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-
1677378 Ontario Inc. operating as Reign Lounge
Licensee
DECISION ON SANCTION
Panel: David C. Gavsie, Chair, AGCO Jacqueline Castel, Board Member
Decision Date: March 9, 2010
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 ) Phillip Morris, Representative 1677378 Ontario Inc., Licensee ) Randall Barrs, Representative
Authorities
1126430 Ontario Inc. (c.o.b. Little Texas Bar & Grill) (Re), [2009] O.A.G.C.D. No. 142
Allegations
A hearing into Notice of Proposal (“NOP”) number 17353 dated June 29, 2009 to suspend liquor licence number 800196 (the “licence”) issued to 1677378 Ontario Inc. (the “Licensee”), operating as REIGN LOUNGE, 137 Peter Street, Toronto, Ontario, M5V 2H3 (the “establishment” or the “premises), on the basis of alleged violations of section 45.1 of Ontario Regulation 719/90 (“O.Reg. 719/90”) and subsection 14(1) of Ontario Regulation 58/00 (O.Reg. 58/00), both prescribed under the Liquor Licence Act (the “LLA” or the “Act”), was held in Toronto on December 15, 2009.
In its decision dated February 4, 2010, the Board found the Licensee contravened section 45.1 of O.Reg. 719/90 and dismissed the allegation under subsection 14(1) of O.Reg. 58/00. The parties were directed to provide written submissions on sanction within specified time-frames. These submissions have been received and reviewed by the Board.
Submissions on Sanction
The Registrar submitted that the 30 day suspension proposed in the NOP is appropriate for the following reasons. First, the breach of section 45.1 resulted in a large disturbance which required some 15 police officers to quell. Second, the Licensee has a recent history of non-compliance and has had its licence suspended for 17 days in 2007 and again, for the same duration, in 2009. Third, in the Little Texas case, which involved a breach of section 45.1 of O.Reg. 719/90 and similar facts (i.e., the extent of the disturbance, the amount of police back up required, a lack of action by the licensee’s staff, and an abdication of responsibility for crowd control to the police), the Board imposed a 25 day suspension, when the licensee’s most recent suspension had been for 14 days. Finally, the Licensee did not testify about measures it has put in place to prevent these types of problems occurring in the future.
The Licensee submitted that the suspension should not exceed seven days and that every day the establishment is closed could cost the owners up to $10,000. The incident was an aberration. There does not appear to have been an exterior “crowd control” problem before or since the incident. Given the clientele and demographics of the entertainment district, this reflects that the establishment’s security must be doing a good job. According to the Licensee, the whole situation has been grossly exaggerated, particularly in light of the much more serious incidents which regularly occur in the entertainment district. There was no evidence that any significant effort was exerted by the 15 police officers, and no serious injuries were documented. The establishment had more than adequate security.
The Licensee denied that there was an abdication of responsibility for crowd control to the police. Police circulate the area on horseback, bike or foot. If one spot “lights up”, it takes seconds for them to be on the scene. Security personnel frequently have a difficult decision to make with trouble makers, who are outside the rope barriers, on the sidewalk and streets. The amount of force security can use is limited. Security has no weapons, and normally the police do not want them involved once they are on the scene. Security also has to protect their patrons coming out and to try and keep people from going inside between 2:00 a.m. and 2:45 a.m.
In Reply, Mr. Morris indicated that a suspension is intended to have a significant economic impact so as to act as a deterrent. The Licensee has made bald assertions of economic loss without substantiation.
Decision on Sanction
The Board considers the contravention of section 45.1 in this case to be serious. There was a crowd of 80 to 100 people exiting the establishment en masse, pushing and shoving, and impeding the movement of traffic on the street in front of the establishment. Approximately 30 people in this crowd also began fighting immediately upon exiting the establishment. There was no evidence of any measures taken by the Licensee to deter this chaotic departure of customers from the establishment, and the Board found that the Licensee failed to do what was reasonable, in the circumstances, to deter the disorderly conduct and control the crowd after the patrons exited. Approximately 15 uniformed police officers on horseback, bicycle and in vehicles were required to stop the fighting and disperse the crowd.
The fact that the police officers arrived on scene quickly and were able to stop the fighting within a couple of minutes does not minimize the severity of the infraction. Nor is it appropriate for a licensee to rely on the presence of uniformed police officers in the area at closing time to deter disorderly conduct. As explained at paragraph 144 of the decision on findings, there was also no evidence that the uniformed police officers wanted the Licensee’s security to step aside once they arrived. Section 45.1 requires that the licensee ensure that reasonable measures are in place and reasonable efforts are made to deter disorderly conduct, and in this case such measures and efforts were lacking.
The Licensee also has a recent history of non-compliance with the Act and regulations, having served two 17 day suspensions in the last three years.
The Licensee did not show remorse or accept responsibility for the breach, but rather attempted to minimize it by suggesting that the Registrar’s witnesses exaggerated the disorderly conduct.
The Licensee also did not introduce any evidence of procedures it has implemented to minimize the likelihood of this type of contravention occurring in the future. The Board takes no position on Mr. Barrs’ assertion that the Licensee had adequate security staffing on the night in question. The Board did, however, find that at very minimum, the Licensee failed to properly deploy its security staff to ensure the orderly departure of customers and control the crowd when the disorderly conduct began. Instead, security staff were observed standing at the door and in the hallway doing nothing. This may be a training issue or it may be that the security procedures were deficient. In any case, the Board was given no indication that the Licensee has learned something from the incident and implemented remedial measures to avoid such a contravention happening again.
The above factors all warrant a significant suspension, from the standpoint of both specific and general deterrence. The seven day (or less) suspension proposed by the Licensee would not be adequate in the circumstances of this case.
Nevertheless, the Board believes that the 30 day suspension proposed by the Registrar would be too harsh. The Registrar sought a 30 day suspension in the NOP on the basis of two allegations of contravention, and the Board dismissed one of the two allegations, specifically the allegation under subsection 14(1) of O.Reg. 58/00. The allegation under subsection 14(1) of O.Reg. 58/00 was less serious than the contravention of section 45.1 of O.Reg. 719/90, but given that the former allegation was dismissed, a full 30 day suspension would not be appropriate.
The Board also considered it mitigating that this is the first time the Licensee contravened section 45.1 of the O.Reg.
The decision on sanction in the Little Texas case, which the Registrar referred to in submissions, is not analogous to the present case. In the former case, the Board made findings under both section 45.1 and subsection 45(1), whereas in the present case there was only one finding under section 45.1. As such, the Board did not consider the sanction imposed in the Little Texas case, when determining the appropriate sanction in the present case.
The Board also did not consider the economic impact on the Licensee when determining the appropriate duration of the suspension. A suspension will necessarily have financial ramifications, and these ramifications are a critical part of the deterrent effect. Furthermore, as Mr. Morris noted in his Reply, the assertion that each day the Licensee is suspended could cost it up to $10,000 was not substantiated in evidence.
Therefore, for the above reasons, the Board FINDS that an 18 day suspension is appropriate, to give effect to the principles of specific and general deterrence.
Order
The Board ORDERS that liquor licence number 800196 issued to 1677378 Ontario Inc., operating as REIGN LOUNGE, 137 Peter Street, Toronto, Ontario, M5V 2H3, be suspended for a period of eighteen (18) consecutive days.
The Licensee shall submit proposed suspension dates in writing to the Manager, 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 the 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 March , 2010
DAVID C. GAVSIE, CHAIR, AGCO JACQUELINE CASTEL, BOARD MEMBER