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-
896807 Ontario Limited operating as Club 147 Applicant
DECISION
Panel: Kirsti Hunt, Vice-Chair, AGCO Allan Higdon, Board Member
Decision Date: June 16, 2009 Hearing Location: Timmins, 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: Richard Kulis, Representative 896807 Ontario Limited, Applicant: Mark Roger Michaud, on behalf of the Corporate Licensee
The Application
1A hearing into Notice of Proposal number 17081 dated March 16, 2009 to refuse to remove/change a condition from liquor licence number 812457 (the "Licence") issued to 896807 Ontario Limited operating as Club 147, 57 Mountjoy Street South, Upper Level, Timmins, Ontario, P4N 6Z2 (the "establishment") on the basis that there has been no change in circumstances to justify the removal or change of the condition, was held on May 6, 2009 in the City of Timmins.
Decision
2After considering all the evidence and submissions the Board issued an oral ORDER to approve the application to remove a condition from the licence and add conditions on the licence. Reasons follow.
Preliminary Matters
3Mark Roger Michaud is the shareholder, officer and director of the Licensee. He appeared on behalf of the corporate licensee and waived its right to be represented by a licensed representative.
Applicant's Evidence
4Jonathan Sproul, head of security at Club 147, testified that he works Thursday, Friday and Saturday nights. On Thursday nights, there are three quarters fewer people present than on Friday and Saturday nights. They come at about 11:30 p.m. and leave around 1:00 a.m. He does not see a need for security on Thursday nights except when there is a special event or if it is unusually busy. Thursdays have consistently not been very busy for the last year to a year and a half.
5On cross-examination, Mr. Sproul added that Thursdays have been busy only during special events and before a long weekend. It is not often that they have a large crowd on a Thursday before a long weekend. On a Thursday night, they have 30 to 40 people and 120 to 130 people on a Friday and Saturday. If there is a special event, they have the two mandatory security personnel and other security is on call. He agreed that they don't know beforehand if they are going to be busy.
6He has five security on staff. There are always two scheduled to work on Thursday, Friday and Saturday, and others on call who can arrive in a half hour or less.
7Tena Larocque-Laurin, the head bartender, has worked at Club 147 for sixteen and a half years. She generally works the Thursday night shift during which there are also two security personnel. On a Thursday before a long weekend, they also have a waitress but generally she works alone. She does not believe her safety or that of her customers would be at risk if there was no security on Thursday nights. Before the condition was put on, they only had security on one occasion when there was a band.
8Sales for a Thursday night are between $400 and $600 for the 12 hour day.
9On cross-examination, Ms Larocque-Laurin added that in the last year and a half, the crowd on Thursday is similar to that on Monday or Tuesday. They are busier in the winter than in the summer.
10Mark Roger Michaud, the owner of the establishment, described the economic downturn in the economy which has resulted in shutdowns and cutbacks made by the major employers in the area which is having an impact on business. Liquor establishments continue closing in the area. Timmins is shrinking and becoming a retirement community. Students are not coming back because there are no jobs. The smoking ban has resulted in people staying home.
11His sales on Thursday night are 60 to 70% less than on a Friday or Saturday night which is shown in the financial records (Exhibit #1). Since the end of 2008, his sales are even less. The cost for security personnel is more than the revenue for the shift they work so he is losing money.
12He has been in business for 20 years and they had one incident but not one person was charged. It is not unreasonable to have no security on Thursday nights since it is not unsafe.
Registrar's Evidence
13Norman Pigeon has been an Alcohol and Gaming Commission of Ontario inspector for 13 years. He is aware of the application and was involved in the hearing after which the conditions were put on the licence. Based on his observations in the past several years in North-Eastern Ontario, there are two seasons in the beverage alcohol industry, winter and summer. The winter season goes from mid-September to mid-May when the summer season starts.
14In winter from Monday to Thursday, there are 40 to 50% fewer patrons than on Friday and Saturday nights. He sees an increase in the number of people on Thursday nights in the summer as compared to winter. However, people do not frequent a particular establishment. One establishment may be busy one week with the others being quiet and a different establishment is busy the next week.
15On Friday and Saturday nights in the summer, most of the establishments are busy from 12:30 a.m. to 1:00 a.m. Two or three establishments will be extra busy. People tend to congregate in night clubs and Club 147 is not a night club.
16His belief is that during the winter months, security is not required at Club 147 on Thursday nights and one security person is adequate from June to September. Staff indicated that there are 30 to 40 people in the establishment on Thursday nights and that number is high in his opinion.
17He does not know which establishment will be busy in the summer. The small crowd that is out on Thursday night, wants to be together and he never knows which bar they are going to attend. In all fairness, if security is required on Thursday nights, one person would be adequate as long as there is a mechanism in place to bring in additional staff if the need arises.
18On cross-examination, Inspector Pigeon indicated he agreed that they don't know beforehand if they are going to be busy. Bars are quieter than a year or two ago because people are not spending money but he does not know how long that trend will last.
19Security staff are using cell phones for communication and that seems adequate. Security in the establishment has vastly improved and the owner and staff are cooperating with police. He is confident that they will take steps to get more security personnel on site if there is a larger than normal crowd.
20Mr. Michaud submitted that he is prepared to have designated security personnel on call on Thursday nights to come in if the establishment gets busier than normal. They will have a call in sheet with the names of the people who can be called if needed. The economic outlook is not strong and he does not see the present number of patrons increasing.
Registrar's Submissions
21Mr. Kulis submitted for the Registrar that this application is made pursuant to subsection 14(2) of the Liquor Licence Act under which a condition can be removed if there has been a change of circumstances. The condition was imposed because of a serious security issue at the time.
22The type, style and level of business have not changed. The change in circumstances that exists is the change in the evidence from the Registrar. Based on the evidence of the Inspector, there is no need to have two security persons on Thursday nights. From the first Thursday in June to the Thursday of the Labour Day weekend, one security person from 10:00 p.m. to closing time is sufficient. The rest of the year, no security is necessary on Thursday nights. The Licensee has a good system in place to call in security if the need arises.
23The condition as it exists presently does not have a starting time for security. The Registrar wishes to have that clarified to state that on Friday and Saturday night, the starting time for security personnel is to be 10:00 p.m. The 10:00 p.m. start will give security time to set up and be ready when patrons start to arrive.
Applicant's Submissions
24Mr. Michaud replied that now one security person starts at 11:00 p.m. and the other at 11:30 p.m. If something is going on, security comes in at 8:30 p.m. When asked to respond to the Registrar's proposal that both security persons start at 10:00 p.m., Mr. Michaud replied that two people aren't needed at 10:00 p.m. because there is no one in the premises at that time. When there is a larger number of people, one security person starts at 10:00 p.m. and the other at 11:00 p.m.
Reasons and Decision
25The Board has carefully considered the evidence presented.
26The Licensee has applied to the Alcohol and Gaming Commission of Ontario to change a condition on its liquor licence regarding security on Thursday nights. The onus is on the Licensee to indicate a change in circumstances that would justify the change of a condition.
27The Board is satisfied that the evidence before it indicates that a change in circumstances has taken place since the imposition of conditions in November 2008.
28Inspector Pigeon, witness for the Registrar, stated he was confident that one security person would be sufficient for Thursday nights at the licensed premises during the summer months, in contrast to the two security imposed by the existing condition.
29The Inspector also testified that the communications system imposed as a condition in November 2008 was working effectively and had resulted in a significant improvement in communications among the Licensee's security staff and between the Licensee's staff and the police.
30Counsel for the Registrar noted that the original conditions stated that two security persons should be provided Thursday, Friday and Saturday evenings, with no particular hours established. He wished to clarify the hours of duty and asked that security begin at 10:00 p.m. and continue until closing on Friday and Saturday nights throughout the year.
31The Board heard evidence that the current practice of the Licensee, when there is a larger number of people, is to have two security persons on duty on Friday and Saturday nights, one starting at 10:00 p.m., the other at 11:00 p.m., both remaining until closing. No evidence was presented that this regime was insufficient to provide adequate security.
32The Inspector was confident the Licensee is a responsible operator and would provide additional security on any evening if numbers or circumstances warranted.
Order
33The Board hereby CONFIRMS its ORAL ORDER that the following condition be removed from the Licence:
- There shall be at least two security personnel on duty in the licensed premises Thursday, Friday and Saturday evening until the premises is closed and patrons have cleared the licensed premises, and at any other time management deems necessary due to large and expected occupancy, or when there is a special event. The security personnel will be clearly identified and have communication equipment capable of communicating amongst themselves and calling police.
34The Board ORDERS that the following conditions be attached to the licence:
Beginning on the first Thursday in June until and including the Thursday preceding the Labour Day weekend, there shall be a minimum of one security person on duty in the licensed premises on Thursday nights from 10:00 p.m. until the premises is closed and patrons have cleared the licensed premises. Security on Thursday nights for the remainder of the year shall be provided in sufficient numbers to ensure patron safety at the discretion of the licensee.
There shall be at least two security personnel on duty in the licensed premises on Friday and Saturday nights, one starting at 10:00 p.m. and the other starting at 11:00 p.m., until the premises is closed and patrons have cleared the licensed premises, and at any other time management deems necessary due to large and expected occupancy, or when there is a special event.
The security personnel will be clearly identified and have communication equipment capable of communicating amongst themselves and calling police.
DATED AT TORONTO, THIS 16th day of June, 2009.
KIRSTI HUNT, VICE-CHAIR, AGCO ALLAN HIGDON, BOARD MEMBER