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-
1168075 Ontario Limited Applicant
o/a The Grand Night Club
DECISION
Panel: S. Grace Kerr, Board Member Joan Lougheed, Board Member
Decision Date: April 7, 2011
Hearing Location: Sudbury, 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 1068075 Ontario Limited o/a The Grand ) Claude Mario Michel, self- Night Club ) represented
The Application
- The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18034, dated April 29, 2010 (the “NOP”), to suspend for 30 days liquor licence number 30046 (the “Licence”) of 1168075 Ontario Limited (the “Licensee”) operating as the THE GRAND NIGHT CLUB, 28 Elgin Street, Sudbury, Ontario P3C 5B4, (the “premises” or the “establishment”) on the basis of an alleged violation of section 45.1 of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (the “LLA”). A hearing into the matter was held on October 6 and 7, 2010 in the City of Sudbury. The Board received the Registrar’s written submissions in chief and in reply on October 18 and November 3, 2010, respectively, and the Licensee’s written submissions on October 27, 2010.
Decision
- After considering all the evidence and submissions, the Board DISMISSES the allegations. Reasons follow.
Preliminary Matters
Mr. Claude Mario Michel, a principal of the corporate Licensee, appeared on his own behalf and waived his right to legal representation.
An order excluding witnesses was made on consent.
Registrar’s Evidence
The Registrar’s first witness was Constable (“Cst.”) Chris Vitali, a member of the Sudbury Police Force since August 2008.
At approximately 2:15 a.m. on the night of November 8/9, 2009, Cst. Vitali was on uniformed, regular patrol with Cst. Kevin O’Shaughnessy when Sergeant (“Sgt.”) Raymond Ealdama radioed about, and requested assistance for a large disturbance in front of the establishment.
When Cst. Vitali arrived at about 2:19 a.m., he observed about 100-200 people outside the establishment. Other officers were also there. He did not see any staff from the establishment.
According to Cst. Vitali, numerous fights were underway; about 20-30 people were fighting. Other people were walking in the street. The majority of the crowd was just lingering in the area. From his observations, Cst. Vitali concluded that a “large quantity of people” was intoxicated.
Sgt. Ealdama told Cst. Vitali to arrest a student from Cambrian College. The student was later released from Cst. Vitali’s cruiser. The student told Cst. Vitali that he and another fellow had gotten into an altercation over a girl and that the problems had started inside the establishment.
Cst. Vitali described the situation as “complete chaos”: many people were yelling and some had their shirts off. His initial job was to ensure that Sgt. Ealdama, as well as the other bystanders, were safe.
About 10-12 police officers were involved in dealing with the situation, that is, most of the police force operating in Sudbury that night.
Cst. Vitali “stood by” in the area for about one hour after his arrival. He stated that the problems started to quiet down after the police arrived.
In cross-examination, Cst. Vitali agreed that the establishment is only open one night per week, that is, Saturdays. Five establishments located within 3 blocks of the downtown were also open on the night in question.
In response to questions from the Board, Cst. Vitali testified that it took about half an hour to bring the situation under control. The officers did not have to use physical force as the crowd responded to verbal commands.
No property was damaged as a result of the situation, except that a tire in Sgt. Ealdama’s cruiser was punctured.
Some of the crowd left by going either southbound or northbound on Elgin Street; others got into vehicles parked in the parking lot to the west of, and across the street from, the establishment.
Cst. Vitali thought that the situation “could have gotten bad really quick”, since there was a large number of people relative to a small number of officers.
Cst. Vitali did not ask any of the people he spoke with (about 30 in number) where they had come from.
Cst. Vitali left the scene at about 3:10 a.m.
Cst. Kevin O’Shaughnessy has been an officer with the Sudbury Police Services since 2006. His testimony corroborated Cst. Vitali’s in all material respects as to how he came to attend outside of the premises on the night in question,
Constables Vitali and O’Shaughnessy parked their cruiser almost directly in front of the establishment when they arrived at about 2:15 a.m.
Cst. O’Shaughnessy estimated that about 200-300 people were located on the whole of Elgin Street. There was a small scuffle in the parking lot directly west of the establishment. Some of the people were trying to catch cabs or leave in a car. Some were trying to cause trouble, by which he meant that some people continued to fight even knowing that the police had arrived.
Since Sgt. Ealdama had called for help, the officers went to look for him. When the officers found him, the sergeant told them that one fellow had been knocked unconscious. They put that person into their cruiser.
Cst. O’Shaughnessy assumed that the people gathered had been patrons of the establishment based on his experience that there usually are large gatherings there.
He did not recall seeing any staff from the establishment at the time.
About 80 per cent of the “on-duty” Sudbury police force on the night in question was involved in dealing with this incident, according to Cst. O’Shaughnessy.
In cross-examination, Cst. O’Shaughnessy stated that he definitely saw a lot of people outside the establishment who were intoxicated.
The situation was cleared in about 30-45 minutes; he attended his next call at 3:08 a.m.
Cst. O’Shaughnessy did not see a hot dog vendor outside the establishment that night. He confirmed that there is a sub-shop to the north of the establishment (Sub-City), but he has never answered a call to that place in circumstances where there were 200 people outside of it.
The people in the crowd were aged about 19-24 years old.
Cst. O’Shaughnessy decided that the man who had been knocked unconscious was intoxicated because of the odour of alcohol on him, his demeanor and his speech.
Cst. Jack Sivazlian has been a member of the Sudbury Police Services for 19 years.
Cst. Sivazlian also heard Sgt. Ealdama’s radio request at approximately 2:15 a.m. for assistance outside of the establishment on Elgin Street. Although his shift had ended at 2:00 a.m. that night, he felt duty-bound to assist. He was in uniform and operating a police cruiser with Cst. Giommi. The officers parked the cruiser at the northwest corner of Elgin and Beech streets.
Upon their arrival, Cst. Sivazlian observed about 100 people about the roadway and on the east and west sidewalks of Elgin Street. Individuals walking the street blocked north-and south-bound traffic on Elgin Street. The crowd stretched to Elm Street to the south, and as far north as Beech Street.
He observed several people shoving each other. There was also a lot of yelling and profanity.
Cst. Sivazlian helped investigate two males who had been involved in an altercation for assault. According to Cst. Sivazlian, one of the men was intoxicated because there was an odour of alcohol on the man’s breath, his speech was slurred, he had difficulty walking, and he needed the officers’ and a friend’s assistance to walk. The second man was sober.
The two men were taken to police headquarters for lodging and for further investigation. En route, the sober male explained that things had started as a verbal altercation in the establishment; the altercation escalated and went outside. Later, Cst. Sivazlian learned that the victim did not wish to complain so the sober male was released unconditionally.
While escorting the two men to the cruiser, Cst. Sivazlian noted that other people were yelling at the two men and making racist comments. He adjudged that the other people were intoxicated but since there were not enough officers to deal with them he decided to ignore them.
Cst. Sivazlian did not notice anyone outside the establishment that he could readily identify as security or staff. No staff approached them or offered assistance.
According to the officer, the situation was “volatile, tense” because there were issues with the race/culture of the people involved in the fight. According to him, it could have been much worse than it turned out, but for the officers acting appropriately.
In cross-examination, Cst. Sivazlian agreed that he never met the victim of the fight or saw it.
Cst. Sivazlian testified that taunting and saying obscenities is normal behaviour for groups of intoxicated individuals. Sober individuals understand the consequences and do not engage in such things.
He did not see anyone leaving the establishment at 2:15 a.m.
He agreed that Elgin Street, in front of the establishment, is one of the major streets traveled along to get to a residential neighbourhood located to the north of the establishment.
He left the area approximately 8 minutes after his arrival.
In answer to questions from the Board, Cst. Sivazlian said that the numbers he saw on the night in question is consistent with the groups he has seen when the establishment is open and patrons are leaving. When the establishment is closed, people traversing the street in front of it can be loud or obnoxious, but the numbers are much smaller (i.e. a ‘handful’ or about 2-4 people).
The two men arrested were about 19-20 years old. They were exchange students.
Inspector Greg Bergeron testified next. He has been an inspector with the AGCO since 2001, covers the Sudbury/Manitoulin area, and reports to Sgt. Ross of the Ontario Provincial Police (in a unit that is seconded to the AGCO).
Inspector Bergeron was not involved in the November 8/9 incident although he received information from the Sudbury Police Services, and also had follow-up discussions with Mr. Michel, the owner of the establishment, about it.
The Licence covers the Grand Night Club, as well as the adjoining Coyote facility. The total capacity (i.e. for both businesses) is 595 people.
At about 9:40 a.m. on December 1, 2009, Inspector Bergeron received a telephone call from Sgt. Ealdama regarding the incident.
Sgt. Ealdama indicated to Inspector Bergeron that he was not responding to a call about the incident, but rather, was driving towards the Farmers’ Market when he turned onto Elgin Street and observed a large crowd in front of the establishment. He drove his vehicle into the crowd, which then enveloped his vehicle. He activated his lights and siren and exited his vehicle in an attempt to disperse the crowd.
Sgt. Ealdama estimated the crowd at about 150 people. He did not see any staff from the establishment in the area.
Two males were subsequently arrested: one, for public intoxication; and, the other, for assault. Ultimately, both gentlemen were released without charges having been laid, as the victim did not wish to testify.
When Sgt. Ealdama returned to his vehicle, he noticed that one of his tires had been punctured.
Inspector Bergeron telephoned and spoke with Mr. Michel during the afternoon of December 1st, and advised him about the alleged LLA infraction. Right away, Mr. Michel said that he wanted to challenge it. Mr. Michel also told Inspector Bergeron that former (police) Chief Ian Davidson told him that he was not to go outside to deal with these types of situations.
Inspector Bergeron advised Mr. Michel about a new regulation, enacted in 2007, which required establishments to take “reasonable measures” in relation to adjacent property and about the expectations placed upon Licensees as a result.
Mr. Michel told Inspector Bergeron that had his staff known about the disturbance the police would have been called. He also claimed that he was unaware of the new regulation and that the Licence Line publication explaining “reasonable measures” only came out after the incident had occurred. He said that no one had sent him a letter informing him of the (regulatory) change.
In turn, Inspector Bergeron told Mr. Michel that a Licensee has an obligation to educate himself and provided him with Sgt. Ross’s telephone number.
Exhibit 2, which is a copy of the Licence Line publication (Volume 7, Issue 1, 2007), was introduced through Inspector Bergeron. Questions 1 and 2, on page 3 of that exhibit, deal with the notion of “reasonable measures”.
Also, the following copies (or excerpts) of Licence Line were also made Exhibits:
Volume 8, Issue 1, 2008 (Exhibit 3);
Volume 9, Issue 2, 2009 (Exhibit 4); and,
Excerpts from Volume 9, Issue 3, 2009, which is also known as a ‘Tip Sheet’ (Exhibit 5).
According to Inspector Bergeron, Exhibit 5 was mailed to Licensee’s on October 23, 2009 and was posted on the AGCO website on October 30, 2009.
Inspector Bergeron testified that he would expect a licensee to be aware of the availability of Tip Sheets. These documents are prepared to educate Licensees on a variety of topics, to help them meet their various responsibilities as Licensees.
Inspector Bergeron discussed Exhibit 5 with Mr. Michel when he attended the premises for an inspection on October 31, 2009. Their conversation focused on a recent Court of Appeal decision that dealt with the concept of whether a Licensee “knew or ought to have known” in relation to the issue of “permitting drunkenness” and not the issue of “reasonable measures”.
Inspector Bergeron met with Mr. Michel on December 18, 2009, at Mr. Michel’s request. In addition to Inspector Bergeron and Mr. Michel, several other people also attended the meeting, including a city councilor, two members of Mr. Michel’s security staff, the administrator from the building located across the street from the establishment, a Greater Sudbury staff sergeant and police sergeant, the manager of by-law enforcement, the manager of transit operations, the assistant to the city councilor, and Sgt. Ross.
At the (December 18th) meeting, various matters were discussed, such as crowd control, the lack of taxis in the area at closing time, and loitering outside of the establishment because of the hotdog vendor. Mr. Michel re-iterated that the previous direction the police had given him was to not become involved in activities outside of the establishment.
In that meeting, Mr. Michel also indicated that on the night in question he had become frustrated by the fact that Inspector Bergeron had allegedly attended the establishment six weekends in a row, at closing time. Inspector Bergeron said that this was not true.
He had attended for inspections of the establishment 7 times in 2009: on January 11, March 7th, May 23rd, August 23rd, September 20th, October 17th, and October 31st. According to Inspector Bergeron, this is not an unusual number of visits / inspections for this type of establishment.
Inspector Bergeron also testified that, at the December 18th meeting, Mr. Michel indicated that he had not followed the normal closing time protocol, and instead, had kicked all of the patrons out at once, early, because he did not want to deal with the inspector.
Also at that meeting, Mr. Michel indicated that his staff was not aware of the disturbance outside of the establishment on the night in question.
In cross-examination, Inspector Bergeron agreed that he has never seen several hundred intoxicated patrons in the establishment when he has inspected it late at night.
Inspector Bergeron understood that Sgt. Ealdama had driven “a bit of a distance” before he noticed his punctured tire, and agreed it was possible that what happened was just “a flat” (tire).
There have never been any problems with crowds outside the establishment to the caliber of the incident on the night in question either prior to or since then.
Inspector Bergeron agreed that Mr. Michel had asked him to clarify the issue of “ought to have known” (Exhibit 5).
Inspector Bergeron agreed that there has been a change in the corporate structure of the AGCO. For example, the (former) “Enforcement” branch is now called the “Compliance” branch.
Inspector Bergeron did not recall a meeting that took place approximately 6-7 years ago, when Ian Davidson was Chief (of the Sudbury Police Service), when best methods of crowd control were allegedly discussed.
Some of the ideas vetted at the December 18th meeting were offering a shuttle service and placing restrictions on hotdog vendors, although no conclusions were reached at that time.
When Inspector Bergeron has come to inspect the establishment, he has not seen Mr. Michel to be angry or to interfere with the inspection.
Sgt. Steven Ross also testified on behalf of the Registrar. Since May 2004, he has been working with the Sudbury Enforcement Unit of the O.P.P. that is seconded to the AGCO. He has been with the O.P.P. for 28 years in total.
He did not recall attending a meeting in 2004 with Inspector Bergeron, Chief Davidson and others, including Mr. Michel on behalf of the licensed establishment.
He testified that, prior to the introduction of the “reasonable measures by licensees” concept in the LLA, it was always an expectation of licensees that everyone should obey the law and if an unlawful act is observed that the licensee should call the police. Further, licensees should also ensure that line-ups to get into their establishments are orderly, that they don’t block traffic, and that they are supervised to avoid fighting.
Sgt. Ross also testified that if there is a disturbance, either verbal or physical, within the establishment, reasonable efforts are required that should involve breaking up the altercation, taking the participants outside via separate doors, and putting at least one of them in a cab.
In cross-examination, Sgt. Ross indicated that prior to 2007 the police’s expectation was that licence holders would patrol up to their property line.
Licensee’s Evidence
Cst. Christopher Hart arrived at the scene about 2:23-2:25 a.m. after hearing the call about a disturbance outside of the establishment.
The establishment has not been a problem from a police point-of-view.
He drove past Elgin Street once, taking about 30 seconds, and left. He did not recall what the crowd was doing, but said that obviously it was nothing that required his assistance.
On the night in question, Cst. Hart, who is with the Sudbury Police Force’s tactical unit, was driving around the city (of Sudbury), responding to calls as necessary.
Sgt. Richard Clark of the Sudbury Police Force arrived at the scene about 2:18 a.m. and cleared it about 2:40 a.m.
He was stationed in the parking lot (to the west of the establishment), asking about 100-150 people to leave.
He did not see any fights.
Sgt. Clark did not know where the people came from, although patrons of the establishment normally park in the lot where he was operating.
The crowd was standing in front of the entrance to the establishment although some of the people were dispersing between the two buildings located across the street.
Mr. Jeff MacIntyre also testified on behalf of the Licensee. He was employed at the establishment for 11 years, and was a manager there.
On the night of November 8/9, Mr. MacIntyre was working at the Laughing Buddha when some of Mr. Michel’s staff showed up just before 2:00 a.m. He thought this was unusual because the establishment had never closed early during the time he worked there.
Mr. MacIntyre recalled attending a meeting at the police station about 6-7 years ago to discuss how to deal with noise and incidents outside of the establishment. Chief Davidson, Inspector Bergeron, Mr. Michel and some other police officers were also at that meeting.
Mr. Michel and Mr. MacIntyre were told that when things happen outside of the establishment they are not to get involved, that they would be liable, and that they should let the police handle it. In other words, they were to call the police and let them deal with the situation.
On the night in question, the staff members who came from the establishment told him that it had closed earlier because it was “dead”.
In cross-examination, Mr. MacIntyre acknowledged that he did not know how many people were at the establishment when the staff left there. He also did not know how many people were working that night.
Mr. MacIntyre does not have any notes from the meeting held 6-7 years ago. He was going from memory in testifying about that meeting.
Mr. MacIntyre testified that the establishment’s policy was informed by that meeting. He specifically remembers the do-not-get-involved message that staff was instructed as a result of it.
Mr. MacIntyre agreed that it is not prudent to “dump” patrons on the street all at once; generally, it is better to have them drink up and go out slowly.
If patrons are engaged in a heated argument, they are not told to take it outside. The establishment’s policy is to separate the patrons and have them leave through separate doors. Then, it would be prudent for door security to watch and make sure the patrons did not start “punching it up” outside the doors.
If a fight broke out amongst patrons outside of the establishment, Mr. MacIntyre testified that the staff was told not to get involved. They were not even to verbally give commands to “break it up” based on the police’s concern that the situation could escalate.
He last worked for Mr. Michel about 3½ years ago.
Mr. MacIntyre understands that there have been changes to how situations occurring outside of an establishment are treated. From what he had read in the Licence Line publications, he felt that the expectation is higher now.
He reads Licence Line regularly, feeling it is necessary for the industry. He recalled reading a Tip Sheet, sometime in the last 3-4 years, about the need for establishments to take “reasonable measures”.
Mr. MacIntyre said that there were policies and procedures in place at the establishment relating to outdoor line-ups as well as for how to disperse patrons on a busy night.
According to Mr. MacIntyre, street vendors were located outside the establishment, positioned about 6 feet next to its front entrance and sometimes across the street from it. He said that this tended to maintain a crowd around the establishment. The vendors would be asked to move so that people would not cluster there, and also to give room for cabs.
Mr. MacIntyre has worked in the hospitality business for 13 of the last 14 years. In 2008-09, he worked as a financial planner. When he returned to the hospitality industry in the summer of 2009, he was aware of the “reasonable expectations” liquor legislation.
Mr. Dan Abdel-Nour has worked front door security at the establishment for the past 5 years. He was required to read the Licensee’s policy manual when he was hired.
He did not notice any altercations at the establishment on the night of November 8th.
Mr. Michel was working that night, as usual.
Mr. Abdel-Nour described the establishment’s protocol in the event of a fight within the establishment: the staff works in a buddy system, intervening in the fight to separate the parties to it. If there are no further problems, the staff return to their positions. If patrons need to be removed, one party is exited through the front door. The other party is kept inside until the first party has left the premises. The second party would then be walked out to ensure no further altercation. The staff ensures that “the victim” is all right and that they have a safe ride home.
If there were a “big altercation”, the police would be called.
Individuals who start a fight are usually barred from the establishment for life.
If the altercation is verbal only, the staff separates the individuals and makes sure that they don’t approach each other during the night. The individuals are warned that they will thereafter be watched throughout the night and if the matter evolves into an altercation that they will be barred for life.
In any given month there may be 2-3 (physical) fights in the establishment.
Mr. Abdel-Nour recalled that November 8th was not a busy night as the staff left early. Just over 200 people attended that night.
Mr. Abdel-Nour also described the establishment’s protocol for dealing with line-ups to get in.
Various measures that have also been put in place to prevent/minimize vandalism at the establishment as well the surrounding businesses have been successful.
The establishment’s closing procedures were also described, as follows. At approximately 1:45 a.m., the smoking section is closed and the bar stops serving alcohol. A slow song is played at 2:00 a.m. and shortly thereafter the lights come on in the establishment. Music plays until 2:15 a.m. and, during this time, patrons slowly leave (that is, as opposed to in one big group).
Typically, patrons leave the establishment over a 45-60 minute time period and during that time usually a “small group” of about 30-40 people might congregate outside at any one time.
Nineteen security personnel were working the night of November 8th. The establishment has a capacity of 598 people.
Prior to Halloween night 2009, he had seen the liquor inspector inside the building about 5-6 weeks in a row.
In cross-examination, Mr. Abdel-Nour testified that in November 2009 the establishment was only open on Saturday evenings. He agreed that it draws a younger crowd (19-25 year olds) than Coyotes (25 years +).
Both the Grand Night Club and Coyotes were open the night of November 8th.
Although not every security person on duty that night signed out before leaving, all of them had left by 2:00 a.m. that night.
The purpose of the establishment’s “closing procedures” is to calm people down and to get some people to start leaving.
Generally, the establishment closes between 3:00-3:30 a.m., depending on how busy it is. In other words, some patrons will stay beyond 2:45 a.m.
The security staff usually remain until 2:30-3:00 a.m. or until the area is cleared of people and they see that “there won’t be a problem”.
The closing procedure has been in place since 2003 when he first became employed at the establishment. It is done to make sure that everyone is leaving on a good note.
On the night of November 8th, the staff left through the Coyote’s entrance door, which is typical.
Mr. Abdel-Nour agreed that the establishment was cleared at about 1:50 a.m. on the night in question and that there were about 100 people inside at that time.
Mr. Abdel-Nour disagreed that the establishment closed early on the night in question because of the possibility of an inspection by Mr. Bergeron.
He disagreed that there were about 100 people outside the establishment when the establishment closed. Some patrons took cabs.
Typically, the security staff stands outside during closing but they did not do so on the night in question as “there was no need for it”.
Mr. Abdel-Nour did not know of or notice any verbal altercation between patrons on the night in question. He said that people were moving out of the establishment “on their own”.
Mr. Abdel-Nour was told in early-to-mid 2010 about the change in the O.Reg (under the LLA) that requires establishments to undertake “reasonable measures”.
In response to questions from the Board, Mr. Abdel-Nour testified that he was told about the altercation the week following the incident. Specifically, he was asked if he saw anything before he left that night and he had replied that he had not.
The staff left early that night, for the first and only time, because it was a slow night and all patrons had left the premises. It was a calm crowd – about 30-40 individuals - while he viewed the outside to ensure there would be no problems, so he went inside and closed at 2:00 a.m., and went home.
Mr. Abdel-Nour advised that the establishment does not keep daily logs or incident logs.
When the Grand Night Club was closed on the night in question, there were no patrons in the Coyote’s establishment.
Every night, at the time of closing, security people are located outside during dispersal of the patrons. This happened on the night in question as well.
Shane Dale, who has been employed by the establishment for 5 years and is its head bouncer, testified next.
Mr. Dale said that the Grand Night Club’s, and the Coyote’s crowds do not mingle. Coyote’s draws an older crowd that disperses almost immediately after it closes.
Mr. Dale recalled that the establishment closed early on the night of November 8th. He did not notice any fighting that night.
His description of the establishment’s procedure for dealing with altercations did not vary in any material respects from that given by Mr. Abdel-Nour. He was not asked about the establishment’s closing protocol.
Mr. Dale stands right outside the front door of the establishment when he is working that door.
He was working the Coyote’s establishment and left through its entrance on the night in question.
He estimated that there were between 35-40 patrons in the Coyote’s establishment on the night in questions, with 30-35 of them leaving between 1:45 a.m. -2:00 a.m.
The Coyote’s patrons tend to park in a lot across the street from that establishment.
When he left Coyote’s on the night in question, he testified that nobody was coming out of the Grand Night Club because it was closed. Its staff had already come through “his side” and gone to the parking lot.
On his way home, he passed through the intersection of Beech and Elgin streets, but didn’t see any people there, as he was not paying attention. Rather, he was paying attention to his driving and wanted to get home.
Jason Rowan, who has been working at the establishment since August 2007, testified as well. He works as a front doorman and as a security person for the establishment.
He could not recall any fights or verbal altercations at the establishment on the night in question.
His description of the establishment’s procedure for dealing with altercations did not vary in any material respects from that given by Mr. Abdel-Nour and Mr. Dale. He also indicated that he has never seen Mr. Michel “throw out” patrons who are fighting because it would just allow the fight to continue outside.
Also, Mr. Rowan’s description of the establishment’s closing time protocol did not differ in any material respects from that given by Mr. Abdel-Nour.
On the night in question, less than 300 patrons in total came in over the course of the evening.
The hot dog vendor was stationed outside the establishment on the night in question.
Mr. Rowan indicated that the establishment has a good relationship with the police, who often conduct a walk-through on the establishment on Saturday nights.
He stated that on the night in question the establishment closed “pretty early – (the staff) were gone by 1:45 a.m.”.
In cross-examination, Mr. Rowan agreed that, in Exhibit 16, his time out shows 2:00 a.m. that night.
He agreed that the establishment’s doors and windows are reinforced because its patrons (typically 19-24 year olds) can sometimes get boisterous.
Mr. Rowan also agreed that all of the establishment’s security guards are “big guys”, meaning standing 6’ tall or bigger, and weighing 200 pounds or more. All are “tough-looking” as this is what is required to keep the establishment’s crowd under control.
The security guards make their presence known as the crowd disperses at the end of the evening and, if they see trouble, they try to stop it. He has never needed to separate a fight outside the establishment but would do so if necessary.
Five security guards generally work the outside at closing time, which can last anywhere from 1:45 a.m. until 3:30 a.m.,or until the crowd has dispersed.
Mr. Rowan disagreed that there were approximately 100 people in the establishment at the time of closing on the night in question. He estimated the number at “maybe 35-48 people” who trickled out from the time the establishment started closing.
He indicated that the security staff keeps track of the number of people entering and exiting the establishment using a counter, but no written record was kept of how many people were in the establishment on the night in question.
Mr. Rowan did not remember exactly what time the staff was told to start closing that night. They exited through the door to Coyote’s.
Mr. Rowan said that there was barely anybody outside when he left. He denied that there were upwards of 100 people milling around outside the bar. He did not know how many people were there, but said there would not have been very many left because the staff would not have left if there were any threat of anything happening.
Walking up Beech Street, westerly, towards Elgin Street, he said there were not very many people outside when he crossed that intersection; neither did he see 100 people coming in his direction either from the north or the east from that vantage point.
In answer to questions from the Board, Mr. Rowan said that around 11:30 p.m. each night the establishment is open, Mr. Michel asks for and is given a verbal “head count” of the number of patrons in attendance to ensure that the establishment does not go “over-capacity”.
The last witness for the Licensee was Mr. Claude Michel. He has held and been responsible for a liquor licence since 1988.
The establishment originally started out as a concert hall and, about 12 years ago, he and his partner (his father) decided to open it one night a week as a “bar”.
As the owner of this business, Mr. Michel has always worked closely with the police who know what the establishment was doing at all times.
He described a meeting that took place about 6-7 years ago and included members of the Sudbury police, Mr. Bergeron, and Mr. MacIntyre, Mr. Bergeron’s manager. The meeting was to discuss protocol for dealing with potential clashes between crowds from the establishment and a new establishment opening up, called “Zigs”.
Mr. Michel testified that he was told that his staff was not to do police work because they were not trained to deal with such circumstances and that they could attract civil liability to themselves as a result. He recalled that they were told to stay inside and to call the police if there were problems with crowds outside of the establishment.
Subsequent to this meeting, on a couple of occasions, Mr. Michel’s staff tried to help break up fights that had started outside of the establishment and were told by police to go back inside.
Generally, there is a lot of police presence around the establishment because 15 other bars surround it. According to Mr. Michel, the police like to make their presence known.
Until the night in question, the establishment was the busiest bar in the city, having the college student crowd “wrapped up”. On an average night, about 1200-1800 people would frequent it over the course of a night.
However, for Halloween night 2009, a limited number (598) tickets were sold and the balance of the patrons, that is, the ones without tickets, went to another local establishment instead and liked what was offered there better. Most of them never came back, and in the course of a weekend, Mr. Michel had “lost his crowd”.
Thus, when towards the end of the evening on the night in question and “no one was there”, Mr. Michel instructed staff to slow the music early and, by 2:00 a.m., the closing procedure was done. Except for the security staff, most of the other staff had been sent home earlier that night.
Mr. Michel recalled seeing Mr. Bergeron either inside or outside the establishment doing surveillance every night the establishment was open in the 6 weeks prior to the night in question.
No one advised Mr. Michel that there were any fights in the establishment on the night in question although he thought it entirely possible that some people had a fight “over girls”.
Mr. Michel did not feel that there was a threat outside of the establishment when it was closed on the night in question. There were no people outside when everyone left for home.
The following weekend, Mr. Bergeron advised Mr. Michel that there had been a fight, that the AGCO was investigating, and that there would be a report. In response, Mr. Michel held a staff meeting, but no one had seen or heard anything although the staff thought they would have noticed if there had been anything because it was not busy that night.
According to Mr. Michel, the police told him that on the night in question there had been a small scuffle outside the establishment following closing time and possibly another fight that no one from the police department had witnessed.
If there were fights, Mr. Michel said that they occurred in the parking lot, which is located behind another business that is located across the street from the establishment.
Fifteen years ago, hot dog vendors were banned from city streets at night as fighting would occur around them. Two years ago, however, the city by-law was changed to allow them on the streets again at nights. Mr. Michel has been taking action to try and change the by-law (back) again.
The hot dog vendor was there on that evening, but never came back after the night in question.
Mr. Michel believes that on the night in question some people would have been drawn there by the police presence – “police attract a crowd”.
The establishment has never been closed early other than the night in question. It has stopped operating as of June 2010. The building/establishment are currently for sale.
In response to a part of the police officers’ testimony, Mr. Michel said that if the officers felt afraid it would be even worse for his bouncers.
In fact, his security staff has been trained not to use physical force, and usually, talking to the parties who are fighting will suffice. His bouncers work in pairs. They keep areas clear of beer bottles and also talk to patrons so that they get to know people’s faces. In turn, his bouncers know who are “regulars” and who are “outsiders”. This helps them have a better idea of who is causing a problem, if at all.
Mr. Michel has always made an effort to have his security staff make a presence outside the establishment, but they have never needed to chase anyone down the street. His security personnel stand outside and provide eyes for the police.
There is a video camera outside of the establishment, which was installed by the City of Sudbury and is monitored by the police. Mr. Michel wondered why the video was never brought in for him to review.
The establishment employs 19 security personnel who have different levels of education and abilities. Smart Serve training helps a bit, but ultimately who is turned away becomes a judgment call.
The establishment has a “zero tolerance” policy for drugs.
Coat checks are done both upon entry and exit.
Everyone’s purse is also checked. If liquor is found, the person is turned away.
Mr. Michel’s description of the establishment’s closing down procedure accorded, in all material respects, with that given by Mr. Abdel-Nour and Mr. Rowan.
The establishment has a massive marquee that overhangs the sidewalk. The bouncers stand there, on “his property”, to ensure that no alcohol is leaving the establishment.
The establishment is not known for the type of problem that occurred on the night in question. According to Mr. Michel, what happened was an anomaly.
Mr. Michel has held a liquor licence since he was 24 years old (that is, for 22 years). He acknowledged that over that time he has learned a lot about holding a licence and that many things have changed over the years, including alcohol regulation moving from an enforcement- to a compliance-based approach.
Mr. Michel wished that Mr. Bergeron had come to see him about the new “reasonable measures” laws. While he reads the (AGCO) Licence Line publications, he does not get all of them. Also, Mr. Michel said that the “Tip Sheets” do not accompany the Licence Line publications; they have to be looked up on-line and are in a version that is not compatible with his Mac computer.
Also, he has asked for a presentation to his staff on the issue of “reasonable measures”, but the AGCO educational presentations do not come to Sudbury until sometime in 2011.
To prevent drunkenness, the establishment limits the number and alcohol content of the drinks that can be purchased at any one time at the bar.
The establishment has a policy manual to ensure that all staff is working at the same level. When a new staff is hired, they are given time to review the manual and the opportunity to ask questions about it. The manual’s importance is highlighted.
Mr. Michel Smart Serve trains his own staff.
In cross-examination, Mr. Michel acknowledged that the establishment served two prior suspensions of its liquor licence: one for 14 days and another one for 21 days, both in 2006. Mr. Abdel-Nour would not have known about these suspensions.
Also, in 2000, the Licence was suspended for 10 days.
Mr. Michel confirmed that Mr. Bergeron was at the establishment every weekend for 6 weeks prior to the night in question. He usually shows up at 2:00 a.m.
The video camera that Mr. Michel was referring to is located on a light standard on the northeast side of Beech and Elgin streets. He asked, but was not allowed, to look at the tape.
When asked if he could be wrong about Mr. Bergeron being in attendance at the meeting he described that was held about 6-7 years ago, Mr. Michel said that Jeff MacIntyre took notes at that meeting but cannot locate them now.
Mr. Michel suggested that he has had staff outside monitoring the crowds at the very least since Mr. Abdel-Nour was hired.
The coat check also helps to handle the flow of people. The main thing about closing is that he wants the patrons to go out on their own, still enjoying themselves.
The early closing on November 8th, 2009 was “unusual” and “unexpected”, according to Mr. Michel.
In his March 2010 response to the Registrar’s Letter of Incident, Mr. Michel indicated that about 100 people were left in the establishment at the time of closing. He explained that this was “not a lot of people” and that the number included 19 staff, 2 DJ’s, and a runner.
At 1:50 a.m. on the night in question, he asked his staff to clear the establishment and agreed that all of these people left on their own steam within about 10 minutes. By 2:00 a.m., everyone was gone.
Mr. Michel agreed that this is different from other nights when the closing procedure takes place over about a 1.5 hour time period.
He did not ask his staff if they went outside to monitor the crowd there on the night in question; they were definitely at the doors to ensure that no liquor left the establishment, that no one tried to reenter the building, and that people were exiting properly.
In response to a question asked by the Board, Mr. Michel testified that if a lot of patrons leave the establishment early, he might speed up, or compress, the closing down process.
In re-examination related to questioning by the Board, Mr. Michel said that he left with his staff after ensuring that the establishment was completely empty. They like to leave as a group as one night a staff member was accosted.
Mr. Greg Bergeron was recalled as a witness on behalf of the Registrar. He testified that in the 6 weeks prior to the night in question, he attended Coyote’s one time on a Friday night/Saturday morning, and twice at the establishment (that is, September 19/20 and October 30).
He clarified that, in his previous testimony, his answer related to the “entire building”. He considers Coyote’s and the Grand Night Club to be “one bar”.
He worked the day shift on November 6th, and the next time he worked was Tuesday, November 10, 2009.
Registrar’s Submissions
The Registrar asks for a finding under section 45.1 of O.Reg 719/90 made under the LLA.
In that regard, the Registrar argues that there was a disturbance that the Sudbury Police came upon at about 2:15 a.m. on November 8th, 2009 in front of the establishment. The various police officers that testified estimated the crowd size at 100, 150, 100-150, 100-200, or 200-300, variously. The crowd - that it is argued, was large, intoxicated and disorderly -was on the roadway and sidewalks in front of the establishment as well as in the parking lot behind the business across the street. None of the police officers saw any staff from the establishment there.
The Registrar states that two persons were arrested for public intoxication. One of them, the alleged assailant, was later released without charges. Cst. Sivazlian, who is also a breath technician, detected an odour of alcohol on this person’s breath. He also noticed that the fellow’s speech was slurred and indiscernible and that he had difficulty walking. Cst. Sivazlian observed some shoving, several intoxicated people, and a great deal of yelling and profanity.
It took the police about 45 minutes to quell the disturbance. About 80 per cent of the Sudbury Police Department on duty at the time was involved in dealing with the problem, in the Registrar’s submission.
The Registrar also submits that a verbal altercation between the two people later found fighting outside the establishment allegedly began inside it, over a girl. It continued outside and escalated.
The Registrar points out police testimony that indicates that the situation was volatile and dangerous. According to Cst. Vitali, “It was a situation that could have gotten very bad very quickly.”
The Registrar urges the Board to conclude that the only source of the crowd, which he further argues is not in dispute, could have been the establishment. This is based on the evidence of Constables Vitali, O’Shaugnessy, Sivazlian and Hart, as well as that of Mr. Abdel-Nour and Mr. Michel.
The crowd got out of control for several reasons from the Registrar’s perspective. First, was how the Licensee cleared the establishment on the night in question. In particular, it was cleared at 1:50 a.m., with the staff remaining outside for only 10 minutes before leaving through the Coyote’s entrance. Typically, it took 1-1 ¾ hours to close up the bar, including the 45 minute time usually taken to monitor the street. It was closed early because Mr. Michel did not want to see or deal with Mr. Bergeron, the AGCO inspector, again.
Also, a verbal altercation could have gone unnoticed because of the loud music being played in the premises.
The Registrar submits that Inspector Bergeron does not recall a meeting between Mr. Michel, Sgt. Ross, Chief Davidson and others, about 6-7 years ago. In any event, Sgt. Ross’s evidence was that, even before the 2007 amendments to the LLA, security staff was expected to supervise outside an establishment to ensure that the crowd dispersed in an orderly manner.
Regardless of what instructions may have been discussed at that meeting, the 2007 amendments place clear obligations on Licensee’s shoulders and the Licensee should have been aware of them by November 2009. In failing to do so, the Licensee failed to meet his obligations as a licensee.
Licensee’s Submissions
Mr. Michel submits that the allegations against the Licensee should be dismissed.
He argues that Cst. Hart, a member of Sudbury’s highest trained police unit, the tactical unit, who arrived at 2:23 a.m. - about 8 minutes after the first officer on the scene - left after 30 seconds.
Two other officers who arrived on the scene at 2:15 a.m., that is, Constables Sivazlian and Giommi, left after 10 minutes.
Cst. Clark was at the scene from 2:18 a.m. – 2:40, or a total of 22 minutes.
One of the men who was detained and then released by the police told Cst. Vitali that he did not fight inside the establishment.
Inspector Bergeron testified that if he had seen 100 people (or more) intoxicated at the establishment at closing, he would have closed it down.
Cst. O’Shaughnessy testified that upon his arrival at 2:15 a.m., there was one small scuffle of two people in the parking lot. Also, he spoke to many people but could not tell with certainty where they came from.
Cst. O’Shaughnessy was partnered with Cst. Vitali on the night in question and their testimonies disagreed as to whether the man who was detained and later released was intoxicated.
According to Mr. Michel, he was attempting to be proactive by arranging the meeting, held about 6-7 years ago, with the Greater Sudbury Police, Inspector Bergeron and himself.
Elgin Street, in front of the establishment, is a three-lane road, making it typically very congested at closing time with taxis, and vehicles belonging to parents who are picking up their kids.
There have never been any complaints about the establishment “after closing”.
Mr. Michel submits that Mr. Bergeron testified that he had been to the establishment three times during the six weeks prior to the November 8th incident. He is not the only liquor inspector that calls on the establishment.
Mr. Michel also argues that Mr. Rowan, who testified that counters are used to keep track of how many people enter and leave the establishment, said that at 1:50 a.m. on the night in question, 40 people were left in the establishment. In contrast, the police estimates, which range from 100 to 300 people, are not very accurate.
Mr. Michel also urges the Board to consider Mr. Rowan’s testimony that he did not eject or see anyone ejected from the establishment on the night in question. Similarly, Mr. Abdel-Nour, who has been the establishment’s head doorman for 7 years, testified that no fight occurred on November 8, 2009 and that there were no indications of a possible fight. He also testified that there were 40-50 people left at 1:50 a.m.
He submits that Mr. Abdel-Nour and the other four security personnel working outside came in by 2:00 a.m. because they believed there were no problems with the remaining people outside.The security staff that testified indicated that the remaining patrons exited in an orderly fashion and that there were no signs of a disturbance outside.
On the night in question 39 staff was working.
Mr. Abdel-Nour, Mr. MacIntyre and the police officers testified that hot dog vendors do not help to dissipate a crowd at closing time.
Mr. Michel argues that the establishment closed early because it was not busy and the staff could not foresee any problems at the time they left.
Registrar’s Reply Submissions
The Registrar submits that Cst. Sivazlian left not because the incident was over but because he had arrested a person for public intoxication.
Mr. Michel’s suggestion that his 100 person estimate (in his response to the Letter of Incident) included staff is disingenuous and an attempt after the fact to soften his admission.
Reasons, Analysis and Decision
The Board has carefully considered the evidence as well as the submissions in this matter and has decided that the allegation against the Licensee should be dismissed.
The applicable legislation in this case is section 45.1 of the O.Reg, which provides as follows: “The licence holder shall 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 leaving the premises.”
Put differently, the Board must assess the evidence and determine whether the Registrar has proven, on the balance of probabilities, that the Licensee:
a. did not have “reasonable measures” in place; and,
b. did not make “reasonable efforts” to deter “disorderly conduct”;
c. “on property adjacent to and in the vicinity of the premises”;
d. engaged in by “patrons of the licence holder” or “persons leaving the premises”.
- Each of these pre-requisites to a finding under section 45.1 will be analyzed, in no particular order.
Disorderly Conduct
First, the Board FINDS that, on the night in question “disorderly conduct” took place based on the following evidence. It was in the nature of a fist fight between at least a couple of men and possibly some shoving by some other persons, in addition to “a lot of yelling and profanity”, that the Sudbury police officers came upon that night.
Although Sgt. Clark, on behalf of the Licensee, testified that he did not see any fights from where he was stationed in the parking lot to the west of the establishment, the testimonies of Officers Vitali, O’Shaughnessy and Sivazlian support this conclusion: they all specifically mentioned fighting, scuffling, and/or shoving between some of the people they encountered that night. Finally, it took about 45 minutes in total for 7 – 8 police officers to deal with the fighting and to disperse the crowd.
Adjacent to / In the Vicinity of
The Board has also concluded that the disorderly conduct occurred “on property adjacent to and in the vicinity of the premises”.
While it is always a question of fact to be determined in each particular case, the concepts of “adjacent to” and “in the vicinity of” the premises should generally be given a common, or usual meaning: the Board takes “adjacent” to mean, “being close or near” and “in the vicinity” to mean, “in the area or region near or about a place; the surrounding district; neighbourhood”. The Board also notes that section 45.1 makes these concepts conjunctive - in other words, licensees have a responsibility to take reasonable measures for property located both next to or beside the establishment, as well as in the surrounding area to or in the neighbourhood of it.
On the facts before the Board, the Licensee would owe a responsibility for the area directly in front of and within a reasonable distance in either a northerly, southerly and westerly direction outside of the establishment, including the walk-way between the business located across the street from the establishment that leads into the parking lot typically used by the patrons of the establishment, and the parking lot itself.
Specifically, Officers Vitali, O’Shaughnessy and Sivazlian variously described the fighting as having occurred either in front of the establishment, outside of it, along the whole of Elgin Street, in the parking lot to the west of the establishment and / or in the walk-way beside the business located across the street from the establishment.
Therefore, the Board FINDS that the incident occurred on property adjacent to and in the vicinity of the premises.
Patrons of the licence holder / persons leaving the premises
What the Board needs to determine next is whether on the night in question the disorderly conduct that the police came upon at around 2:15 a.m. in areas adjacent to and in the vicinity of the establishment was “engaged in by patrons of the licence holder” or “persons leaving the premises”.In this regard, the Board has considered and weighed the following evidence.
First, one of the persons involved in the incident, identified as a student at Cambrian College, told Cst. Vitali that he and another fellow had gotten into an altercation over a girl and that the problems had started inside the establishment. Also, en route to the police station with Cst. Sivazlian, one of the men involved in a fistfight explained that what had started as a verbal altercation in the establishment had escalated and went outside.
Although the foregoing is hearsay evidence, the Board accepts Cst. Vitali’s and Cst. Sivazlian’s testimony and FINDS that the two persons who were ultimately arrested by the police (and later released without charges) were likely patrons of the establishment.
However, the Board is unable to determine, on the balance of probabilities, that the other people the police officers observed and dealt with in the incident were either patrons of the establishment or persons who were leaving it. The evidence in that regard was too uncertain to allow the Board to draw that conclusion.
First, no one saw anyone leaving the premises during the time that the police officers were there.
And, but for the two men who were arrested, no one asked any of the other people where they were from. Cst. O’Shaughnessy, who did not ask any of the people gathered on that night where they had come from, simply assumed that they had been patrons of the establishment based on his experience that it usually draws large crowds. Also, Cst. Vitali acknowledged that he had not asked any of the people he spoke with that night where they had come from.
As well, none of the officers who testified saw anyone leaving the establishment at the time of their arrival (approximately 2:15 a.m.).What’s more, Mr. Rowan testified that there was barely anyone outside when he left the establishment before 2:00 a.m. on the night in question. Mr. Abdel-Nour said that he observed a calm crowd of about 30 – 40 individuals before he went outside to check on the patrons, and then went back inside to close the establishment at 2:00 a.m. and went home.
Furthermore, according to Cst. Vitali, five establishments, located within 3 blocks, were open on the night in question.
About 15 minutes had passed between when the establishment closed and the police first came upon the crowd. During that time, patrons from the four other establishments in the area could have left those places – it was around closing time for those places as well - and ventured into the area, drawn by either the lure of witnessing a fight or the police presence (or both), or simply passed by or through it on their way home.
Finally, Elgin Street is one of the major streets that people would travel along to get to a residential neighbourhood located to the north of the establishment (Cst. Sivazlian).
The Board acknowledges that some of the evidence suggests that the crowd may have been derived of patrons from the establishment. The estimated age of the people gathered, that is, between ages 19 – 24, is typical of the establishment’s customers. Cst. O’Shaughnessy’s opinion in this regard was confirmed by Mr. Abdel-Nour, who has worked for the establishment for 5 years and was working on the night in question. [Also, the two men that were arrested were aged 19 - 20 years old (Cst. Sivazlian).]
And, although he did not know where the people came from, Sgt. Clark testified that patrons from the establishment usually park in the lot where some of the crowd was located. Mr. Rowan, also a security person at the establishment, confirmed this fact.
In the Board’s view, these last two factors are too general, and are thereby insufficient to prove on the balance of probabilities that the origin of the balance of the crowd was from the establishment.
However, section 45.1 does not specify that a licensee’s responsibilities only become operative if a specific number of patrons or persons leaving the establishment have become engaged in disorderly conduct. Therefore, given that the Board has found that two patrons of the establishment were engaged in the disorderly conduct in the night in question, the Board must continue its analysis and assess whether the establishment had “reasonable measures” in place and made “reasonable efforts” to deter “disorderly conduct” that occurred on the night in question. It is a dual-component test that must be met. These issues will be addressed next.
Reasonable Measures and Reasonable Efforts to Deter
The Board has concluded that in this case the establishment had reasonable measures in place and made reasonable efforts to deter disorderly conduct on the night in question.
Mr. Michel testified convincingly about a meeting that he had attended, together with representatives from the police as well as the AGCO, about 6 – 7 years ago. The purpose of this meeting was to consider protocol for dealing with potential clashes between crowds from the establishment and a new establishment opening up nearby.
Mr. Michel’s “take-away” from that meeting was that the police wanted to be the ones to take care of any potentially volatile situations. This understanding was conveyed to, and confirmed by, staff members who testified as to a similar training they had been given by Mr. Michel to that effect. Mr. Michel’s understanding was reasonable given the state of the law around the time the meeting was held.
The Board accepts that a meeting took place as suggested by Mr. Michel even though Inspector Bergeron and Sgt. Ross could not recall attending it. The Board concludes that, quite understandably and reasonably, they might not remember the meeting out of the many they have no doubt attended over the years since then. Besides, the meeting held more import for Mr. Michel, making him more likely to remember it.
Nevertheless, in 2007 the “rules of the game” changed with the introduction of section 45.1 of the O.Reg. This section imposed new and additional responsibilities upon licence holders, such as Mr. Michel.
Mr. Michel candidly admitted that he was not aware of this regulatory change nor had he read the various informational documents the AGCO had provided in that regard. Nonetheless, the Board finds that the establishment’s training procedures and rigorous entrance and closing protocols, amongst other things detailed below, were such that the Licensee met the legislated requirements for it to have “reasonable measures” in place and to make “reasonable efforts” on the night in question.
Specifically, staff members who testified described in notably similar terms the establishment’s entrance as well as closing processes which were consistently followed and in which they (and all staff persons) were well trained. The Board has weighed this evidence favourably to the Licensee in deciding that it had “reasonable measures” in place.
The purpose of these procedures was to ensure that patrons entered and left the establishment happily and safely. The procedures worked well since, except for the night in question, there had never been a situation outside the establishment involving patrons of the establishment.
In addition, the evidence before the Board supports the conclusion that this is a reliable establishment in terms of “crowd management”. This inference is corroborated by Inspector Bergeron, who testified that there has never been any problems with crowds outside the establishment to the caliber of incident on the night in question, either prior to or since it happened. Furthermore, Mr. Rowan testified that the establishment has a good relationship with the local police who typically walk through it on Saturday nights.
Mr. Michel, Mr. Abdel-Nour, Mr. Dale and Mr. Rowan each testified that the establishment closed early on the night in question because it was not busy that night and the staff could not foresee any problems at the time they left. Indeed, these witnesses’ evidence was corroborated by Mr. MacIntyre’s hearsay evidence. He testified that some of the establishment’s staff members arrived at the place where he was working just before 2:00 a.m., telling him that the establishment had closed early because it was “dead”. The Board believes this testimony is credible. In other words, the establishment’s staff would not have left if they thought there was, or might have been, trouble with the crowd leaving the establishment at closing time on the night in question.
The fact that the fight between the two men who had been patrons of the establishment may have begun inside of it must also be addressed in terms of the legal responsibilities it imposed upon the Licensee, or not. That analysis follows.
It is reasonable to believe that initially a verbal altercation over girls took place inside the establishment: Mr. Michel, in his testimony, candidly acknowledged that this was quite possible. However, the Licensee posits and presented supporting evidence (Mr. Michel’s, Mr. Abdel-Nour’s, Mr. Dale’s and Mr. Rowan’s testimonies) that no one working in the establishment that night became aware of the quarrel. The Board accepts this to be true, for the following reasons.
First, Mr. Michel and his three staff members all testified that if staff members become aware of altercations in the establishment, a protocol is followed. All security staff persons are trained in those procedures, which includes separating the parties, making certain that the victim is all right, and – important to this decision –ensuring that there is no further altercation. What’s more, the consequences for starting a fight are significant: the perpetrator is banned from the establishment for life.
Also, the staff members are experienced in dealing with fights – an estimated 2 – 3 fights occur monthly, according to Mr. Abdel-Nour.
Finally, Mr. Abdel-Nour testified that the police are called if there is a “big altercation”.
From the foregoing, the Board concludes that the establishment takes fighting seriously. Thus, the fact that the security staff members did not intervene in the verbal altercation between the two patrons means that, in all likelihood, they were not aware of it, and that if they had been, they would have acted accordingly and appropriately.
The Board has also considered whether the establishment’s “early closing” had an impact upon the events of the night in question. Particularly, by compressing the typically more extended closing procedures, did the Licensee abrogate its responsibilities to take reasonable measures and to make reasonable efforts to deal with the disorderly conduct that took place in the vicinity of the premises? The Board concludes not, again for several reasons, as follow.
First, the Board concludes that significantly less persons than usual attended over the course of the night in question. It finds that this was the main catalyst in Mr. Michel’s decision to close early. Mr. Rowan testified that less than 300 persons in total came in over the course of the evening; Mr. Michel said that (in contrast) on an average Saturday evening usually between 1,200 – 1,800 people attended during an evening. Also, as noted in paragraph 292 above, three staff persons independently testified that the establishment closed early on the night in question because it was not busy.
The possibility that, by closing early, Mr. Michel may also have been seeking to avoid an (or, another) inspection by Inspector Bergeron does not alter the Board’s reasoning and conclusions that follow.
In his letter to the AGCO Mr. Michel estimated that there were about 100 persons, including 21 staff, at closing time. Mr. Rowan estimated that “maybe 35 – 48 patrons “trickled out” from the time the establishment started closing. Finally, Mr. Abdel-Nour said that a “calm crowd” of “about 30 – 40 individuals” remained outside the establishment when he checked to see that there were no problems, returned inside, closed the establishmentat 2:00 a.m. and went home.
Based on this evidence, which the Board accepts as truthful, there were at best about 80 patrons in the establishment when the decision was made to close it. The Board also concludes that, of that greatly smaller than usual number of patrons, about 30 – 40 patrons were still outside of the establishment when Mr. Abdel-Nour did his final check before locking the doors and leaving for the night.
Mr. Abdel-Nour also testified that when a typical night’s closing procedure is followed, small groups of about 30 – 40 people might congregate outside the establishment at any one time. In other words, there was no significant difference in the size of the crowd that remained outside of the establishment at closing time on the night in question from what would be typically be generated when the establishment followed its more usual, extended closing procedures on a more typical night.
Put differently, the fact that the establishment’s typical closing night procedures were not followed on the night in question was not responsible for the disorderly conduct that the police officers came upon about 15 minutes after the establishment had closed.
Additionally, despite the change in closing procedure, the staff involved in closing the establishment that night remained the responsible, well-trained people that, up until and including the night in question, had implemented the reasonable measures to deter disorderly conduct and had made the reasonable efforts to ensure that either it didn’t happen or, when it did, that it was dealt with swiftly and effectively.
As mentioned in paragraph 292 above, the Board accepts that these staff persons would not have left if they believed there was, or might have been, any trouble brewing in the small crowd that left the establishment at closing time on the night in question. Alternatively, if faced with a “big altercation”, like the described by the police at the hearing, the staff members said they would have, and probably should have called the police in any event.
This case also raises the question of “how long” a licence holder’s obligations (to “take reasonable measures” and to “make reasonable efforts”) continue after closing in order to meet one’s legislated responsibilities under section 45.1. The Board concludes that at a reasonable point in time after an establishment has closed that obligation should and does end. When that is will vary on a case-by-case basis.
In this case, the Board concludes that this Licensee’s obligation had ended before the time the police arrived on the scene of the disturbance at or shortly after 2:15 a.m. on the night in question. In this instance the Board finds that it was reasonable for this Licensee’s security staff personnel not to have lingered beyond the time the establishment had been cleared and officially closed, which was 2:00 a.m. on the night in question.
At that time the security personnel had assessed the ‘normal-sized’ crowd (of about 30 – 40 people) as “calm” and trouble-free.
Also, not knowing, nor having a reasonable basis to know, that a verbal altercation that had started inside the establishment was continuing outside of it, the security staff members reasonably adjudged that there was no further need for their involvement and went home. Furthermore, based on their considerable experience working as security personnel, and given the establishment’s good historical record at closing time, this was a reasonable assumption for that staff to make.
It is therefore not significant that none of the police officers saw any security personnel outside of the establishment when they first arrived on the scene.
For all of the reasons above, the Board finds that the Licensee took reasonable measures and made a reasonable effort to deter disorderly conduct on property adjacent to, or in the vicinity of the establishment.
Conclusion and Closing Comments
In the result, the Registrar has not made out the allegations against the Licensee, and so, the Board DECLINES to make a finding under section 45.1 of the O.Reg against the Licensee and DISMISSES the allegations against the Licensee.
In closing, the Board wishes to address some evidence that, if true, is of concern to it. In particular, Cst. Vitali testified that a large quantity of people in the crowd was intoxicated and Cst. O’Shaughnessy said that he definitely saw a lot of people outside the establishment that were intoxicated. It is not appropriate for this evidence to leave the false impression that these intoxicated persons were patrons of the establishment.
First, the NOP did not allege that the establishment permitted drunkenness (subsection 45(1) of the O.Reg.). Furthermore, if there were that many intoxicated people in the crowd that gathered outside of the establishment on the night in question, this supports the possibility that people from other establishments either mingled with patrons of the establishment or, indeed, formed the crowd itself that the police officers came upon, as noted above.
Finally, in actual fact, Inspector Bergeron testified that he has never seen that many intoxicated patrons in the establishment on any of his inspections.
Order
- For the reasons above, the Board DISMISSES the allegation that the Licensee breached section 45.1 of the O.Reg.
DATED AT TORONTO, THIS 7th day of April , 2011.
S. GRACE KERR, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER