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-
Casual Restaurant Systems Inc. O/A Philthy McNasty’s
Licensee
DECISION ON FINDINGS
Panel: Allan Higdon, Board Member
Decision Date: January 9, 2009
Hearing Location: Kitchener, 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 ) Joyce Taylor, Representative
Casual Restaurant Systems Inc., Licensee ) Jeff Lieberman, Representative
Allegations
- A hearing into Notice of Proposal number 16050 dated February 20, 2008, to suspend liquor licence number 203389 (the “Licence”), issued to Casual Restaurant Systems Inc. (the “Licensee”), operating as PHILTHY MCNASTY’S, 50 Westmount Road North, Unit D4/5, Waterloo, Ontario, N2L 2R5, (the “establishment” or the “premises”) on the basis of alleged violations of section 45.1 and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (LLA), was held on June 16 and September 18, 2008, in the City of Kitchener.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee in contravention of section 45.1 and subsection 45(1) of the O.Reg.
Preliminary Matters
The exclusion of witnesses was requested and so ORDERED, on consent.
Licensee's representative maintained the notes of a police officer were not completely legible and therefore the appropriate disclosure rules had not been observed. Registrar's representative stated the notes had been available for several weeks and this issue should have been raised prior to the hearing.
The panel ruled the notes would be admissible. The panel would consider any submissions regarding prejudice if they arose.
Registrar’s Evidence
Ronald Russell Nichols has been a member of the Waterloo Regional Police Service (“WRPS”) since April 2004. He visited the subject premises and made notes during and immediately after his visit.
The witness arrived at Philthy McNasty’s on August 11, 2007 at 1:50 am. He was in uniform and arrived at the same time as Constable Brosseau of the WRPS, both of them in separate marked cars.
Constable Nichols had responded to a 911 dispatch call. A caller had alleged a female had been “drop kicked” by a bouncer at the bar.
The witness unsuccessfully attempted to locate the complainant and the woman. The door staff professed no knowledge of such an incident.
The witness did not enter the bar but spoke to three door staff at the front door. The door staff left to deal with an incident in the bar while the officers were talking to them. The officers waited at the door in the hope the complainant might come forward.
The witness observed staff eject two males. The witness estimated that approximately 100 people were milling about in the parking lot. No bar staff was present in the lot.
The witness stated the bar is located in a horseshoe shaped retail plaza containing no other licensed premises. The nearest other licensed premises is at least one kilometre away.
The witness stated it was obvious to him the two ejected males were intoxicated. They were yelling and screaming at the bar staff and exhibited slurred speech. The two men were physically escorted by security personnel in two different directions.
The witness stayed on the scene to monitor the large crowd. He saw three men get into a shoving match, normally a prelude to a fight. One was holding a partially full bottle of Corona beer.
Constable Nichols returned to his cruiser with the intent of issuing a ticket to the man holding the beer bottle.
The witness then saw a female knocked to the ground by a male who had been pushed by a second male. He ran over to stop a fight between the two males who were “squaring off.”
He noted no bar staff was present to assist.
Constable Nichols stopped the two men from fighting and helped the woman get up. He noted the woman was in her mid 20’s, with a heavier build, had brown eyes and wore a tank top. He was only three feet away from her and it was clear to him the woman was quite intoxicated.
Constable Nichols stated he has extensive experience in identifying intoxicated persons. The woman who was knocked down had the odour of alcohol on her breath and her words were not clear.
The woman referred to the male who had knocked her down as an “asshole.” The male was in his late 20’s, 6’ 1”, and wore a green shirt. He stated the woman started the fight when she spat at him.
The witness observed a male sitting on the street curb who shouted at a man and assumed a fighting pose. The officer left the two males and woman to deal with this situation. Again, he saw no evidence of any security staff.
The witness stated both confrontations took place within 15 metres of the front door of the establishment.
Constable Nichols noticed his partner appeared to be in difficulty. He advised the two males in confrontation to break it up or they would be jailed. He then left to assist Constable Brosseau.
The witness stated he was very upset at the number of altercations taking place in the parking lot with no sign of assistance from the security staff of the premises.
The witness stated the time was around 2:05 a.m. or 2:10 a.m. at the latest.
Constable Nichols asked to speak to the manager at the front door. Jeremy Farwell, the manager, came out and spoke to him. The witness asked where security staff was for the parking lot. The manager replied there were three security staff in the parking lot and the rest were inside.
The manager told him the normal staff complement consisted of three security staff outside, eight security staff inside, six bartenders, and one kitchen staff.
The manager stated the normal complement of security was 20 staff but during the summer management did not hire a full staff.
The manager also told the witness three security staff had phoned in sick that night and he had been unable to replace them.
The witness went inside the premises to record the particulars of the licence. The licence listed capacity as 400 downstairs, 300 upstairs, and 44 on the patio.
The witness noted that approximately 350 people were in the bar.
Constable Nichols received a call through his ear piece that immediate assistance was needed at Erb and Beverley Street West. Five men were fighting about three to four blocks from the premises. There are no other licensed premises in the vicinity.
The witness ran out the door, got his partner, and arrived at the intersection about 30 to 40 seconds later. Constable Popplewell was already on the scene and had observed five males, all friends, who had been drinking at Philthy McNasty’s, get into an argument and had begun to fight. One male had a bloody nose but declined medical attention.
The witness noticed two smashed bottles of Budweiser beer on the street. He surmised they had been smuggled out of the premises by the men.
Constable Nichols stated all five men were intoxicated but not to the extent of being charged with public intoxication. The signs of intoxication noted by the witness were alcohol on the breath, fighting, fighting with weapons (broken beer bottles) and the fact that they were friends who showed a loss of control and injured each other.
The witness stated that based on the number of incidents at or near the establishment requiring intervention within a short period of time it was clear there was a problem at the bar. The loss of control in the parking lot had led to a dangerous situation for the witness and his partner.
The witness said this incident was the worst he had to deal with in his four and one-half years as a police officer.
The manager had told the witness he could deal with anything, but that was obviously untrue as the crowd in the parking lot was not under control.
On cross-examination the witness confirmed he arrived at the premises at 1:50 a.m. and was at the Erb and Beverley Street West intersection at 2:24 a.m.
The fight was over when the witness arrived at the intersection. However, the scene was not under control as one officer was trying to deal with five intoxicated males.
The witness confirmed no tickets were issued to the five males.
The witness stated he did not call for back-up at the bar because it was a very busy night for the force. While he was at the establishment he always kept in sight of Constable Brosseau for their mutual protection.
The witness said he saw a lot of pushing and shoving but not a “knock down, drag out fight.”
The witness confirmed no arrests were made, tickets issued, or requests received for medical treatment as a result of any of the incidents.
The witness stated he saw no fights in the bar and did not speak to staff about any fights in the bar.
The witness stated there were about 100 people milling about in the establishment’s parking lot, many of them intoxicated. There was no vomiting or property damage. The officer had no concern for his safety.
Constable Nichols stated that in an approximately 30 minute span he saw four altercations. However, he did not lay charges.
The witness stated he did not ask the people involved in the altercations where they had been drinking as they were directly opposite the only licensed premises in the neighbourhood.
Constable Nichols testified the woman he helped up off the ground had a strong odour of alcohol. She was definitely intoxicated.
The witness stated no security staff came forward to help police deal with the crowd.
In reply to the Registrar’s Representative, the witness stated only commercial properties are near the premises. The people in the parking lot were patrons of the licensed establishment.
The witness said the police presence was essential to controlling the situation and preventing it from getting worse.
The witness said the outside security provided by the establishment was “absolutely not” adequate. It was “ridiculous” the situation became as volatile as it did. The whole episode could have ended very badly.
Constable Jamie Brosseau has been a member of the Waterloo Regional Police Force for three and one-half years.
The witness received a disturbance call from the dispatcher at 1:45 a.m. and arrived at the establishment at 1:49 a.m. A call had been received claiming a woman had been assaulted by a bouncer and was in the parking lot “freaking out”. The witness searched but was unable to locate the woman.
The witness noted the bar was very busy and lots of people were in the parking lot. He decided to do a walk-through of the premises.
Before entering the premises, the witness noted a white male, mid 20’s, in a black hat and T-shirt yelling at another male in the parking lot. The other man was very intoxicated and unable to stand. He was held up by a woman. The man fell down on the ground and was very belligerent, yelling obscenities.
The witness advised the man to lower his voice but he shouted an obscenity. His speech was slurred and incoherent. A woman got him into a vehicle.
The witness noted three security staff in the area – one in the parking lot and two at the front door of the establishment.
The witness noted approximately 100 people in the parking lot. There was a lot of yelling, swearing and arguing but security staff was not dealing with the situation. The scene was not being controlled.
The witness observed a gold Saturn pull out of the parking lot and run over beer bottles. The driver did not stop but sped out of the lot at a dangerous speed.
Constable Brosseau noted two white females, one blond and one brunette, both in their early 20’s in the parking lot. They had slurred speech, were unsteady on their feet, and had the smell of alcohol on their breath.
The witness observed a group of males fighting, pushing and shoving each other. He went over to the group and spoke to one of them. The male had a strong odour of alcohol, slurred speech, and said he had been drinking. He stated an argument had developed about his getting ejected from the bar.
One of the males had a bottle of Corona beer and Constable Nichols went to get his ticket book and issue him a ticket. Two females approached the witness. Both of them were intoxicated. They had alcohol on their breath, had slurred speech and one of them was yelling about the bouncers. The woman said a male friend had punched her in the face but the bouncers had ejected her. The woman was crying, very upset, not rational and clearly intoxicated.
The witness stated fights were starting at different places in the parking lot. His clear impression was that security was not involved in dealing with these outbursts.
The witness corroborated the testimony of Constable Nichols in describing his conversation with the manager, the number of staff on duty, and the fact that three security staff had phoned in sick and were not replaced.
The manager acknowledged to the witness the establishment was understaffed. He said the General Manager would not let him hire more staff.
The witness received a call regarding four to six males and a woman who were fighting and arguing at Erb and Beverley Street West. He answered the call and arrived at 2:24 a.m. where he found five males.
The witness spoke to the males, all of whom appeared intoxicated. They were unsteady on their feet and had slurred speech. Two broken bottles of Budweiser beer were in the street.
One male had a bloody nose. All five males said they had consumed alcohol at Philthy McNasty’s. They also said the broken beer bottles were from the same establishment.
After the officer’s intervention the men shook hands, apologized, and left.
The witness returned to the bar, located the manager, and told him that charges would be made under the LLA.
The witness stated the people in the parking lot were clearly patrons of the premises. The situation was “certainly unsafe”. The establishment did not have control of the parking lot.
The witness was unable to arrest people or write out tickets because so many altercations were taking place he had to keep moving to keep them under control. He did not have time to do anything else. The officer was focused on “keeping the lid on things.”
On cross-examination the witness stated he arrived at the premises at 1:49 a.m. He was unable to locate the person who made the original complaint to police or the alleged victim.
The witness confirmed he did a walk-through of the establishment with Constable Nichols. About 100 people were in the parking lot and most appeared intoxicated. There was yelling, swearing, screaming, and loud boisterous behaviour.
The witness stated security staff was not dealing with the incidents in the parking lot. He was attending the hearing because he was concerned about the lack of bar staff support to control the patrons.
Constable Brosseau said he did not speak to staff about the ejected patrons. He did not see people drinking in the bar. He confirmed the manager told him he was not allowed to hire temporary summer staff.
On reply, the witness stated there were no nearby rock concerts on the night in question.
In response to the panel, the witness stated security in the parking lot was insufficient to deal with the number of patrons and the level of alcohol consumed. Staff was not dealing with patrons in an attempt to control their behaviour.
Licensee’s Evidence
Jeremy Farwell has been the General Manager of the premises for one month. Prior to this position he was Manager for one year. He is SmartServe certified and previously worked for 12 years in security.
On August 11, 2007, the night of the incident, the witness was working as the manager of the premises. He recalls the incidents.
The witness said he assisted in the altercations that took place. He had six security staff in the parking lot with a total of 11 security staff on duty that night. Roughly 350 to 400 patrons were there that night. Total capacity is 744 persons, so the premises was about 50% full.
The witness stated he was not aware of any injuries to patrons, physical damage, police arrests, or injuries to staff.
The witness stated he had been involved with helping police before but in one incident had been pepper sprayed by police. He has received no complaints from neighbours about the operation of the bar.
The premises is working to reach a broader demographic of customers by reaching out to families and offering reduced rates for children’s meals.
The witness stated the security staff on duty the night of the incident was the most competent staff he has ever worked with.
On cross-examination the witness stated the incidents started around midnight. He acknowledged the bar attracts a young student crowd, not young families or retired people.
The witness confirmed the nearest bar is about one kilometre away.
The witness stated people started leaving the bar about midnight. He agreed there were about 100 people in the parking lot when the police arrived.
The witness agreed that yelling, screaming, pushing, shoving, and punching constituted disorderly conduct and acknowledged that youth and alcohol combined can very quickly become a major problem.
The witness said Constable Nichols was not correct when he testified there were only three security personnel in the parking lot.
The witness said the owners of the bar do not want to spend money replacing student security that is not available during the summer.
The witness stated he did not see security staff in the parking lot when he was speaking with the police. He cannot confirm security staff was outside where they should have been.
In response to the panel, the witness acknowledged that arguments sometimes happen but the incidents were confined to pushing, shoving and loud talk. The problems were not sufficient to warrant filling out report forms that night.
The witness stated security personnel wore a bright red shirt with “Philthy’s Fun Police” printed in big letters on the back.
The witness did not agree with the statement that security in the parking lot consisted only of himself and two door security staff.
Registrar’s Submissions
The Licensee has operated his premises contrary to subsection 45(1) of Ontario Regulation 719/90 under the LLA in that he has “permitted riotous, quarrelsome, violent or disorderly behaviour…”
In addition, the Licensee is in contravention of section 45.1 of Ontario Regulation 719/90 under the LLA in that he has “failed to ensure that reasonable measures are in place and reasonable efforts made to deter disorderly conduct on property adjacent to or in the vicinity of the premises…”
Numerous incidents were attested to by the police witnesses.
The first incident was witnessed by Constable Nichols when he observed two males who had been ejected from the bar. The men had been drinking and were yelling, screaming with slurred words, and holding on to the door for balance. Clearly, they were intoxicated.
The second incident took place just 15 metres from the front door of the bar. Two patrons were pushing each other and about to start a fight. Constable Brosseau testified they told him they had been ejected from the establishment. They were disorderly and drunk.
The third incident involved two males and a female in the parking lot. One of the males was punched and the female was knocked to the ground. Both were belligerent, had the smell of alcohol on their breath, and exhibited slurred speech.
The fourth incident involved five males on a street corner in the vicinity. They told the police they had been drinking at the establishment. All were intoxicated and one had a bloody nose after being in a fight. They left smashed beer bottles in the street.
The fifth incident involved a male ejected from the premises for intoxication.
The manager of the premises did not attempt to deny the ejected people were drunk or that they were patrons. In fact, he attempted to portray as “normal” behaviour involving fights, including fights resulting in injury.
The manager acknowledged even a small amount of disorderly behaviour involving alcohol and youth can become serious very quickly.
The police officers on site were very concerned at the crowd’s conduct. If such behaviour is considered normal the establishment has a real problem.
The management has a responsibility to use all reasonable means to maintain orderly premises. The evidence of police officers was that security staff did nothing to assist them in maintaining control. In fact, the manager testified that security was “not supposed to get involved.”
The situation was perilous with a large crowd of about 100 young people milling about in the bar’s parking lot, lots of alcohol, and nobody in control. Clearly the Licensee had not taken sufficient measures to prevent riotous, quarrelsome, or disorderly conduct on the premises or in areas under his control.
The manager stated there were six security personnel in the parking lot. That statement is not credible, given the testimony of police. The manager acknowledged he had no way of knowing if his security people were actually in the area to which they were assigned.
The manager admitted the establishment was understaffed and the owners unwilling to spend the money to hire summer help.
Licensee’s Submissions
Constable Nichols testified the incidents were the worst he had seen during his time on the force. Yet no charges were laid, no arrests made, no property damage identified, and no back-up requested by police on site.
The Licensee has no previous suspensions.
The incident described by Constable Nichols of a female pushed to the ground and intoxicated is not in his notes. Neither is the incident related to two men fighting.
The situation in the parking lot was hectic and dynamic but due to the actions of security staff there was no damage, injuries, or arrests.
In fact, the whole incident was over in about 30 minutes and the original reason for officers attending the site, the alleged assault of a female patron, was not substantiated by anybody. None of the other alleged activities would have come to the attention of police if they had not been called out for this unproven matter.
The pushing, shoving, loud talk and drinking cited as evidence of disorderly conduct can be found at any sporting event or rock concert. People can be boisterous and drinking without being intoxicated.
The establishment was not understaffed on the night in question. The place has a capacity of 700 and that night it was 50% full. Whereas the normal security complement was 20 persons, that night 11 were on duty. This was more than adequate.
The Registrar maintains that an incident several blocks away was the responsibility of the Licensee. How far does his duty to control his premises and adjacent areas extend? The parking lot is understandable but there must be a limit.
The case law cited by the Registrar’s representative involves severe injuries or bar invasions that are not applicable to this case. There was no melee inside or adjacent to the premises in this case.
The Registrar should be cautious of giving the impression to licensees that a call to the police is deemed to constitute an admission that an establishment cannot handle its own patrons.
To repeat, no arrests were made, no charges were laid, and there were no injuries as a result of the evening’s incidents.
Once a week, the establishment caters to a young crowd and arguments sometimes arise. It is normal behaviour.
There is insufficient evidence to make a finding on either of the allegations.
Reply
The contention that security guards assisted the police to control outbursts is pure speculation. No evidence was presented to support that scenario.
No charges were laid because the officers were so busy breaking up fights they did not have time to do the paperwork. One officer was even unable to return to his cruiser to issue a ticket because he was so urgently needed to maintain order.
It is a complete red herring to compare the conduct in the parking lot with that of a sporting event.
There is also no shred of evidence to suggest the people milling in the parking lot were anything other than Philthy McNasty’s patrons. There is no other licensed establishment close to the vicinity or any other business that would have attracted such a crowd.
It is unreasonable to suggest this was just another normal night with a predominately young crowd. Two police officers were kept fully engaged for a period of time ensuring that intoxicated, volatile young patrons did not hurt themselves or others with irresponsible or possibly deadly behaviour.
The events of the night could have resulted in severe consequences for those at the bar and in the parking lot.
Analysis and Reasons
The testimony of two police officers, Constable Nichols and Constable Brosseau, was clear, consistent, and credible.
The officers described a scene in the parking lot of Philthy McNasty’s that was volatile and potentially very dangerous.
The officers broke up several incidents involving, among other acts, pushing, shoving, shouted obscenities, assault, yelling, screaming, loud boisterous behaviour, smashed beer bottles, and a speeding car.
The manager of the premises, the sole witness for the Licensee, did not deny these incidents took place.
The manager acknowledged that approximately 100 people were gathered in the parking lot at the time the constables were on site – 1:50 am.
The manager testified he assisted in dealing with some of the altercations.
The manager also confirmed the nearest licensed premises was about one kilometre away from this establishment.
No evidence was introduced to refute the statements made to the officers that people involved in the incidents were patrons of Philthy McNasty’s.
Both police officers stated the security for the parking lot was clearly inadequate. The crowd in the parking lot was not under control.
Constable Nichols stated the security provided by the premises was “absolutely not” adequate. He described the situation as “ridiculous”. He testified the incident was the worst he had to deal with in over four years on the force.
Constable Brosseau described the situation as “certainly unsafe”.
The manager testified he had six security staff in the parking lot on duty that night. Yet neither police offices saw any evidence of this alleged security presence as they attempted to deal with various altercations. Constable Brousseau had given evidence in paragraph 59 above, that at one point in time he noticed one security staff in the parking lot but that security staff was never observed helping to manage the various situations in the parking lot in any way.
It is clear from the testimony of the officers that they took the brunt of the responsibility for keeping the crowd under control. They stated they were so busy that they did not have time to issue tickets to offenders or detain individuals.
The Board does not find the testimony of the manager credible in claiming he had an adequate number of security available. He admitted the owners were averse to hiring security in the summer to replace student security available the rest of the year. In addition, three members of the security staff did not show up for work as scheduled and he did not replace them.
The Representative for the Licensee suggested that as no charges were laid, property damage claimed, or injuries suffered requiring treatment the incidents did not merit serious consideration.
The Board disagrees with this suggestion. The police officers called to the scene acted quickly and with excellent judgment in keeping the crowd under control. Their restrained behaviour in the face of provocation was decisive in preventing this episode from resulting in serious consequences.
It is fortunate these incidents took place in a smaller urban centre where the use of knives or firearms is a rare event. The fact that the evening’s events did not become tragic is thankfully due to the astute intervention of police, certainly not the establishment’s owners and management.
The incidents involving various intoxicated persons in the parking lot of Philthy McNasty's clearly indicate the Licensee permitted drunkenness, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under the control of the licensed holder contrary to subsection 45(1) of the O.Reg.
It is also evident that, contrary to section 45.1 of the O.Reg,, the Licensee failed to ensure that reasonable measures are in place and reasonable efforts are made to deter disorderly conduct on property adjacent to and in the vicinity of the premises. Testimony from police officers regarding the altercation at Erb Street and Beverley Street West indicated patrons had been in a fight and had been drinking at Philthy McNasty’s. The officers noted all five males were intoxicated.
Conclusion
For the reasons cited above, the Board FINDS the Licensee in contravention of subsection 45 (1) of Ontario Regulation 719/90 under the LLA and also section 45.1 of the same Regulation.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file her 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 her 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 9th DAY OF January , 2009
ALLAN HIGDON, BOARD MEMBER