Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9058/LLA
CASE NAME: 9058 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
1817897 Ontario Inc. o/a Beta Appellant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION AND ORDER ON SANCTION
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Appellant: Randall Barrs, Counsel
For the Respondent: Aviva Harari, Counsel
DECISION AND ORDER ON SANCTION
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal ("NOP"), dated August 13, 2014, to suspend the liquor sales licence of 1817897 Ontario Inc. o/a Beta (the “Appellant/Licensee”), for a period of 14 days. The appeal was heard on April 22, 23 and 24, 2015, following which the Tribunal found the Licensee, to be in breach of s. 45(1) of O. Reg. 719/90, under the Liquor Licence Act in respect of the incident on February 23, 2014, and not in breach of s. 45.1 in respect of the incident on March 14, 2014.
The parties were directed to provide written submissions on the appropriate sanction. The Tribunal has received and reviewed those submissions.
In her submission on sanction, the Registrar’s Counsel submitted that a 10 to 12 day suspension is appropriate given that the Licensee's security staff "did nothing to intervene when a patron was violently attacked" by one of the Licensee’s security staff members. The Tribunal was asked to consider protection of the public, the industry and regulator reputations, the issues of general and specific deterrence, as well as rehabilitation of the licence holder.
In reply, the Appellant's Counsel first noted the Registrar was asking for the same suspension stated on the NOP for both original allegations when only one was found. (The Tribunal notes, in fact, that the Registrar, in the NOP, was seeking a 14 day suspension.) He pointed out that police acknowledged the admirable job done by security in dealing with patrons and that the victim of the assault had himself been charged for an unprovoked assault on security.
The Appellant's Counsel submitted that there was no reason to fault Beta security personnel, with the exception of AB, the Beta staff member who committed the assault on the patron. That conduct, in hindsight, was "totally unpredictable", and AB was subsequently asked to resign.
The Appellant's Counsel argued that "protection of the public" was not applicable as it was the patron who started the incident by attacking security. All security staff, except for AB, conducted themselves appropriately.
The Appellant’s Counsel submitted that general deterrence and rehabilitation should not apply as the Licensee operates in accordance with the rules and is very selective in hiring its security.. Further, he reiterated that the Licensee has never been suspended and does everything possible to prevent any problems. There should be no suspension.
When considering the submissions of the parties on the appropriate sanction in this matter, the Tribunal is mindful of the evidence presented through the course of the hearing and, in particular, that the events of February 23, 2014, were intense and occurred very quickly (specifically, the assault as captured by security video and described in evidence by Camera 2 video, between 12:51 and 13:01, a 10-second period in which the assaulted patron is seen being dragged and then repeatedly punched).
The fact that patrons threw the first blows and that one police witness stated security staff managed to do "an admirable job” in dealing with the situation cannot be disregarded. However, while the Licensee had proper security policies and practices in place, security’s response, at least that of one person, was neither measured nor appropriate, resulting in injury to the patron, and the Licensee must bear some responsibility for that.
The Tribunal notes that Mr. Barrs did not indicate that any steps had been taken by the Appellant to ensure there is no repeat of the situation that occurred on February 23rd. The Tribunal considers that in the type of environment in which the Licensee operates, and the risks involved, a Licensee must be prepared for, and act to prevent even the 'one' unexpected incident.
From a perspective of reasonableness, the Tribunal cannot ignore the speed in which the incident occurred and the difficulties that the larger melee presented to all other members of the Licensee's security staff; in other words, how quickly could they have reasonably been expected to react and intervene with AB as he assaulted the patron in that rapidly unfolding situation.
On that basis, the Tribunal would have welcomed hearing a submission on what steps, if any, the Licensee might have subsequently taken to impress, on its security staff, the importance of not losing self-control in the event of another such melee, in the future.
In arriving at a decision on the appropriate sanction, and in addition to the above considerations, the Tribunal also takes into account the Appellant has no disciplinary history and that findings were made on only one of the two allegations set out in the NOP. Therefore, and while recognizing that a sanction is intended to achieve the goals of specific and general deterrence, in this instance, the Tribunal considers that a suspension of 10 to 12 days is unreasonable and unduly harsh.
At the same time, given the Tribunal’s findings, and in particular, the Appellant’s failure to provide any evidence or submission on action taken in response to the conduct of its security staff, a warning would not serve the purpose of specific deterrence. Therefore, the Tribunal must assess a period of suspension.
In light of the considerations set out above, the Tribunal has concluded that a suspension of the Appellant’s liquor licence for a period of two days is appropriate.
Therefore, the Tribunal ORDERS that the liquor licence held by 1817897 Ontario Inc. o/a Beta be suspended for a period of two (2) consecutive days, to be served on days on which the establishment normally operates.
The Appellant shall submit proposed suspension dates to the Registrar within seven (7) days of the date of this decision, failing which the Registrar may set the suspension dates without further notice to the Appellant.
LICENCE APPEAL TRIBUNAL
Simon Dann, Member
Released: October 16, 2015