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-
Arena Entertainment Inc. O/A Circa Licensee
DECISION ON SANCTION
Panel: Jacqueline Castel, Board Member Bruce Miller, Board Member
Decision Date: June 9, 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
AUTHORITIES:
1572724 Ontario Limited (c.o.b. Mick E. Fynn’s)(Re), [2007] O.A.G.C.D. No. 278 Elgin Street Holdings Inc. (c.o.b Lieutenant’s Pump Restaurant)(Re), [2008] O.A.G.C.D No. 272
Allegations
1. A hearing into Notice of Proposal (“NOP”) number 16140 dated March 27, 2008 to suspend liquor licence number 807407 (the “Licence”) issued to Arena Entertainment Inc. (the “Licensee”), operating as Circa, 126 John Street, Toronto, Ontario, M5V 2E3 (the “establishment” or the “premises”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the Liquor Licence Act (“LLA”), was held on April 2, 2009, in the City of Toronto.
2. In its decision dated April 16, 2009, the Board found the Licensee violated subsection 45(1) of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
Registrar’s Submissions
3. The Board found that the Licensee breached subsection 45(1) by permitting three drunken patrons.
4. In its haste to open the Licensee began operations with inadequate security staff, staff that were not properly trained and without proper procedures being in place. As a result there was a patron grabbing a female police officer, a patron drooling and spitting on the floor and a patron who couldn’t stand by himself on the evening in question.
5. The Licensee and the general manager have extensive experience. It is no excuse to say this was only the third week of operation and that is why they were unprepared. It was the Licensee who was pushing the Alcohol and Gaming Commission of Ontario (“AGCO”) to permit him to open as soon as possible.
6. Mr. Bristol, the general manager did not know who the security staff were on the night in question and this is basic to running a large club.
7. The Licensee has some 33 to 48 bartenders and servers selling liquor at eight separate bars and a bottle service area spread over three floors. The Licensee didn’t foresee the need for roving security teams to be able to make observations and to control patrons throughout the club.
8. In the circumstances the 7 day suspension requested in the Notice of Proposal is in fact lenient and takes into account this was only the Licensee’s third week of operation. The penalty is appropriate as a matter of specific and general deterrence.
Licensee’s Submissions
9. Submissions were filed on behalf of the Licensee by Mr. Gleb Bazov who was retained as a representative by the Licensee after the hearing took place.
10. It was submitted that the Board must take into account the number and seriousness of the findings and whether it relates to a one time occurrence or a pattern of behaviour. The Board must look at both mitigating and aggravating factors as well as the steps the Licensee has taken to ensure future compliance.
11. This case deals with three individuals in a licensed premise with a licensed capacity of over 2,800 patrons. The breach occurred on the Licensee’s third day of operation and nine days after it first opened for business.
12. This is the Licensee’s first violation of the LLA and its regulation.
13. No prevention mechanism is perfect and violations can occur despite the most extensive precautions. On the night in question the Licensee had between 60 and 65 security staff. This was 20 more staff than had been recommended by the AGCO and the Ontario Provincial Police (“OPP”).
14. There was no evidence before the Board that the Licensee had been pushing the AGCO to open as soon as possible nor is it relevant to a decision on penalty. The history shows the Registrar investigated the matter for a year before a licensing hearing was commenced. The Board granted the Licence and the Registrar then appealed the decision to Divisional Court.
15. During the incident in question the Licensee accommodated and facilitated the AGCO’s investigation and remained open on how to improve compliance. The Licensee is always receptive to suggestions for improvement from the AGCO or the OPP.
16. The Licensee has taken considerable remedial action in consultation with the AGCO, OPP and security professionals. They now have roving security, security staff in excess of recommended numbers and have implemented substantial changes in respect of its security staffing, policies and procedures.
17. In 1572724 Ontario Limited (Mick E. Fynn’s) (Re) 2007, the Board considered an arguably more serious violation of allowing minors to enter a licensed premises in a setting considerably smaller than Circa’s. The Board suspended the licence for three days, based in large part on the Licensee’s assurances that the security system had been tightened and evidence that it had been diligent to avoid future violations.
18. In Elgin Street Holdings Inc. (Lieutenant’s Pump Restaurant) (Re), 2008 the Board considered a very serious breach of section 43 but only imposed a two day suspension in reliance on the Licensee to control the situation in the future.
19. The breach was limited considering the capacity of the premises and it occurred very soon after opening. The Licensee has an unblemished record. The Licensee has taken profound and extensive remedial action and remains open to improving its compliance.
20. A lengthy suspension will be felt by Circa’s over 100 employees and will reverberate through the entertainment and hospitality industry of Toronto. A lengthy suspension will have an impact because of the present dire economic crisis.
21. A suspension of no more than three days would be appropriate.
Registrar’s Reply
22. The fact this is the first infraction has less impact when one considers the Licensee had just opened.
23. In terms of remedial action it should be noted it took the Licensee a year to get rid of an outside security firm which Mr. Bristol described as bad.
24. Mick E Flynn’s is distinguishable as it had been open for 11 years with no prior record of serving minors and the case involved one minor as opposed to three persons. The minor had not been served by staff.
25. Lieutenant’s Pump Restaurant is also distinguishable as it had been open for 16 years with no prior problems. There was a mitigating factor as there were unexpectedly over 10,000 people on the street due to a sporting event. The breach was beyond the Licensee’s reasonable control and the Registrar only sought a four day suspension.
26. The Licensee is correct that the breach occurred on the Licensee’s third day of operation and nine days after it first opened for business.
27. The fact the Licensee’s staff will suffer if the Licensee is suspended is the responsibility of the Licensee and not that of the Board whose duty is to regulate the industry in the public’s interest.
Analysis/Reasons/Findings
28. The Board finds that a four day suspension is appropriate, in the circumstances of this case, for the following reasons.
29. The case involves three contraventions on the same date for permitting drunkenness. There was substantial evidence with respect to all three patrons who were clearly intoxicated. The Board considers violations of this nature to be serious.
30. The Board is sympathetic to the challenges posed by the current economic environment, however, a suspension at any time has financial ramifications for a licensee, which is part and parcel of the deterrent effect.
31. The Licensee asked the Board to consider the Lieutenant’s Pump Restaurant decision on sanction where a two day suspension was imposed. The Board agrees with Mr. Morris that the decision is distinguishable as the premises had been open for 16 years with no prior problems. There was a mitigating factor in that there were unexpectedly over 10,000 people on the street due to a sporting event.
32. The Licensee also asked the Board to consider the Mick E. Fynn decision on sanction where a three day suspension was imposed. Again, the Board agrees with Mr. Morris that the decision is distinguishable as the premises had been open for 11 years with no prior record of serving minors.
33. The Board puts little weight in the fact the Licensee had no history of prior violations as the establishment had only been operating for a very short period of time.
34. Nevertheless, the Board finds that the seven day suspension proposed by the Registrar would be too harsh, as there are a number of mitigating factors.
35. First, the breach occurred on the Licensee’s third day of operation and nine days after it first opened for business. It is clearly the responsibility of the Licensee to have adequate security, policies and procedures in place. However, it is understandable that there may be a need to refine these policies and procedures and to make changes based on practical experience in the first few months of opening.
36. Second, there was evidence that the Licensee cooperated fully with the inspection on the night in question. The Board also noted that Mr. Bristol, the General Manager, was very forthright and remorseful at the hearing.
37. Third, the Board has taken into account the positive remedial measures the Licensee has taken since the incident. The Licensee met with representatives of the AGCO, the OPP and a security firm following the incident. They were advised to hire one security officer for every 75 customers. This would equate to 40 security officers for their licensed capacity. They decided to hire 55-65 security officers. They now have policies and procedures in place. They have roving security teams. They have incident reports. They have since held a number of training sessions for staff. They also hire off-duty paramedics.
Order
38. Therefore, the Board ORDERS that liquor licence number 807407 issued to Arena Entertainment Inc. operating as CIRCA, 126 John Street, Toronto, Ontario, M5V 2E3, be SUSPENDED for a period of FOUR (4) consecutive days.
39. The Licensee shall submit proposed suspension dates in writing to the Manager of Hearings, Hearings Department, Alcohol and Gaming Commission of Ontario at the address on the front of this decision within seven (7) days of the date of this decision. The Board will set suspension dates without further notice to the Licensee if proposed dates are not provided within that time. The suspension must be served on days the establishment normally operates. The suspension may not start earlier than twenty (20) days from the date of this decision and must be completed within ninety (90) days of the date of this decision.
DATED AT TORONTO THIS 9th DAY OF JUNE, 2009
JACQUELINE CASTEL, BOARD MEMBER BRUCE MILLER, BOARD MEMBER