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: Kirsti Hunt, Vice-Chair, AGCO
Joan Lougheed, Board Member
Decision Date: September 23, 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 ) Gleb Bazov, 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.
In its decision dated June 17, 2007 the Board found the Licensee violated subsection 30(4) of the LLA and subsections 45(1), 41(1) and 34(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
Registrar’s Counsel reviewed the Board’s findings in relation to liquor being in an unlicensed area, two couples being drunk on the premises, permitting a minor to consume alcohol and improperly inspecting false identification.
Mr. Morris pointed out that the Licensee breached four sections of the LLA and the O.Reg, involving five patrons on one night. He noted a previous similar finding against the Licensee that occurred on June 9, 2009 for a breach of subsection 45(1) of the O.Reg. This infraction occurred less than two months after the previous breaches.
It was submitted by Mr. Morris that there were four drunks and two other breaches, one involving a minor, all on the same date. Internal processes had not been improved to prevent a reoccurrence and staff had not taken steps to prevent drunkenness or to properly identify a minor. He suggests that a ten day suspension is appropriate
Licensee’s Submissions
Mr. Gleb Bazov, the Licensee’s new representative subsequent to Mr. Levitan no longer representing the Licensee, filed submissions on behalf of the Licensee. Mr. Bazov asked the Board to consider the various factors and circumstances before making a determination, including factors such as whether this was a pattern of behaviour or a one time occurrence and to consider the steps taken by the Licensee to ensure future compliance.
Mr. Bazov noted that the premises opened on October 5, 2007 and was only open on weekends. As one of the largest establishments in the Entertainment District, staff were still learning how best to conduct themselves in a manner that complied with the LLA.
He stated that the previous and present violations date back to the beginning of the operation, over one and a half years ago.
Mr. Bazov stated that there has been considerable remedial action, including consultations with the AGCO, OPP, and security professionals. Extensive policies and procedures have been put in place including Smart Serve certification, Safer Bars Course, and ongoing staff education and training to ensure vigilance to address misbehaviour, infractions, floor supervision, and knowledge of international identification.
In this second year of operation, managing the premises has greatly improved.
Following this breach, the Licensee consulted with the AGCO, OPP and a security firm. The Licensee was advised to hire one security officer for every seventy-five customers, but made the decision to employ one security person for every sixty people.
The issue of the moveable DJ booth has been clarified and corrected, with the use of stanchions to ensure permanent separation between licensed and unlicensed areas.
The Licensee acknowledges the seriousness of the breaches, and preventative strategies have been put in place. The Licensee expressed concern about the negative impact on employees and suppliers should a lengthy suspension be implemented.
In response to the Registrar’s submissions, Mr. Bazov asked that the Board consider that the four drunks were not four separate incidents but rather two incidents involving couples who were found to be drunk together.
He also noted that it is the policy of the Licensee to continuously improve its compliance and that the occurrence is unlikely to happen again. This second breach occurred as staff were still adjusting to the size and peculiarities of Circa which is 55,000 square feet.
Registrar’s Reply
Registrar’s Counsel submitted that it was difficult to decipher the policies and procedures in place on the night in question. Mr. Morris stated that if they were in place, they did not work.
Mr. Morris stated that the impact on employees and suppliers is not a mitigating factor. The Licensee should be aware of the overall impact when it breaches the regulations. The aim of a suspension is deterrence. He noted that the Licensee, Mr. Gatien, has been acknowledged as a knowledgeable operator and therefore inexperience should not be used as an argument for being a mitigating factor.
Reasons and Decision
The Board has carefully reviewed the submissions on sanctions and notes the record of a previous breach with a four day suspension. In making a determination of specific and general deterrence, the Board finds that a suspension of seven (7) days is appropriate. Reasons follow.
The Board does not support the Licensee’s submission for a four day suspension given the number of breaches that occurred on the night in question and the recent history of another breach.
A previous breach occurred two months prior with the Licensee expressing remorse at the time and indicating that there would be considerable remedial action. The action plan was not effective, resulting in further breaches.
Neither does the Board agree with the suggestion of a 10-day suspension, as there are a number of factors to be considered, including steps the Licensee has been taking to be compliant.
This case has involved confusion about licensed and unlicensed areas on the premises, with a movable DJ booth. The Board acknowledges that the Licensee has made the necessary changes, ensuring clear delineation of the licensed and unlicensed areas of the premises. The Board is satisfied that this unusual situation has been rectified.
The Board also takes into account that the Licensee has hired new staff to enhance security procedures. The premises, which has a capacity of 3000 patrons, is only open on weekends and the Board is prepared to allow some leniency to give the Licensee an opportunity to refine procedures and the training of new staff. The Board acknowledges that the Licensee is hiring more staff than the number of staff that was recommended by agencies who were consulted for advice.
In reaching a decision, the Board remains concerned that ID checks were not adequate on the night in question and patrons were not being properly monitored, thereby permitting drunkenness and allowing a minor to consume liquor on the premises. The Board considers violations of this nature to be very serious.
The Board understands the financial impact of a suspension on both the Licensee and employees. However compliance is, at all times, the responsibility of the Licensee and financial ramifications are part of the deterrent effect of a suspension.
Order
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 seven (7) consecutive days.
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 23rd DAY OF SEPTEMBER, 2009.
KIRSTI HUNT, VICE-CHAIR, AGCO JOAN LOUGHEED, BOARD MEMBER