Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-08-11

FILE:

8691/AGRPPA

CASE NAME:

8691 v. Registrar of Alcohol and Gaming

Appeal from an Order of Monetary Penalty of the Registrar of Alcohol and Gaming under the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26

Brice Bunn and Mike Chenard o/a The Spotlight Event Centre

Appellants

-and-

Registrar of Alcohol and Gaming

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Mary Ann Spencer, Member

APPEARANCES:

For the Appellants:

Mike Chenard, on his own behalf and on behalf of Brice Bunn

For the Respondent:

Aviva Harari, Counsel

Heard in Toronto:

July 22, 2014

DECISION AND ORDER

BACKGROUND

This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of an Order of Monetary Penalty issued by the Registrar of Alcohol and Gaming, under the Alcohol and Gaming Regulation and Public Protection Act, 1996 (the “Registrar” and the “Act” respectively). The Order dated March 5, 2014, imposed a $2,000 monetary penalty on Brice Bunn and Mike Chenard o/a The Spotlight Event Centre (the “Spotlight”) with respect to a contravention of subsection 45(1) of Ontario Regulation 719/90 (the “O. Reg.”), that the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under the control of the licence holder.

REGISTRAR’S EVIDENCE

The evidence of the Registrar comprised the testimony of witness S.F.

S.F. testified that on September 28, 2013, she attended a birthday party for a friend at the Spotlight, arriving in the company of three or four friends at approximately 11 to 11:30 p.m. S.F. had been drinking before she went to the Spotlight but was not drunk. The Spotlight is a large open venue with a patio at the back. Because S.F. is a smoker, she went in and out throughout the evening.

While she was at the Spotlight, S.F. consumed alcohol, although she cannot remember how many drinks she had. She testified that she was not “fall over” or “belligerent” drunk but she was not sober. At approximately 1:00 a.m. to 1:30 a.m., she went to the bar to get a drink. Suspecting that the bartender was underage, she said “hey buddy – are you 18 yet?” Mr. Bunn then asked her “what the ... did you just say?” and she traded words with him.

S.F. saw Mr. Bunn using his radio and imagined he was calling security, who had been at the front door when she arrived. She asked Mr. Bunn if he really intended to remove her from the premises and stated that neither he nor anyone else ever asked her to leave. Rather, Mr. Chenard arrived and grabbed her at the back of her head and then removed her ‘screaming’. S.F. initially testified she was “dragged out by her hair” but then stated she was escorted out by her arm. She estimated that she was pulled by Mr. Chenard approximately 40 to 50 feet from the bar to the establishment’s door. She indicated that she would have left the establishment on her own had she been asked. She had not been engaged in any disorderly conduct and never refused to leave the establishment. She did not resist being removed but did resist the way in which she was removed.

Once she was outside the premises, Mr. Bunn came outside and there was further exchange of strong words and then a physical altercation. S.F. told Mr. Bunn and Mr. Chenard that she would be calling the police. She left the property and called the police when she got home. She also called the AGCO about the incident because of her suspicions that a minor was serving behind the bar.

S.F. testified that she sustained a number of injuries including bruises in the form of finger marks on both her arms, bruised ribs, scraped knees and a sprained ankle. However, she did not seek medical attention for these injuries.

On cross-examination, S.F. stated that she had attended a number of LBGT events at the Spotlight but she could not recall if there was such an event on the evening of September 28^th. She speculated that there might have been a drag show that night because the friend who was celebrating his birthday was dressed in drag.

S.F. acknowledged that she had initially met Mr. Chenard when she arrived at the establishment as he was acting as security at the door. She also recalled speaking to him while she was on the patio but did not recall why he spoke to her. Asked if she remembered telling him that she had called police and they were going to raid the establishment, she stated she did not. Asked if she had told others that there were underage people in the establishment, S.F. stated that she was yelling about it outside after she had been removed because she was angry.

S.F. agreed that she had resisted being removed from the premises and stated this was because she was being dragged out. Asked if she had been hit by Mr. Chenard, S.F. stated she had not been. However, she had been hit by Mr. Bunn although she could not recall why. She testified that she remembered grabbing Mr. Bunn and there was “back and forth” but she could not recall specifically what took place. Asked if she recalled speaking to the police outside of the Spotlight, she indicated that she called the police after she got home and spoke to them when they arrived there within the hour but she did not speak to a police officer on the street outside of the establishment.

APPELLANTS’ EVIDENCE

The Appellants’ evidence comprised the testimony of the licensees.

Michel (Mike) Chenard owns 33.3% of the Spotlight. His partner Brice Bunn owns 66.7%. Mr. Chenard testified that while he and Mr. Bunn are partners, he considers Mr. Bunn to have “final say” given his larger ownership percentage.

On the evening/morning of September 28/29, 2013, there was an LBGT event at the Spotlight. Mr. Chenard, who left the Canadian National Police Service in 1991 after 9 years service and who holds a security guard’s licence, was acting as security at the front door. He testified that he saw S.F. arrive at approximately 10 p.m.

In order to avoid confrontations with patrons, the Spotlight has a policy whereby staff walk through the establishment 15 minutes before service stops or signs of service must be cleared. At approximately 2:30 a.m. the morning of September 29, 2013, Mr. Chenard left the front door and went to the patio where there were approximately 10 to 12 patrons and told them he was going to remove the signs of service. When he spoke to S.F., whom he stated was not intoxicated, she asked if he could not make an exception given he had underage people working at the bar. Mr. Chenard told S.F. that the bartender was not underage and she then told him that she had called the police and they were on their way to raid the establishment. Mr. Chenard testified that he thought “she was trying to start a revolt”.

Mr. Chenard went to the bar and told Mr. Bunn about his confrontation with S.F. Mr. Chenard stayed at the bar while Mr. Bunn went to the patio to talk to S.F. whom he met at the patio door. After receiving a radio request for help from Mr. Bunn, Mr. Chenard joined them. Mr. Bunn then said “Ms F. is now leaving. I want her to leave now.” S.F. said “come on, you’re not asking me to leave”. Mr. Chenard testified that S.F. was “standing her ground” which he took as a refusal to leave. He decided to “grab her by her upper right arm” and told her “you’re leaving now”. He lifted her and escorted her off the premises. He explained that this technique keeps an individual off balance and avoids them being hurt. At the front door, S.F. grabbed onto a pole and would not let go. Mr. Chenard got behind her and pried her fingers off. She lost her balance and both she and Mr. Chenard fell on the floor, S.F. on top of Mr. Chenard with her feet pointing towards the door. Mr. Chenard extricated himself but S.F. did not get up. Mr. Chenard then asked her twice to get up and leave. When she did not, he grabbed her ankle and dragged her outside the premises and shut the door. At no time did he pull her by the hair or hit her. His only intent was to remove her from the premises.

After S.F. had been dragged outside and the door had been closed, Mr. Bunn opened the door. S.F. grabbed him and tried to pull him out, ripping his shirt. Mr. Chenard testified that shortly thereafter he saw S.F. pull over a police car and have a conversation but the police car left.

At 4:30 a.m., a police officer arrived at the establishment and told Mr. Chenard and Mr. Bunn about S.F.’s allegations. Mr. Chenard told the police that the incident would have been recorded. The officer asked to see the tape but Mr. Chenard told him that it would take some time to get it. The officer agreed to return to the establishment later but did not come back. No charges were ever laid.

On cross-examination, Mr. Chenard testified that neither he nor Mr. Bunn contacted the police to advise them that he was having difficulty removing a patron. He indicated that at that time of night, police are busy monitoring patrons leaving Barrie’s entertainment district and they would not come to the Spotlight which is in a different part of the city.

Asked how other patrons on the patio had reacted after S.F. told him that she had already called the police, Mr. Chenard stated that he did not notice because his reaction was to tell Mr. Bunn right away. On cross-examination, he stated that two patrons were in the vicinity when he ejected S.F. from the premises but they did not interfere in any manner.

Mr. Chenard agreed that he had used a degree of force to remove S.F. from the premises. He also agreed that there was some injury to S. F but he stated he used the minimum force necessary. Asked under what authority he did so, he indicated that he was relied on sections 34(1) and 34(6) of the Act; he believed S.F. was contravening the law by spreading false news. He then said that after they both fell and she refused to get up, he believed he had to use reasonable force to make her leave and therefore he dragged her out. He did not ask if she was hurt before doing so. He confirmed that he did not call police and repeated that he knew the situation would not be seen as serious enough by them to respond at that time given entertainment district bars would be emptying. He then stated that when the police officer later came to the premises, he told the officer his reasoning and the officer told him that he was likely correct.

Asked if he believed his conduct was appropriate, Mr. Chenard feels he used the minimum amount of force necessary to have S.F. leave the premises. She was doing something illegal on the property and it was his responsibility to immediately take action to remove her. The force used was appropriate and equal to the resistance encountered. The Spotlight has had to eject patrons both before and since the incident but none required the same level of force as used with S.F. because “they never resisted like that”.

Ms. Harari asked Mr. Chenard if the Spotlight had changed its policies since the incident with S.F. Mr. Chenard stated that the policies had always existed but had not been documented; only personnel with a security licence or management can remove people from the premises. The only new policy is the requirement to keep CCTV tapes for 30 days.

Brice Bunn testified that there was an LBGT drag show held at the Spotlight the evening of September 28, 2013 with no disturbances. Mr. Bunn was at the bar when Mr. Chenard came to tell him that S.F. was telling others that she had called the police because of an underage bartender. Mr. Bunn has talked to S.F. before and therefore he went to speak to her and asked Mr. Chenard to wait at the bar. He met S.F. at the patio door and told her that the bartender was not underage and held a SmartServe certificate. He told her she would have to leave if she kept saying he was underage. S.F. said she would not leave and Mr. Bunn then radioed Mr. Chenard. Mr. Bunn did not observe the patio.

When Mr. Chenard joined Mr. Bunn and S.F. at the patio door, Mr. Bunn told him S.F. was refusing to leave. Mr. Chenard said “you’re going to leave”. However, S.F. “just stood her ground” which Mr. Bunn considers a refusal to leave. Mr. Chenard then grabbed her by the arm and walked her in a straight line to the front door with Mr. Bunn following behind. S.F. grabbed a pole near the front door and did not let go when Mr. Chenard told her to. They both fell when Mr. Chenard pulled her off the pole. Both Mr. Bunn and Mr. Chenard told her to get up and leave but she said “no, I’m not leaving”. Mr. Chenard then opened the door, dragged her out by her “leg, foot, ankle”, and shut the door.

S.F. then began to kick the door and yell. Mr. Bunn opened the door to see why she was not leaving. She was “yelling and swearing” and she grabbed his shirt and tore it as she tried to pull him out. He believed he was being assaulted. As he was grabbed, his arms “went up with the force” and hit her. He then saw her make her way to the sidewalk with two friends who had followed her outside. The friends did nothing to intervene. He went inside again and then once again went outside. He then saw S.F. speaking to someone in a police car. The police car drove away and S.F. and her friends walked away.

On cross examination, Mr. Bunn agreed that S.F was asked to leave because she was engaged in disorderly conduct although he stated that he did not see this conduct. He also said he did not see anyone reacting to S.F.’s comments other than a friend of his who came to tell him that he had heard her say the police were coming. The friend was not agitated but was concerned for Mr. Bunn. Mr. Bunn made the decision to remove S.F. when she confirmed that she had said that the bartender was underage and the police were coming. He did not call the police.

Asked if he had asked S.F. if she was able to get up or if she was hurt after she fell when Mr. Chenard pulled her from the pole, Mr. Bunn stated he did not. He confirmed he opened the door to the establishment after she had been removed because she was “kicking and screaming” but again he did not call the police. He noted that he had seen her talking to the police already. He did not file a complaint against S.F.

With respect to the Spotlight’s video recording, Mr. Bunn stated that while the cameras were on, the video was not available in March 2014 when the AGCO issued its Order of Monetary Penalty. He did not take any steps to preserve the video: he did not know how to save it or how long it would be kept.

THE LAW

Section 45(1) of O. Reg.719 states:

The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.

SUBMISSIONS

Ms Harari submitted that the licensee engaged in disorderly conduct by reacting disproportionately to comments made by S.F. who was not engaged in any illegal activity. There is no evidence that anyone other than the licensees was reacting to her comments. For no valid reason, S.F. was “violently and aggressively” removed from the Spotlight by the licensees.

Mr. Chenard submitted that S.F. was causing a nuisance, in violation of section 181 of the Criminal Code. He argued that whether or not there was a riot is irrelevant; she was endangering people whether she succeeded or not. He further argued that by refusing to leave, she was also guilty of an offence under the Trespass to Property Act. Therefore, the licensees had the authority under section 34.1(c) of the Act to remove her from the premises. Further, she was undesirable and the licensees had the right to ask her to leave under section 34(5) of the Act. He submitted that while the incident was regrettable, in order for the licensees to comply with the Act, force had to be used to counter her resistance. The level of force used was caused by S.F; a minimum level of force was used initially but because she resisted, the level had to be increased and there was “no other choice but to drag her out”. He concluded with the statement “it’s not us who started it”.

ANALYSIS

The onus lies with the Registrar to prove, on a balance of probabilities, that there has been a contravention of section 45(1) of O.Reg. 719.

S.F. and the licensees testified to different versions of the events which took place at the Spotlight on the evening/morning of September 28/29, 2013. While the differences in the specific recollections of S.F. and the licensees are considerable, there is agreement that the incident began when S.F. made a remark with respect to a bartender being underage. S.F. stated she questioned the bartender’s age directly to him at the bar. Mr. Chenard testified that the remark was made on the patio and that S.F. said police had been called and were on their way to ‘raid’ the establishment. Both parties testified that S.F. was removed from the premises after making the remark.

S.F. stated that at no time was she asked to leave the premises. Mr. Bunn testified that he did ask her to leave the premises when he spoke to her at the patio door before calling Mr. Chenard. The testimony of all witnesses was that S.F. questioned Mr. Bunn when he asked her to leave and that he then called Mr. Chenard on the radio for assistance.

The licensees have the right to request patrons leave the establishment. Section 34(5) of the Act states:

A licensee or employee of a licensee who has reason to believe that the presence of a person on the licensee’s licensed premises is undesirable may,

(a) request the person to leave;

Section 34(6) requires a person to leave when asked:

No person shall,

(a) remain on licensed premises after he or she is requested to leave by the licensee or an employee of the licensee;

The issue before the Tribunal is not whether or not the licensees had the right to request S.F. to leave the premises but whether or not the manner in which S.F. was removed from the premises resulted in a violation of section 45(1) of the Act.

Mr. Chenard did not ask S.F. to leave. He testified he took her “standing her ground” as a refusal to leave and said “you’re leaving now”. Although S.F. initially stated that she was dragged out “by the hair”, she, Mr. Chenard and Mr. Bunn all testified that she was grabbed by the arm and escorted to the front door. The Tribunal accepts Mr. Chenard’s testimony that the manner in which he took S.F.’s arm was designed to keep her off balance to facilitate her removal without causing her injury. The Tribunal also finds that to this point, the removal did not constitute disorderly conduct either on the part of S.F. or the licensees.

The Tribunal is relying on the licensees’ testimony as to what occurred after Mr. Chenard walked S.F. to the door. There is no doubt that there was some resistance by S.F. who testified that she resisted the manner of her removal from the premises rather than the removal itself, stating she would have left had she been asked. The licensees testified that once the parties reached the front door, S.F. grabbed onto a pole and refused to let go. Mr. Chenard tried to pry her fingers off and then pulled her with sufficient force that both he and S.F. fell to the ground. She did not get up and S.F. was then dragged out by her feet and the door was closed. There is agreement that S.F. was injured some time during the removal process. In this regard, the Tribunal notes that there were questions put to S.F. by Mr. Chenard with respect to when photographs of her injuries were taken. However, these photographs were not entered into evidence and the Tribunal cannot therefore determine the extent of S.F.’s injuries.

Neither Mr. Chenard nor Mr. Bunn asked S.F. if she was injured or unable to get up when she refused to do so. Neither Mr. Chenard nor Mr. Bunn considered calling the police when the incident escalated at the front door area. Mr. Chenard testified that because the police are occupied at that time of night with patrons leaving the entertainment district in another area of the city, they would have been unavailable.

Mr. Chenard believes that he used an appropriate degree of force in S.F.’s removal because S.F. was committing an unlawful act on the premises. Section 34(1) of the Act states:

The holder of a licence or permit issued in respect of premises shall ensure that a person does not remain on the premises if the holder has reasonable grounds to believe that the person,

(a) is unlawfully on the premises;

(b) is on the premises for an unlawful purpose; or

(c) is contravening the law on the premises.

Section 34(2) states:

The holder of a licence or permit may request a person referred to in subsection (1) to leave the premises immediately and if the request is not forthwith complied with may remove the person or cause the person to be removed by the use of no more force than is necessary.

Mr. Chenard submitted that S.F. was committing illegal acts. It was his opinion that she was in violation of section 180(1) of the Criminal Code:

Every one who commits a common nuisance and thereby

(a) endangers the lives, safety or health of the public, or

(b) causes physical injury to any person,

Is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Mr. Chenard also submitted that S.F. was in violation of the Trespass to Property Act and referred the Tribunal to section 2.1 (b):

Every person who is not acting under a right or authority conferred by law and who …

does not leave the premises immediately after he or she is directed to do so by the occupier of the premises…

is guilty of an offence...

The Tribunal does not accept Mr. Chenard’s reasoning. There is no evidence that S.F.’s remark, whether made to the bartender at the bar or to Mr. Chenard on the patio, caused any disturbance in the Spotlight. Despite his testimony that he thought she was “trying to start a riot”, Mr. Chenard testified that he did not notice any reaction from the 10 to 12 other patrons he stated were on the patio when the remark was made. Mr. Bunn testified that he could not see the patio and that the only reaction he witnessed was that of a friend, who was not agitated, who advised Mr. Bunn of the remark because he was concerned for him. The licensees were not sufficiently concerned to call police. Rather, Mr. Bunn went to speak to S.F. and Mr. Chenard waited at the bar until he was radioed by Mr. Bunn who told him when he arrived at the patio door: “Ms F. is now leaving. I want her to leave now”. Mr. Bunn testified that he told S.F. she would have to leave if she kept saying that the bartender was underage. His concern appears to have been with removing S.F. because he found her remark offensive rather than because of any actual or potential consequences of that remark.

Mr. Chenard submitted that the licensees’ actions were taken to ensure their compliance with the Act. The Tribunal does not accept that Mr. Chenard was thinking in these terms when he pried S.F. from the pole causing both of them to fall. Rather, the Tribunal concludes that he was determined to eject S.F. and rather than make efforts to calm the situation or to seek assistance from police, he escalated his use of force. The Tribunal does not accept his explanation that police would not have been available: while S.F. does not recall doing so, both Mr. Chenard and Mr. Bunn testified that they saw her speaking to someone in a police cruiser outside the premises a few moments after she was ejected. By their own evidence, police were in the vicinity at the material time.

The Tribunal notes that once S.F. was dragged outside the premises, all witnesses agree that she was yelling and creating a disturbance. S.F. testified she was angry about what had happened. Mr. Bunn testified that he opened the door to see why S.F. had not left. She grabbed him and ripped his t-shirt and although he testified he did not deliberately hit her, he stated that when she did so, it caused his arms to rise and hit her. Again, the licensees chose not to call police to ameliorate the situation.

The Tribunal finds that the licensees exercised poor judgment and by their resultant actions at the front door created a disturbance and thereby permitted “quarrelsome, violent or disorderly conduct” to occur on the premises.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal confirms the monetary penalty of $2,000 imposed under the Order of Monetary Penalty dated March 5, 2014.

LICENCE APPEAL TRIBUNAL

________________________

Mary Ann Spencer, Member

Released: August 11, 2014```