMITH, BOARD MEMBER