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-
Tropix Restaurant & Lounge Inc. O/A Tropix Restaurant & Lounge Inc.
Licensee
DECISION ON FINDINGS
Panel: Joan Lougheed, Board Member
Alex McCauley, Board Member
Decision Date: October 28, 2009
Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario
90 Sheppard Avenue East, Suite 300
Toronto, Ontario 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
Tropix Restaurant & Lounge Inc., Licensee ) Louis Rajnauth, Representative
Allegations
A hearing into a Notice of Proposal number 17443 dated August 7, 2009 to revoke a liquor licence, and an Order dated August 7, 2009 to immediately suspend, on an interim basis, liquor licence number 25237 (the “Licence”) issued to Tropix Restaurant & Lounge Inc. (the “Licensee”) operating as TROPIX RESTAURANT & LOUNGE INC., 1790 Liverpool Road, Pickering, Ontario, L1V 1V9 (the “establishment” or “premises”), on the basis of alleged violations of subsection 45(2) of the Liquor Licence Act (the “LLA”) and section 45.1 and subsections 45(1) and 31(1)(c) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on August 28 and August 31, 2009, in the City of Toronto.
The Registrar had ordered on August 7, 2009 that an Interim Suspension be placed on the licence in the interest of public safety subject to an Order by the Board of the Alcohol and Gaming Commission of Ontario (“AGCO”).
The hearing commenced on August 28, 2009, and the Board ORDERED that the Interim Suspension remain in place until the next hearing date, at which time its continuation will be re-considered upon request by the parties.
The hearing re-convened on August 31, 2009. Registrar’s Counsel advised that it was withdrawing its allegation of a breach of subsection 45(2) of the LLA. The Licensee admitted that there was a breach of subsection 31(1)(c) of the O.Reg. The Board ORDERED that the Interim Suspension be rescinded subject to the conditions as set out in the Order of the Board dated August 31, 2009.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 31(1)(c) and section 45.1 of the O.Reg. The Board dismisses the allegations of a violation of subsection 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
The Board ordered, on consent, the exclusion of all witnesses.
The Licensee admitted the allegation under subsection 31(1)(c) of the O.Reg, keeping for sale liquor not purchased under the Licence. The Board made a finding against the Licensee for this infraction.
Overview:
On August 7, 2009 at approximately 1:30 a.m. a fight occurred at the licensed premises on the patio. Bottles were used in this fight. A gunman appeared and at least two shots were fired in the air. During this occurrence, security was available but did not intervene, putting patrons at risk.
While on the site liquor was found on the premises which was not purchased on the Licence.
Registrar’s Evidence
Jim Zaphiropoulos is a member of the Durham Regional Police Service and on the morning of August 7, 2009 was dispatched to the Tropix Restaurant regarding a complaint of gunshots coming from inside the premises. He was advised that the call taker was hearing gunshots while taking the call on the phone.
He arrived on scene within a minute of dispatch arriving at 1:30 a.m.
Upon arrival he saw patrons standing in the entrance way. He used his police vehicle to block the exit driveway and then approached the persons at the entrance on foot.
At the entrance he was met by a male person who identified himself as C.R. This person stated that a male was firing rounds in the club and that this male was with another person he knew by the street name of S.
C.R. advised him that there had been a fight and S. had been struck on the head with a beer bottle and was bleeding from the head and had started shooting.
The shooter was described as a male, non-white, 30 to 35 years of age. He had pants with a white belt, no shirt and was bleeding. He had fired a shot on the patio and then fled south towards the sushi restaurant.
This information was provided to other officers and exit points were blocked.
Supervisors arrived on scene and the witness was detailed to get the identification of patrons leaving the bar.
During his time he noted a male person who he described as very intoxicated. The patron was refusing to leave using profanity and being belligerent to security staff. Security staff asked the witness to ask this person to leave. The patron subsequently left with some of his friends.
While there, he asked to see the video footage of the time period from 1:18 a.m. to 1:32 a.m. He was looking at it on a small computer screen and couldn’t make out much. He saw on the video two fights on the patio. After one fight he could see a security person standing by not intervening and walking away.
In cross-examination the witness was asked about the six foot high fence around the patio and if it would be a significant obstacle to someone leaving that way. He replied that it would not.
In reference to the incident at the door with the allegedly intoxicated, obnoxious male the witness admitted that security may only have been attempting not to escalate the situation by asking the police officer to ask this person to leave.
Greg Kent is a detective with the Durham Regional police. He has been a police officer for 20 years. He was involved in the investigation of the incident of August 7, 2009.
His investigation revealed that there were three suspects. One was an injured party, N.B., who had been found near the scene and was suffering from an injury to his leg, though not a gunshot wound.
There was another injured person, R.P, who had been assaulted by one of the suspects and had his “dog tags” stolen.
He advised that he was told that police had three suspects in custody.
The witness advised that they had seized and reviewed video footage from the licensed premises. The videos were from two cameras on the patio. One showed the patio and another was set up facing north from the south-west corner of the patio.
The video (Exhibit 1) was played for the panel. The footage started at 1:25:44 a.m. and shows the patio and surrounding fence. The following was observed:
At 1:27 a.m. the fight is observed and we see the future accused person.
At 1:31 a.m. we see accused with no shirt and a security person
At 1:31:25 a.m. we see suspect S.B. appear to reach down and rack a gun. Patio appears to quickly empty.
The witness advised that two casings from spent 22 calibre shells were located on the north side of the patio fence.
At 1:33 a.m. we see the victim assaulted.
At 1:33:29 a.m. we see suspect with no shirt racking a gun.
At 1:36:27 a.m. the victim is seen walking very unsteadily and we see him collapse.
At 1:37 a.m. security person appears on camera, he does not appear to interact with injured person.
The witness identified N.B. as the shirtless suspect involved in the altercation on the patio as shown on the video. He was also observed outside the patio interacting with the assault victim and apparently racking a gun.
In cross-examination, the witness stated that the person who had the gun on the patio was S.B., not N.B. his brother.
There was no information that staff had not cooperated with the police.
He stated it was probable shots were fired outside the patio.
Police were on scene or arriving when the victim was assaulted in the parking lot area.
When asked whether or not he could be sure that security were not reacting to situations off-camera, the witness agreed that he could not be sure. He went on to state that it appeared no security intervened when a person was being kicked on the ground.
The witness did not know if any of the 911 calls came from staff at the bar. He also did not know how many 911 calls came in as a result of the incidents at the bar.
Chris Mooy is a police officer with the Durham Regional Police Service and has been so employed for nine years. He is familiar with Tropix Restaurant & Lounge and attended there on August 7, 2009.
He was dispatched to the licensed premise and arrived at 1:37 a.m. He parked in the Loblaws parking lot directly west and behind the licensed establishment. He walked up a hill to get to the parking lot of the licensed establishment. He encountered a male party covered in blood and bleeding from a head injury. This encounter took place by the Makimono Restaurant which is located south of the licensed premises.
The male party advised he was struck in the head with what he believed was a gun. An ambulance was called for this victim. The victim was a R.P. When asked what happened he appeared confused, but he stated the person who attacked him was a male, brown skin, in his twenties, no shirt, black jeans and black belt.
Later a statement was obtained from R.P. (Exhibit 2).
The victim received six stitches to the wound on his head. The victim did not know why he was attacked, he stated he saw the suspect shooting a gun then the person came at him and attacked him.
In cross-examination, the witness stated that there was no evidence the attack on R.P. had anything to do with the licensed premise.
Adam Strongman is an AGCO inspector and has been so employed for the last four years. He is familiar with the licensed premises and was called to the licensed premises at 3:15 a.m. August 7, 2009.
Upon his attendance he spoke with the bar manager (Mike) Mohan Persaud. Mr. Persaud advised that there had been a fight on the patio involving four or five males who he did not believe were regulars. In his opinion his staff did an excellent job of quelling the disturbance.
Mr. Persaud stated he was told of gunshots but did not hear any. He stated that one of his staff had called police.
Mr. Persaud stated he had professional security on duty, “Protecto Plus”. There were five security on duty, one on the patio, two on the front door and two floating.
He stated that during the fight a beer bottle was thrown and a patron was struck and injured. He stated that night security at the door was searching and checking patrons for I.D.
Mr. Strongman located the off-licence beer, two 28-pack cases in the kitchen coolers. These were the off-licence purchases.
Licensee’s Evidence
Rajesh Rampersad has been employed at the Tropix as a security person since January 2009. He is licensed, Smart Serve accredited and has at least three years of experience in the security field working at other licensed clubs.
On August 7, 2009 he was on duty at the licensed premise as a security officer. He was stationed at the front door. At approximately 1:20 a.m. he went out on to the patio. Everything appeared normal and he was about to go back inside when he heard glass break and turned to see what he described as a small brawl. He assisted another security person, Sp. He pushed one of the main combatants up against the wall and held him. He believed this person’s name was S. During this time other security personnel were on scene. Sp. was attempting to break up the fight. At the time the witness was on the west corner of the patio out of camera range. He observed Sp. ejecting a patron via the front door.
Another security person named Ronnie came on scene and the fight quickly broke up. Mr. Rampersad did not see anyone with a gun on the patio, but heard a shot outside the patio.
He moved patrons from the patio to inside the establishment for their protection.
He believed the shots he heard were a couple of minutes after the fight.
In cross-examination, the witness admitted they had no metal detector as part of their screening equipment that night. Nor were there any outside patrols.
He stated that their communication devices consist of mainly cell phones.
The witness is identified on video as the person with the hat on. He identified other security personnel on the video as R., a co-worker, Sp., Ronnie who came from inside.
He stated that there is a requirement to make notes on these types of incidents but that night he made no notes. He stated Ronnie is the person in charge and he has the book.
Ronnie Baldeo is a licensed security person who has been working at the licensed premise since January 2009. He was on duty at the licensed premises on August 7, 2009.
The witness stated he has a variety of security assignments in his background. He has worked Queen Street, Caribana and many other special events.
On August 7, 2009 he was the supervisor on duty. They had four male security staff and one female searcher. His job was to ensure there was proper security coverage throughout the licensed area and in that regard he roamed throughout the licensed premise.
At approximately 1:25 a.m. his attention was drawn to the patio. He noticed a disturbance between a number of people. He went to assist and took charge of a patron that the Manager, Mike, was attempting to separate. He ejected that guest, then maintained control of the patio door so no one could enter.
He noticed two security staff subduing, or calming patrons. He noticed one patron was injured. The patron was offered assistance but refused.
He stated that matters had settled by 1:30 a.m. with the problem patrons having been ejected or having left the area. It was at around this time he heard popping noises. He directed that patrons be moved inside for safety reasons. Police arrived shortly thereafter.
He stated that the original altercation only lasted minutes, perhaps 10 minutes.
He observed the injured patron jump the fence at the back of the patio. He did not observe any weapons or hear any shots on the patio.
In cross-examination, the witness stated that he did not keep an incident log. He stated that he debriefed staff. He did not recall any of his staff calling 911. He stated that they are required to do so in their through training.
There is no policy manual.
The witness stated in reply that he had never faced anything like this incident.
Teena Dyer is employed as a general manager at the licensed premises. On August 7, 2009 she was not working but was on the patio with friends.
She observed a bunch of guys talking and the next thing punches were thrown. A guy was on the ground being kicked. She observed two security each holding back one of the combatants. One security guard took out one person. The guy who started the fight was walking around. The injured combatant was holding a shirt to his injured head. The injured person was asked if he needed help, he said no and pushed a table. The fight was settled quickly.
She heard three loud pops and the patrons were directed inside by security.
Mohan Persaud, also known as Mike, was at the licensed premise on August 7, 2009 as the Assistant Manager. He does not get paid. He is the spouse of one of the owners.
He was advised by the bartender that there was a fight on the patio. This was at 1:27 a.m. He saw pushing and a patron trying to jump the patio fence. On the second attempt the patron was successful.
Ronnie advised that all was in order and he could return inside. He went in and turned up all the lights and he told the D.J. to stop the music.
Azeem Khan is a patron of the licensed premises and lives in the same community. He stated he has attended the licensed premises several times with family and friends.
The witness is very involved in the community and is captain of the Neighbourhood Watch.
In his opinion, the neighbourhood is supportive of the licensed premises.
In reply, Mr. Kulis introduced the letter of Dave Ryan, the Mayor of the City of Pickering (Exhibit 3), which was critical of the Tropix Restaurant. The Mayor however did not attend the hearing and was not available to be cross-examined.
Mark Brown is a police officer with the Durham Regional Police Service and has been so employed for six years.
He is familiar with the licensed premises and was involved in the investigation there August 7, 2009.
He received a verbal statement from the assault victim. The victim stated he had seen the suspect (no shirt) fire a gun.
The witness located the victim’s dog tags which were in the parking lot.
The witness took a witness statement from a patron, M.W. (Exhibit 4). The statement describes events inside the patio at the time of the fight.
In viewing the security tape, the witness stated he observed the suspect start the fight. At 1:31 a.m. on the tape the witness observes the suspect’s brother, S.B., pull a small object from the front of his pants, possibly a gun.
The witness observes N.B. assault the victim on the video. His brother S.B. is with him at the time. On the video as N.B. is walking away he is seen racking what appears to be a gun.
In cross-examination, the witness stated that N.B. is very well known by the police. Further he confirmed his belief that the shots were fired in the parking lot.
Allan West is one of the owners of the establishment. Initially there were three owners but R.M. has passed on.
R.M. was the lead person as far as the management skills needed for the licensed premises. After his death the gap was difficult to fill. In the words of the witness, he and his partners were naïve novices who bought in to the promoter system which brought its own customer base - a customer base that was not originally envisioned by the witness. His vision was for a club more focused on the restaurant theme.
He has identified changes that he sees as immediately necessary for the safety and security of his customers. They have changed security measures to the following: admittance restricted to those 25 years of age or older after 10:00 p.m., no re-entry, plastic cups for beer, metal detectors, a maintained and up-to-date log book, security patrols inside and outside the premises. He is also committed to more of a restaurant theme and to move away from the nightclub scene.
Exhibit #5 was entered which outlined a mission statement for the restaurant, policies, an action plan and security measures.
In cross-examination, the witness agreed to conditions being placed on the licence for enhanced security and video.
The witness further agreed that he would be the on-scene manager for the foreseeable future.
Registrar’s Submissions
Mr. Kulis asked for a finding under subsection 31(1)(c) of the O.Reg as was admitted by the Licensee for liquor bought off-licence.
Mr. Kulis asked that the allegation of a violation of subsection 45(2) of the LLA for failing to facilitate an inspection as outlined in the NOP be withdrawn.
Mr. Kulis asked for a finding under subsection 45(1) of the O.Reg for permitting disorderly conduct in relation to the fight on the patio. In his submissions he stated that it appeared that security was overwhelmed with the fight occurring in stages, with brawling and kicking.
In his submissions, Mr. Kulis pointed to the fact that it appeared there was a gun on the patio.
There needs to be a specific deterrent to the Licensee.
Mr. Kulis asked for a finding under section 45.1 of the O.Reg, that the licence holder failed to have reasonable measures in place to deter disorderly conduct on property adjacent to and in the vicinity of the licensed premises. He argues that R.P. was injured as the result of an attack from a patron outside the licensed premise.
There were shots fired outside and a serious assault took place. Security should have been in a position to better monitor activities outside the licensed premises.
Licensee’s Submissions
Mr. Rajnauth submitted that in regards to the allegation under subsection 45(1) of the O.Reg that the Licensee did its best. Staff were not overwhelmed. It was a continuous fight not broken up into continuing segments. What the video did not reveal was security handling elements of the disturbance off-camera. Security handled the matter and did what they could.
With respect to the allegation under section 45.1 of the O.Reg, Mr. Rajnauth questioned why the victim put himself in the position he was. Why did he walk toward the problem?
Reply
- Mr. Kulis submitted that section 45.1 of the O.Reg requires there be a plan in place and there was none.
Analysis/Reasons/Findings
The Board has reviewed the evidence over two days of the hearing and the submissions of the parties. The Board found all the witnesses in this matter to be credible and all gave their evidence in a fair and frank manner.
It is clear to the Board on hearing all of the evidence that no gun shots were fired on the patio. The only evidence of a gun on the patio is the hand actions of S.B.
The circumstances of that evening could have ended tragically if someone had been shot. As it was one patron sustained serious injury outside of the licensed premises when confronted by the irate patron with the gun. In all of this the Board is left to determine if the Licensee breached the provisions of the LLA, and if so did those breaches have an effect on what followed.
The Registrar alleges that the Licensee permitted disorderly conduct contrary to subsection 45(1) of the O.Reg. He cited the fight on the patio. A fight in which he submits that security staff were overwhelmed. A fight that was in stages with brawling and kicking. That security video also indicated a patron on the patio with a gun.
In the view of the Board the video at best gives a good overview of the situation. The Board accepts the evidence of security person Rajesh Rampersad when he indicated there was a time he was out of camera range and was dealing with one of the combatants. In the Board’s view it does not appear that security were overwhelmed. Further, based on the evidence of the security personnel and supplemented by the video it appears security were able to restore order very quickly. From the video time counter we see that the fight is in progress with security on scene at 1:27 a.m., and one can assume the fight started at 1:27 a.m. The first police officer on scene received the call to attend in response of gunshots at the licensed establishment at 1:30 a.m. We know from the evidence received that the gunshots were outside the licensed premises and at that time the fight on the patio was over. That would indicate that from the start of the disturbance on the patio until security had the matter under control and the combatants had either left or been taken out it was four minutes give or take a couple of minutes either way. That, in the view of the Board, is not indicative of security being overwhelmed or not up to the task.
The matter of the alleged firearm on the patio must be addressed. Security personnel who testified stated that they were screening persons entering the establishment, but that they did not have a security wand to screen for weapons. A person identified as S.B., brother of N.B. the suspect in the later assault, is seen on the patio pulling from the front of his pants what appears to be a gun. The Board is satisfied that S.B. was in possession of a firearm while on the patio of the licensed premises. The Board is also of the view that he had brought the weapon in to the licensed establishment surreptitiously. The question now is did the Licensee do what they could to prevent this. We already know that there was no metal detecting device in use that night, but there was evidence that persons are routinely searched and security person Mr. Rampersad stated they did that on the night in question. Ronnie Baldeo, the security supervisor that night stated he has experience in other security assignments and has been at this location for eight months prior to this incident. In answer to a question in reply from his counsel, Mr. Baldeo stated he had never faced anything like this, inferring that the situation with the gun was an extraordinary event in the course of his duties.
On the night in question a metal detector may have detected the firearm if, in fact, it was carried in on the person’s body. The police in their evidence are of the view that there was only one firearm in play that night switched off between the brothers, S.B. and N.B. We also know that at least one of the two brothers escaped the patio by jumping the fence. In the view of the Board it is not unreasonable to assume that the gun was imported on to the patio by some other means than being carried in by one of the two brothers S.B. and N.B.
As well, with regard to the fight on the patio, the Licensee’s security staff, as noted above, appear to have taken swift and effective action. They did not, in this regards, permit the disorderly conduct.
The Board accepts that the security officials took reasonable action to screen patrons coming into the licensed premise. A metal detector wand may have been helpful but not having one in the view of the Board does not constitute permitting disorderly conduct.
Regarding the allegedly intoxicated patron as described by Constable Zaphiropoulos, who did not want to leave, the security person asked the Officer to ask the patron to leave. It is the view of the Board that this action was appropriate on the part of the security person to avoid a potential escalation of problems with the belligerent patron.
For the above noted reasons the Board does not find that the Licensee permitted disorderly conduct and DISMISSES the allegation of subsection 45(1) of the O.Reg.
The Board must now turn its attention to the allegation of a breach of section 45.1 of the O.Reg. The section requires a licensee to ensure that reasonable measures are in place and reasonable efforts are made to deter disorderly conduct on property adjacent to and in the vicinity of the premises and to minimize damage, nuisance or other harm to such property arising out of disorderly conduct engaged in by patrons of the licence holder or persons attempting or waiting to enter the premises or leaving the premises. The Licensee did not present a formal plan and the Registrar’s representative pointed out to the Board in reply submission that section 45.1 of the O.Reg requires a plan and there was none.
The Board disagrees that a formal plan, per se, is required. Reasonable measures on the other hand are required. We know the Licensee had video in place capable of monitoring the outside of their premises and this was invaluable to the police in resolving this matter. The Licensee did not have security patrols outside at the time of the incident. We do know a security person peered outside. Whether or not he saw or spoke with the victim of the assault was never established in evidence but it appeared he did not. We know at that time that police were on scene. Security at the time of the incident was fully engaged with the fight inside. There was no one available to be outside. When shots rang out it was not an appropriate time for security to attempt to intervene, this was now clearly and solely a police matter. The fact that video is available to monitor events outside of the licensed premises, in the circumstances, is a reasonable measure to deter disorderly conduct.
A security person in the parking lot or other outside area may have deterred the ability to import contraband into the licensed premises. In addition, if patrons were aware that random security patrols occurred outside the premises this may also have served to deter the actions that took place in the area outside the patio, which resulted in a person being assaulted and a firearm discharged. But the Board must question, is the standard such that all bars or licensed premises must have exterior security patrols and in this situation would it be a reasonable measure and would it have made a difference? The Board’s conclusion was, in the circumstances, that this is not a reasonable expectation. The establishment had measures in place. They had a fence around the patio, the area was under video surveillance. Police were on scene immediately.
The test is were there reasonable measures in place at the time and were reasonable efforts made to deter disorderly conduct, and the Board concludes that there were.
The Board therefore dismisses the allegation under sec. 45.1 of the O. Reg.
Based on the admission of the Licensee and on the evidence of the AGCO inspector the Board FINDS the Licensee committed the offence of keeping liquor for sale not purchased under the Licence, contrary to subsection 31(1)(c) of the O.Reg.
In addition the conditions attached to the licence pursuant to the Board’s Order of August 31, 2009 will remain in effect and form part of this decision.
Conclusion
For the reasons given, the Board finds the Licensee violated subsection 31(1)(c) 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 28th DAY OF October , 2009
JOAN LOUGHEED, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER