Registrar, Alcohol and Gaming Commission of Ontario v. 1746988 Ontario Inc. O/A Remedy Nightclub, 2009 CanLII 4473

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

Registrar, Alcohol and Gaming Commission of Ontario

Registrar

-and-

1746988 Ontario Inc. O/A Remedy Nightclub

Licensee

DECISION

Panel: David C. Gavsie, Chair, AGCO

Brian J. Ford, Board Member

Decision Date: January 28, 2009

Hearing Location: Hamilton, 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

1746988 Ontario Inc., Licensee ) Robert Plouffe, Representative

Allegations

A hearing into Notice of Proposal (“NOP”) number 16796 dated October 31, 2008 to revoke, and an Order dated October 31, 2008, to immediately suspend on an interim basis, liquor licence number 802539 issued to 1746988 Ontario Inc. (the “Licensee”), operating as REMEDY NIGHTCLUB, 35 King Street East, Hamilton, Ontario, L8R 3L5, (the “establishment” or the “premises”) on the basis of alleged violations of section 6 and subsection 30(4) of the Liquor Licence Act (“LLA”), and section 43 and subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA was held on November 14, 19 and 20, 2008, in the City of Hamilton and on November 25, 2008 in the City of Burlington.
In its decision dated December 31, 2008, amended on January 7, 2009, the Board found the Licensee violated clause 6(2)(d) and subsection 30(4) of the LLA, and section 43 and subsection 45(1) of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. In the case of the Licensee, submissions were received from both its principal and from its representative. The Board has received and reviewed all submissions.

Registrar’s Submissions

On December 31, 2008 the Board found that the Licensee breached section 30(4) of the LLA, and section 43 and subsection 45(1) of the O.Reg by permitting minor to have and consume liquor, overcrowding and permitting drunkenness, and that there are also reasonable grounds to believe that the Licensee will not operate the establishment in accordance with the law and with honesty and integrity, as required under section 6(2)(d) of the LLA.
It is the Registrar’s position that this liquor licence should be revoked. The Licensee’s disregard for the licensed capacity of his establishment, particularly as demonstrated by the events of this night of October 30-31, 2008, resulted in the safety of many people being endangered through his operations. Both Inspector Forester and Chief Winn testified that if there had been a fire at the establishment on October 31, 2008 when they attended, people would have died. Chief Winn also stated that if people had panicked, for any reason, there was the potential for injuries from crushing or trampling.
Furthermore, the Licensee’s disregard for his conversation with Detective Sergeant (“D/Sgt.”) Serianni on October 28, 2008, despite his assurances that he would follow her direction, demonstrates that this Licensee is unwilling to take heed from the officials of the Alcohol and Gaming Commission of Ontario (“AGCO”) respecting the conduct of his licensed business. While Mr. Sanderson may be very cooperative when speaking with the police, liquor inspectors or fire officials after an infraction has been found, his actions speak louder than his words and Mr. Sanderson has not taken any measures which can give the Registrar or the Board any assurance if he ever opens his doors again it will not be a repetition of what took place on October 30-31, 2008.
In summary, this Licensee has permitted a very serious incident to take place in his establishment; he has not followed directions from AGCO enforcement staff and has not given this Board any reason to believe that he will be governable in the future. All of the allegations set out in the Registrar’s Notice of Proposal have been proven and the Registrar’s reasons for issuing the Interim Suspension of the liquor licence were well founded. Therefore, it is the Registrar’s position that this licence should be revoked effective immediately.

Craig Sanderson’s Submissions

The Licensee admits to overcrowding, but not to the numbers as indicated by Chief Winn. Chief Winn testified that had there been a fire at the establishment on October 31, 2008, when they attended, people would have died. He also stated that if people panicked for any reason there was a potential for injuries from crushing and trampling. This is speculation at best, there was no fire, and no panicking by patrons and the only reason for injuries, which there were none, would have been created by Chief Winn when he wanted to evacuate all patrons through one exit. The premise is equipped with four other exits that were accessible, but were not used by Chief Winn for the evacuation. Mr. Sanderson’s security staff managed the evacuation in a very safe and timely manner, while respecting and abiding by the directions of Chief Winn. It was not until Mr. Sanderson noticed that the number of guests all trying to leave through the same exit was creating a “bottle neck effect” in the hallway and had the potential for problems, did he go against Chief Winn’s directions and had his security staff open at least one more exit, located in room P1, to help alleviate potential problems.
The numbers reported by Chief Winn are not realistic. The capacity for the room known as P1 is 342 persons. This room was agreed upon by both parties as being over-capacity. The capacity for the room known as P2 is 250 persons. This room was described in the Decision by four people between both parties, three of those people acting as witnesses for the Registrar.
The number of 1461 persons is just simply incorrect.
Finally, Mr. Sanderson has shown great remorse regarding the events that took place October 30/31^st and will assure that he follows any and all directions given by the AGCO.
Mr. Sanderson will heed all suggestions respecting his licensed business as presented to him.
He has a plan and measures will be implemented if his licence is deemed to continue. His plan entails:

(1) The continual retraining of all staff members. Training methods will consist of informative staff meetings; training seminars provided by local police and fire authorities on prevention methods as well as pre-arranged meetings with AGCO inspectors.

(2) The possible hiring of an ex-AGCO inspector as a consultant to advise Mr. Sanderson and his staff, and to maintain the standards and expectations as set out by the AGCO.

(3) Mr. Sanderson will hire a manager to be present at the club during operating hours, along with himself. This will free up Mr. Sanderson’s time to make him more available to staff, and to allow him to circulate the club more freely to be able to oversee any and all activities that are taking place.

(4) Mr. Sanderson will also hire and train more security staff. He will increase the amount of security persons per shift to be sure that all entry and exit points are secured, as well the hallway. The extra staff will also allow for him to have a team of security available to circulate through the club, amongst the patrons, to better keep a watchful eye for any problems or situations that may arise.

Mr. Sanderson has since fired the security persons responsible for allowing the promoter to sneak people in through the back south entrance.
He understands the seriousness of the actions and events that took place on October 30-31^st, 2008.
As of the date of the Licensee’s submissions, the establishment’s licence has been suspended 77 days and this penalty should suffice as sufficient penalty for the events that transpired on October 30/31 2008, which were in breach of the LLA as well as the O.Reg.

Licensee’s Representative’s Submissions

Regarding the events of October 31, 2008, the Licensee was found to have breached section 30(4) of the LLA and section 43 and subsection 45(1) of the O.Reg.
The Licensee did not knowingly permit a minor to have and consume alcohol. As for the minor that was found in the premise, by D/Sgt. Serianni, by his own admission indicated that he was 18 years of age and found a partial bottle of beer that was left unattended. This being the beverage that he was caught with.
The Licensee did not knowingly permit drunkenness.
The Licensee admits to overcrowding, but not to the numbers as indicated by Chief Winn. Chief Winn testified that had there been a fire at the establishment on October 31, 2008, when they attended, people would have died. He also stated that if people panicked for any reason there was a potential for injuries from crushing and trampling. This is speculation at best. There was no fire, and no panicking by patrons and the only reason for injuries, which there were none would have been created by Chief Winn when he wanted to evacuate all patrons through one exit leading to the outside. The premise is equipped with four other exits that were accessible, but were not used by Chief Winn for the evacuation. Mr. Sanderson’s security staff managed the evacuation in a very safe and timely manner, while respecting and abiding by the directions of Chief Winn.
The numbers reported by Chief Winn are not realistic. The capacity for the room known as P1 is 342 persons. It is virtually impossible for a room of that size to accommodate 1,461 people, at one time, as stated by Chief Winn.
Mr. Sanderson has shown great remorse regarding the events that took place October 31, 2008 and will assure that he follows any and all directions given by the AGCO.
Mr. Sanderson will heed all suggestions respecting his licensed business as presented to him.
He has a plan and measures will be implemented if his licence is deemed to continue. His plan entails:

(2) The possible hiring of an ex-AGCO inspector as a consultant to advise Mr. Sanderson and his staff, and to maintain the standards and expectations as set out by the AGCO.

Mr. Sanderson has since fired the security persons responsible for allowing the promoter to sneak people in through the back south entrance.
He understands the seriousness of the actions and events that took place October 31, 2008.
He will take all necessary precautions to make sure that nothing like this will ever happen again.
Mr. Sanderson will also refrain from running any “all ages” events at the establishment. Thus ensuring that there will be not other issues regarding minors in the club.
As of the date of these submissions, the establishment’s licence has been suspended 77 days and this penalty should suffice as sufficient penalty for the events that transpired on October 31, 2008, that were in breach of the LLA as well as the O.Reg.

Registrar’s Reply

It continues to be the Registrar’s position that this licence should be revoked. The Licensee has still not come up with a concrete plan of action to control what takes place in his establishment. It is not for the Board, for the Registrar’s enforcement staff or anyone else to tell the Licensee what he has to do to operate his business within the law. The Licensee himself must come up with plan, which will assure the Board that this will not happen again. At the moment all the Board has been given is an expression of contrition and vague promises to monitor matters better in the future.
Furthermore, this Licensee still appears to believe that he does not bear the full responsibility for what took place in his establishment that night, as his accompanying letter still states that he feels that the trust he placed in the promoter and his security was taken advantage of, despite his following statement. The Licensee is also still disputing the evidence that Board found to be credible. This again points to a failure on the part of the Licensee to understand what went wrong – the first step in making sure that the situation does not take place again.
Therefore, it continues to be the Registrar’s position that this licence should be revoked effective immediately.

Decision on Sanction

The Board received submissions on sanction from the Registrar’s Representative, the Licensee’s Representative and the Licensee. The Board also received a letter of apology from the Licensee.
The Board notes that both representatives and the Licensee agree that there was a breach of section 43 of the O.Reg. While the Licensee does not agree with the numbers he and his representative admit that there was overcrowding. The Board also notes that the Licensee and his representative used the submission on sanction to proffer a defence and argument to the findings of the Board.
The Board is not going to revisit its decision, which was made on very clear evidence that was place before it by both parties. Having taken all evidence into consideration, the Board’s findings are final and the Licensee should know that.
The Registrar is asking for a revocation of the liquor licence based on the Board making a finding breach of subsection 30(4) of the LLA, section 43 and subsection 45 (1) of the O. Reg and that there are also reasonable grounds to believe that the Licensee will not operate the establishment in accordance with the law and with honesty and integrity, as required under clause 6(2)(d) of the LLA.
It is the view of the Registrar’s representative that the Licensee had permitted a very serious incident to take place in his establishment and he did not follow direction from AGCO enforcement staff. She also notes that all of the allegations in the NOP were proven.
The Licensee and his representative admit the Licensee’s establishment was overcrowded and the Licensee has shown remorse for the events of October 31, 2007 in a letter of apology to the Board and in his and his representative’s submissions on sanction.
There is no question that this was a lengthy, difficult and serious hearing. The Board realizes that it must consider the safety of the public and apply the principles of general and specific deterrence and their effect. The Board is also aware of the potential economic effect of a revocation of the Licence given the harsh financial climate people and businesses are facing in the Province of Ontario.
The matter of overcrowding to the extent that occurred on the night of October 30-31, 2008 is a very serious breach and was of sufficient significant concern for the immediate suspension of the liquor licence of Remedy Nightclub. The Board is of the view that the decision to immediately suspend the licence and to continue that suspension until the Board’s final decision was the right course of action.
The Board notes that prior to the issuing of this NOP, there was no evidence presented that the Licensee had any previous disciplinary problems with respect to its liquor licence. The Board also notes the Licensee has fired the security persons who may have let people in the back entrance of the establishment.
Further, the Licensee has delineated a number of suggestions that it believes will prevent similar breaches in the future.
The Licensee should realize that it and its principal may have been given one last chance to prove that the establishment can be operated responsibly.

Order

Therefore, in consideration of the submissions on sanction, the need to send a strong message and the need for both general and specific deterrence, the Board ORDERS that the liquor licence number 802539 issued to 1746988 Ontario Inc., operating as REMEDY NIGHTCLUB, 35 King Street East, Hamilton, Ontario, L8R 3L5, be SUSPENDED for a period of ninety-two (92) days. The suspension shall include the time during which the Interim Suspension was in effect up to the date of this Order, and will continue until 2:00 a.m., February 1, 2009.
Further, the Board ORDERS that the following conditions be attached to the Licence:
No person under the age of nineteen years of age is to be allowed into the premises.
The Licensee will not at any time relinquish its responsibility for security of the establishment to any other person or party. It shall be the sole responsibility of the Licensee.
The Licensee will ensure that on all nights that the establishment is open and at all events held at the establishment a mechanical count of all patrons entering and leaving the establishment will be kept and recorded each night. At no time is the number of staff and patrons to exceed the permitted capacity, including any individual licensed room.
The Licensee will ensure that prior to each shift there will be a staff meeting to ensure they are aware of the permitted capacity of the establishment and their responsibilities.
The Licensee will ensure that there is security staff at each entrance to the club and in each room of the club.
The Licensee will ensure that each security staff has a portable communications device and that they communicate any issues to the Licensee’s head of security who will immediately bring it to the attention of the Licensee.

DATED AT TORONTO THIS 28^th DAY OF January , 2009

DAVID C. GAVSIE, CHAIR, AGCO BRIAN J. FORD, BOARD MEMBER