Licence Appeal Tribunal
Date: 2014-12-01 File: 8940/LLA Case Name: 8940 v. Registrar of Alcohol and Gaming
Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L.19 - to Suspend a Licence
1280858 Ontario Inc. o/a Diamonds Cabaret Appellant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION AND ORDER
Adjudicator: Patricia McQuaid, Vice-Chair
Appearances: For the Appellant: Ed Blaha, Paralegal For the Respondent: Rena Khan, Counsel
Heard in Toronto: October 30, 2014
REASONS FOR DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act (the “Act”) issued a Notice of Proposal (the “Proposal”), dated June 20, 2014 which proposed to suspend the licence of 1280858 Ontario Inc. o/a Diamonds Cabaret (the "Appellant”). The Appellant has appealed the Proposal to the Licence Appeal Tribunal (the “Tribunal”).
The Registrar alleges that the Appellant contravened s. 45.1 of Ontario Regulation 719/90 (the “O. Reg”) under the Act on November 3, 2013, specifically that the Appellant failed to ensure that reasonable measures were in place to deter disorderly conduct on the property adjacent to its premise. An intoxicated patron was assaulted outside the licensed premises and suffered head injuries. The Registrar also alleges that on November 29, 2013, the Appellant permitted drunkenness on the premises – an intoxicated patron was observed in the licensed premises contrary to s. 45(1) of the O. Reg.
After carefully considering the evidence and submissions, the Tribunal finds that the Appellant contravened s. 45(1) of the O. Reg and dismisses the allegation that the Appellant violated s. 45.1 of the O. Reg. Reasons follow.
EVIDENCE and ANALYSIS
November 3, 2013 incident – s. 45.1 of the OReg
The Tribunal heard evidence from five Peel Regional police officers and from Sorin Cohn, one of the managers of Diamond Cabaret (‘Diamond”). Diamond is a licensed premises, with entertainment by exotic dancers, both male and female. The male dancers perform in the downstairs lounge. On November 3rd, an altercation occurred outside Diamond between a patron (identified as “JH”) who had been ejected from the premises and several of the male dancers. One of the dancers, who may or may not have been working that particular night, struck JH and caused serious injury.
Police were called to respond to, and investigate, this assault that occurred outside Diamond. The police officers did not speak to staff regarding the events inside Diamond prior to JH being ejected from the premises. JH was not called as a witness at the hearing.
The only evidence regarding what occurred prior to JH being escorted out of Diamond comes from Sorin Cohn. That evidence is relevant to the events that unfolded outside. Mr. Cohn testified that at approximately 12:45 a.m., JH and two male friends entered the club and each ordered a beer. This timing is consistent with the information the police received from “AK,” one of the males who attended with JH – AK said they arrived at about 1 a.m. Shortly after arriving, JH got up to go to the washroom, passing the “VIP” area on his way. As he walked by, JH bumped into one of the patrons in that area and used racially inappropriate language to that person. Staff observed this and told JH “don’t start anything.” JH became belligerent. Mr. Cohn estimated that JH had been in the club for about seven minutes at this point. JH was asked to leave and was escorted out by one of the doormen through the kitchen area and out the back door. This was the closest exit.
The doorman then told Mr. Cohn that JH was gone, but needed his coat. Mr. Cohn asked one of his friends, AK, to take the coat out to JH. Mr. Cohn did describe JH as “a guy looking for a fight”, but at this point there was no physical altercation between JH and anyone inside the club, or with the doorman as he was being escorted out.
Minutes later, someone told Mr. Cohn that there was a fight outside. He was told that JH had an argument with a few of the male dancers. 911 was called. The first officer on the scene arrived at 1:18 a.m. PC Styrczula testified that when she arrived JH was on the ground at the front of the building, apparently unconscious. An employee of Diamond was with him, holding his upper body.
Several police officers testified regarding their role in the police investigation, and that evidence established the following facts. When JH was escorted out of the premises, he was at or near the side entrance, which is an entrance for the part of the club where the male dancers perform. There, JH encountered three male dancers. He was belligerent and got into a verbal altercation with the dancers, making some derogatory comments to them. Some pushing ensued. JH fell, but got back up and the “fight” appeared to end, at which point a fourth male, also a dancer, rushed out the side entrance and punched JH in the head, knocking him to the ground.
The Tribunal notes that though JH was interviewed by police, none of this information was gathered from JH himself as he had little or no recollection of the incident. Rather, their information was received from AK, Diamond employees and the male dancers.
The relevant language in s. 45.1 of the O. Reg is as follows: “the licence holder failed to ensure that reasonable measures were in place and reasonable efforts were made to deter disorderly conduct on property adjacent to and in the vicinity of the premises…” On the evidence before the Tribunal, JH did exhibit “disorderly conduct” inside the premises. He was belligerent and made racially inappropriate comments. Diamond responded promptly, before matters escalated; he was removed from the premises within approximately 10 minutes of his arrival. As noted by Mr. Cohn, and by police through the information they received from AK, there was no physical altercation. Nor was there any evidence that JH was ejected forcibly or, as submitted by Registrar’s Counsel, that he was “tossed out”, a circumstance which, if it had occurred, might have given rise to a risk of a physical or violent response.
Based on the evidence, it appears that once outside, JH encountered the male dancers who were outside for a break, and made, again, inappropriate and derogatory comments. There was a scuffle which was brief. Up to this point, there was no issue that ought to have alerted the Appellant to further problems. Nothing had occurred inside the club, or as JH was escorted out, that would have suggested physically aggressive conduct by JH. The fourth male dancer then came out of Diamond and charged at JH. The alleged violation must be viewed in the context of all of the facts. The chain of events happened in a matter of minutes. This could not have been anticipated; it was by no means a predictable consequence of what had occurred earlier.
With little or no evidence of disorderly conduct adjacent to the licensed premises, that the Appellant knew or ought to have been aware of, the Tribunal cannot conclude that there was a violation of s. 45.1 of the O.Reg and therefore dismisses this this allegation.
November 29, 2013 incident – s. 45(1) of the O. Reg
Two AGCO inspectors, Trevor Joseph and Raman Sharma, testified. They attended Diamond at approximately 12:50 a.m. on November 29, 2013 for a routine liquor licence inspection. Both inspectors had attended before and were familiar to the Diamond staff. There were approximately 30 patrons present and six staff, including two servers, two security persons and Mr. Cohn. According to Mr. Cohn, it was a slow night. When the inspectors arrived, they did a walk through the premises. Mr. Cohn was aware of their presence. They stopped to talk to him, and while in conversation, a patron walked by them, bumping into Mr. Cohn and Inspector Joseph. Neither inspector had noticed the patron prior to this, and even when he bumped into them, Inspector Joseph stated that he thought it was no more than an accident. However, as they watched the patron walk away from them towards the bar area, the inspectors noted that he was unsteady on his feet. Mr. Cohn did remark at this point that he thought the patron was intoxicated.
Inspector Joseph, accompanied by Inspector Sharma and Mr. Cohn, approached the patron. Inspector Joseph identified himself to the patron and asked how much he had to drink. After numerous attempts to answer, the patron said he had consumed two “Canadian” beer. He had a bottle of Heineken in his hand. Inspector Joseph noted that the patron had slurred speech, bloodshot and glossy eyes and had a strong odour of beer and marijuana. Inspector Joseph asked the patron to put his bottle down on a table, at which point the patron became confrontational. At Mr. Cohn’s request, security became involved and asked the patron to leave, which he did.
Mr. Cohn testified that the patron had been in Diamond for about a half hour. The patron was belligerent with a server upon his arrival and had been told by one of the security persons to “cool it.” He also said that the patron had been outside twice in the 30 minute period to smoke and had been served two beers. Someone, whether it was Mr. Cohn or another staff person – it was unclear in the evidence, concluded that the patron was “on something” and staff was told to “cut him off”. The Tribunal also heard evidence that one of the servers had observed the patron “popping pills” at the table, approximately 5-7 minutes before he was cut off.
Section 45(1) of the O. Reg. requires the Tribunal to consider whether the Appellant “permitted drunkenness” in the premises. First, the Tribunal must determine if the patron was “drunk”. The Tribunal concludes that he was. The inspectors made observations of the individual when in conversation with him. He exhibited signs of intoxication. Mr. Cohn himself conceded that the patron seemed intoxicated when he bumped into them. The patron had at least two beers in the half hour that he was at Diamond. He had been belligerent from the time he entered. The behavior as described in the evidence was consistent with drunkenness. He went outside twice in a half hour period, the inference being that he was, according to Mr. Cohn, “smoking weed.” The Tribunal agrees with Ms Khan’s submission that whether intoxication occurs because of alcohol alone or a combination of drugs and alcohol is immaterial on these facts.
The second issue is whether the Appellant “permitted” drunkenness, that is, whether the Appellant “knew or ought to have known” that the patron was drunk. The Tribunal concludes that the Appellant did “permit” based on the evidence. It was a slow night. The patron, by his actions, brought attention to himself virtually from the moment he entered. A half hour later, he was still in the premises, had consumed two beers and had, Mr. Cohn testified, been cut off. There may be circumstances where a patron, after being cut off, is allowed to remain in the premises for personal safety reasons. That may not constitute a violation of s. 45(1). However, no evidence was before the Tribunal of any such circumstances. Indeed, when the inspectors were talking to the patron, he still had a beer in his hand. Mr. Cohn did not dispute this fact. The inference to be drawn is either that he was not cut off, or that if he was, he had not been cut off effectively. The patron was asked to leave only after his interaction with the inspectors.
The Tribunal therefore concludes that the requisite elements of s. 45(1) of the O. Reg. have been found and a violation occurred.
ORDER
Pursuant to the authority vested in it under the Act, the Tribunal finds that the Appellant to be in breach of s. 45(1) of the O. Reg. The Tribunal dismisses the allegation of a breach of s. 45.1 of the O. Reg.
The Tribunal requests written submissions from the parties regarding sanction. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision and the Appellant’s representative shall have seven (7) days from receipt of the Registrar’s submissions to serve and file a written response. The Registrar’s representative may serve and file a reply within three (3) days of the receipt of the Appellant’s response.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: December 1, 2014