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 FINDINGS
Panel: David C. Gavsie, Chair, AGCO Jacqueline Castel, Board Member
Decision Date: February 4, 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. 141 Casual Restaurant Systems Inc. (c.o.b. Philthy McNasty's) (Re), [2009] O.A.G.C.D. No. 19
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”), was held in Toronto on December 15, 2009.
Decision
- The Board FINDS that the Licensee contravened section 45.1 of the O.Reg. 719/90 and DISMISSES the allegations under subsection 14(1) of O.Reg. 58/00. Reasons follow.
Preliminary Matters
- The Board ordered that witnesses be excluded on consent.
Registrar’s Evidence
Inspector Jade Leadbetter has been an Alcohol and Gaming Commission of Ontario (“AGCO”) inspector since 2004 and is currently the local inspector for the entertainment district. She was conducting inspections in the entertainment district on March 28, 2009 with AGCO Inspector Fernando and Detective Constables Gravette, Nunes and Evelyn of the Toronto Police Services’ Vice Unit, 52 Division, all of whom were working in plain clothes.
Inspector Leadbetter took notes of her observations, at the time of the inspection or shortly thereafter, which she was permitted to use to refresh her memory at the hearing. The notes, dated March 28, 2009, were filed by Mr. Morris and the Board entered them as Exhibit 1.
On March 28, 2009 at approximately 2:40 a.m. Inspectors Leadbetter and Fernando were travelling north on the east side of Peter Street towards the establishment. Officers Greavette, Nunes and Evelyn were walking behind them. Inspector Leadbetter observed a large group of between 80 to 100 people “spill” out of the front doors of the establishment. She explained that she used the word “spill” to convey that they were not exiting in an orderly manner. Instead, they were exiting quickly and en masse, with a lot of pushing and shoving.
About 30 or 40 of the people who exited immediately began fighting when they got outside. She observed some of the men remove their belts, wrap them around their knuckle area, and then punch other combatants. She observed items of clothing being ripped. The large crowd was on the sidewalk as well as the road, impeding traffic movement. Cars were honking their horns.
She did not observe any Security outside during the altercation. The only people she observed trying to stop the fight were other patrons. She has attended the establishment on previous occasions and typically one or two security officers are stationed at the front door to check identification.
The altercation lasted for over a minute. Uniformed police officers attended about a minute after the fight erupted and dispersed the crowd.
Once the uniformed police officers arrived, she and Inspector Fernando entered the establishment. She observed staff in the hallway leading to the dance floor. She also observed staff rushing around clearing the signs of consumption and service. Inspector Fernando told her she overheard a bar back inform customers of their presence.
Inspector Leadbetter spoke to the manager on duty, Omar Farah, and advised him of safety concerns associated with the bar back identifying them to patrons, as well as of the contravention. He seemed disinterested and in a rush, as he was interjecting when they were speaking and looking around. They exited the establishment at 2:53 a.m.
On cross-examination Inspector Leadbetter admitted that the entertainment district is very crowded and busy when the clubs close, but she indicated that patrons typically exit establishments in an orderly fashion. The exit of patrons from the premises which she observed was chaotic.
When she was walking towards the establishment on the date in question, she does not recall the sidewalks being jammed with people.
This is London is located about 100 feet down the alleyway from the establishment. Light Lounge is located on the west side of Peter Street. Light Lounge is smaller than This is London and the establishment.
Inspector Leadbetter does not know if any of the combatants were arrested.
In response to a question from the Panel, Inspector Leadbetter testified that she saw patrons who were fighting with blood on their faces.
AGCO inspector Neline Fernando has been an inspector since 2006 and was involved in the incident of March 28, 2009 involving the establishment.
She took notes of her observations at the time of the incident or shortly thereafter and was permitted to refer to them at the hearing to refresh her memory. Copies of the notes, dated March 28, 2009, were filed by Mr. Morris and the Board entered them as Exhibit 2.
Inspector Fernando was walking towards the establishment at 2:40 a.m. with Inspector Leadbetter and three plain clothes officers from Toronto Police Services’ 52 Division, Detective Constables Nunes, Evelyn and Greavette. She observed a large group of about 100 people rush out of the front doors of the establishment. It was not an orderly exit.
She was standing about 30 feet from the front doors of the establishment. She observed physical fighting. Male patrons removed their belts, wrapped them around their fists and physically beat each other. She observed punching and patrons holding each other by their clothing. She heard female patrons screaming. She observed patrons with bloody faces and swollen eyes, as well as one man with a shirt which was completely ripped.
About 15 people were initially involved in the fight, but by the end as many as 30 people were fighting. The fights spilled onto the opposite side of the street and into the alleyway. People in cars were honking their horns.
Before the rush of people exiting the establishment, there was vehicular traffic on the street. There were some people on the street but not too many, and there was no fighting or screaming on the street.
Inspector Fernando and Leadbetter entered the establishment. She observed someone who she believed to be a security officer, wearing a black jacket, outside the main doors. The individual in question was not doing anything to control the crowd. On entering, she observed a number of people in the hallway who she believed to be security officers. They were dressed in black and had ear pieces. She does not recall if the individual she observed outside had an ear piece. She did not observe any patrons in the hallway.
She and Inspector Leadbetter proceeded into the licensed area of the establishment and conducted a walk through. She observed a bar back physically removing bottles and cups from patrons’ hands, even though it was not yet 2:45 a.m. She heard the bar back tell patrons that she and Inspector Leadbetter were inspectors and witnessed him point to them. Patrons became irate because drinks were being taken away from them. A male patron walked by her and said, “Fuck you guys.”
Inspector Leadbetter asked a security officer to get the manager. Omar Farah, the manager on duty, attended shortly thereafter. Inspector Leadbetter told him about the fight and about the bar back “ripping” bottles from patrons’ hands and identifying the inspectors to patrons. Mr. Farah seemed disinterested and kept interrupting Inspector Leadbetter with “yeah, ah hum”, before she could finish her sentences.
She attended the establishment on more than one occasion before the incident of March 28, 2009 but does not know whether she has ever met the Licensee. They departed the establishment at 2:53 a.m.
On cross-examination, Inspector Fernando admitted that 2:40 to 2:45 a.m. are peak times for patrons to be exiting over 100 clubs in the entertainment district, but indicated that they are not all in the direct vicinity of the establishment.
She does not know the capacity of the premises but indicated that it is a mid-size establishment. She is familiar with the club, This is London, on the same street as the establishment, but she does not know its capacity either.
She admitted that there is normally a lot of pedestrian traffic in the entertainment district when the clubs are closing, but indicated that on this particular night the sidewalks were not crowded before patrons began rushing out of the establishment.
She admitted that although she testified to hearing females screaming she did not put this in her notes.
She did not see anyone fighting inside the doors of the establishment.
Initially there was a large fight involving about 15 people. Then, some people separated from the original group and started fighting as well.
She is positive that the patrons who were in the crowd and fighting did not come from This is London.
She observed the fight for two or three minutes outside before entering the establishment. When they entered, there were uniformed police officers on scene.
Detective Constable (“D.C.”) James Greavette has been a police officer since 1998 and has been working in the Vice Unit of the Toronto Police Services’ 52 Division since March 2009. He took notes concerning the incident of March 28, 2009, at the time of the incident or shortly thereafter, and was permitted to use them at the hearing to refresh his memory. Mr. Morris filed the notes, dated March 28, 2009, and the Board entered them as Exhibit 3.
He was conducting a routine inspection with two other police officers, Officers Evelyn and Nunes, and two AGCO inspectors. They were walking north on Peter Street. The AGCO inspectors were walking ahead of them so that they were closer to the establishment. While walking, he heard vehicles honking their horns on Peter Street. North and south bound traffic was stopped due to people fighting on the road. He observed scuffles breaking out on the sidewalk at 137 Peter Street.
He observed the doorman of the establishment grab a patron involved in the altercation and “deposit” him on the west side of the street. The doorman then walked back to the bar and stood at the doorway with two other staff members. The doorman who grabbed the patron was about 6”2, 260 to 270 lbs, and was wearing dark clothing. The two other men he was standing with at the door were wearing dark overcoats. He does not remember what they looked like but believed they were staff because of their demeanour.
As he approached the establishment, he observed two patrons running down the road. One patron wrapped a belt around his wrist and chased another guy down Richmond Street. He tried but was unable to identify either of them.
Next he observed mounted police officers, officers on bikes and other uniformed police officers in vehicles arrive and disperse the crowd outside the establishment. There were 10 to 15 uniformed police officers.
There were about 100 people outside the establishment. At least 25 to 30 people were fighting. He observed the fighting for about one minute before the uniformed police officers arrived.
He did not observe security from the establishment try to control the crowed but admitted his attention might have been drawn elsewhere.
He left the area at 3:00 a.m. and by this time the incident was over.
On cross-examination, he stated that he has worked as a paid duty officer for several bars in the entertainment district.
He does not know the capacity of This is London but indicated that it is a big establishment.
He admitted that his first observation was of a large crowd outside the establishment and that he did not actually observe people exiting the establishment.
Normally he would wait for uniformed officers to break up a fight unless serious bodily injury was involved. On this occasion, he waited for uniformed police officers to arrive and did not attempt to break up the fight himself.
He denied that Security should step back when the police become involved. He indicated that he has been involved in cases where security officers have assisted police with crowd control.
He admitted that he did not make a note of the size of the crowd or the number of people fighting.
He has seen worse fights than this one, but indicated that this fight was among the worst.
On re-examination he stated that This is London caters to an older crowd and has a more consistent clientele than does the establishment. The clientele of the establishment varies depending on different promotions. On the night in question, the clientele of the establishment was younger than the clientele of This is London.
D.C. Joel Evelyn has been a police officer for over nine years and is currently assigned to the Vice Unit of the Toronto Police Services’ 52 Division.
He took notes concerning the incident of March 28, 2009, at the time of the incident or shortly thereafter, and was permitted to refer to them to refresh his memory at the hearing. Mr. Morris filed the notes, dated March 28, 2009, and the Board entered them as Exhibit 4.
At 2:40 a.m. on March 28, 2009 he was standing on the east side of Peter Street just north of Richmond Street with D.C. Nunes and D.C. Greavette. They were all wearing plain clothes. He was also with AGCO Inspectors Leadbetter and Fernando, but they were walking a bit ahead of him and the other two police officers.
He observed an unusual backlog of traffic on Peter Street and heard a lot of yelling, screaming and honking of horns. Next he observed a large fight erupt as people were pouring out of the front doors of the establishment. Traffic was stopped and there were about 125 people in front of the establishment. He observed people punching each other and rolling on the ground.
One of the members of his group put a call in to the uniformed officers patrolling the area to attend. He does not remember who made the call. It took the uniformed officers about two minutes to arrive.
He observed the doormen of the establishment trying to stop the fight. He thinks some of the doormen were wearing security shirts and ear pieces.
He left the area at about 3:00 a.m. by which time the uniformed officers had dispersed the crowd.
On cross-examination, D.C. Evelyn stated that he did paid duty work in the entertainment district five or six years ago. He is familiar with the entertainment district.
He admitted that at 3:00 a.m. in the entertainment district on a Saturday night there can be as many as 100,000 people on the streets.
D.C. Evelyn stated that he observed people exiting the establishment fighting. The fight did not originate at another club. Whatever happened outside began inside the establishment.
He observed a number of doormen trying to separate individuals who were fighting. The doormen were moving around. Some were in the street and others were south of the doorway.
D.C. Zita Nunes has been a police officer for 19 years and is currently assigned to the Vice Unit of the Toronto Police Services’ 52 Division.
She took notes concerning the incident of March 28, 2009, at the time of the incident or shortly thereafter, and was permitted to refer to them to refresh her memory at the hearing. Mr. Morris filed the notes, dated March 28, 2009, and the Board entered them as Exhibit 5.
At 2:40 a.m. on March 28, 2008, while walking north on Peter Street with D.C. Greavette and D.C. Evelyn, she observed a large crowd exciting the establishment and spilling onto the sidewalk, the curb lane and the passing lane of Peter Street. There were about 100 people in the crowd.
She heard women screaming and saw different groups of people fighting. Traffic was stopped on Peter Street, which has four lanes, because of the crowds and people fighting. She observed guys running around with ripped shirts. She also observed one guy take his belt off, wrap it around his hand, and use it to punch another guy in the crowd. Some of the men were bleeding from the face. Others had black eyes.
At first she did not see any Security from the establishment, but then she noticed one security officer who she knew grab a male, who had a belt around his wrist and was involved in one of the fights. The security officer escorted the male across the street. The security officer was about 6”2 and had a heavy build, short hair, a thin beard and light skin. She believes the security officer noticed her, after grabbing the guy, because she was standing in the middle of the road.
Community Response Unit Officers on bikes, mounted officers and Toronto Anti-Violence Intervention Strategy officers arrived and dispersed the crowds. At this point, the security officer she had observed escorting a male across the street went inside the establishment. He was attempting to keep people from re-entering the establishment and from blocking the doorway.
AGCO inspectors Leadbetter and Fernando went inside to conduct an inspection, while D.C. Nunes and the two other police officers accompanying her stayed outside to watch the uniformed police officers disperse the crowd for about 20 or 25 minutes.
When asked what she expects Security to do to clear an establishment, she indicated that two or three security officers should stand outside and tell the crowd to keep moving, so that they do not congregate. This did not happen on the night in question. The only security officer she observed was the one who escorted the male across the street.
On cross-examination, she indicated that it is possible there were three security officers outside, as she admitted that she could not see everything because of the large crowd.
She worked as a paid duty officer in the entertainment district about two and a half years ago.
The establishment is not a mega club.
She did not see a cord in front of the establishment used for crowd control on the night in question.
She observed multiple fights within 10 feet of the front doors. The first fight she observed broke out on the sidewalk by the curb.
She did not see anyone being arrested or taken into custody that night.
Licensee’s Evidence
Yohannes Mulugeta works as a part-time security officer for Metropolitan Security, a private security company which contracts with various clubs and other venues to perform security. At the time of the incident, he has been assigned to perform security at the establishment for about one year. He also has a full-time day job not related to security. He is 27 years of age, 6”6, and 293 lbs.
On March 28, 2009 he was the head of door Security at the establishment. When performing security at the doors, he wears a black leather jacket or parka, depending on the weather. He was probably also wearing a long sleeve black shirt, which says Security on it, and an ear piece.
On Friday/Saturday night there are nine or 10 security officers working in the establishment. Three security officers work the doors. There are two lines at the doors, one for table service and the other for the guest list. One security officer works each line. The third security officer is responsible for directing people to the appropriate line. The security officers at the doors check identification, dress code compliance and perform searches for drugs/weapons, etc.
On entering the front doors of the establishment, there is a corridor leading to a cash counter where patrons pay the cover charge and are then admitted into the club. Typically only five patrons are allowed in the corridor at any one time.
There is a velvet rope, about four feet in height and secured with six metal stands, parallel to the establishment. Patrons can exit to the right or left of the rope. The rope stays up all night so people do not encumber the sidewalk or street. If you walked straight out of the establishment you would hit the rope.
The capacity of the establishment is 190. He performs the count. On March 28, 2009 there would have been less than 190 people in the establishment. He estimates there were about 168 people in the establishment. Some people departed at about 1:00 a.m. and some more departed at about 1:30 a.m. A lot more people begin to exit at 2:00 a.m. At 2:30 a.m. the lights are turned on and the music is lowered and more people leave.
He is not aware of any problems inside the establishment on March 28, 2009.
This is London, Embassy and Lite are all bigger clubs, each of which has a capacity of about 1,000 people. Peter Street turns into a big mess between 2:00 a.m. and 2:45 a.m., with patrons exiting from all of these big clubs, and the police seal off the street. He refers to it as the “wild west” on Peter Street.
At 2:40 a.m. on March 28, 2009 a couple of combatants who were not patrons of the establishment tried to stop in front of the establishment. He told them to move along and when they didn’t listen he separated them. He separated them by putting his arm on the shoulder of one of the combatants and telling him, “Don’t do it here.” After separating them, he went back to his position at the entrance. All three security officers at the entrance handled some of the people. There were four to eight people fighting in about two different fights. None of them were patrons of the establishment.
Uniformed police officers arrived as the fight was dying down. It took the police one to three minutes to arrive, from when the fight broke out. Usually he steps back when the police arrive. The police asked him if everything was okay and he said it was, and they said “good job”.
The cord remained up all night. By 3:00 a.m. the street was very quiet, like a “ghost town”.
On cross-examination, he admitted that he first became aware of these proceedings in early November 2009.
He indicated that Michael Konlick owns the establishment. He has never heard of Doris Mifsud.
He did not make any notes regarding the incident. He keeps a log book but made no entries in the log book regarding the incident.
When he indicated that the capacity was about 168 on the date in question, he admitted he was estimating based on the typical capacity for a Friday night/Saturday morning. He has no record of the capacity on March 28, 2009 and he was working outside that night, in any event.
He only observed two fights, each fight involving two people, on the date in question. There were a total of about four people fighting. He denies that 25 to 30 people were fighting.
He broke up one fight. He did not have to grab anyone to break up the fight. The fight took place to the left of the club about 10 feet from the front door in a canopy. He didn’t see the fight start.
The second fight was right in front of the establishment, but outside the rope. There were about eight people in this group, but only two people were swinging their hands and punching each other. The patrons involved in this fight came from the north and south, not from inside the establishment. He and his partner broke up this fight as well. His partner, on the night in question, no longer works for the company.
The first fight was very minor and the second fight was “pretty much the same”. Other than these two fights there were no other problems that night. Aside from the two fights, it was calm outside.
He did not see anyone with a black eye, a bloody face or torn clothes on the night in question. He did not hear any women screaming or yelling. He did not see anyone wrapping belts around their hands to punch other people. He also denied that there was a surge of people exiting the establishment.
On re-examination, he clarified that the canopy he referred to in cross-examination is a metal/wood construction for safety purposes on the sidewalk to the left of the club. The presence of the canopy makes the sidewalk tighter. The canopy begins about fifteen feet south of the establishment’s doors and extends all the way to Richmond Street.
None of the people he saw fighting were patrons of the establishment.
Registrar’s Submissions
The evidence clearly shows a large group of people exited the establishment in a disorderly fashion. There was no credible evidence that staff were encouraging them to leave because of the lateness of the hour. Nor was there credible evidence that staff was controlling their behavior despite the fact that they were bent on starting fights. Staff members must have been in the hallway and outside the front door at the time. If they were not, they should have been. Because of the failure of staff to control the conduct of the exiting patrons, a very violent and dangerous situation ensued on the street.
It would appear that Security stood around and did nothing but clear the entranceway once things got out of hand. The one security officer who escorted a patron across the street did so only because he knew the police were present. His intervention was minimal and did not control the situation. Only one police officer felt that more than one security officer was involved in separating combatants. His evidence was somewhat general as he was more focused on describing the fight itself. None of the other inspectors and police officers made the same observations. In any event, any actions taken by Security after the fighting started were taken too late to control the situation.
Mr. Mulugeta testified that he was head of door staff that night and that there were nine to 10 security officers working that night. He testified that the traffic in front of the establishment was a mess. No one else saw this. He testified that he saw combatants outside who did not come from the establishment. They came from the north and south. No one else saw this. He testified that there were only two fights involving a total of eight people and four combatants. No one else saw this. He testified that there were no other fights, no black eyes or bloody faces or torn clothes or women screaming or combatants wrapping belts around their hands and punching people. Everyone else saw this.
Mr. Mulugeta testified that the establishment was below capacity (168). Then he admitted in cross-examination that they could have been at capacity until after 2:00 a.m. and that he had no idea how many were inside at 2:40 a.m. Curiously, he failed to bring the door sheet with the number of people who entered the establishment. He was not the door person observed by D.C. Nunes taking the patron across the street on the night in question.
Finally, he testified that there was no surge of people leaving the establishment and starting to fight. This is a lie. His testimony in total, including his unsubstantiated claim to break up a fight which involved people from elsewhere, should be disbelieved.
There was no evidence of reasonable measures being in place or reasonable efforts made to deter the disorderly conduct engaged in by patrons leaving the premises. It was basically a free for all.
In Little Texas Bar & Grill, the Board found a breach of section 45.1 where patrons left the licensed premises and engaged in disorderly conduct, and where the licensee essentially abdicated to the police any responsibility to deter such conduct. In Philthy McNasty’s, the Board found a breach of section 45.1 where the police were forced to take the brunt of the responsibility for keeping the crowd in the parking lot and street under control. The present case is even worse because the fighting started as soon as the patrons left the establishment.
Therefore, the Registrar submits that the Licensee breached section 45.1 of O.Reg. 719/90.
Licensee’s Submissions
There was no evidence from anyone that there was a problem inside the establishment that night.
Mr. Mulugeta, whose credentials are impeccable, and does not work for the establishment, indicated (not contradicted) that there were nine to 10 security officers working on a “slow” night for the establishment, with thousands of patrons coming out of area clubs. He indicated that traffic was a mess.
To exacerbate the situation, there is a construction tunnel from the corner on the south, right up to the establishment. This has been there for about two years and serves to funnel pedestrian traffic into tight quarters, encouraging disorderly conduct.
Mr. Mulugeta was in a position to see the inception of the problems and the Registrar’s witnesses coming from the south were not.
Mr. Mulugeta and one other security officer intervened with several would be combatants, who were not patrons of the establishment. They were under no obligation to do so. They properly backed off with the presence of the police. It was clear on the evidence that only small numbers of patrons exited at the relevant time. On entry, inspectors found very few patrons and no signs of trouble. Not a single civilian was called to testify that the establishment’s patrons were involved in the altercations.
Mr. Mulugeta testified that uniformed officers spoke to him, investigated the situation, and had no complaint with Security.
Unlike the Little Texas case, reasonable measures were taken by Security that were more than ample to deal with what was a slow night for the establishment. It is not, and never is, a slow night for vehicular and pedestrian traffic at Peter and Queen at 2:40 a.m. on a Saturday morning.
What is clear is that the inspectors and officers walking north on the east side of Peter from Richmond would be looking right through a construction tunnel. Unfortunately, none of these witnesses advised the Board of this and Mr. Mulugeta, for personal reasons, had been unable to meet the establishment’s counsel and so advise in advance. He gave honest and common sense evidence of how this tunnel increases problems endemic to this area at this time. Unfortunately, fights on the sidewalks and roadways do occur with the mixing of patrons from Ultra, This is London and a multitude of club goers heading for parking lots, food vendors, public transit and taxis.
According to Inspector Leadbetter, the skirmish went on for a whole minute before police appeared on bike, foot and mounted. Apparently no one was treated and no one was arrested.
The obvious bias against the Licensee is reflected in the evidence of Inspectors Leadbetter and Fernando. The only complaint they could come up with pertained to clearing signs of service, when it was not yet 2:45 a.m. They also complain that staff were pushing the few remaining patrons out the door, and that one unidentified bar back was rude to them. In addition, they complained about the manager who, at this time, should be attending to clearing the signs of service and the remaining patrons, was rude to them.
Officer Greavette first saw people fighting on the road and did see a doorman intervene and return to his post where two other doormen stood. Without hearing from the uniformed officers, it is totally inappropriate to try and judge Security and complain that they didn’t run into the street and do more. For this officer, or anyone else, to try to identify the combatants as patrons of the establishment because of their age is nonsensical and untrustworthy.
All of the officers (as well as inspectors) have grossly exaggerated the number of combatants in a situation where, as indicated, there were no arrests or injuries treated. At least D.C. Evelyn reported doormen were breaking up fights.
The Licensee agrees that Security were in the hallway and outside the front door, where they belonged, at the relevant time. The Licensee submits that Security did what it could and should have done, to protect their patrons and try to protect the couple of males on the street who appeared to be in difficulty. All this occurred over a period of approximately one minute.
The Licensee submits this is a very questionable case of attaching any misconduct or inaction to the establishment. What we do know is that by 3:00 a.m., as Mr. Mulugeta testified, the busy intersection was dead quiet and there was nothing indicating any problems occurred inside the establishment that night, let alone “spilled” into the street.
Only D.C. Evelyn was fair enough to describe the large mass exit from many clubs at this time. D.C. Greavette indicated that the fight broke out on the sidewalk/roadways and had no idea it was from the establishment. Mr. Mulugeta testified that the front of the club was roped off and the ropes were still intact after the night was over. Any “spill out” would have knocked them over.
There is no credible evidence that there was a breach of section 45.1 of O.Reg. 719/90.
Reply Submissions
Regarding Mr. Barrs’ assertion that there was no evidence of a problem inside the establishment, there was direct evidence of the unruly way in which patrons exited the premises and immediately began fighting. The Board can draw an inference that the “problem” began inside. In any event, section 45.1 does not require proof of disorderly conduct indoors.
Mr. Mulugeta was the head of the establishment’s door staff at the time, and therefore, his conduct has been called directly into question.
There was no evidence that any “construction tunnel” encouraged disorderly conduct. Nor was there any evidence that any “construction tunnel”, if it even existed at the time, caused any problems between the exiting patrons or obscured any sight lines of the officers and inspectors on the night in question.
There was no evidence uniformed officers were satisfied with the conduct of security staff.
If the Licensee thought the testimony of uniformed officers would help it, the Licensee should have called them as witnesses rather than speculate as to their views.
D.C. Evelyn testified that there was an unusual backlog of traffic and that the fighting patrons came from the establishment.
Mr. Barrs filed a short Reply to the Registrar's Reply Submissions. Mr. Morris objected to this filing, on the ground that there is no right to respond to a Reply, but also disputed the allegations contained in Mr. Barrs' response. The Board agrees that there is no opportunity to respond to Reply Submissions; otherwise the process could go on endlessly. As such, the Board did not consider Mr. Barrs' Reply or Mr. Morris' response thereto, except for his objection to the filing.
Reasons and Analysis
Section 45.1, O.Reg. 719/90
At the outset, it bears mentioning, since it was raised in evidence and submissions, that the Board did not place any weight on the inspectors’ observations regarding the bar back or manager’s behavior or the manner in which staff were clearing the signs of service and consumption before 2:45 a.m. None of these observations were in any way relevant to the allegations in the NOP.
For a finding under section 45.1 of O.Reg. 719/90, there is a three part inquiry. First, it must be established that there was disorderly conduct on property adjacent to and in the vicinity of the establishment. Second, it must be established that the persons engaged in such disorderly conduct were patrons of the licence holder or persons attempting or waiting to enter the premises or leaving the premises. And third, it must be established that the license holder failed to ensure that reasonable measures were in place and reasonable efforts were made to deter disorderly conduct and to minimize damage, nuisance or other harm to the adjacent property arising from such conduct.
For the purpose of the first part of the inquiry, based on the evidence of the inspectors and police officers, the Board is satisfied that there was indeed disorderly conduct on property adjacent to and in the vicinity of the establishment. The two AGCO inspectors and three police officers gave cogent, detailed and consistent evidence regarding the nature, size and location of the disorderly conduct, which the Board found to be credible. The Licensee’s witness, Mr. Mulugeta, did not deny that there was disorderly conduct adjacent to and in the vicinity of the establishment, but rather disputed the size of the crowd, the size of the fights and that the combatants were patrons.
The Board does not agree with Mr. Barrs’ suggestion that the disorderly conduct was minor because the fighting only lasted for a minute or two. It was only the arrival of 10 to 15 uniformed police officers, on bicycle, mounted and in vehicles, that caused the fighting to stop and the crowd to disperse. The fact that there were no charges laid does not minimize the magnitude of the disorderly conduct. The submission that none of the combatants required medical treatment was speculation, as there was no evidence on this point. Furthermore, the disorderly conduct was not limited to the fights but also included the manner in which patrons exited the establishment (quickly, en masse, with a lot of pushing and shoving), the women screaming on the street, and the crowds spilling onto the road impeding the movement of traffic.
For the purpose of the second part of the inquiry (i.e., whether the persons engaged in the disorderly conduct were patrons of the establishment or waiting to enter or leaving the premises), Inspectors Leadbetter and Fernando both testified that while travelling north on the east side of Peter Street towards the establishment, they observed a large group of 80 to 100 people rush out of the front doors of the establishment and approximately 30 of these people immediately begin fighting. There was no doubt in their minds that the combatants came directly from the establishment, and they also testified that there was not a lot of pedestrian traffic in the area until patrons started “spilling out” of the establishment. The police officers were walking behind the inspectors and, therefore, not as close to the establishment as the inspectors when the disorderly conduct first erupted. Nevertheless, only D.C. Greavette said he did not observe people exiting the establishment, although he saw scuffles break out on the sidewalk at 137 Peter Street. D.C. Eveyln testified that he observed a large fight erupt as people were pouring out of the front doors of the establishment and denied, on cross-examination, that the combatants came from anywhere but the establishment. D.C. Nunes observed a large crowd exiting the establishment, spilling onto the sidewalk, the curb lane and the passing lane of Peter Street, and then she observed different groups of people in the crowd begin fighting.
The Board found the evidence of the inspectors and two police officers who saw patrons exiting the establishment and the fights originate more credible than the evidence of Mr. Mulugeta, who testified that the combatants were not patrons. The inspectors and two police officers gave consistent, independent evidence on where the combatants came from. The Registrar’s witnesses also took notes of their observations at the time of the incident or shortly thereafter which they referred to at the hearing to refresh their memories. Conversely, Mr. Mulugeta took no notes on the incident, nor did he make any entries in his log book. In addition, he only became aware of these proceedings in November 2009. For these reasons, Mr. Mulugeta’s recollections would not be as accurate as the Registrar’s witnesses who took notes at the time. As such, the Board preferred the evidence of the Registrar’s witnesses when it conflicted with Mr. Mulugeta’s.
In addition, contrary to what was suggested in submissions, Mr. Mulugeta did not testify that the canopy would have obstructed the inspectors and police officers’ sight lines of the entrance, so that they would not have been able to view customers exiting the premises and the fight originate. Nor did he testify that the canopy “encouraged” disorderly conduct. Rather, his testimony was simply that the presence of the canopy made the sidewalk tighter. Furthermore, Mr. Barrs did not cross-examine any of the Registrar’s witnesses regarding the existence of a canopy and, if one existed at the time, whether it obstructed their sight lines of the entrance of the establishment.
The Board did not consider the 24 undated colour photographs of the canopy and entrance of the establishment, from various vantage points, which Mr. Barrs enclosed with his submissions. The photographs should have been introduced as evidence at the hearing, thereby giving Mr. Morris an opportunity to cross-examine on them. In these circumstances, it would be prejudicial to admit the pictures at this stage of the process and the Board declines to do so.
Accordingly, based on the evidence of the inspectors and Officers Evelyn and Nunes, the Board is satisfied that the combatants began fighting immediately upon exiting the establishment and, therefore, were patrons of the establishment.
For the purpose of the third part of the inquiry under section 45.1, the Board must consider whether “reasonable measures” were in place and “reasonable efforts” were made to deter disorderly conduct.
Mr. Mulugeta testified to the staffing levels and some of the security procedures at the club. Specifically, he gave evidence that:
there were nine or ten security officers, all contracted by an outside Security company, working on the night of the incident;
three of these security officers were working the doors;
the Licensee erects a rope with metal stands parallel to the establishment to prevent people from encumbering the sidewalk or street, and patrons can exit to the right or left of the rope; and,
typically only five patrons are allowed in the corridor between the front doors and the dance floor at any one time.
Mr. Mulugeta also testified that there were two fights on the night in question each involving two combatants. He told the combatants in the first fight to move along and when they didn’t listen separated them, by putting his hand on one of the combatants and saying, “Don’t do it here.” Mr. Mulugeta indicated on cross-examination that he and his partner broke up the second fight. When the uniformed police officers arrived, within one to three minutes of the fights erupting, according to Mr. Mulugeta, they asked him if everything was okay and told him “good job”.
None of the Registrar’s witnesses testified to observing a rope parallel to the establishment, preventing customers from walking straight out of the establishment without hitting the rope. If there was, in fact, such a rope in place, the Board believes, on a balance of probabilities, that the crowd of patrons, who were pushing and shoving as they exited, knocked it over. In other words, the rope did not deter customers from spilling onto the sidewalk and street en masse and from impeding traffic on the street. Further, the policy of allowing only five patrons in the corridor (between the front doors and dance floor) at a time could not have been enforced, given the rapid and chaotic exodus of 80 to 100 customers from the club en masse with a lot of pushing and shoving. There was no evidence that the Licensee’s staff were doing anything to deter the disorderly exit of these customers from the establishment.
Inspector Leadbetter did not observe any Security staff outside the establishment on the night in question. She did observe staff in the hallway leading to the dance floor. Inspector Fernando observed a security officer outside the main doors, who was not doing anything to control the crowd. Like Inspector Leadbetter, she also observed security officers standing in the hallway, when they entered. D.C. Greavette did not see any Security outside trying to control the crowd. D.C. Eveyln testified to seeing a number of doormen trying to separate people. He did not explain why he believed them to be doormen. D.C. Nunes saw one security officer, who she knew, grab a male combatant and escort him across the street.
Given the number of people in the crowd and the chaos, the Board is not surprised by the fact that not all of the police officers and inspectors witnessed Security staff from the establishment. Based on Mr. Mulugeta’s testimony, as well as the observations of D.C. Nunes and D.C. Evelyn, the Board believes there were likely three security officers outside, and two of these officers (i.e., Mr. Mulugeta and the officer observed by D.C. Nunes) separated some of the combatants.
Regardless, the presence of these Security staff outside was inadequate to control the crowd and deter the disorderly conduct. It was only when uniformed police officers on horseback, bicycle and in vehicles arrived that the combatants ceased fighting and the crowd dispersed. Further, based on D.C. Leadbetter and Fernando’s evidence, the Board is not satisfied that the security officers were doing all that was reasonable, in the circumstances, to deter the disorderly conduct and control the crowd. Specifically, Inspector Fernando witnessed a security officer at the entrance doing nothing, and both Inspector Fernando and Leadbetter observed Security staff standing in the hallway leading to the dance floor. These security officers, as well as other security officers from inside the premises, should have been deployed to help control the crowd. The Board disagrees with the Licensee’s submission that Security staff must step aside, when police attend, and let the police take over. Unless the Licensee’s staff have been told to step aside by the police, they can play an important role in assisting the police with crowd control, as D.C. Greavette testified. There was no evidence in this case that the police told or even motioned to the Licensee’s staff to step aside.
The Board did not place any weight on Mr. Mulugeta’s testimony about the uniformed police officer’s alleged comments to him because it was uncorroborated hearsay, and Mr. Mulugeta provided no information on the name or badge number of the officer who is purported to have made these comments.
In summary, there was no evidence of any measures taken to deter the chaotic exodus of customers en masse from the club. While there was some evidence that at least two security officers were involved in separating combatants, there was also evidence of security officers standing around at the entrance and in the hallway doing nothing. As such, Security was not doing what was reasonable, in the circumstances, to deter disorderly conduct and control the crowd. Indeed, just as the police officers called for uniformed back-up, the Security staff posted outside should have radioed for Security from inside the establishment to attend and help to control the crowd, particularly given that it was not busy inside.
Therefore, in the circumstances, the Board is not satisfied that reasonable measures were in place and reasonable efforts were made to deter disorderly conduct.
Accordingly, the Board FINDS that the Licensee contravened section 45.1 of O.Reg. 719/90.
Subsection 14(1), O.Reg. 58/00
- The NOP alleges that signage indicated that the establishment was called “Reign”, when no application for name change was received by the AGCO until June 11, 2009. However, no evidence was presented in relation to the allegation. As such, the Board DISMISSES the allegation under subsection 14(1).
Conclusion
For the above reasons, the Board FINDS the Licensee contravened subsection 45.1 of O.Reg 719/90 and DISMISSES the allegation under subsection 14(1) of O.Reg 58/00.
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. The Registrar’s representative may serve and file a reply within three (3) days of the 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 4th DAY OF February , 2010
DAVID C. GAVSIE, CHAIR, AGCO JACQUELINE CASTEL, BOARD MEMBER