HEARING BEFORE A PANEL
OF THE BOARD OF THE
ALBERTA GAMING AND LIQUOR COMMISSION
IN THE MATTER OF the Gaming and Liquor Act
Revised Statutes of Alberta 2000, Chapter G-1
current as of November 1, 2010
and the Regulation
and
IN THE MATTER OF Studio 107 Dance Club Ltd.
o/a Studio 107 Dance Club
10740 Jasper Avenue NW
Edmonton, Alberta
T5J 2A7
concerning alleged contraventions
DATE OF HEARING: April 10, 2014
HEARING PANEL: Hon. M.J. Trussler, Panel Chair
Mr. W.A. Clark, Panel Member
LICENSEE REPRESENTATIVES: Mr. M., Director
COMPLIANCE AND SOCIAL RESPONSIBILITY: Mr. H., Hearing Officer
DECISION OF THE HEARING PANEL
I. Jurisdiction and Preliminary Matters
As a result of receiving an incident report dated March 3, 2014, the Compliance and Social Responsibility (CSR) Division of the Alberta Gaming and Liquor Commission (AGLC) imposed an administrative sanction under Section 91(2) of the Gaming and Liquor Act, without a hearing, on Studio 107 Dance Club Ltd. o/a Studio 107 Dance Club (Studio 107), Edmonton.
The Licensee subsequently applied for a hearing under Section 94(1) of the Gaming and Liquor Act. A Hearing Panel of the Board of the AGLC met to hear the following alleged violation:
Section 5.3.6(b) Licensee Handbook: Permitting a patron to have more than two standard size drinks in their possession after 1:00 a.m.
The Licensee and the Hearing Panel were provided with a hearing file containing the incident report dated March 3, 2014 and various documents pertaining to an alleged incident occurring on the premises of Studio 107 between Saturday, February 15, 2014 at 11:50 p.m. and Sunday, February 16, 2014 at 2:06 a.m. Mr. M. confirmed he received the incident report and Notice of Hearing and wished to present a due diligence defence. The incident report was entered into evidence by the CSR Division as Exhibit #1.
Mr. H. presented the case on behalf of the CSR Division. Mr. M. represented Studio 107.
II. The Issue
Did the licensee permit a patron to have more than two standard size drinks in their possession after 1:00 a.m.?
III. Evidence
Mr. Z. – evidence led by Mr. M.
Mr. Z. has been a bartender at Studio 107 since October 2013. Mr. M. is strict with his staff when it comes to keeping them focused and in compliance with the rules. He has a form all staff must sign prior to the start of each shift. The form was entered into evidence by Mr. M. as Exhibit #2. The form sets out the employee shall not:
• Sell liquor to minors (knowingly serving to minors will be cause for dismissal)
• Allow an adult patron to give liquor to minors
• Sell liquor to an intoxicated patrons
• Allow intoxicated patrons to consume alcohol (signs of severe intoxication include staggering, falling down, slurring of speech, watering of eyes and loss of coordination)
• Sell liquor after 2:00 a.m.
• Allow patrons to consume alcohol after 3:00 a.m.
• Sell liquor below (AGLC) approved drink prices
• Sell liquor at happy hour prices after 8:00 p.m.
• Allow patron to have more than two standard drinks after 1:00 a.m.
• Consume alcohol during a shift
Mr. M. showed the Panel and Mr. Z. pictures on his iPad of the Studio 107 premises and signage posted at the premises. The photographs were entered into evidence as Exhibit #3. Mr. Z. verified the pictures accurately depicted the premises. Studio 107 is a fifteen hundred square foot club on two levels. There was one security camera mounted on the wall above the service bar in question, however, the camera was broken on the night of the incident and did not record any surveillance footage.
Mr. Z. has a valid ProServe certification. The management team at Studio 107 does its best to ensure the rules are followed. The district of Edmonton the club is located in has been under a lot of scrutiny recently, so management tries to mitigate any potential incidents. There will always be staff that does not follow the rules. Mr. M. has acted as a bartender himself at the premises to ensure all the staff were doing their job properly and to show strong leadership to his employees.
Mr. Z. – cross-examined by Mr. H.
Mr. Z. has held a valid ProServe certification since 2010. He indicated it is his understanding a bartender cannot serve a patron anything over a one ounce beverage after 1:00 a.m. The form all employees must complete before beginning their shift is handed out to each employee by the manager when they obtain their float. Mr. Z. advised the Panel the management of Studio 107 provides verbal, one-on-one training to staff. He was unable to confirm if formal training is provided by the management.
Mr. Z. – questioned by the Panel
There are walk-up service bars located throughout the premises of Studio 107, as well as service staff on the floor. Mr. Z. ensures the drinks he serves are for the patrons consuming them and makes patrons stand at the service bar to prove the drinks are, in fact, for them.
Staff meetings are held once every two months. The rules and guidelines are discussed at the staff meetings as reminders to all staff. There are clocks on the walls behind all the service bars on the premises, to remind staff to be conscious of the time throughout the evening. There are floor managers and porters on the floor at all times. The service staff and management are also on the floor. The floor managers are to check all the tables after 1:00 a.m. to ensure drinks are being consumed properly by the patrons. Mr. Z. believes Studio 107 has plenty of staff on the floor and adequate supervision is provided by the managers.
Ms. P. – evidence led by Mr. M.
Ms. P. is a former employee of Mr. M.. She worked for him for four years. During her time as Mr. M.’s employee, she found that he always tried to follow the rules and better his business. He has worked every position at each of his businesses so he has a better understanding of how to engage with his staff. Mr. M. strives to pass all AGLC inspections with 100% compliance. He is trying to make a difference through the operation of his businesses and he provides good training to his staff. He will fire a staff member for breaking the rules, if required.
Ms. P. – cross-examined by Mr. H.
Ms. P. has held a valid ProServe certification for the past five years. She is aware that after 1:00 a.m. a patron is not permitted to be served more than two standard size drinks. Mr. M. has his staff come into the premises on a day when the premises are closed for training and to review the training manual and all the policies. A copy of the Licensee Handbook is kept in the office at the premises.
Ms. P. – questioned by the Panel
The pre-shift forms are completed and signed by each employee before they begin their shift. Ms. P. was an employee of Studio 107 until June 2013.
Mr. M.
Mr. M. has a full training and security manual that all staff must read and understand. He performs all the positions at his businesses so he can put himself in his staff’s shoes. He has been in the industry for over twenty years.
At 1:00 a.m., the lights of the premises are flashed on and off several times to alert the bartenders and all staff to the time. Mr. M. also makes eye contact with all the bartenders to ensure they are aware of the time. At 2:00 a.m., a particular area of the premises is fully lit to indicate the end of liquor service. The DJ also makes announcements to patrons on a count-down basis throughout the evening.
Mr. M. is continually evolving his training manual to address any concerns that may arise. He has never had a single violation in all his years of business. He is part of Best Bar None (BBN) and was an accredited establishment. He has all the BBN signage up throughout the premises. He is Protect and ProServe trained.
Mr. M. – cross-examined by Mr. H.
A copy of the Licensee Handbook is kept in the main office at the premises and is available to all staff. If his staff is not willing to abide by his rules, they may be fired. Mr. M. gives his staff as much training and information as possible. Studio 107 is loud, dark and busy so he trains his staff accordingly. If Mr. M. determines a patron is not to be served any more alcohol, he flashes a light in the patron’s face so all the bartenders know the identity of the patron.
Mr. M. has fired staff for many reasons, including short pouring. He does his best to regulate his staff at all times and he demands respect from his employees. Mr. M. and his assistant do the majority of the staff training. His brother was helping him but he recently became ill. Most recently, Mr. M. has been doing the training on his own but he is hoping to hire another manager to help him.
When Mr. M. is not on the premises, the bartenders are put in charge as supervisors. There is approximately thirty staff working on a busy evening. If a staff member does not sign the pre-shift form, they are fired. If they won’t sign the form, he is not willing to take the risk. Mr. M. has a competent team of supervisors in place right now and he has to trust his staff as much as possible.
Mr. M. believes he does all he possibly can to ensure his staff are supervised. He was at his new restaurant the night of the incident but he was back at Studio 107 after 2:00 a.m. Mr. M.’s brother was in charge while he was at the other restaurant. He believes he knows which bartender served Inspector C. the night of the incident but he can’t be sure based on the description he was provided. The bartender in question was fired a week following the incident, before Mr. M. was contact by the AGLC about the incident.
Since the incident, one of the senior bartenders has been put in charge and he has hired another senior manager. He has advised his security staff to keep an eye on the bars and the bartenders. As business improves, Mr. M. intends to hire more staff. He was unable to locate the pre-shift form signed by the bartender in question the night of the incident because his brother kept track of the forms and he is currently in the hospital.
Mr. M. has not requested an AGLC staff training seminar. He was not aware the training sessions were available. He did have a police security training seminar.
Mr. M. – questioned by the Panel
Mr. M. is at the premises every night. He also has a friend and a liquor manager who help him out and he recently hired a new manager. The pre-shift form was initially part of the training manual but since the incident, he initiated the forms on a full-time basis.
The bottle service section of the club is the only area where there is seating available for patrons. Most patrons stand, dance and/or mingle through the premises. He does not charge patrons for bottled water in the club. The capacity of Studio 107 is approximately seven hundred persons on two levels.
IV. Summation
Mr. H.
The AGLC policy limiting the maximum number of drinks sold, served or allowed to be in possession of a patron after 1:00 a.m. was implemented in response to concerns expressed by Albertans regarding violence and criminal behavior associated with excessive drinking in licensed premises. When the policy was implemented in 2008, a letter was sent out to all Licensees from the CSR Division outlining and detailing the updates to the Licensee Handbook. The letter was mailed on July 23, 2008 and the policy has been in effect for almost seven years now.
With the incident in question, a special joint project was created at the request of the Edmonton Police Service (EPS) for the EPS and AGLC to look into concerns regarding excessive drinking in the entertainment districts of Edmonton. Jasper Avenue is one of those entertainment districts. Mr. M. is ProServe trained and as such, should be fully aware of his responsibilities as a Licensee and the conduct of this staff under his supervision. It is the Licensee’s responsibility to control his staff members and train them.
It is the contention of the CSR Division that the Licensee could have done more with respect to the policies contained in the Licensee Handbook. The training provided by the Licensee was mostly verbal. A copy of the Licensee’s training manual was not provided to the Hearing Panel for review. Mr. M. indicated the premises are very large and there is only so much he can do to supervise his staff. Mr. M. could limit the number of patrons entering the premises each evening, to provide him with more of an opportunity to observe and supervise his staff and the premises.
The CSR Division respectfully submitted that the original administrative sanction offered be upheld.
Mr. M.
Mr. M. has been in the business in Edmonton for thirty five years and takes pride in what he does. He is trying to survive in a tough industry and can only afford to hire so many managers. He is frustrated because he is being punished for the mistake of one of his staff, when he does everything he possibly can to ensure his staff receives proper training. He is not even sure hiring more managers would change anything. He has had a difficult time recently but he has a good team in place. Employees should be held more accountable by AGLC for their mistakes.
Mr. M. has no problem with the AGLC conducting inspections. He is frustrated that he was not told about the incident until two weeks after the incident occurred. He wishes he would have been informed sooner so he could have dealt with the incident immediately; the bartender in question could have done the same thing again the next evening. He would have fired the bartender on the spot if he had been aware of the incident.
The rent for the Studio 107 premises is $30,000 a month and the majority of the money is made on Saturdays and Sundays. He cannot afford to limit the number of patrons entering the premises each evening. He has already been forced to reject patrons because of the new scanning system that was put in place. Mr. M. followed the BBN guidelines when he opened the premises. The industry has a huge staff turn-over rate and it is hard to find reliable, long-term employees.
V. Finding
The Panel makes a finding of a violation of Section 5.3.6(b) of the Licensee Handbook.
Although the Licensee appears to be a hardworking, conscientious and honest individual, it would seem that he has taken on more responsibility than he can reasonably manage. While he does provide some training for his staff, there does not seem to be any formal training and the quality of the training is hard to ascertain, as he did not produce his training manual at the hearing. The Panel is of the view there was not adequate supervision of the staff and therefore the Licensee has not made out a defence of due diligence.
The Panel strongly advises that the CSR Division communicate any sanctionable incidents to a Licensee within ten days of their occurrence. Most establishments do not maintain security video footage longer than that period of time.
VI. Penalty
The Licensee took steps following the incident to implement new procedures to prevent further incidents and he appears to have a good track record in the industry. The Panel recommends that the Licensee request an AGLC staff training seminar in the future. As a result, in accordance with Section 91(2) of the Gaming and Liquor Act, the Hearing Panel imposes the following reduced penalty for a violation of Section 5.3.6(b) of the Licensee Handbook:
Penalty: A $250 fine - OR - a 1 day suspension of Class A liquor licence 772792-1. The fine is to be paid within 14 days of the date of this decision or on or before Thursday, June 12, 2014 or the suspension served commencing Friday, June 13, 2014 and continuing until the close of business on Friday, June 13, 2014.
Signed at St. Albert this 29th day of May, 2014.
___________________________________
Hon. M.J. Trussler, QC, Hearing Panel Chair