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-
4062906 Canada Inc. operating as Suite 34 Licensee
DECISION
Panel: David C. Gavsie, Chair, AGCO Joan Lougheed, Board Member
Decision Date: , 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 ) Joyce Taylor, Representative 4062906 Canada Inc., Licensee ) Janet Bradley, Representative
Allegations
- A hearing into Notice of Proposal number 17415 dated August 5, 2009 to suspend liquor licence number 800642 (the "licence"), issued to 4062906 Canada Inc. (the "Licensee"), operating as SUITE 34, 34 Clarence Street, Ottawa, Ontario, K1N 5P3, (the "establishment" or the "premises"), on the basis of an alleged violation of section 43 of Ontario Regulation 719/90 (the "O.Reg"), made pursuant to the Liquor Licence Act, was held on January 26, 2010 in the City of Ottawa.
Decision
- The Board FINDS the Licensee violated section 43 of the O.Reg. Reasons follow
Preliminary Matters
As a preliminary matter and on consent of all parties, the Board ORDERED the exclusion of witnesses.
Ms Bradley, counsel for the Licensee, stated that the Licensee agreed that there had been a violation of section 43 of the O.Reg. The Licensee had taken corrective steps to address the problem and wished to proceed with issues related to sanction. Therefore, on the consent of the parties, evidence was called on that issue only.
Registrar's Evidence
Stephane Godard, an inspector with the Alcohol and Gaming Commission of Ontario, ("AGCO") since May 1994, stated he arrived on the premises on April 26, 2009 at 12:37 a.m. He attended with AGCO Inspector Marcotte, two Ottawa police officers, Sergeant Mallet and Police Constable Dewar, as well as Frank Denatie, a fire prevention officer. They were all part of a joint forces operation.
On arrival, the witness walked through the premises, from the main floor to the mezzanine level and up to the roof-top patio.
He noted a line up of people on the staircase to the patio and security posted at the entrance to the patio. The staircase is narrow and can accommodate approximately two people, side-by-side. Security told the Inspector there were 56 people on the patio, which was licensed for 60.
Visually, he noted that there appeared to be more than 60 and decided to do a count, asking the doorman to hold the door. Walking from the door, around the centre bar and back to the door to count, he recorded 115 people on the patio.
A second count was done after some patrons left the patio and the number was 103 persons.
The Manager, Tami Varma, was present and advised of the two counts. She was invited to do a count, using the same technique and a mechanical counter. She counted 98 persons.
The witness stated he informed Ms Varma that he would be submitting a report relating to being over-capacity. He left at 12:56 a.m.
On cross examination, he stated he had been at the premises before and there was a history of overcrowding that occurred three or four times over the last four years. He stated that the capacity of an area is determined by the building department of the city.
He acknowledged that previous problems related to the location of the bathrooms on one floor, used by patrons from other floors.
He stated that it was the responsibility of the Licensee to manage capacity, such as the need to manage if it rained causing people to come inside.
In response to questions from the Board, he stated that over-capacity was not evident on other floors. Staff was cooperative and security at the patio seemed confident that the patio was not over-capacity. He noted that the patio is large and it would take a lot of people to look crowded.
In response to the questions from Ms Taylor, Mr. Godard stated that he knew an application was being processed to expand the patio capacity.
Licensee's Evidence
Andreas Ruhs was hired in 2006 as security and had been promoted to Risk Manager and assistant to the Manager. He stated that he had training through an employer, a Tactical Communication course and a security course for university basketball games.
He indicated that his employer emphasized patron safety as it relates to over-capacity. As Risk Manager, he trained new security and on any night walked around every half hour to check numbers and monitor patrons inside and out.
On April 25, 2009, the patio would have been open for the second weekend. Six security would have been on duty at specific posts. Kyle Torrance was at the patio door.
He stated that he felt they were well prepared and ready for the joint forces team. He did not know how the over-capacity had occurred until Mr. Torrance told him later that he had left his post. This was against policy and as a result he and Mr. Torrance lost their jobs.
On cross-examination, he stated he was outside just after midnight and clarified that smokers use a special outside area and cannot take drinks with them.
He stated that the patrons are kept in a single line when waiting on the stairs to go to the patio.
In response to questions from the Board, he reviewed the role and location of the eight security on duty. Communication between security is done via laser pointers or hand signals. The security at the top and bottom of the stairs are able to see each other. He stated that he assumed people on the stairs would be counted in either the patio or mezzanine counts.
Kyle Torrance worked for the Licensee for six months as security and had training in Smart Serve and Tactical Communication.
His training emphasized dealing with intoxicated persons and with monitoring capacity to ensure safety. April 25, 2009 was the first time he had been assigned to the patio door and he was advised to ensure capacity did not go over 60 persons. He stated there were one or two others on the patio counting. His count that night was between 55 and 60 persons.
He admitted he did not follow protocol when he went to the bathroom and then was delayed about five minutes due to a phone call on a personal matter.
When he returned, he noted that they seemed over-capacity and there were still people lined up on the stairs. As he prepared to do the count, the Inspector arrived.
Mr. Torrance admitted that he was in a "bad mental space" that night, did not get someone to relieve him and had never done this before.
He was informed that there would be a discussion later about the incident and then was terminated.
He stated that the bathrooms were on the mezzanine level. When he came back there was still a line-up, but that it was smaller.
On questioning, he stated that he did not include the people on the stairs in his counts and had not signalled the other security about the problem with capacity.
He admitted that it was an error in judgement to think he could handle the situation on his own, doing the count and asking people to leave.
He stated that he did not converse much with the inspector. He told the inspector that he had to leave his post and that the count may not be right.
In response to questions from the Board, he clarified that he was away from his post for five to seven minutes. At the time there were about 15 people on the stairs. On his return, there were five to seven people on the stairs.
Tami Varma has worked for the Licensee for three and one-half years, beginning as a hostess and now working as a General Manager. She received training in all venues, including a recent AGCO course that was mandatory for staff.
In answer to questions about job responsibilities, she stated that the Risk Manager is head of security, ensures the job is being done correctly to keep the building safe for staff and customers. This includes half hourly checks for capacity, using a mechanical clicker.
At the beginning of an evening all protocols are reviewed with staff.
When the inspector arrived, she noted that Mr. Torrance was at his post with a counter. She stated that she was "appalled" to learn the count when completed by the inspector.
In response, Mr. Torrance was removed from his post, told there would be repercussions and patrons were removed from the patio.
Since then, a supervising Risk Manager has been hired, security must be licensed and there is mandatory training. She emphasized that at monthly meetings, staff are told over and over to ensure compliance with capacity numbers.
Ms Varma indicated that capacity numbers have increased inside and patio capacity has decreased to ensure patrons can be accommodated if they come inside. As well, there have been renovations to address the issue of patrons using bathrooms on another floor and impacting counts. She stated that hallway counts are part of the downstairs count.
These changes were done in August 2008 and this is the first incident since then.
She stated that two wonderful employees lost their jobs because of this unfortunate incident.
On cross-examination, Ms Varma confirmed that a new risk manager with 12 years experience had been hired by the company. She stated that it is expected that the Risk Manager do a count every 30 minutes, using either a mechanical counter or counting manually. Incidents are documented in a log book.
She stated that at the time of the inspection, she was not aware that Mr. Torrence had left his post. She confirmed that if another security had seen him leave, she would expect that his absence would be reported.
Registrar's Submissions
It is clear that the patio was overcrowded and this has not been denied. The problem is not related to an individual but rather it is systemic.
Ms Taylor stated that the Licensee served a 14-day suspension in August 2008, involving five incidents of overcrowding that occurred between September 22, 2007 and May 31, 2008. It had only been 11 months since the last incident and overcrowding is clearly a problem.
When Ms Varma did her patio count, there were 98 patrons. The inspector had already done a count of 115 people, before some had left.
Three employees were not doing their jobs. Mr. Torrance was not manning the door, Mr. Ruhs was not counting every half hour as he should have done and the mezzanine doorman was not looking up to make sure his colleague was in place at the patio door.
Ms Varma stated that she expected her staff to work as a team. This did not happen. Mr. Torrance had to pass the security on the mezzanine to reach the bathroom and the evidence was that this security person would be able to see Mr. Torrance clearly at the patio door.
He did not look up to make sure his colleague was in place. Security at the mezzanine did nothing.
The evidence indicates that the people on the stairs were not being counted. Line-ups on the stairs is also an issue of safety.
Less than a year after serving a 14 day suspension for overcrowding, it happens again.
The overcrowding occurred on the rooftop patio which is the most difficult area to evacuate, making this a significant safety issue.
Ms Taylor stated that as a general deterrence, it should be noted that this Licensee is a part of the Ottawa business community. As a specific deterrence, with respect to this establishment, a significant sanction needs to be imposed. The Registrar is seeking a suspension of 25 to 30 days and asks for an additional weekend as a matter of progressive discipline.
Licensee's Submissions
Ms Bradley emphasized that the Licensee has admitted to the allegation and therefore, the Board is only dealing with the sanction. The Licensee feels 30 days is unfair and unreasonable given the efforts taken since that night. She pointed out that a four week suspension puts 27 people out of work.
She stated that this is not a systemic problem requiring progressive discipline, but rather a unique situation that occurred under totally different circumstances.
She indicated that the Licensee is a responsible owner within the Byward Market and takes its responsibilities seriously.
Since 2008, the Licensee has done everything possible to make sure there would not be a situation of overcrowding again. Capacity levels were changed and renovations done.
This incident now being considered, involved a personal situation and was impacted by personal problems. It is impossible to prevent that from happening. Regardless of the training, someone may have a problem at home and may not be thinking clearly.
She stated that although a 30 day suspension may be appropriate in some situations, but is not fair or reasonable in this circumstance and is not necessary for deterrence. The Licensee fired the staff, enforcing a strong policy, that "if it happens, you are out the door." More experienced staff were hired, training increased and everything in their power done to ensure it never happens again.
Mr. Torrance had a momentary lapse due to personal issues. This is not systemic. Senior staff had done a visual check and looked at security counters about 20 minutes before. There is no evidence of a systemic issue.
She stated that the people on the stairs were part of the overall count for the premises and there no evidence that the capacity of the premises was exceeded.
Ms. Bradley said that there was evidence that the company was doing everything to prevent over-crowding. Staff expected the inspection team, and knew it was a 'swat team' 0-tolerance day. The Licensee had an experienced team on high alert. To have this happen, indicates it was a unique incident.
Ms Bradley asked that the sanction be minimal, give the unique personal circumstance that occurred.
Registrar's Reply
In reply, Ms Taylor stated that this establishment has had six occasions of overcrowding with less than a year between the last two incidents.
This momentary lapse resulted in the patio, licensed for 60, being over capacity by 55 people on the first count and 38 people when Ms Varma did a follow up count.
Only 15 people were in line when Mr. Torrance left his post.
There was no radio communication and mezzanine security did not keep contact with the patio security. This is a breakdown that is an example of where the checks and balances failed.
The sanction needs to show progressive discipline under the circumstances.
Reasons and Order
The Board has carefully reviewed and considered the evidence, exhibits and oral submissions of both parties in this matter.
It has been agreed by the parties that there was overcrowding and therefore a breach of section 43 of the O.Reg. There was no dispute on the initial count done by the inspector and that during the repeat counts some patrons had left the patio, accounting for the variances in numbers. The Board therefore FINDS that there was a violation of section 43 of the O.Reg on April 26, 2009. With the agreement of all parties, it was understood that the only matter for the Board to address is the appropriate sanction.
Overcrowding is a very serious public safety issue, especially in the circumstance where the patio is on the rooftop and there is only one narrow staircase leading to and from the area.
There was no evidence that the serving staff on the patio or security staff on the mezzanine level took note of the increasing numbers of patrons on the patio that occurred over a short period of time, nor did the security on the mezzanine level notice the absence of security at the patio door.
The Licensee's counsel stated that this was a unique circumstance resulting from one staff person dealing with a personal situation that night. The Board accepts the evidence that a valued employee was dealing with a personal matter, but the Board agrees with the Registrar that there remain concerns that that the Licensee continues to have gaps in security that have not been addressed.
In particular, the Board notes that security, in a 3-level building, do not have radio communication, but rely on laser pointers and hand signals to communicate. As well, there was no system in place to ensure security had regular breaks or could easily communicate the need for a break.
Although security at the patio is to be in view of the security at the mezzanine level, it is not known if the absence of Mr. Torrance was ever noted by mezzanine security or if this security person even noticed the line up of patrons gaining access to the patio.
Although the General Manager stated in evidence that the Licensee promotes a team approach, the Board is also concerned about the absence of a response by serving staff on the patio when the patrons on the patio almost doubled in number in a short period of time.
The Board accepts the clear and concise evidence of the Licensee's witnesses that immediate steps were taken to respond to the overcrowding. The Licensee took a quick and strict response to the overcrowding situation on April 26, 2009. Two employees were terminated, new experienced staff were hired and the education and training on overcrowding was intensified. The board is satisfied that the follow-up training has been improved.
Given the circumstances of the breach and the responsiveness of the Licensee, the Board finds that a 25 or 30 day suspension is too harsh.
As well, the Board acknowledges that the previous overcrowding issues occurred, in part, due to the location of the bathrooms and the challenge of doing counts when patrons of other floors were coming to one level to use the bathroom facilities. The Licensee alluded to the fact that this problem was addressed during renovations.
In coming to a decision to impose an eighteen day suspension, the Board has taken into consideration that there were no other allegations or incidents reported at the time and staff took immediate steps to address the overcrowding situation. The Board also notes that there has been increased emphasis and ongoing education relating to overcrowding controls for all security staff.
The Board concludes that an 18 day suspension will appropriately satisfy the guiding principles of specific and general deterrence, given the particulars of this case.
Order
Therefore, the Board ORDERS that liquor licence number 800642, issued to 4062906 Canada Inc., operating as SUITE 34, 34 Clarence Street, Ottawa, Ontario, K1N 5P3, be suspended for EIGHTEEN (18) 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 this decision.
DATED AT TORONTO THIS DAY OF , 2010
DAVID C. GAVSIE, CHAIR, AGCO JOAN LOUGHEED, BOARD MEMBER