Registrar, Alcohol and Gaming Commission of Ontario v. Arena Entertainment Inc. O/A Circa, 2009 CanLII 47509

IN THE MATTER OF The : [Liquor Licence Act, R.S.O. 1990, c. L.19](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html), as amended

B E T W E E N:

Registrar, Alcohol and Gaming Commission of Ontario

Registrar

-and-

Arena Entertainment Inc. O/A Circa

Licensee

DECISION ON FINDINGS

Panel: Kirsti Hunt, Vice-Chair, AGCO Joan Lougheed, Board Member

Decision Date: June 17, 2009

Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative

Arena Entertainment Inc., Licensee ) Jerry Levitan, Representative

Allegations

A hearing into a Notice of Proposal number 16189 dated April 10, 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 “premises”) on the basis of alleged violations of subsections 30(2) and 30(4) of the Liquor Licence Act (“LLA”) and subsections 34(1), 45(1), 41(1) and 20(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on January 26 and April 16, 2009 in the City of Toronto.

Decision

After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 30(4) of the LLA and subsections 45(1), 41(1) and 34(1) of the O.Reg. The Board accepted the withdrawal of the remaining allegations. Reasons follow.

Registrar’s Evidence

Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector Lyn Sandiland stated that she was in Circa the night of December 8, 2007, arriving at 12:18 a.m. This establishment is one of the largest in the Entertainment District and she was accompanied by Inspector Sookdeo, Staff Sergeant (“S/Sgt.”) O’Halloran and Detective Constable (“D/C”) Siebert. The Inspectors were not working undercover.
After providing a physical description of the location and layout of the building, she stated that there was a line up at the east entry. She identified herself to the owner, Mr. Peter Gatien, who was outside at the front door.
All four did a general walk through of the premises breaking into two teams. With S/Sgt. O’Halloran accompanying her, they went to the VIP area. She noted that S/Sgt. O’Halloran was not in uniform.
Three young ladies were asked for identification as they exited a washroom. One of the ladies quickly walked away, while the other two provided identification.
Inspector Sandiland followed this person to ask for identification, and asking her to come to the hall which was better lit and not as noisy. She indicated that S/Sgt. O’Halloran seized the driver’s license. In her opinion the photo did not look like the female in their presence, as the photo showed a female with:

“chubby cheeks”;
a line at the bridge of the nose;
deep set eyes.

The photo details were not the same as the female in their presence.
When asked to confirm details on the licence the female answered correctly the first time, but did not do so when questioned again.
Inspector Sandiland stated that the female did admit that she was 18 years of age and gave her correct name, date of birth, address and phone number. The female, RS, had no other identification with her. As well, the female stated she had a rum drink prior to entering the premises and had a vodka and red bull in Circa that was purchased by a friend from the bar on the main floor.
A male security person was nearby and Inspector Sandiland told him to remove the minor from the premises or “have a sober friend do so”.
On cross-examination, Inspector Sandiland was asked about identification being impacted by make-up, or hair being dyed. She recalled that the shape of the nose was not consistent with the photo.
As the walk through continued, Inspector Sandiland stated that a male, KB, was seen who appeared to be about 15 years of age, holding a glass with red liquid in it. For identification he provided an expired New York State driver’s license. KB gave a Toronto address, stating he was a student and that this was the identification used to gain entry to the premises.
The walk through continued and Inspector Sandiland noted a male and female at the “light bar”. Both patrons were seen to be staggering and holding each other for balance. Inspector Sandiland noted the female had her coat draped over her. The female was unsuccessful in trying to put on the coat, since it was upside down. They were unsteady on their feet and “banging into each other”. The female was holding a pole, the wall and using both hands on the rail as they went downstairs to the main floor.
In response to questions, Inspector Sandiland stated that she was anywhere from 2 to 8 or 10 feet from the couple. She noted the following:

glassy unfocussed look;
glazed look in the eyes;
slurred speech; female difficult to understand, male could be understood;
swaying while standing;
smell of alcohol on breath of the male;
Their movements and staggering didn’t appear to be dancing but signs of intoxication.

Inspector Sandiland stated that the female seemed confused or disorientated. The male told her that they had vodka before coming and joining a party of six in the VIP area. He was unclear about the amount of vodka consumed on the premises. They were in a bottle service area.
Both provided identification, indicating they lived at the same address and they indicated that they would be taking a cab home on their own.
On questioning, Inspector Sandiland clarified that security staff were nearby to follow through and to ensure that the couple left in a cab.
At this time Inspector Sandiland met with her colleagues in the hallway where they were investigating a female wearing a large oversized coat. She observed a bottle of Alexander Keith’s beer and was advised by Inspector Sookdeo that this patron had brought it into the establishment, concealed in her coat. On questioning, Inspector Sandiland stated that she did not see the female holding the alcohol.
At this time she spoke with the General Manager, Orin Bristol, in the office telling him of the infractions observed. She recommended that he meet with his staff to ensure that:

There be better observation of identification.
They be aware that expired identification was not valid.
Staff “do better pat downs” to prevent alcohol from being brought into the premises.

Inspector Sandiland noted that the area where the DJ was, existed as a dual purpose area: half-circle was licensed, half-circle was unlicensed for the DJ set-up. A partition was to separate the two areas. On this night the DJ equipment had been removed so there was no definition between the licensed and unlicensed areas. The whole circle appeared to be an alcohol consumption area.
Inspector Sandiland stated that she did not observe anyone consuming alcohol in the area, although Inspector Sookdeo said he observed people consuming alcohol in the unlicensed part of the circle.
Staff Sergeant Brian O’Halloran stated that he arrived with his colleagues, and having identified themselves they divided into two groups: Inspector Sandiland and he were in one group and D/C Siebert and Inspector Sookdeo in the other.
On the second level, in the VIP area, he and Inspector Sandiland spoke with three young looking ladies, asking for identification. One of the ladies had to be brought back since she walked away and was taken to the hallway for questioning. He was given the patron’s driver’s licence, and stated that the photo did not look like the female, with hair, eyes and cheeks all appearing different. He heard the patron admit to Inspector Sandiland that she was underage, had been drinking before coming to the establishment and had a drink while there.
S/Sgt. O’Halloran seized the driver’s licence since it did not belong to her. Inspector Sandiland advised security and the minor was escorted out.
S/Sgt. O’Halloran provided testimony about checking the identification of a man who appeared to be very young. Although the New York State driver’s licence was expired, he indicated that he had no issue with the identity of the individual.
On the second level, S/Sgt. O’Halloran stated that he observed Couple #1; a male and female:

The female was being supported by the male;
She almost fell, even though he had his arm around her;
The female was trying to put on a jacket which was upside down and seemed confused;
The female held the stair rail with two hands;
The male repeatedly said “you guys are the best; doing a great job”;
The male sprayed saliva as he spoke;
Both had a strong odour of alcohol, glassy eyes, and slurred speech.

The male admitted that they had two bottles of vodka at the table for a party of six, stating that they “had a little too much to drink; we were celebrating”.
After checking identification, S/Sgt. O’Halloran stated he released them. The female was “very intoxicated” but he stated, the “male was intoxicated but had his senses to know what was going on”.
Inspector Devin Sookdeo stated that he and D/C Siebert stayed together while walking through the premises. He observed a female approximately 8 feet away:

“stumbling around”;
Unsteady on her feet;
She “fell into a couch”;
With slow motor skills when picking up a glass;
With hands shaking when she poured alcohol into her glass;
Eyes closing at times;
She had difficulty pulling on her jacket;
When the bottle was empty, she seemed frustrated and threw it back into the bucket.

On speaking to her, the Inspector noted:

A strong smell of alcohol on her breath;
Slurred speech;
She said she had approximately 7 glasses of red wine;
The patron stated she was “way too drunk” and waiting for her husband;
She did not remember throwing the bottle back into the bucket.

A male, identified as her husband, also had slurred speech and a strong smell of alcohol on his breath. He stated that he was taking a cab and as he walked out he was swaying, his eyes were glassy and red and he bumped into Inspector Sookdeo a few times.
Inspector Sookdeo stated that he approached a security person who said he could not leave his post, but would get someone. The office manager of Circa arrived and escorted them (Couple #2) to the door. The male and female were put into a cab and then he returned to inside the building.
On re-entering, he noted a youthful female. While getting her identification he observed a bottle inside her jacket. She pulled out a bottle of Alexander Keith’s beer. The bottle was full and closed.
Security was advised and told to be more thorough with pat downs.
Inspector Sookdeo went to the manager, Orin Bristol, and advised him of their findings and told him that a report would be submitted.
Detective Constable Sonya Siebert stated that she arrived at Circa with three others on the team. They split in two groups. In answer to a question, she stated that one security person followed them.
In the VIP area, she noted a female on a bench exhibiting the following signs:

Head rolling;
“appeared out of it”;
Not coherent to her surroundings;
Laying down on the couch;
Unsteady on her feet, someone helped her up.

The female and her husband, Couple #2, were escorted to the front door with security and the Inspector.
Returning to continue the inspection, three young females were asked for identification. When one female opened her coat, D/C Siebert stated she observed a glass bottle of Alexander Keith’s beer in her opened coat. She removed the bottle, showing it to security before proceeding to the office.

Licensee’s Evidence

General Manager, Orin Bristol, stated that on December 8, 2007 there were approximately 1900 patrons and 45 to 50 staff on the premises. He reviewed their policies regarding intoxicated patrons, minors and checking identification and searches.
He stated that he thought the minor, RS, looked around 19 or 21 years old and looked like the person in the photo on the driver’s licence.
In response to questions about the woman with concealed alcohol, he replied that a coat check is not required, but everyone goes through a metal detector. He stated that staff are only allowed to search if reasonable, such as checking a purse.
Mr. Bristol, in answer to questions, did not know who prepared the incident report in the log book, since it was not signed and did not know the details of intoxication of one couple. It was only after the couple left that he was aware of the matter and therefore could not take details for a report. As well, additional information was received only after the club closed and during a staff meeting.
Edward Estupinan, supervisor of club operations, oversees security staff and the front door. He works at the front door until 1:00 or 1:30 a.m. and then goes inside. He stated that he saw the young lady who showed a driver’s licence for identification. Security checked her identification and asked that he also check it. Although her hair color was different, she gave all the right details as presented on the licence. He was satisfied that it looked like her and that she looked 21 years of age.
He was called to the office, and saw the young lady. She had been identified as a minor and he escorted her out.
In a second incident the office manager asked him to escort a couple out. They did not appear intoxicated, and were upset they were being asked to leave.
When asked if he did an incident report, he answered: “I guess not”.
Mr. Estupinan indicated that a security firm was being used at the time. One other person, Mike Adamis, was at the door that night.

Registrar’s Submissions

The Registrar indicated that he was asking for findings under subsection 30(4) of the LLA and 41(1) of the O.Reg for the minor.
Despite Mr. Estupinan saying the minor, RS, looked 21, she was observed by S/Sgt. O’Halloran to be young looking and approximately 17 or 18 years of age. Inspector Sandiland also found her youthful looking. As well, security had asked him to double check her identification.
Mr. Morris pointed out that the Inspector noted a big difference between the photo and the facial features of the minor.
She admitted that she was 18 years old and admitted drinking a red bull and vodka, purchased for her by a friend in the establishment. She gave her date of birth correctly the first time but was wrong the second time that she was asked. Mr. Estupinan’s report did not contain important details, and Mr. Morris submitted that he was really referring to “what he usually says” as opposed to what he really remembers. As well, Mr. Bristol did not have notes about the minor.
Mr. Morris suggested that the acceptance of an expired driver’s license for identification and no log entries for some of the incidents occurring on this same night, indicated sloppy work by the security. As well, when a female was found with an unopened bottle of beer in her jacket, this was another indicator of sloppy work.
Half of the area, with the moveable DJ booth, was unlicensed. The whole area was used as a licensed area on December 8, 2007 in violation of subsection 34(1) of the O.Reg. He agreed that the situation regarding this area has since been resolved but on that night a violation occurred.
Summarizing the observations of drunkenness as presented in testimony relating to two couples, Mr. Morris stated that there was clear evidence of drunkenness on the premises. As well, S/Sgt. O’Halloran noted two security nearby who were in position to observe the couple but did not intervene. Therefore the Registrar’s representative asked for a finding under 45(1) of the O.Reg.
Mr. Morris withdrew allegations under subsection 30(2) of the LLA and subsection 20(1) of the O.Reg.

Licensee’s Submissions

Mr. Levitan, the Licensee’s representative, referred to Exhibits 4, 5, and 6. He stated that the use and licensing agreement relating to the movable DJ booth was an anomaly, creating confusion about the licensed and unlicensed areas in an open concept area. The situation has since been clarified, ensuring that there is clearer understanding about the “roaming DJ booth”.
He further pointed out that the expired driver’s licence does not mean it is invalid. As well, in an establishment that accommodates over 3000 patrons, only one woman was seen sneaking in a bottle of beer and not every woman gets body searched.
Licensee’s representative stated that in addressing the minor, all the witnesses had difficulty describing the physical differences between the photo ID and the person. There was no reasonable evidence that alcohol was supplied to the minor by staff. In fact the evidence stated that her friend purchased the alcohol and supplied it to her.
Mr. Levitan stated that the evidence related to the alleged intoxicated patrons was unclear. Inspector Sandiland stated that the couple in the “light bar” did not fall down and Inspector Sandiland did not know how much they drank. As well, when the patron threw a vodka bottle in the bucket, it did not break. Therefore the Board cannot conclude she threw it and that this was a sign of intoxication.
As well, when a patron says they “had a lot to drink, this does not mean they are intoxicated”. In fact, S/Sgt. O’Halloran chose not to charge them with intoxication.
In relation to the female on the couch in the VIP area, Sgt. Siebert said the behaviour was “somewhat abnormal”. An upside-down coat is not a sign of intoxication. D/C Siebert gave testimony that she did not feel comfortable saying that the male was intoxicated.
There were no detailed records of intoxication, since the Inspector had the couple leave before Mr. Bristol could follow up.
The Registrar has not made a case. Mr. Levitan asked the Board to dismiss the allegations.

Reply

Mr. Morris submitted that D/C Siebert, in fact, did make specific observations of the female, although not as much of the male because she was focusing on her role which was officer safety.
The bottle didn’t break because it landed in the bucket but that doesn’t show that she was not drunk.
Mr. Morris stated that the evidence of the police officers and Inspectors, in relation to the minor providing a false driver’s licence, was “pretty definitive.”
The DJ booth was not an anomaly on the night in question and did create a breach in the licensing agreement.

Although the minor was given alcohol by a friend, that is not a defence. The Licensee supplied the alcohol and permitted consumption.

Analysis/Reasons/Findings

The Board has carefully considered the evidence and the submissions presented.
During submissions, Mr. Morris referred to two areas of evidence as indications of “sloppy work”. He referred to the expired driver’s licence provided by a young looking patron. The Board does not accept this conclusion, given the fact that the regulations do not address out-of-province identification and is silent on the matter of expired identification. Both the security and the police had checked the student’s driver’s licence and were satisfied that the patron was of legal drinking age. The police officer stated he “had no issue” with the identification.
In addition to this, the suggestion was also made that the security were doing “sloppy work” when a patron was found with a concealed bottle of beer in her coat. Security stated that their protocol is to check identification at the door, have patrons go through a metal detector and do a body search or search of belongings if there is cause/reason to do so. Although security should consider additional steps to prevent alcohol being brought into the premises, the Board does not agree that this incident is indicative of ongoing sloppy work. However, potential concealment of alcohol must be managed. The Board strongly recommends that patrons also be required to check coats or submit to a search.
Given the number of allegations, the Board will address each separately.

Subsection 34(1) of the O.Reg

The physical description of the premises was not disputed and indicates that the “roaming” DJ booth was an unlicensed, movable area in a circle used for dual purposes with half being licensed and the other half used for a DJ, being unlicensed.
Inspector Sandiland indicated that on the evening of the inspection there were no stanchions or dividers in place separating the unlicensed DJ area and that the whole area was open for alcohol consumption.
She did not see consumption of alcohol in the unlicensed area but Inspector Sookdeo reported to her that he had observed consumption of alcohol. The question of the DJ area and his observations were not put to Inspector Sookdeo but there is no reason to doubt his observations as reported to Inspector Sandiland or the evidence of Inspector Sandiland to the Board.
The issue of the moveable DJ area has been clarified since this date but that does not negate the breach that occurred. The change will be considered in deciding on the appropriate sanction. The Board finds that on December 8, 2007, liquor was permitted to be removed from the licensed area. The Licensee decides on the physical layout of the premises, including the movable DJ booth. By not having clearly defined areas of which area is licensed or not, it knew or ought to have known that this type of breach was likely to occur. Therefore, the Board finds that there was a violation of subsection 34(1) of the O.Reg.

Subsection 45(1) of the O.Reg

For a finding under subsection 45(1) of the O.Reg, it must be established that in fact there was drunkenness in the licensed establishment, and that the Licensee permitted the drunkenness. On a balance of probabilities, the Board finds that the test has been met.
There is strong, consistent evidence relating to four patrons to sufficiently show indications of intoxication. Security were nearby and should have observed the signs of intoxication as seen by the Inspectors and police officers.
Couple #1 were both observed in the “light bar”, both swaying and bumping into each other. The evidence of Inspector Sandiland and S/Sgt. O’Halloran indicated they observed:

glassy, glazed and unfocussed look;
slurred speech; female difficult to understand;
swaying while standing;
smell of alcohol on their breath;
their movement and staggering didn’t appear to be dancing but signs of intoxication.

The female was observed to be unsuccessfully trying to put her coat on upside-down and needed to hold the wall, a pole and a handrail with both hands.
The male admitted that they had been drinking vodka before coming and joining a group in the VIP area where they had two bottles of vodka for a party of six. He stated that “they had a little too much to drink”. The staff allegedly did not notice or see anything unusual in the behaviour of the male or female. However, once this couple was identified to security, they did escort them out to take a cab home.
Mr. Levitan stated that just because a person says they “had a lot to drink, this does not mean they are intoxicated”. Although the Board agrees that a statement by a patron alone does not definitively indicate intoxication, the Board finds that it supports the evidence given by the Inspector and police officer which was clear and consistent regarding the visible indications of intoxication.
Couple #2 were observed by Inspector Sookdeo and D/C Siebert.
The female was observed to be stumbling around, unsteady on her feet and falling into a couch. Her hands shook and she demonstrated slow motor skills picking up a glass. Her eyes were closing at times and she had difficulty pulling on her jacket. On speaking to her, it was noted that she had slurred speech, and a strong smell of alcohol. She admitted to drinking about 7 glasses of wine.
The male was seen to be swaying as he walked, and to have glassy, red eyes. His speech was slurred and there was a strong smell of alcohol on his breath. The office manager, when notified, did escort them out of the building and into a cab.
The evidence presented by the police officers and Inspectors on site was consistent and clear. In failing to prevent the four patrons from becoming intoxicated or removing them when seen to be intoxicated, the Licensee permitted drunkenness.
There is strong evidence, provided by the Inspectors and police officers, that these four patrons presented a number of signs of intoxication on the premises. The Board accepts the evidence. It was immediately obvious to them that these patrons were in an intoxicated condition. The patrons and security were readily visible and seen by the Inspectors and police. The Board notes that these patrons were served or had access to liquor at their table. The Board infers that they did not suddenly arrive at such a drunken state, but that it increased while they were at the licensed premises. There was no evidence to suggest that they were consuming the liquor other than in an open fashion. It was noted that in one instance, security were in a position to observe one couple. There were a large number of security people working at the establishment at that time. However, there is no evidence that they took any significant steps to prevent these patrons from being drunk or once drunk to, on their own initiative, remove them from the premises. The Board finds that the Licensee knew or ought to have known that these patrons were drunk. The Licensee therefore permitted drunkenness on the premises.
The Board found the evidence of Mr. Estudinan to be unconvincing. He did not have notes and was recalling events that occurred approximately 1 ½ years ago. As well, log book entries were missing in some instances and some log entries were not signed.
The Board finds the evidence of the two Inspectors and two police officers to be clear, consistent and credible in regards to their observations of intoxication and the minor who was on the premises. Their observations were based on combined years of experience.
Therefore the Board FINDS a breach of subsection 45(1) of the O.Reg.

Subsection 41(1) of the O.Reg and 30(4) of the LLA

Mr. Levitan suggested that the photo identity presented by the minor, RS, was not clear and that a person can change hair color and can alter their appearance with makeup. However the evidence of the Registrar’s witnesses was consistent, in that RS looked young. Her identification was requested and it did not match her appearance.
Even in a large and busy establishment, it was apparent that the Inspectors readily identified the female as likely to be below legal drinking age and proceeded to do their due diligence in assessing the validity of her identification. Similar due diligence should have been exercised by Mr. Estudinan, when his security staff asked him to review the identification being offered at the door. Through the admission of the minor to the premises, she was permitted to be in a situation allowing her to consume liquor.
This breach is further supported by the fact that as soon as the minor was asked a second time by an Inspector about the details on the driver’s license she provided incorrect information when answering. She then, without delay, admitted to using false ID, and gave her correct name, age and address, thus confirming she was a minor.
The Board notes that employees in a licensed establishment are expected to be trained to control matters related to minors. In a licensed establishment it is of utmost importance that the necessary inspection be taken to ensure that the ID is valid, protecting minors from drinking underage. The Board finds that in this instance, the Licensee’s staff either did not have the necessary training to perform this task, or if they did, did not exercise their discretion to not allow the minor into the licensed premises. By allowing the minor into the premises where there was such a large crowd, the Licensee knew or ought to have known that the minor would consume liquor in the licensed premises.
Indeed, the minor admitted to drinking a red bull and vodka beverage while on the premises. The beverage was bought by a friend and given to her.
Therefore the Board FINDS a breach of subsection 41(1) of the O.Reg and subsection 30(4) of the LLA.
The Board accepts the withdrawal of the allegations under subsection 30(2) of the LLA and subsection 20(1) of the O.Reg.

Conclusion

For the reasons given, the Board FINDS the Licensee violated subsection 30(4) of the LLA and subsections 34(1), 41(1) and 45(1) of the O.Reg, and DISMISSES the allegations of violations of subsection 30(2) of the LLA and subsection 20(1) of the O.Reg.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file a 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 17th DAY OF JUNE, 2009.

KIRSTI HUNT, VICE-CHAIR, AGCO JOAN LOUGHEED, BOARD MEMBER