Registrar, Alcohol and Gaming Commission of Ontario v. 7 Lounge Inc., 2009 CanLII 4481

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-

7 Lounge Inc. operating as Seven / Runway 224 Licensee

DECISION

Panel: Guy Maurice, Board Member; Eleanor Meslin, Board Member

Decision Date: January 20, 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 ) Daniel Alakas, Representative 7 Lounge Inc., Licensee ) Sam D’Uva ) Piero Suppa

Authorities

Solid Gold Adult Entertainment (Re)[2007] O.A.G.C.D. No. 241 Club Gabella Inc. (c.o.b. Club Gabella Inc.) (Re)[2008] O.A.G.C.D. No. 12 1681736 Ontario Inc. (c.o.b. Hoops Sports Bar & Grill) (Re)[2007] O.A.G.C.D. No. 316 Sandbar Restaurant and Marina (Re)[1995] O.L.L.B.D. No. 353

Allegations

1A hearing into Notice of Proposal number 16358 dated June 2, 2008, (the “NOP”) to suspend liquor licence number 809662 issued to 7 Lounge Inc., (the “Licensee”) operating as SEVEN / RUNWAY 224, 224 Richmond Street West, 2nd and 3rd Floor, Toronto, Ontario, M5V 1W2, (the “establishment”), 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 (the “LLA”), was held on October 27, 2008, in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board DISMISSES the allegations of violations of section 45.1 and subsection 45(1) of the O.Reg. Reasons for the decision follow.

Preliminary Matters

3Sam D’Uva and Piero Suppa are officers and directors of the Licensee. They appeared on their own behalf and on behalf of the Corporation and waived the right to be represented by a licensed representative.

Registrar’s Evidence

4Mark Hayward, a sergeant with the Toronto Police Services (TPS) since 1981, advised that he and four other officers attended the establishment on December 21, 2007, as Paid Duty officers. There was a large crowd in front of the club. Two lines had formed, one with approximately 150 patrons and a second line, the VIP line, with 25 patrons was swelling west near Club Avalon causing problems with patrons lining up for that club.

5The number of patrons outside started to grow and since the snow bank covered two feet of the sidewalk, it restricted the flow of safe passage, creating a chaotic situation with patrons.

6Sergeant Hayward observed that the two Door Staff were not engaged with patrons on the sidewalk but were more concerned with those who were entering the establishment. He told the Door Staff to get the two line ups under control as the patrons were very uncooperative, grouping up and pushing forward. At one point, patrons threw chunks of ice to other patrons.

7The Paid Duty officers’ primary function was to keep peace and assist Door Staff when necessary.

8Sergeant Hayward indicated that things settled down and most patrons were able to enter the club and everything was fine until 3:00 a.m. At that time he observed patrons leaving very quickly, indicating that things were out of control in the club and that there was a fight at the coat-check area. He was also informed that beer bottles were being thrown from a landing at the entrance to the second floor that was also visible from the street. Patrons wanted police to go in and take control. Sergeant Hayward looked inside the establishment and saw nothing out of control and the Door Staff also indicated that everything was okay.

9Within a few minutes, at 3:05 a.m., Sergeant Hayward received a 911 radio call advising of a large fight upstairs inside the night club, and that beer bottles were being thrown.

10A call was made for other police services, including the mounted unit. Numerous units attended the club while many patrons were coming out very angry and had started to form up on the south side of Richmond Street. Sergeant Hayward did not re-enter himself. It was felt that there was a hostile situation inside, that the crowd on the street was causing concern and that the Club Staff were dealing with the crowd upstairs.

11Officers who attended were trying to move the crowd outside. At 3:25 a.m., Sergeant Hayward entered the building and spoke to the manager upstairs, who asked him to bring officers in to deal with the second floor where the fights had occurred and disorderly patrons had congregated. Sergeant Hayward looked upstairs and found the situation to be okay so he did not call for more help. He spoke to the manager about who called for help and could not see problems inside and was not aware of the call.

12The manager requested that the Paid Duty officers remain after 3:30 a.m. and was refused. Sergeant Hayward spoke to Sergeant Peter Troup, Duty Sergeant for the evening, advising him about what was going on inside and Sergeant Troup put on a number of officers to assist. Those officers took over at 3:30 a.m. when Sergeant Hayward booked off.

13On cross-examination, Sergeant Hayward was asked whether the crowd was out of control upon his arrival, to which he replied that it was not as severe as could have been, but still a matter of concern. There was still enough space for patrons to line up but they took time to bring under control. He was asked if, as Paid Duty, he had been instructed to help control crowds, to which he replied that they would assist if Door Staff needed help. Sergeant Hayward was then asked whether anyone had been arrested and replied, not while he was on duty. He was asked if he saw a fight, bottle throwing or intoxication, he replied, no.

14Mr. Suppa asked Sergeant Hayward if he was familiar with city by-laws that describe volatile situations or riotous behaviour. He replied that he was not sure about the by-laws and had not witnessed a volatile situation or riotous behaviour.

15Mr. Alakas inquired if he knew who called 911 to which he replied, negative. He also asked Mr. Hayward how many years experience he had when on the force, to which he replied, 12 years.

16Mark Ferreira has been a police constable with TPS since 1989 and is familiar with the establishment. On December 21, 2007, he attended the establishment at 11:30 p.m., working as Paid Duty along with four other officers.

17The bar was busy and the lines of patrons waiting to enter the establishment were long. One line had approximately 150 patrons and the VIP line had 25 – 40 patrons, which ran into the bar line next door. The problem was that patrons refused to line up properly and winter time snow piled up which prevented people from walking on the side walk. He noticed only two Door Staff. They were not vocal with the crowd, so Paid Duty officers had to look after the lines.

18At 3:00 a.m., people were coming out of the establishment yelling and very angry. Patrons were leaving angry because they could not get their coats from the coat check area and a female reported a fight inside with bottles being thrown. Sergeant Hayward spoke to the Doorman and a call to 911 was made requesting help including the mounted unit who arrived and controlled the outside crowd.

19He was present when Sergeant Troup entered with other officers. Paid Duty officers remained outside and assisted with the crowd. Inside, there was a problem with patrons not being able to get their coats from the coat check.

20On cross-examination, Constable Ferreira was asked if the line was out of control. He replied that with assistance from the Door Staff, Paid Duty officers maintained peace and orderly conduct. He also advised that Paid Duty officers are paid by the club.

21Constable Ferreira was then asked if anyone was arrested, or anyone sustain any injuries, or was there any bottle throwing or any intoxicated persons, to which he replied no. He did not know that the club employed 14 security staff. He was not asked to go inside and would only do so if there was a stabbing or shooting.

22Sergeant Peter Troup - upon attempting to qualify Sergeant Troup’s notes, Mr. D’Uva objected to the witness being heard, stating that he did not receive the notes until three days prior to the hearing when they should have been part of the disclosure and received at least 10 days prior to the hearing. Mr. D’Uva has not read the notes which he received October 23, 2008. He requested that, under the circumstances, the witness be excluded. Mr. Alakas objected and requested an adjournment to give the Licensee time to prepare.

23The Board recessed for 15 minutes to consider the request. Upon resumption of the hearing, the Board offered the Licensee the option of an adjournment. Mr. D’Uva objected to an adjournment because he had two witnesses present who took time off from their work to attend and an adjournment would be a further inconvenience to both. He stated that the Registrar has to comply with the rules and procedures. The Board granted Mr. D’Uva’s request and excluded the witness.

24Louis Pasquino has been an officer with TPS for 35 years and is familiar with the establishment. He was present on December 21, 2007, when called by radio to a fight on the street. The call was made by officers calling for assistance.

25On arrival, the street was full of people on the north and south side. Mounted Police had been called to help with crowd control. Crowds of people were coming from the bar, causing people to interfere with vehicle and pedestrian traffic and creating a dangerous situation on the street. Club Security personnel were out on the sidewalk trying to help control the crowd. Officer Pasquino stated that at closing, people exiting the establishment create a danger to pedestrian traffic, overflowing the sidewalk and creating traffic jams.

26Mr. Alakas asked what time the 911 call was received and Officer Pasquino confirmed that it came in at 3:05 a.m. and he along with two other officers entered the club at 3:20 a.m. The club was full of people, the stairway was full and nobody was moving. The problem was with the coat check being delayed due to the large crowd. The Coat Check person was busy at the top of the landing trying to organize the line. The top room was packed with people who were trying to exit and there were glasses and bottles on the floor. Officer Pasquino stated that nothing was going on with the crowd on the second floor. People were asking when they could leave and about what was happening. Most were just concerned about getting their coats and going home.

27Officer Pasquino helped the other officers and Sergeant Troup assisting people down the stairs, five or six patrons at a time. The problem was caused by winter-time and the back up in the coat check area, which was unorganized.

28He confirmed that uniformed officers were called by Paid Duty officers.

29On cross-examination, Officer Pasquino re-confirmed that they were called by Paid Duty officers. Upon arrival at 3:20 a.m. the officers were trying to clear the outside crowd and were being assisted by the club security personnel. Officer Pasquino confirmed that there were no arrests, no injuries, and that he did not see fights or “bottle throwing”, and that there were no intoxicated persons. He did not know that the club employed 14 security people, he only saw two outside, two inside the entrance and one upstairs.

30Michael Lindale has been an officer with TPS since 1977 and is familiar with the establishment. He was present on December 21, 2007. He arrived on scene at 3:05 a.m. after receiving a message by radio of a fight with bottles being thrown.

31On arrival, Officer Lindale received information from Sergeant Hayward about a problem at the coat check area and people crowding the sidewalk on both sides of the street, filling the snow covered sidewalk. He did not observe club security. The general demeanour of the crowd was very tense and very unhappy at being asked to leave.

32Officer Lindale entered the club with Sergeant Troup at 3:20 a.m. On the second level they found approximately 100 people, some in the room and some in the stairwell pushing to get their coats. They sent the people down the stairs five at a time to get their coats. When he was asked what had caused the problem, Officer Lindale replied that it was the crowd pushing, causing a dangerous situation. He observed a Security Staff member with police at the top of stairway. He did not see any other security people. Officer Lindale was asked how many clubs get police assistance with the coat check to which he replied he did not know, usually bar staff take care of all that. He also stated that a scared patron thanked police for their assistance and that police stayed until most people had left.

33Under cross-examination, the officer confirmed that they were called by Paid duty officers by radio. Officer Lindale was asked whether Paid Duty officers were allowed in the establishment and he responded that they do not usually enter the establishment unless back up is present. At least five back up officers entered the premises. When asked if people found on the sidewalk outside could have been from other establishments, Officer Lindale said they may have. Officer Lindale confirmed there were no arrests, no injuries, no fights, no bottle throwing and no one was intoxicated.

Licensee’s Evidence

34Mesfun Haile is a landscaper but is also a Promotion Consultant for the establishment. He was at the establishment on December 21, 2007. He did not see anyone injured or intoxicated, nor was the club out of control. It was a typical busy evening.

35Under cross-examination, Mr. Haile was asked what type of event it was and he replied it was a few days before Christmas, and was a “Meet Santa” night, a promotion that he organized. He witnessed an altercation near the end of the event when patrons began pushing. Two Security staff attempted to split the group but when they were unable to handle the altercation, nine additional security arrived to handle the problem.

36He was surprised at the number of officers present. He was not sure they were required and it may have caused concern in the crowd. They gave the sense that something major had happened.

37Francesca Mattei was the General Manager for the establishment on December 21, 2007, and stated that it was a Friday night and there were 14 security personnel along with five paid duty officers. She confirmed that were no injuries, no intoxicated persons and all servers are SmartServe qualified. She also stated that Security Staff always had matters under control and she called police to assist the Paid Duty Officers to help calm the situation.

38To Mr. Alakas’s questions she answered that she is no longer employed at the establishment. At 2:45 a.m. security swept the place and remove all necessary evidence of service. She indicated that security were in control. When patrons began shoving and pushing to get their coats, she called the police to come and assist so that things did not escalate, although Security Staff were able to control the patrons.

39When asked about officers stating they had seen no fighting, she replied it was because security had sorted it out.

40The Chair of the Panel was unclear about what caused the fight and was told it was persons pushing and shoving to get their coats.

Registrar’s Submissions

41Mr. Alakas is seeking sanctions under subsection 45(1) of the O.Reg by permitting riotous, disorderly and quarrelsome behaviour, and section 45.1 of the O.Reg by failing to ensure that reasonable measures are in place and reasonable efforts are made to deter disorderly conduct on the property. Riotous, quarrelsome, violent and disorderly conduct took place on that day. While fortunately no one was injured or arrested, that is not evidence that the behaviour did not occur. Whether there were 14 Security Staff on duty is not the issue, but the lack of action taken by security. “To permit” should be interpreted as a failure to prevent the behaviour previously mentioned.

42Clearly, the evidence is that something happened at this club. There was an altercation that involved and led to disorderly conduct. The specifics of the evidence indicate that, in fact, this was the case.

43Mr. Alakas refers to Sergeant Hayward’s statement that patrons exiting on mass from the club were saying bottles were being thrown inside. This is the first indication of a fight inside. Sergeant Hayward looked in the club and could only see a small bit of the upstairs where nothing was occurring. The second indication of the fight was that Security staff told Sergeant Hayward that everything was okay, yet five minutes later a 911 comes through about a large fight inside.

44The third indication is the manager asked Sergeant Hayward for assistance to deal with the situation and Sergeant Hayward called in re-inforcement for help.

45Constable Ferreira observed patrons running outside yelling, which is not normal exiting procedure. This type of disorderly exit was a direct reaction to the violent disorderly conduct occurring inside. Constable Ferreira also heard the 911 call about a fight by the coat check area and bottles being thrown. He and other officers entered at 3:20 a.m., 15 minutes after the call; the evidence was that disorderly conduct was still going on. The fact that this was occurring 15 to 20 minutes after the initial call is strong evidence of the Licensee’s failure to prevent the disorderly behaviour.

46Evidence from two police officers is that there was a large back up at the coat check with people yelling and screaming and neither officer made an observation of Security Staff attempting to manage this. The evidence is that Security Staff had problems with overcrowding and lack of organization at the coat check area and in general. Both Licensee’s witnesses testified to an altercation that security, regardless of how many were working, failed to prevent or control. However, they downplayed the fight.

47The Registrar submitted that the Licensee violated subsection 45(1) of the O.Reg by failing to have acted with enough skill and diligence and by failing to have sufficient or effective procedures in place to deal with the violent and disorderly conduct that occurred.

48The Licensee also violated section 45.1 of the O.Reg twice. The first being at the time of the arrival of paid duty officers. Evidence was heard that the two security staff at the door were more concerned with patrons entering the club. No reasonable efforts were being made to get the disorderly patrons attempting to enter the club back into a reasonable line.

49The second occurred when the Licensee failed to take reasonable efforts to control the crowds that were exiting the establishment after 3:00 a.m. in response to a fight inside.

50Mr. Alakas submitted that the presence of police officers does not remove the responsibility of the Licensee’s staff to take appropriate and effective action or to have proper procedures in place.

Licensee’s Submissions

51Mr. D’Uva stated that provincial offences charges were withdrawn by the Crown because there were no reasonable grounds for conviction.

52The Registrar alleged under section 45.1 that no reasonable measures and reasonable efforts were made by the Licensee to deter disorderly conduct. The Licensee maintains it did not permit disorderly conduct as defined by the Regulations.

53The Licensee submitted that staff are SmartServe trained and followed procedures that would be expected of them in any circumstances.

54The Licensee maintained that there may have been a minor disturbance but the evidence shows it was not by any stretch of the imagination riotous or violent as defined in subsection 45.1. The manager asked the paid duty officers to come into the establishment in order to calm down the tension. That is exactly what happened as police testimony and witnesses, showed. Witnesses, including police, observed no fighting, bottle throwing or any other evidence.

55The Licensee did not do anything willfully nor did it neglect to do something that resulted in this minor occurrence. Evidence supports the Licensee did not over serve anyone and no one was observed as being intoxicated.

56The Licensee submitted it did everything a prudent operator would be expected to do and more, including having 14 security guards on duty exceeding the Standard and Municipal By-law 2006 which calls for seven security guards. It also had five paid duty officers employed that evening.

57The Licensee denied these allegations on the basis that the Registrar has no evidence to support the charges. The key word in subsection 45(1) is “permit” which has been defined in many Board decisions.

58In the case of Solid Gold there is a two-part test. The first, was there drunkenness or disorderly conduct. The second part, did the licensee permit it. The Licensee submits the Registrar failed to satisfy both parts of the test to prove section 45(1).

59In the case of Club Gabella Inc., the Board dismissed the violation of subsection 45(1) in respect of disorderly conduct, as it was found there was “no evidence that this licence holder exhibited a complete lack of control of the premises.”

60In 1681736 Ontario Inc., operating as Hoop Sports Bar & Grill, the Board dismissed the allegation of a breach of subsection 45(1) and found in part that, 1) the manager responded quickly and attempted to stop the fighting, 2) there was no evidence that the Manager permitted a dispute to escalate into a fight or did anything other than respond as quickly as possible to control this situation and 3) the establishment provided security, although not a requirement of the LLA, and indicated that Management takes their responsibility for the safety of patrons seriously.

61Mr. Alakas is painting a picture not supported by the evidence. Selective parts of the evidence have been submitted to try to portray violent behaviour. None of the witnesses said it was disorderly or dangerous. Police and staff used the word “typical”. Police were at front door throughout the evening and there was no evidence from anyone that injuries or assaults occurred.

62In conclusion, the Licensee acted as a prudent and responsible operator. The Licensee has never been charged with permitting disorderly conduct in the past. The Licensee takes the safety of patrons seriously and submits there was nothing more that could reasonably be done to ensure disorderly conduct did not occur.

63Regarding subsection 45(1), the Licensee took all reasonable efforts by employing paid duty officers to maintain orderly conduct on the property adjacent to and in the vicinity of the club. Police testimony indicated that the mounted police units are there at all times and, as indicated, there were many clubs emptying at the same time.

Registrar’s Reply

64Mr. Alakas maintained that the outcome of the POA charges is not relevant and there is no way of knowing how the Crown ruled. In addition, the Board is not bound by the outcome. He noted that not one of the 14 security testified as to the procedures or what they did that night.

65In Sandbar, the Board held that “permit” includes failed to prevent. Here the evidence is that the Licensee clearly failed to prevent the conduct that occurred.

66There was no evidence heard that procedures, if they existed, were followed and not one of the 14 security staff testified to this.

67The Licensee’s witness, Mr. Haile, testified that groups of people were pushing and shoving. The Registrar submitted that a fight which involves groups of people pushing and shoving is riotous and violent behaviour.

68The facts submitted by Mr. Haile were of violent disorderly altercations resulting in disorderly conduct and people trying to leave. The Licensee failed to take action to prevent either.

69The Licensee stated that no one observed any fighting or bottles being thrown. Evidence came from police officers who testified to what patrons did. The radio call and the Manager also said both Licensee’s witnesses agreed that pushing and shoving took place.

70Reference is made to the Solid Gold decision which is the standard. The first part is to determine whether disorderly conduct did occur. This is born out by both sides of the witnesses. The second part – did the Licensee permit it? The Registrar submitted that, as in Sandbar, permit means failure to prevent and this Licensee did fail to prevent the conduct.

71In the present situation, the Licensee failed to keep the situation from escalating and failed to prevent disorderly conduct.

72The Licensee made much of the fact that no one was injured, assaulted, or intoxicated, but those are not the standards of subsection 45(1).

Analysis/Reasons/Findings

73The Board heard evidence from numerous police officers, two paid duty officers and others who received the 911 call.

74When officers who had made it upstairs to the bar were asked what the patrons in the bar were doing they stated that they were pushing and shoving near the coat check area.

75When the officers were asked if they had seen fighting, bottle throwing, intoxication, none testified that such had taken place. When asked about the paid duty police working the lines it was indicated that the VIP line was close to an adjacent establishment and some in the line up may have been from this adjacent bar.

76Mr. Alakas is painting a picture not supported by the evidence. Selective parts of the evidence have been submitted to try to portray violent behaviour yet none of the witnesses said it was disorderly or dangerous.

77Police were at the front door throughout the evening and not one testified that anyone was injured, assaulted or intoxicated.

78There is no evidence that the Licence holder failed to ensure that reasonable measures were in place and reasonable efforts were made to deter disorderly conduct on property adjacent to and in the vicinity of the establishment. The manager asked the paid duty officers to come inside to assist in calming the patrons. It was the end of a “Meet Santa” night and the patrons were all attempting to claim their coats, causing the pushing and shoving.

79The Board is not persuaded by the evidence on December 21, 2007, fights broke out inside the establishment and continued outside.

80The Board is of the opinion that Seven Lounge took all reasonable efforts by employing Paid Duty officers and a large security staff to maintain orderly conduct on the premises and outside in the vicinity of the club.

81The evidence is that mounted units were in the area at all times since there are many clubs emptying at the same time, and yet the crowd outside was handled without any problem.

Conclusion

82Therefore, for the reasons given, the Board DISMISSES the allegations of a violation of section 45.1 and subsection 45(1) of the O.Reg.

DATED AT TORONTO THIS 20th DAY OF January, 2009