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-
Arena Entertainment Inc. O/A Circa
Licensee
DECISION ON FINDINGS
Panel: Jacqueline Castel, Board Member Bruce Miller, Board Member
Decision Date: April 16, 2009
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 Arena Entertainment Inc, Licensee ) Jerry Levitan, Representative
Allegations
- A hearing into Notice of Proposal (“NOP”) number 16140 dated March 27, 2008 to suspend liquor licence number 807407 (the “Licence”) issued to Arena Entertainment Inc. (the “Licensee”), operating as Circa, 126 John Street, Toronto, Ontario, M5V 2E3 (the “establishment” or the “premises”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the Liquor Licence Act (“LLA”), was held on April 2, 2009, in the City of Toronto.
Decision
- After considering all the evidence and submissions, the Board FINDS the Licensee violated subsection 45(1) of the O.Reg. Reasons for the decision follow.
Preliminary Matters
- The Board ordered that witnesses be excluded with the consent of both parties.
Registrar’s Evidence
Kimberley Cheeseman is a Detective Constable (“D.C.”) with the Ontario Provincial Police. She is seconded to the Alcohol and Gaming Commission of Ontario (“AGCO”) and has been a police officer for 12 years. D.C. Cheeseman made notes shortly after the inspection and the Board allowed her to refer to them to refresh her memory, with the consent of the Licensee.
On Saturday, October 13, 2007 she went to Circa at 1:13 a.m. to do a routine inspection with AGCO Inspectors Leadbetter and Fernando. The bar is located in the downtown entertainment district.
The three of them did a walk through on the first floor where there is a dance area. It was crowded. People were shoulder to shoulder and she had to weave through the crowd.
Inspector Leadbetter was further ahead and she lost sight of her. Inspector Fernando was only 5 to 6 people ahead of her.
A male (“Patron One”) approached from her left. She described Patron One as having olive skin and dark short hair. He was wearing a yellow-lime t-shirt.
He was trying to squeeze through the crowd and stumbled into Inspector Fernando. D.C. Cheeseman put her left arm up to shield Inspector Fernando from him.
Patron One grabbed D.C. Cheeseman’s arm. She looked him in the eyes and told him to let go and to take his hands off her. He repeatedly tried to grab her and she kept telling him to let go. She had to remove his hands from her. He kept letting go and would then grab her again.
He then went behind her and started walking into the back of her. He was attempting to grab the back of her clothing.
His eyes were glazed and he had a strong odour of alcohol on his breath.
D.C. Cheeseman stopped, turned and verbally identified herself as a police officer and showed him her police badge. She told him to stop touching her. He looked at her with a “distant look” and she wasn’t sure he understood. He said, “but I just want to dance with you”.
He fell into her. At this point, D.C. Cheeseman put his hands behind his back and removed him to a less congested area.
She walked him past an escalator. She saw a security staff member with a light blue shirt on. Patron One started to resist at this time and she gained control of him and moved ahead.
She saw a security staff member in a dark blue shirt and turned Patron One over to him. She advised security that the male was intoxicated.
She then located the two Inspectors and went to the second floor with them. They went to an area called the Skyy Vodka Bar.
She saw a male (“Patron Two”) who was bent over. He was wearing a black hooded sweatshirt. She thought he was vomiting. She looked closer and saw that he was not vomiting but he was drooling and spitting.
She saw a security staff member with a light blue shirt off to the side of the area.
Patron Two fell backwards into a booth he was standing beside. There was a male and a female in the booth who appeared to be with Patron Two. Patron Two appeared to pass out and was slumped over on the female.
The security staff member did not take any action. Inspector Leadbetter walked over and tried to wake Patron Two. He was unresponsive at first.
Patron Two woke up. He had an odour of alcohol and his eyes were glassy. He got up and stumbled past her. Inspector Leadbetter took Patron Two over to security. She believed security would have been able to see Patron Two during the entire incident.
D.C. Cheeseman spoke to the other male who was in the booth. He told her Patron Two had three to four drinks prior to coming to Circa at 11:45 p.m. and three to four beers and two shots while at Circa. She spoke to the male at 1:30 a.m.
Patron Two was escorted from the premises by security. He was uncooperative and shouting, but ultimately left.
D.C. Cheeseman and the two Inspectors continued their inspection. They were on the second floor at the top of the escalator. She saw a male (“Patron Three”) staggering and stumbling into other customers.
Both Inspectors approached Patron Three. D.C. Cheeseman and Inspector Fernando stood on either side of him to steady him while Inspector Leadbetter spoke to Patron Three. He was very unsteady. He was weaving back and forth and from side to side.
Inspector Leadbetter asked him for identification and he said he had none with him. D.C. Cheeseman noticed a wallet in the back pocket of his pants and brought that to his attention.
Patron Three had glassy red eyes. He had a strong odour of an alcoholic beverage on his breath. His speech was slurred and, at times, it was difficult to understand what he was saying. He had extremely slow motor skills. He eventually produced an Ontario driver’s licence. It took quite a while for him to locate and remove it from his wallet.
Security staff attended as did Mr. Bristol, the General Manager. She was not sure at what point Mr. Bristol arrived on the scene.
Patron Three tried to return his licence to his wallet but couldn’t get it in the slots.
Security staff took custody of Patron Three. He accused Inspector Leadbetter of not returning his wallet. D.C. Cheeseman had to retrieve his wallet, remove the licence and show him it had been returned.
Inspectors Leadbetter and Fernando spoke to Mr. Bristol, the General Manager of Circa, and they left the premises at 2:01 a.m.
On cross-examination D.C. Cheeseman stated Patron One did not fall to the ground but fell into her. She insisted he was grabbing her, as opposed to touching her in a sexual way.
She did not know if Patron One was on drugs or if he was tired. She did not ask him how much beverage alcohol he had consumed. She was able to understand him when he talked.
She did not know if Patron Two was ill. She did not talk to him or hear the conversation between him and Inspector Leadbetter.
The area where Patron Three was found was not congested. She did not know if he had taken any drugs and she did not know how much he had to drink. She also did not know whether he had a medical condition.
Jade Leadbetter has been an AGCO Inspector since June 2004. She is the local Inspector for the entertainment district in Toronto. She made notes shortly after the inspection and the Board allowed her to refer to her notes to refresh her memory, with the consent of the Licensee.
On October 13, 2007, at 1:13 a.m. she went to Circa for a routine inspection with D.C. Cheeseman and Inspector Fernando. They went to the dance area on the main floor. It was busy and crowded.
She walked past the escalators and looked back and saw D.C. Cheeseman restraining a male (“Patron One”). She went over to her. D.C. Cheeseman took Patron One to an area by the crash doors.
His eyes were glazed and he appeared not to understand what was happening. He seemed to be confused. She located a security officer and told him Patron One was intoxicated. Security removed him from the premises.
She went to the second floor with D.C. Cheeseman and Inspector Fernando. They went to the Skyy Vodka Bar. It was not very crowded and she stood by the back wall and observed. She saw a male (“Patron Two”) with a black hoodie and a hat. He was standing but was bent over at the waist. There was a female beside him. She thought he was vomiting but when he raised his head she saw he was drooling on himself and spitting on the floor.
He leaned on the female for support. The female sat down in a booth and he slumped down very hard beside her. He leaned back and was almost in a horizontal position. He closed his eyes and appeared to pass out.
Security staff were about five feet away but they did not take any action. Inspector Leadbetter walked over and tapped Patron Two several times on his leg to try and wake him. When he woke up his eyes were very glassy and he appeared disoriented. He had a strong odour of alcohol on his breath.
She identified herself as an AGCO Inspector and asked him to stand up and go to another booth so they could talk. The lighting was better at the other booth and she also wanted to observe him walk.
He staggered when he walked. She asked him how long he had been at the establishment and he replied, “two hours”. She asked him how much he had to drink and he replied, “two hours worth”. She asked him to be more specific and he said, “Isn’t that your job?”
He produced identification upon request. He stated he had not taken any drugs. His speech was slurred and he had a strong odour of an alcoholic beverage on his breath. He seemed to have difficulty answering questions and at times they had to be repeated.
Security staff, one in a bright blue shirt and one in a dark suit attended. She told them Patron Two was intoxicated. Patron Two became argumentative. Security had to help him from falling. Security escorted him from the premises.
Inspector Leadbetter left the area. She saw a male (“Patron Three”) near the escalator stagger past her. He had a dazed look and appeared disoriented. He bumped into several customers. There was pedestrian traffic in the area but it wasn’t crowded.
Patron Three “slammed” into another male. The male grabbed Patron Three, steadied him and asked him if he was okay.
She identified herself as an AGCO Inspector to Patron Three and asked him to go behind the escalator. He was unsteady and she was afraid he might fall.
She asked him for identification and he said that he didn’t have any and was just “going with the flow”.
There was a strong odour of alcohol on him. His speech was very slurred. D.C. Cheeseman and Inspector Fernando had to hold onto him as he was swaying from side to side.
She could barely understand what he was saying. He repeated the year of his birth three times before she could get the day and the month.
D.C. Cheeseman told him he had a wallet in his back pocket and pointed to it. He pulled the wallet out and exhibited very poor motor skills while trying to find his licence. The spelling of the name on the licence did not match the spelling he had given Inspector Leadbetter.
Mr. Bristol, the General Manager of Circa, arrived. Inspector Leadbetter told him Patron Three was intoxicated.
Patron Three kept saying his identification had not been returned to him. She told him the identification had been returned but he didn’t seem to understand. D.C. Cheeseman removed his wallet and showed him he had his identification.
Patron Three was escorted away by security.
Inspector Leadbetter advised Mr. Bristol of the three intoxicated persons found on the premises. She advised him that roaming teams of security might be advantageous.
She left Circa at 2:01 a.m.
On cross-examination she stated that she only observed Patron One for about two minutes and did not have a lot of dealings with him. He appeared not to be following D.C. Cheeseman’s instructions. He was disoriented and his eyes were glassy.
She did not know how much Patron Two had to drink or if he was ill. She understood what he said.
She did not know how much Patron Three had to drink.
Mr. Bristol is usually cooperative and amenable to any suggestions she makes.
She did not know the capacity for Circa or how long it had been open when this incident happened.
Neline Fernando has been an AGCO Inspector for a year and a half. She had completed her training when she went to Circa on October 13, 2007. She made notes shortly after the inspection and, the Board allowed her to refer to them to refresh her memory, with the consent of the Licensee.
She went to Circa at 1:13 a.m. with D.C. Cheeseman and Inspector Leadbetter. She walked through the first floor and looked back and saw a male (“Patron One”) stagger and stumble into D.C. Cheeseman.
Patron One had olive skin and short dark hair. He was in his early twenties.
His speech was slurred and she couldn’t understand what he was saying.
Patron One was touching and brushing up against D.C. Cheeseman. D.C. Cheeseman identified herself as a police officer and told him to stop touching her. He touched her again and D.C. Cheeseman took him by the arm and escorted him off the dance floor. Security then escorted him from the premises.
Inspector Fernando went upstairs. They went into the Skyy Vodka Lounge. She saw a male (“Patron Two”) who appeared to be sleeping on a sofa. He was leaning against a female. There was also another male on the sofa.
Inspector Leadbetter went to Patron Two and tapped him on the shoulder. He was unresponsive at first. He looked “glazed over”. He was eventually escorted from the premises by security.
She left the area and saw another male (“Patron Three”) stumbling and staggering on the second level. He stumbled into another male. She identified herself as an AGCO Inspector to Patron Three and with the help of Inspector Leadbetter escorted him to a balcony area where Inspector Leadbetter spoke to him. D.C. Cheeseman was also present.
His face was glazed and unfocused. He was swaying and staggering while trying to stand. He stated that he had no identification but there was a wallet visible in the rear pocket of his pants. D.C. Cheeseman asked for it and he eventually produced his driver’s licence.
She stood at one side of him while D.C. Cheeseman stood at the other side, in order to steady him, as he was losing his balance.
Mr. Bristol arrived at some point while they were dealing with Patron Three.
Inspector Leadbetter had given Patron Three his driver’s licence back. He claimed not to have received it. His wallet was checked and it was there.
Mr. Bristol had security escort Patron Three from the premises.
She left the premises at 2:01 a.m.
Mr. Levitan declined to cross-examine Inspector Fernando.
In response to a question from the Board, Inspector Fernando said she was able to identify security because they were wearing a uniform consisting of black pants and black shirts. They also had ear pieces.
Licensee’s Evidence
Orin Bristol is the General Manager of Circa which has been open for a year and a half. Circa has a capacity of just over 2,800 persons. They are the largest club in the entertainment district.
Circa, on the date of the incident, had been open for nine days. It is only open on weekends so it was the third day of business.
They found out two days before opening they were getting a liquor licence. It was very difficult to organize things.
They had 60-65 security staff working on the evening in question.
They met with representatives of the AGCO, OPP and a security firm following the incident. They were advised to hire one security officer for every 75 customers. This would equate to 40 security officers for their licensed capacity. They decided to hire 55-65 security officers.
They now have roving security staff and know how to better position their security staff. They had no incident reports for the night in question and policies were not in place. It was “helter skelter”.
He did not know the name of any of the security staff who were working on the night in question. AGCO staff did not give him the name of the patrons or security officers who were involved that evening.
The inspectors said the Skyy Vodka Lounge is on the second floor when, in fact, it is on the third floor. There is a horseshoe booth on the second floor, but not on the third floor in the Skyy Vodka Lounge. Because of the horseshoe shape of the booth on the second floor, it is not possible to see into the booth unless you are standing directly in front of it.
He only saw one of the patrons in question (“Patron Three”) and that was on the third floor. He saw both Inspectors and D.C. Cheeseman dealing with Patron Three. He went over when Patron Three appeared to touch D.C. Cheeseman, to see if he could assist. Patron Three was disoriented. He asked for his identification to be returned even though it had just been returned.
Mr. Bristol did not know how much Patron Three had to drink and he could not say for sure whether he was drunk. However, Mr. Bristol stated he would not have served him anymore based on his observations of Paton Three.
On cross-examination he stated he wouldn’t have served Patron Three because he was arguing about his identification, disoriented, and touching the officers.
The Skyy View Vodka Lounge, on the third floor, has booths of sofas, but they are not horseshoe shaped. He acknowledged that the Inspectors could have been referring to the booths of sofas on the third floor when they referred to a horse shoe shaped booth. He also acknowledged that security could see into the booths in the Skyy Vodka Lounge without standing directly in front of them.
He met with the head of security at 3:15 a.m. on the night in question but was unable to find out the identity of any of the security staff involved in the incidents. He did not try to radio the staff to find out their identity when he first learned of the incidents.
He has no notes on the incident.
They now have policies and procedures in place. They have roving security teams. They have incident reports which are filed whenever an AGCO Inspector comes on premises. They have since held a number of training sessions for staff and have instructed bartenders how to cut people off. They also hired off duty paramedics.
There are eight separate bars in Circa. They have 23 bartenders and another 10-15 servers in the bottle service area. The operation is spread over three floors.
There was an AGCO Board hearing before their liquor licence was approved as well as a number of meetings. They wanted to open as soon as possible.
He has been employed in the industry for fifteen years.
In response to a question from the Board, he advised they no longer use outside security and everything is done in-house.
Registrar’s Submissions
The evidence of the three enforcement personnel was very consistent.
Patron One stumbled into Inspector Fernando. She is shielded by D.C. Cheeseman. There is constant grabbing. There are clear signs of intoxication which include glazed eyes, strong odour of an alcoholic beverage, a distant look and inappropriate responses. D.C. Cheeseman was clear Patron One was stumbling due to intoxication.
Patron Two had many signs of intoxication. He fell into a sofa and then had to be woken. There is evidence from a friend that Patron Two had six drinks at Circa in two hours.
Patron Three was so unsteady he had to be supported by D.C. Cheeseman and Inspector Fernando. He had problems with his identification. He slammed into another customer. His speech was slurred. He was disoriented and looked dazed.
Mr. Bristol acknowledged he would not have served Patron Three based on a very short interaction.
Circa received their licence after a hearing of the Board. The Licensee was in a hurry to open. It is the responsibility of the Licensee to be ready for business. Mr. Bristol has a lot of experience and it is the Licensee’s fault that policies for complying with the LLA and regulations were not in place.
The Board should find the Licensee violated subsection 45(1) of the O.Reg.
Licensee’s Submissions
There was a failure on the part of the AGCO as they did not identify Patron One and Patron Two and the security staff, who dealt with them, to the management of Circa. This should have been done on the night in question. This is particularly true when dealing with an establishment with almost 3,000 customers. This impeded the Licensee’s ability to prepare a defense.
There were some inconsistencies in the evidence from the witnesses for the Registrar.
When an establishment is crowded the act of bumping into someone can be misconstrued as impairment.
The only signs of intoxication Inspector Leadbetter noted with regards to Patron One were glassy eyes and disorientation.
Mr. Bristol was very forthright and the Board should take note of this.
It is the responsibility of the Licensee to make sure adequate policies and procedures are in place but this was a massive start-up. They have certainly tried to address all these issues since the opening.
Reply
Inspector Leadbetter was cautious in her testimony about Patron One as she had very limited interaction with him. D.C. Cheeseman had more interaction with Patron One and her evidence on Patron One was more detailed.
There was no obligation for the AGCO Inspectors to provide the names of the people they interacted with. The Licensee could have made inquiries but chose not to.
The fact that nobody owned up to their involvement at the 3:15 a.m. meeting on the night of the incident is the Licensee’s problem.
Analysis/Reasons/Findings
The Board has carefully considered the evidence and the submissions presented.
The evidence of Inspector Leadbetter, Inspector Fernando and D.C. Cheeseman was clear, consistent and credible with regards to all three patrons.
Mr. Bristol was only involved with Patron Three. His evidence was frank, forthright and consistent with the evidence of the enforcement personnel on Patron Three.
Mr. Bristol could have made further inquiries of the Inspectors as to the identities of Patrons One and Two and the security staff involved with them, but chose not to. The Inspectors did turn Patron One and Two over to security and could not have known that security would not inform management of their identities, behaviour or physical condition.
The subsection for the alleged violation reads as follows:
45(1): “The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.”
It is clear the alleged incidents occurred on the licence holder’s premises. The issue is whether the three patrons in question were intoxicated and whether the Licensee permitted same.
The Board will deal with all three patrons separately.
Patron One
Based on the observations of D.C. Cheeseman and the Inspectors, Patron One exhibited the following signs of intoxication: glazed eyes, a “distant look”, slurred speech, unsteady on his feet and inappropriate behavior (i.e., grabbing D.C. Cheeseman). He also smelled strongly of alcohol. When Inspector Leadbetter told the security officer Patron One was intoxicated, he did not argue with her assessment and removed him from the premises. Given D.C. Cheeseman’s and the Inspectors’ observations of Patron One’s behaviour and physical condition, the Board is satisfied that, on a balance of probabilities, he was drunk.
Licensees are expected to have sufficient and properly trained staff to regulate alcohol consumption, so that patrons do not become intoxicated, and to monitor the premises to ensure that patrons are not exhibiting signs of intoxication. When patrons are exhibiting signs of intoxication, the Licensee is expected to have them promptly removed from the premises. Mr. Bristol acknowledged that on the date of the incident, the third night the establishment was open, the security staffing was inadequate, staff were not properly trained, and procedures for complying with the LLA and regulations were not in place.
If the Licensee had been acting diligently and in accordance with the law, it would have detected Patron One’s signs of intoxication and removed him from the premises before the AGCO Inspector told him the patron was drunk. The Board infers, on a balance of probabilities, that Patron One did not suddenly begin exhibiting these signs of intoxication when the AGCO Inspectors arrived. Accordingly, in failing to prevent Patron One from becoming intoxicated or detect and evict him earlier, the Licensee permitted drunkenness on the part of Patron One.
Patron Two
Based on the evidence of the Inspectors and D.C. Cheeseman, Patron Two exhibited numerous signs of intoxication which included: glassy eyes, slurred speech, unsteady on his feet, staggering, and inappropriate behavior (e.g., drooling and spitting, falling backwards into the booth as though he was passed out, argumentative, etc.). His breath also smelled strongly of alcohol. The male who was with Patron Two told D.C. Cheeseman that Patron Two had five or six drinks at Circa in less than two hours and another three or four drinks before arriving. Patron Two was removed from the premises by a security officer, when Inspector Leadbetter told him the patron was intoxicated, and the security officer did not dispute the Inspector’s assessment of the patron. Given the Inspectors’ observations of Patron Two’s physical condition and behaviour, as well as the information from Patron Two’s friend on the amount of beverage alcohol he consumed, the Board is satisfied, on a balance of probabilities, that Patron Two was drunk.
Inspector Leadbetter and D.C. Cheeseman testified that when they observed Patron Two, first spitting on the floor and then purportedly passed out on the couch, there was a Security Officer a few feet away who took no action. Mr. Bristol confirmed on cross-examination that security would have been able to see into the booth in the Skyy Vodka Lounge, without standing directly in front of it. As such, security knew, or should reasonably have known in the circumstances, that Patron Two was drunk and failed to do anything about it. In failing to take any action, until Inspector Leadbetter told him Patron Two was intoxicated, the Security Officer permitted or acquiesced to Patron Two’s drunkenness. Further, while Patron Two may not have been exhibiting signs of intoxication on arrival, it is improbable that he suddenly began exhibiting pronounced signs of intoxication only when the Inspectors arrived and spotted him. In failing to monitor and regulate his alcohol consumption before the signs of intoxication became so pronounced, the Licensee permitted or acquiesced to Patron Two’s drunkenness.
Patron Three
Based on the evidence of the Inspectors and D.C. Cheeseman, Patron Three exhibited the following signs of intoxication: staggering, very unsteady on his feet, requiring Inspector Fernando and D.C. Cheeseman to support him while standing, very slurred speech (barely comprehensible), very slow motor skills, unfocussed, and red glassy eyes. His breath also smelled strongly of alcohol. Mr. Bristol also admitted candidly that he would not have served Patron Three any more beverage alcohol, given his physical condition and behaviour, and corroborated some of the observations of the Inspectors on same. Given the evidence of the Inspectors, as well as Mr. Bristol’s testimony regarding Patron Three, the Board is satisfied, on a balance of probabilities, that Patron Three was intoxicated.
Given the pronounced signs of intoxication Patron Three was exhibiting, the Board infers that he did not suddenly begin exhibiting these signs when observed by the Inspectors. The Licensee knew, or should reasonably have known in the circumstances, that he was drunk and taken appropriate action earlier. In failing to prevent Patron Three from becoming intoxicated or to cut him off beverage alcohol service and evict him before he began exhibiting such pronounced signs of intoxication, the Board finds that the Licensee permitted drunkenness on the part of Patron Three.
Finally, it bears mentioning, that although the Licensee’s remedial action was not relevant to the Board’s decision on whether there was a contravention of the O.Reg, the Board will consider the remedial action when determining the appropriate sanction.
Conclusion
Therefore, for the above reasons, the Board FINDS the Licensee violated subsection 45(1) of the O.Reg by permitting drunkenness on the part of three patrons.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file 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 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 16th DAY OF APRIL, 2009.
JACQUIE CASTEL, BOARD MEMBER BRUCE MILLER, BOARD MEMBER