ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission of Ontario Registrar
-and-
Arena Entertainment Inc. O/A Circa Licensee
DECISION
Panel: Patricia McQuaid, Vice-Chair Guy Maurice, Board Member
Decision Date: May 7, 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 ) Richard Kulis, Representative Arena Entertainment Inc., Licensee ) Jerry Levitan, Representative
Authorities
1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] ONCA No. 323
1197801 Ontario Inc. (c.o.b. Body English) (Re), [2008] O.A.G.C.D. No. 253
Allegations
- A hearing into Notice of Proposal number 16272 dated May 14, 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 alleged violations of subsection 30(4) of the Liquor Licence Act ("LLA") and subsections 41(1) and 45(1) of Ontario Regulation 719/90 ("O.Reg") made pursuant to the LLA, was held on October 7 and December 15, 2008 and February 23, 2009 in the City of Toronto.
Decision
- After considering all the evidence and the written submissions the Board DISMISSES the allegations of violations of subsection 30(4) of the LLA and subsections 41(1) and 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
- On consent of the parties, the Board ORDERED that witnesses be excluded.
Registrar's Evidence
Rebecca Sargent, an Alcohol and Gaming Commission of Ontario ("AGCO") inspector, attended Circa on November 24, 2007, with Detective Sergeant ("D/Sgt") Chong, Detective Constable ("D/C") Barrick, and AGCO Inspectors Strongman and Hetherington. They arrived at 12:33 a.m. It was a busy evening at the establishment. As she walked through the establishment, she checked the identification of two youthful looking females. They were of age. However, she did encounter a group of youthful looking males in an area near the bar, consuming beer. She requested identification. One male's identification appeared suspect; the picture did not resemble the male in front of her. D/Sgt Chong also inspected the identification and agreed. The male was, in fact, not of age.
Inspector Sargent proceeded to the second floor of Circa with her colleagues where she observed a couple dancing together against a wall, apparently using the wall for support. They appeared unsteady on their feet. She then observed security personnel escort the couple from the area. The male was not cooperative, arguing with security.
D/Sgt Chong and D/C Barrick approached the security persons. A large group of people were present. The female started yelling. They checked her I.D. and asked her to calm down. She continued to yell, then grabbed D/Sgt Chong by the neck and raised her knee to his groin area.
The female was arrested by D/C Barrick and escorted out by security and D/Sgt Chong. She was taken to the Event Medical Staff ("EMS") area on the main floor of Circa. Inspector Sargent and D/C Barrick were with her. After first refusing an assessment by EMS, the female then agreed, stating that she had too much to drink and had arrived at Circa at 10:30 p.m. The female was eventually escorted off-site by Toronto Police. Inspector Sargent departed at 2:00 a.m.
On cross-examination, Inspector Sargent acknowledged that in her initial assessment of several patrons she was mistaken in that she initially thought they were underage, but their identification indicated they were not. Regarding the one male, she had concluded that his facial features did not match those in the photo I.D. He produced one I.D. to them. She did not know whether he carried more than one, nor what I.D. he showed to gain entry.
Inspector Sargent could not recall what type of music was playing, though it was loud. When she observed the couple dancing, one of them was positioned against the wall. Neither fell down. About one minute after she first saw them, she observed two Circa security approach the couple. The male was being escorted towards the escalator, when the female started to yell. A lot of commotion ensued. D/Sgt Chong presented his identification to the female standing about two feet from her. The female did not calm down, in fact things got further out of control.
The female was handcuffed by D/C Barrick and put to the floor forcefully by D/Sgt Chong. The female appeared to briefly pass out. Inspector Sargent recalled that the female said she had asthma, though she did not recall her mentioning anything about medication. She had no difficulty understanding what the female said. The female was upset, on the verge of crying.
Inspector Sargent did not ask Circa staff how much the female had to drink nor did she ask this of the female herself. Ms Sargent's recollection is that security personnel took the male out of the premises. She had nothing written in her notes regarding the fact that the female was hand cuffed or taken down by D/Sgt Chong, nor that the female had asthma.
Edward Chong, currently a Staff Sergeant with the Ontario Provincial Police (OPP) was seconded to the AGCO and attended Circa on November 24, 2007, for a liquor licence inspection with a team from the AGCO. Shortly after attending, he observed a male who appeared underage. The male presented three pieces of identification. When questioned about the I.D., the male admitted they were false. His date of birth was May 12, 1989. He was consuming rye and ginger. D/Sgt Chong turned the male over to Matthew Merriman, head doorman at Circa, to deal with. He leaves it up to the establishment to remove the patron or to allow them to remain.
D/Sgt Chong continued the inspection on the upper floor. He observed a male and female dancing against a wall. They were moving very slowly. The male seemed to be holding the female up. It looked like the female would fall to the floor if the male let go of her. The female looked to be more intoxicated than the male. Both had their eyes closed and were unsteady on their feet. He was standing about five feet from the couple. He observed them for two to three minutes at which point a security officer spoke to the couple and proceeded to escort them to the stairs. He followed them for about 20 feet, when the male and female started to resist. The male pulled his arm away from the security person and began to argue with him. The music was very loud so he could not hear what was said. The security appeared to be trying to convince the male to leave, not successfully. He did not make note of what the female was doing at the time. Inspector Strongman, who was walking with him, identified himself to the male and tried to assist security. The male pushed Mr. Strongman. He then approached the male, identifying himself, and tried to get him to settle down. The male did calm down. He asked him what he had to drink; the response was, "not enough."
At this point, he observed that the female was getting rowdy. She was pushing and resisting D/C Barrick. He became concerned for the well-being and safety of D/C Barrick. He approached the female, identified himself, but the female did not calm down, pushing against D/C Barrick. He then held the woman by her arm. She was extremely intoxicated. She then grabbed him by the neck and kneed him in the groin.
D/Sgt Chong restrained the female on the floor. She was arrested and handcuffed. The female was unable to stand up so he dragged her physically, holding her by her upper arms, towards the stairs. He did not ascertain why she could not stand up. She said nothing. Her eyes were open. The male at this point became belligerent and blocked his way. He refused to move despite Inspector Strongman's attempt to deal with him. At this point, there were quite a few security personnel at the scene. D/Sgt Chong then turned the female over to D/C Barrick and arrested the male for intoxication and obstruct police. The female was arrested for intoxication in a public place and assaulting a police officer.
Because he had concluded that the male was in no condition to safely make his way down the stairs, they used the elevator. He was able to stand on his own, but was unsteady on his feet. Inspector Strongman and a few security personnel were in the elevator with him. The male was belligerent inside the elevator. He smelled of alcohol and at this point, he made note of the male's slurred speech. D/Sgt Chong used his expandable baton to restrain the male. This did calm him down, slightly. When they reached the main floor, D/Sgt Chong called Toronto Police for assistance. The male was read his rights and cautioned.
The male did state that he had eight drinks at Circa. Both the male and female were transported to 52 Division where the charges were laid.
On cross-examination, regarding the minor, D/Sgt Chong could not recall his facial characteristics or the colour of his hair, or whether he was wearing a hat. He was shown three pieces of identification, but could not say what was similar or dissimilar among the three.
D/Sgt Chong described the couple observed to be dancing when they arrived on the second floor. Both were facing the wall, with their backs to the crowd. The male's hands were on her wrists, her arms were spread wide. D/Sgt Chong was able to see the female's face; he had a sense that she was intoxicated. At times their eyes were closed. They were moving slowly. D/Sgt Chong was standing three to four feet away from the couple. The male appeared to be holding her up. The female never fell down during the two to three minutes he observed them.
Circa security was the first to approach the couple. The music was very loud. He was standing five to six feet away from the couple at this point. He could not hear any conversation. He did see the security person tap the male on the shoulder to get his attention and motioned for them to move. The couple proceeded to walk out and did so for about 20 feet. He did not recall if the male was propping up the female as they walked. At this point, security was dealing with the situation.
Inspector Strongman approached security and the couple, to assist as the male, who stood about 6 feet 5", presented a threat. Specifically after walking about 20 feet, he seemed to refuse to comply with instructions from security. He stopped and stood his ground and pulled his arm away from security which D/Sgt Chong interpreted as resistance, though he did not know what was being discussed.
Inspector Strongman identified himself to the male with his badge to which the male responded by pushing Mr. Strongman. Mr. Strongman responded with a statement, "settle down." The male became more agitated at which point D/Sgt Chong intervened. He made no observations of the female at this point. However, moments later he noticed that the female, who was surrounded by security, two police officers and at least one inspector, was pushing against D/C Barrick. She was "actively assaultive" to D/C Barrick, trying to get to her boyfriend.
D/Sgt Chong identified himself to her and held her by the arm telling her to calm down. She grabbed him by the neck and lifted her knee. In his view, this was a deliberate action. She did not fall down. At this point, he put her in a neck lock and used his weight as leverage to bring her to the ground, face down. She was handcuffed from behind. When they tried to get her to stand up, she would drop to the ground. Her body went limp. D/Sgt Chong then began to drag her. The male was, at this time, trying to reach his girlfriend so D/Sgt Chong turned the female over to D/C Barrick, asking her to take care of the female.
The male was belligerent, so with the assistance of Inspector Strongman, he took the male to the ground and handcuffed him. He did not know how much the male had to drink. He was able to understand the male. The male was able to stand up, though D/Sgt Chong described him as somewhat unsteady on his feet before they got him to the elevator. The male continued to resist, physically. D/Sgt Chong hit him in the thigh area with his baton.
D/Sgt Chong stated that security at Circa was trying to deal with the situation initially by asking the couple to leave. His complaint with security was that they should have identified the patrons earlier as needing to leave the establishment. He made no inquiries of staff of how much they had to drink.
The male was charged with assaulting a police officer. That charge was withdrawn.
M.M. is a student at the University of Guelph. His date of birth is May 12, 1989. He attended at Circa on November 27, 2007 with a friend, arriving around midnight. He was 18 years old at that time.
To gain entry, he showed a piece of identification, a driver's licence, that he had purchased from someone at the university. It was not his name on the identification, nor his picture. The security person flexed his identification and asked him a couple of questions, such as how to spell his last name and his birth date, and then let him enter. Once inside, his friend purchased two rye and ginger and handed one to him. He had the drink in his hand when an AGCO inspector approached him. He had not yet had a sip of it.
The inspector asked for his identification, which he gave. After looking at it, the inspector responded that it did not look like him and asked for the truth. He then provided the correct information. Circa security then asked him to leave, escorting him out.
On cross-examination, M.M. explained that this was his third attempt to gain entry to a bar with this identification having purchased it a week before. He knew he could be asked questions so he knew how to spell the last name on the identification and knew the address and birthdate. In his view, the picture on the identification kind of looked like him. He was just wearing a sweater that evening.
M.M.G. was at Circa on November 24, 2007 to celebrate friends' birthdays, arriving around 11:00 p.m. He had worked earlier that day. He is a union carpenter. He weighs approximately 250 pounds, and stands at 6'2". He had not consumed any alcohol before arriving at Circa. He believes he had five to six beer at Circa and his girlfriend had four rum and coke. He and his girlfriend were dancing. He had a verbal altercation with a photographer. M.M.G. then saw the photographer talking to Circa security. Security approached him though he could barely make out what was said. It was so loud the security had to talk right into his ear. His girlfriend is almost deaf. He was prepared to leave and was on his way out. His girlfriend walked away but was then grabbed by the arm and thrown to the ground. She was knocked unconscious. He ran toward her and was also grabbed and thrown to the ground. He was handcuffed and then hit in the leg with a metal bar eight times. He was taken out of Circa in handcuffs by a back stairwell. He was then placed in a paddy wagon while his girlfriend was taken to paramedics. He was unable to say who threw him or his girlfriend to the ground.
On cross-examination, M.M.G. stated that he did not understand what was happening. Neither he nor his girlfriend were drunk. The police and inspectors understood what he was saying and he was not stumbling. M.M.G. stated that he was charged with obstruction of a police officer, but those charges were stayed. He further explained that his girlfriend is hard of hearing and suffers from post traumatic stress disorder as a result of a sexual assault that occurred about eight months prior. She does react when touched. Given what she has gone through, he is very protective of her. He did not see her lift her knee on D/Sgt Chong.
S.D. was at Circa on November 24, 2007, celebrating a friend's birthday. While her memory was at times vague, she thinks her boyfriend bought her three to four drinks that night, but could not recall how long they were there before the incident occurred. She recalled a bouncer talking to her boyfriend. They had been dancing against a wall, not on the dance floor. When her boyfriend started to talk to the bouncer she walked away to speak to her girlfriends who were on the dance floor.
Someone then grabbed her from behind and threw her to the floor. She was knocked unconscious. She awoke in a room with paramedics present. She has no recollection of the intervening time. She was advised by a female police officer that she was being charged with assault of a police officer. She was taken to a police station, put in a cell and released at approximately 9:00 a.m. the next morning.
S.D. did go to court, accepted a diversion program, one of the conditions of which, was that she not attend the entertainment district for a year.
On cross-examination, S.D. stated that she did not think she was drunk. She was not stumbling, she was able to talk clearly and was not sick to her stomach.
Adam Strongman is an AGCO inspector and attended Circa on November 24, 2007 with D/Sgt Chong, D/C Barrick and two other AGCO inspectors. When they first arrived, after advising door staff of their presence, he observed a youthful looking male near the bar consuming a drink. He was wearing beige pants, a high school jacket and a Reebok hat. He and D/Sgt Chong approached the male, requesting proof of age. The male gave them the I.D. used to gain entry. Mr. Strongman concluded that the picture on the driver's licence did not match the male. The male was turned over to Circa staff who removed the male from the premises.
He and D/Sgt Chong then went to the second floor of the establishment where they continued their walk through. He observed a male and female showing signs of intoxication. Both seemed unsteady on their feet. The female was facing a wall; the male was standing behind her, dancing up against her. The male's eyes were closed at times.
Mr. Strongman then saw a male security approach the female. He spoke to her briefly then grabbed her to usher her out. The male friend became angry, shoving security. He and D/Sgt Chong approached, produced their identification and told the male to calm down. The male said he just wanted to leave. The female, who is about 5'2" became belligerent, assaulting D/Sgt Chong. She grabbed him by the neck with both hands and kneed him. D/Sgt Chong and D/C Barrick placed her under arrest, as well as the male who began to swing at, and push, door staff. The male was removed to the stairwell to wait for police, where he stated that they had arrived between 11:00 and 11:30 p.m. He had approximately eight drinks, his girlfriend between six and eight.
Mr. Strongman left the premises at approximately 2:00 a.m., returning at about 4:00 a.m. to pick up the incident reports of the security involved.
On cross-examination, Mr. Strongman, when asked about the variance between the minor and his photo identification, said he could only say that the male in the photo looked older. It is prudent for staff to ask questions of a patron about their I.D. if there might be an issue. Staff did not question their conclusion; they escorted the male patron out when told to do so.
Regarding the couple, Mr. Strongman stated that it was not necessarily the manner in which they danced that made him conclude they were intoxicated. The male was not holding the female up. At that point, he did not know if they were intoxicated. The female was not stumbling. He saw a security person speak briefly to the female. In his view, engaging patrons in conversation to determine if they were intoxicated is appropriate. He assumed that security was, in effect, investigating to determine if they were intoxicated. The male seemed to get angry as the female was being removed. He was yelling loudly. Mr. Strongman did not yet conclude the male was intoxicated. Security was trying to deal with the male. He and D/Sgt Chong approached together, telling the male to relax. After the male saw their badges, he seemed to relax. The male walked voluntarily towards the exit when the female started to push security, walking towards her boyfriend. She pushed D/C Barrick, at which point D/Sgt Chong, who identified himself, grabbed her arm. She turned toward him, grabbed his neck, and kneed him in the groin, a precise and deliberate offensive move. Mr. Strongman concluded that she was intoxicated, in part due to the aggressive action against a police officer. His experience is that people make poor decisions when intoxicated.
Stephen Hetherington was another of the AGCO inspectors in attendance on November 24th. He did check the identification of several patrons, all of which were of age. When he arrived at the second floor, he saw that D/Sgt Chong and Mr. Strongman were watching a couple dancing. The female was against a wall, the male directly behind her. It seemed she was being held up by the male's body weight against her. At this point, he was standing about 15 to 20 feet from the couple. He then saw Circa security approach the couple, speak briefly with them and then took the female by the arm, leading her towards the escalator. The male followed. He and the other inspectors and OPP officers followed as well. They walked for 20 to 30 feet when the male started yelling, stating repeatedly that they had not done anything.
Because security seemed to be having some difficulty controlling the male, Inspector Strongman approached them. He identified himself and told the male to calm down. The male continued to yell, whereupon D/Sgt Chong intervened. The female, who had stopped moving as well, grabbed D/Sgt Chong at the head and attempted to knee him. The female was restrained, taken to the ground, forcefully, and placed in handcuffs. D/Sgt Chong told him to remove the female, and bring her to EMS. The female, who was on the ground, refused to get up. She was carried to the elevator and taken to on-site medical personnel.
Mr. Hetherington then joined D/Sgt Chong and Mr. Strongman who were with the male, in a stairwell exit waiting for police to arrive. The male was handcuffed and seated on the stairs, weaving from side to side as he sat. He asked the male how much he had to drink, to which he responded that he had eight drinks and his girlfriend, six. His speech was slurred and used an excessive amount of profanity.
On cross-examination, Mr. Hetherington stated that the female was not resisting initially as she was being led out. The male seemed upset and continued to yell after Mr. Strongman identified himself to him. This, to Mr. Hetherington, was an indicia of intoxication. He did not hear, as Mr. Strongman did, the male say that he just wanted to leave.
Regarding the female, when she was on the ground, he did not hear her respond to their requests to get up. She did not move at all, refusing to get up. He and D/C Barrick tried to get her to sit up. Her eyes were half closed though he thought she was conscious and aware of what was happening.
On re-examination Mr. Hetherington stated that he believed that she was "playing possum," not cooperating because she did not want to be led out in handcuffs.
Donna Barrick is an OPP officer on secondment with the AGCO Inspections and Enforcement Branch. She attended with the previously mentioned inspectors and D/Sgt Chong at Circa on November 24, 2007. Her first observations noted were of the couple dancing against a wall. She saw security approach the couple, and then saw them pushing security, flailing their arms. At this point, she was standing about 10 feet away, at the rear of the group who stood observing. D/C Barrick was called to assist, at which point the female pushed her.
D/C Barrick saw D/Sgt Chong show his I.D. to the female who then kicked and punched him. She then grabbed D/Sgt Chong by the neck and kneed him in the groin. She handcuffed the female, who had dropped to the ground. The female was carried to the EMS room of Circa. She appeared to be unconscious. The female woke up, was offered medical attention, but initially refused it. She advised the female that she was under arrest for assaulting a police officer.
D/C Barrick made certain observations of the female at that point and while she was escorting her to the paddy wagon: her eyes were bloodshot and glossy, she could not stand up without assistance, she was unsteady on her feet and there was a strong odour of alcohol on her breath. The female did verbally identify herself and indicated that she arrived at Circa at 10:30 p.m. and had quite a bit, "too much," to drink, though D/C Barrick did not ask the number of drinks.
The female was transported to 52 Division, where D/C Barrick attended. She searched the female there, placed her in a cell and checked on her twice, as per protocol, before leaving 52 Division at approximately 5:00 a.m.
On cross-examination, D/C Barrick stated that when she first saw the couple dancing, she was not aware that she was intoxicated. Her recollection, not reflected in her notes, was that when she first approached the female, she detected the smell of alcohol and observed her unsteadiness on her feet and the bloodshot eyes. In part, it was the female's behaviour, pushing her, kneeing D/Sgt Chong, that led to the conclusion that she was intoxicated. D/C Barrick described the female as falling to the ground. She was unsteady on her feet, but did not know why she fell to the ground. The female was handcuffed as she was face down on the ground. At that point, she did not realize that the female was unconscious.
D/C Barrick did state that both the female's wrists were not handcuffed; one hand slipped out. The female was not struggling while on the ground. She was not moving. D/C Barrick could not say that the female was "faking it," but did state that the female "woke up" about one-half minute after arriving in the EMS room. The female did seem to understand what was being said to her in the EMS room.
Licensee's Evidence
Alan Morris has been the operations manager at Circa since it opened. As such, he oversees security staff, servers, bartenders and all floor staff. He has his SmartServe certificate and has been in the business since 1994.
November 24th was a weekend night, a night on which they would have between 50 to 70 security working. Everyone entering the club has identification checked. Staff are required to check the picture on the I.D. and its expiry. Patrons are quizzed about their I.D. if there are concerns. The identification itself is help up to the light to ensure the safety provisions are in place.
He was present on November 24th and did complete an incident log (Exhibit 2) as per club protocol. While roaming through the club, he noticed one of the staff speaking to a couple. The couple appeared to have been arguing. The security person told them they would have to leave. The couple started to walk out, peacefully, towards the escalator, but would stop every few steps to complain about being ejected. They were belligerent. The couple were separated in distance somewhat. He was standing approximately five to six metres away. The inspectors and police, whose presence he was aware of, intervened. The couple seemed to get nervous and flustered. He assumed the officer showed his badge. He was not sure what sparked her agitation, but the female repeated that she needed room and swatted at those around her. He called for a female security person to assist. The male became agitated as well. Both were taken to the ground. He saw the female lying on her stomach, handcuffed. She was out cold. The male was handcuffed and taken to the loading dock and repeated that he did not know what he had done wrong. In Mr. Morris' view, the male was angry but not intoxicated.
On cross-examination, Mr. Morris expanded upon his description, in Exhibit 2, that the female became enraged. He stated that her voice got louder. She yelled at them to leave them alone, to get back, questioning why this was happening. She swung at a police officer. He did see the female attempt to knee D/Sgt Chong. Her male friend tried to move in her direction, questioning what they were doing to her.
Through Mr. Morris, the incident log completed by the security person who first approached the couple, Ken MacDonald, was entered as Exhibit 3. Mr. MacDonald no longer works for Circa and could not be located for the hearing. In the log, Mr. MacDonald did state that he saw a number of undercover police officers watching two patrons (S.D. and M.M.G.). He approached them to make sure everything was okay. The female became confrontational and he asked her to leave. She began to make her way to the exit. He followed. The male friend grabbed his arm, telling him not to touch his girlfriend. At a certain point, the police officers dealt with the female. The male became more agitated as his girlfriend was thrown to the floor.
Melissa Polo was working security on November 24, 2007. As well, she works as a corporal in the Canadian Armed Forces and is a full-time student. On November 24th, she received a call to the third floor to assist with a female patron. On arriving there, she saw a female standing, then she fell to the ground. A handcuff slipped off one wrist. The female was unconscious. She then lifted her up. The female did not react. She carried her to the EMS room where the EMS staff took over. Two female officers were present.
After about a minute and a half, the female woke up. She sat up on her own. She initially refused an assessment by the EMS staff. The female identified herself. She stated she had asthma. Her speech was not slurred. She was crying. She had trouble breathing. She seemed anxious and nervous. Ms Polo had no difficulty understanding what S.D. was saying. S.D. did calm down and allowed EMS to do an assessment. The female police officer did explain to S.D. what had occurred and that she was under arrest. The police escorted S.D. from the premises.
On cross-examination, Ms Polo did acknowledge that the EMS report (Exhibit 5) did not make a note of S.D.'s asthma. Rather, the chief complaint was "HBD", clarified subsequently as "had been drinking." In Ms Polo's report, she noted that the female was "struggling/swaying" when she arrived on scene. She stated on cross-examination that she seemed to be pulling away from a police officer. Police, not security, were dealing with the female when Ms Polo arrived at the third floor.
Orrin Bristol is the general manager at Circa. He has been in the club/bar business for over 20 years and has worked in a managerial role for 12 years. Circa employs approximately one security for every 75 patrons and because it is a big venue, he explained that there are stringent rules to follow. On a Friday night approximately 2,000 patrons would be at the premises. For example, generally everyone is asked for I.D. to gain entry. Two or three personnel are at the front entrance to do these checks. If possible, discrepancies are noted, questions are put to the person, such as the astrological sign, the postal code or their height in centimetres. Regarding M.M., the identification was a valid one. Questions were put to M.M. and he gave the correct answers. Mr. Bristol stated that he believed the I.D. matched the male. There is no incident log regarding the issue of the minor, though if AGCO inspectors had found a minor in the premises and turned the minor over to their staff, an incident report should have been completed.
He was in his office that evening when he heard the radio call for security to escort patrons from the premises. Subsequently, he went to the EMS room where he saw S.D. He asked Ms Polo what had happened and was advised that there had been an incident involving S.D. and her boyfriend and that S.D. had been knocked out. At that point, S.D. was sitting up, conscious. She was visibly upset, crying and worried about her boyfriend. Her words were not slurred nor was she falling over. He then went to the loading dock area where he found police and AGCO inspectors with the male who was handcuffed. He asked D/Sgt Chong what the issue was, who responded by saying there would be a charge regarding disorderly patrons.
On cross-examination, Mr. Bristol stated that he could not recall Mr. Merriman telling him about the minor found that evening and reiterated that there was no incident log in respect of the minor.
Analysis and Findings
Section 41(1) of the O.Reg and Section 30(4) of the LLA
The Board will deal first with the allegations relating to M.M.'s presence in the establishment on November 23/24, 2007. There are two allegations, the first being subsection 41(1) of the O.Reg, that the Licensee failed to inspect a piece of identification of a person apparently under the age of 19 years of age prior to selling or serving liquor to that person. M.M. gave testimony on behalf of the Registrar. He was forthright, honest and credible. He had recently purchased false identification in order to gain entry to licensed establishments, unfortunately, not unusual for first year university students. In his view, it kind of looked like him. At Circa, he showed his identification, and was prepared to answer questions in respect of it. M.M. testified that security inspected his identification, flexed it and asked him questions about information recorded on it. Clearly that preparation paid off; he gained entry.
The procedure he describes is consistent with that outlined by Mr. Morris and Mr. Bristol, Circa managers. The Board does agree with Mr. Kulis: it would have been helpful to have heard from Mr. Merriman, the Circa employee who had contact with M.M. The Board is nevertheless satisfied, on the evidence, that Circa employees did inspect the identification, and not just in a cursory fashion.
Ms Sargent, an AGCO inspector, suggested that the picture on the I.D. did not resemble the young man in front of her, this after she had approached several youthful looking people to check identification and found them to be of age, as did Mr. Hetherington. She could not give particulars regarding the lack of resemblance, not could D/Sgt Chong or Mr. Strongman. There was nothing in their evidence to suggest that the lack of resemblance was such that after examining the identification and querying M.M. about it, Circa security was remiss in allowing entry. Further, the evidence indicates that M.M. was not sold or served the drink by the Licensee; rather his friend purchased two drinks, handing one to him. The Board, therefore, dismisses the allegation of a violation of subsection 41(1) of the O.Reg.
Regarding subsection 30(4) of the LLA, M.M. did have a drink in hand, purchased by his friend, when approached by Ms Sargent. Whether he had sipped any of it (he said he had not) is not essential to a finding. As submitted by Mr. Kulis, M.M. was in the premises, was under the age of 19, with an alcoholic drink. The issue, however, is whether the Licensee "permitted" him to have the drink. If "permit" implies a knowledge, or at a minimum that the Licensee ought to have known, as enunciated by the Court of Appeal in the recent decision of Sin City Bar and Eatery, then the Board cannot conclude that the Licensee was in violation of this section. M.M. had gained entry, with identification which was not his. At the point when he was noticed by Ms Sargent, he had been there a very short time and had just been handed a drink by his friend. There is no evidence that his actions or demeanour suggested youthfulness. The Board, in these circumstances, dismisses the allegation of a violation of subsection 30(4) of the LLA. While so concluding, on these facts, the Board, however, wishes to emphasize that it does not condone the behaviour of M.M. nor Licensees who serve minors and stresses that Licensees must take great precaution against the ingenuity of those who wish to circumvent the age restrictions for consumption of alcohol.
Section 45(1) of the O.Reg
The allegations of subsection 45(1) "permit drunkenness" and "permit quarrelsome... or disorderly conduct" relate, to what is in the Board's view, a troubling set of facts, in terms of what transpired on this particular evening. Yet it is the action, or inaction, by the Licensee that is before the Board and the evidence must be weighed in that light.
Regarding the "permit drunkenness", the first issue is whether S.D. or M.M.G. were drunk or even showed signs of intoxication requiring further inquiry. The couple were dancing, and by all accounts, and as outlined in the evidence of various inspectors, provocatively so D/Sgt Chong, who gave the most fulsome evidence, had his attention drawn to them. They were dancing against the wall, barely moving. The male seemed to be holding the female up by her wrists. They were not facing each other. Perhaps not the conventional dance pose. Their eyes were at times closed. All AGCO personnel watched the scene for several minutes. Circa security, Ken MacDonald, was also watching the couple, and saw AGCO inspectors watching them. He approached the couple, Mr. Kulis submits, by implication, because he saw a number of police officers "watching them." The Board did not have the benefit of Mr. MacDonald's evidence so cannot speculate as to his motivation, though the evidence of M.M.G. suggests that he was approached because of an earlier exchange of words, an altercation, with a photographer who had complained to Circa staff. There was however, no evidence before the Board beyond that provided by M.M.G., so no detail by which the Board can assess M.M.G.'s conduct in this regard.
Regardless of the motivation, the couple was asked to leave and proceeded to do so, walking for approximately 20 feet. There is no evidence that while walking, either patron staggered, were unsteady on their feet, had to be propped up or assisted. They clearly had been drinking (as noted of S.D. in the EMS report, Exhibit 5) – they were in a licensed establishment (as stated by M.M.G., he was in a bar), and not an insignificant amount, eight drinks by M.M.G. – but the number of drinks alone does not equate to drunkenness. Neither does the manner in which they danced suggest drunkenness – that provocative and perhaps sexually suggestive dance style, may be no more than that, and not a lack of inhibition resulting from the consumption of alcohol.
That the situation deteriorated, at some point after the couple started to leave is clear; S.D. at one point attempts to knee D/Sgt Chong, an action the inspectors suggest denotes a lack of judgment caused by drunkenness. Yet S.D.'s actions are also described as careful and deliberate, somewhat inconsistent with a level of intoxication ascribed to her by inspectors or the police officers. S.D., who D/Sgt Chong suggests was extremely intoxicated, put her hands on his neck and raised her knee. She did not fall over or into him. In fact, she posed such a threat that he "took her down."
There is evidence that there was a smell of alcohol on their breath – as there would be after several drinks. There was some evidence of slurred speech, from Mr. Hetherington who was the only one to describe M.M.G. as weaving from side to side while waiting for the paddy wagon and by D/Sgt Chong who also made note of it while waiting with M.M.G. for the police to arrive. At no time did the inspectors, police or Circa staff state that they were unable to understand what the patrons said nor were the patrons unable to comprehend what was said to them. D/C Barrick did make observations of the female, in the EMS room, after she had woken from her unconscious state, which are standard indicia of drunkenness: bloodshot glossy eyes, unsteadiness, and a strong odour of alcohol on her breath. Those symptoms as indicative of intoxication must be weighed against the circumstances. S.D. had been taken to the ground by D/Sgt Chong, handcuffed, rendered unconscious and carried to the EMS room.
The Board therefore has difficulty in concluding that the evidence, in its totality, is sufficient, on a balance of probabilities, to establish drunkenness and is disinclined to conclude that element of subsection 45(1) has been established.
However, even if the Board could conclude that the two patrons were in fact, drunk, the second element of the section, "permit" has not been established. The inspectors and police observed the couple for two to three minutes before security approached, the couple having been drawn to their attention by their manner of dance. Initial assessments of intoxication were based on their movements as they danced though both Mr. Strongman and D/C Barrick indicated that they did not conclude that they were intoxicated at that point, but rather their conclusions were made with subsequent events unfolding.
"Permit" has been interpreted more recently by this Board, and by the Courts, to require some proof that the Licensee knew or ought to have known of the drunkenness on the premises. On these facts, there is no evidence from the inspectors or staff as to the state or actions of the patrons prior to the two to three minutes before staff approached the couple, but the Licensee's staff did intervene, and while there may be uncertainty as to the motivation (as noted in paragraphs 71 and 72), the patrons were nevertheless being escorted out. Unlike the situation before the Board in Body English / Body Rok, the panel cannot conclude that the two patrons were in the premises in an intoxicated state for some time prior to the intervention, nor were the patrons, on the evidence immediately obvious to the police and inspectors – for some of them at least, further discernment was required. On the evidence, there is nothing to suggest that Circa staff did not assess and commence removal of the patrons at the first reasonable opportunity.
The Board therefore dismisses the allegation of a violation of subsection 45(1) of the O.Reg, "permit drunkenness."
Regarding the allegation of permitting quarrelsome or disorderly conduct, there is no question on the evidence of D/Sgt Chong alone, that the situation involving S.D. and M.M.G. seemed to quickly dissolve into disorder, however, on the evidence, the circumstances suggest the proverbial "chicken and egg" situation. Subsection 45(1) reads, "permit... quarrelsome or disorderly conduct", suggesting the occurrence of quarrelsome or disorderly conduct, and allowance of it to continue or persist, or a wilful blindness to its occurrence. D/Sgt Chong was quite candid in his evidence – Circa security tried to deal with the situation as they saw it. He had no criticism of security from the time the patrons were identified as an issue and their attempts to have them leave. His complaint is that they should have been escorted out earlier – not because of their quarrelsome or disorderly conduct, but due to his assessment of their intoxication.
The couple at some point, as they were leaving became less cooperative, despite M.M.G.'s assertion that he was prepared to leave when told to do so. Exactly why or what words were said between the patrons and security is not known. Neither M.M.G.'s evidence nor Mr. MacDonald's report (Exhibit 3) were particularly helpful in this regard. AGCO inspectors were at this point some distance away, as was Mr. Morris. The music was loud, they could not hear what was said. Profanities may well have been exchanged. But from these observations, Mr. Strongman and D/Sgt Chong decided to assist, and initially, according to them, they were successful in calming M.M.G. S.D. was not calm, and the Board heard evidence about her personal history that may explain her elevated response to the situation, but it is at this point, – with a strong presence from AGCO personnel, that the situation spirals downward. The result: the female patron is put in a headlock and brought to the ground by D/Sgt Chong, she is handcuffed and unconscious, when she does not get up, she is dragged on the floor for a few feet by D/Sgt Chong. M.M.G. reacts. He, too, is brought to the floor and handcuffed. The situation is then defused it seems, though the Board notes that while in the elevator, taking a handcuffed M.M.G. to await the paddy wagon, accompanied by AGCO inspectors and Circa security, M.M.G. is, D/Sgt Chong states, pushing against him, requiring him to hit M.M.G. on the thigh with his baton several times. That action of striking M.M.G. was confirmed by him, though was not alluded to by any of the inspectors in their evidence.
In the circumstances, with no evidence of quarrelsome or disorderly conduct prior the Circa staff's attempt to remove the patrons, which it may be argued was their duty and obligation under the LLA and regulations to do so, it is not reasonable to extrapolate from the events that ensued that the Licensee "permitted" the quarrelsome or disorderly conduct on the premises.
The Board agrees with Mr. Kulis when he states in his submissions that this situation was poorly handled, however, on the evidence, the disorderly situation and quarrelsome behaviour that arose cannot be said to have pre-existed the Circa staff involvement such that the Licensee permitted it to occur, rather the question on these facts is whether the intervention by the police and AGCO inspectors exacerbated the situation, specifically an escort out by the staff, that while not without difficulties, was not out of control.
Therefore, based on the totality of the evidence, the Board dismisses the allegation that the Licensee, pursuant to subsection 45(1) of the O.Reg "permitted quarrelsome or disorderly conduct."
As stated above, the incident described by the witnesses unfolded with unusual force. Some were involved more tangentially than others, and each had a different lens on what occurred. What transpired, while not found by the Board to be, in the circumstances, a violation of the LLA and its regulations, was nonetheless not a positive reflection on the actions of the inspectors, police, the patrons or the Licensee.
Conclusion
- For the reasons given, the Board DISMISSES the allegations of violations of subsection 30(4) of the LLA and subsections 41(1) and 45(1) of the O.Reg.
DATED AT TORONTO THIS 7th DAY OF May, 2009
PATRICIA MCQUAID, VICE-CHAIR GUY MAURICE, BOARD MEMBER