Registrar, Alcohol and Gaming Commission of Ontario v. 1772883 Ontario Inc., 2009 CanLII 47554

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-

1772883 Ontario Inc. O/A Home Nightclub (formerly known as Tonic the Nightclub)

Licensee

DECISION

Panel: Allan Higdon, Board Member Joan Lougheed, Board Member Bruce S. Miller, Board Member

Decision Date: July 8, 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 ) Richard Kulis, Representative 1772883 Ontario Inc., Licensee ) Randall Barrs, Representative

1. A teleconference hearing into Notice of Proposal number 16999 dated January 24, 2009 to revoke and an Order dated January 24, 2009 to immediately suspend on an interim basis liquor licence number 802451 (the “Licence”) issued to 1772883 Ontario Inc., (the “Licensee”) operating as HOME NIGHTCLUB (formerly known as TONIC THE NIGHTCLUB), 117 Peter Street, Main Floor, Toronto, Ontario, M5V 2G9, (the “premises” or the “establishment”), on the basis of alleged violations of section 45.2 and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act, (the “LLA”), was held on June 30, 2009 in the City of Toronto.

2. Richard Kulis, Registrar’s Representative, and Randall Barrs, Licensee’s Representative, submitted an Agreed Statement of Facts (Exhibit #1) and Joint Submission on Disposition (Exhibit #2) which form part of this decision. It was agreed and admitted that:

On January 24, 2009 a person brought a gun into the licensed premises and fired several rounds into the ceiling.

3. Based on the Agreed Statement of Facts, the Board found the Licensee breached section 45.2 of the O. Reg. The Board accepted the withdrawal of the remaining allegations.

Order

4. Therefore, having considered the Joint Submission on Disposition, the Board confirms its oral ORDER that the liquor licence number 802451 issued to 1772883 Ontario Inc., operating as HOME NIGHTCLUB (formerly known as TONIC THE NIGHTCLUB), 117 Peter Street, Main Floor, Toronto, Ontario, M5V 2G9, be SUSPENDED for FIVE (5) consecutive days to COMMENCE at 11:00 a.m. on July 19, 2009, and CONTINUE until 2:00 a.m. on July 24, 2009.

5. Further, the Board also confirms its oral ORDER that the following conditions be attached to the Licence, replacing the conditions imposed in its Order dated January 30, 2009:

6. The Licensee shall hold a valid business licence, issued by the City of Toronto, to operate a business of the class “Entertainment Facility – Night Club”.

7. Security sweeps shall be done of all public areas before the club is opened to the public, and a record shall be kept certifying the same, including name and time of inspection and shall be available on request of the police or AGCO inspectors.

8. Prior to opening, all doors will be alarmed except for the Richmond Street doors and the smoking patio doors.

9. At all times while the premises are open to patrons and for at least one hour after the premises are closed to patrons, the premises shall be staffed with at least one visibly identifiable security person for every 100 patrons on the premises.

10. The Licensee shall ensure that every entrance to the premises is staffed with at least one security person equipped with a fully operational metal detector. All persons, with no exceptions, shall be fully searched and pass through a metal detector upon entry into the premises.

11. All persons who re-enter the club from the smoking area or any other area that is publicly accessible at any time shall be subject to a full search and metal detection scan, with no exceptions.

12. The Licensee shall keep the public smoking alley clear of snow and/or any other debris. A minimum distance of 15 feet shall separate the smoking area from the line barricade.

13. The Licensee shall provide the name and contact information of the Head of Security and the General Manager of the premises to the Toronto Police Service, 52 Division, Plain Clothes Unit. One of the persons named in this clause shall be on the premises at all times when the premises are open to patrons.

14. At all times while the premises are open the Licensee shall ensure that there are clearly visible and functioning security cameras at every exit and entrance as defined in the attached specification entitled:

Night Club CCTV Requirements (See Schedule A below)

The video surveillance system shall be checked prior to each opening to ensure that it is fully functional.

10. The Licensee shall retain all digital records from the security cameras for a minimum of 30 days. Any recording (or the Digital Video Recording unit) must be available immediately upon their request, and at no cost, to officers of the Toronto Police Service and AGCO inspectors.

11. The Licensee shall ensure that lighting is installed and is operational across the full width of the front, rear and any side of the premises that is accessible to the public. The light fixtures will provide illumination levels 55 to 110 lumens. The Licensee shall further ensure that the lighting fixtures do not direct light into windows of surrounding structures. The Licensee shall ensure that these lights are fully operational and turned on from the time of opening until sunrise the following day.

12. The Licensee may allow a line queue for people waiting to enter the premises. A barrier shall be used to clearly distinguish the area to be used for queuing from the remainder of the sidewalk which shall be maintained free and clear for passing pedestrians.

13. The Licensee shall ensure that a designated employee is on duty at all times to ensure that exiting patrons do not block the sidewalk and are not causing a disturbance that will affect nearby residents.

14. The Licensee shall ensure that any sound resulting from the operation of the business is not audible beyond a reasonable distance from the lot line of the property on which the premise is located. This clause refers to sound that is generated by any internal or external loudspeakers, conversation by patrons within the premises, bussing and bottle disposal. A reasonable distance for such sound to be considered in non-compliance is any point opposite the Licensee’s premises that is separated by a public street, public or private laneway or a parting wall between the Licensee’s premises and any adjacent space.

15. The Licensee shall post a prominent sign at each exit that reminds and/or encourages departing patrons to be considerate of the surrounding community.

16. The Licensee shall use best efforts to ensure that all areas immediately adjacent to the establishment are clean and free of litter, refuse and other debris.

17. The Licensee shall use best efforts to arrange garbage pickup and recycling at times that will not disturb nearby residents.

DATED AT TORONTO THIS 8th DAY OF July , 2009.

ALLAN HIGDON, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER

BRUCE S. MILLER, BOARD MEMBER

Attached

IN THE MATTER OF THE LIQUOR LICENCE ACT

R.S.O. 1990, c.L.19, subsections 15(1) and 21(1)

AND IN THE MATTER OF THE LIQUOR LICENCE

OF 1772883 ONTARIO INC. OPERATING AS TONIC

THE NIGHTCLUB, 117 PETER STREET, MAIN

FLOOR, TORONTO

LICENCE NUMBER 802451

NOTICE OF PROPOSAL NO. 16999

Agreed Statement Of Facts

The Licence Holder, having consulted legal counsel, and the Registrar’s counsel agree to the following:

1. On January 24, 2009 a person brought a gun into the licensed premises and fired several rounds into the ceiling.

2. Based on the facts in paragraph 1, the licence holder admits to a violation of section 45.2 of Ontario Regulation 719/90 under the Liquor Licence Act

3. The licence holder has already served five days during an interim suspension. The licence holder has undertaken an extensive review of his operations and has consulted with the King Spadina Residents’ Association and the local municipal councilor in an attempt to make the licensed premises safer.

Joint Submission Regarding Disposition

The Licence Holder, having consulted with legal counsel, and the Registrar’s counsel submit that the following disposition is appropriate in these circumstances:

1An additional five (5) day suspension of the liquor licence to start either on a Sunday or Monday within 90 days of the Board’s Decision and Order and to remove the conditions placed on the licence by the Board to stay the interim suspension and then to impose the conditions noted in Schedule A, attached to the liquor licence.

2Should the Board member make the finding as submitted and impose the disposition as recommended, then Registrar’s counsel will withdraw the remaining allegation in Notice of Proposal number 16999 dated January 24, 2009.

Dated in Toronto this 26th day of June, 2009.

For the licence holder Richard E. Kulis, for the Registrar of the AGCO

Schedule A

Conditions – Tonic Night Club

Licence to Operate the Business

1. The applicant shall hold a valid business licence, issued by the City of Toronto, to operate a business of the class “Entertainment Facility – Night Club”.

Patron and Public Safety

2. Security sweeps shall be done of all public areas before club is opened to the public, and a record shall be kept certifying the same, including name and time of inspection and shall be available on request of the police or Liquor Inspectors.

3. Prior to opening, all doors will be alarmed except for the Richmond Street doors and the smoking patio doors.

4. At all times while the premises are open to patrons and for at least one hour after the premises are closed to patrons, the premises shall be staffed with at least one visibly identifiable security person for every 100 patrons on the premises.

5. The Licensee shall ensure that every entrance to the premises is staffed with at least one security person equipped with a fully operational metal detector. All persons, with no exceptions, shall be fully searched and pass through a metal detector upon entry into the premises.

6. All persons who re-enter the club from the smoking area or any other area that is publicly accessible at any time shall be subject to a full search and metal detection scan, with no exceptions.

7. The Licensee shall keep the public smoking alley clear of snow and/or any other debris. A minimum distance of 15 feet shall separate the smoking area from the line barricade.

8. The Licensee shall provide the name and contact information of the Head of Security and the General Manager of the premises to the Toronto Police Service, 52 Division, Plain Clothes Unit. One of the persons named in this clause shall be on the premises at all time when the premises are open to patrons.

9. At all times while the premises are open the Licensee shall ensure that there are clearly visible and functioning security cameras at every exit and entrance as defined in the attached specification entitled:

Night Club CCTV Requirements.doc

The video surveillance system shall be checked prior to each opening to ensure that it is fully functional.

10. The Licensee shall retain all digital records from the security cameras for a minimum of 30 days. Any recording (or the Digital Video Recording unit) must be available immediately upon their request, and at no cost, to officers of the Toronto Police Services and AGCO Inspectors.

11. The Licensee shall ensure that lighting is installed and is operational across the full width of the front, rear and any side of the premises that is accessible to the public. The light fixtures will provide illumination levels 55 to 110 lumens. The Licensee shall further ensure that the lighting fixtures do not direct light into windows of surrounding structures. The Licensee shall ensure that these lights are fully operational and turned on from the time of opening until sunrise the following day.

12. The Licensee may allow a line queue for people waiting to enter the premises. A barrier shall be used to clearly distinguish the area to be used for queuing from the remainder of the sidewalk which shall be maintained free and clear for passing pedestrian

13. The Licensee shall ensure that a designated employee is on duty at all times to ensure that exiting patrons do not block the sidewalk and are not causing a disturbance that will affect nearby residents.

Impact on the Neighbourhood

14. The Licensee shall ensure that any sound resulting from the operation of the business is not audible beyond a reasonable distance from the lot line of the property on which the premise is located. This clause refers to sound that is generated by any internal or external loudspeakers, conversation by patrons within the premises, bussing and bottle disposal. A reasonable distance for such sound to be considered in non-compliance is any point opposite the Licensee’s premises that is separated by a public street, public or private laneway or a parting wall between the Licensee’s premises and any adjacent space.

15. The Licensee shall post a prominent sign at each exit that reminds and/or encourages departing patrons to be considerate of the surrounding community.

16. The Licensee shall use best efforts to ensure that all areas immediately adjacent to the establishment are clean and free of litter, refuse and other debris.

17. The Licensee shall use best efforts to arrange garbage pickup and recycling at times that will not disturb nearby residents.

Night Club CCTV Requirements

1.0.0 Requirement for Location and Number of Cameras

1.1.0 Outside entrance/Exit cameras:

• minimum requirement: 2 cameras

• position cameras to provide full video surveillance of sidewalk and any private property between sidewalk and entrance.

• locate cameras at a height of not more than 10 feet above entrance walkway or top step, whichever is highest above grade.

1.2.0 Inside Entrance/Exit camera:

• minimum requirement: 1 camera

• if there is only 1 path to doorway position immediately over or immediately to one side of entrance/exit to provide full video surveillance of path used for accessing door

• provide 1 additional camera for each additional path that cannot be observed from cameras in

• locate cameras at a height not more than 8 ft above floor.

1.3.0 For transition points between closed spaces within the premise:

• minimum requirement: 2 cameras

• position 1 camera on each side of transition between enclosed spaces to provide surveillance of pat to the transition point (doorway, archway, etc)

• provide 1 additional camera for each additional path that cannot be observed from cameras

• locate cameras at a height of not more than 10 feet above grade.

1.4.0 Other Cameras

• positions to provide video surveillance of all publicly accessible spaces (specifically sidewalks and laneways) that are adjacent to the premises.

• locate cameras at a height that does not exceed 10 ft above grade.

2.0.0 Requirement for Digital Video Quality and Retention

2.1.0 Retention & Access

• All digital video must be retained for 30 days after date of recording

• All digital archives must be made available free of charge immediately on demand by Toronto Police Services and/or AGCO Enforcement Officers

2.2.0 Quality of video taken from Archives

• It is the responsibility of the owner to ensure that the quality and capability of the camera equipment, recording equipment and all miscellaneous wiring and support hardware is adequate to meet the requirements below for the quality of digital video copied from the system’s storage medium.

• Camera capability: suitable for night viewing

• Quality of digital video:

o Frame size: 640 x 486

o Image rate: 60 images/sec

o Digital format: MPG4, CIF4, no transcoding between formats is permitted for evidentiary purposes

o Archive requirement: write to storage medium at 50% quality or better

• Note to vendors providing proprietary software: original recorded video must be openly viewable in a court of law.