Registrar, Alcohol and Gaming Commission Ontario v. 1131422 Ontario Limited O/A Clancy's, 2007 CanLII 37849

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 Ontario Registrar

-and-

1131422 Ontario Limited O/A Clancy’s Licensee

DECISION

Panel: Guy Maurice, Board Member Allan Higdon, Board Member

Decision Date: July 30, 2007 Hearing Location: Peterborough, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone (416) 326-0366 Fax (416) 326-5566 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Sujin Chan, Representative 1131422 Ontario Limited, Licensee ) Keith Juriansz, Representative

Allegations

1. A hearing into a Notice of Proposal (“NOP”) dated August 31, 2006 and a Supplementary NOP dated January 29, 2007 suspend liquor license number 92000 (the “Licence”) operating as CLANCY’S, 189 Hunter Street West, Peterborough, Ontario, K9H 2L1, on the basis of alleged violations of section 43 and subsections 44(1) and 34(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on February 20, 2007 in the City of Peterborough.

Decision

2. After considering all the evidence and submissions the Board finds the Licensee violated section 43 of O.Reg. Reasons follow.

Preliminary Matters

3. On May 8, 2007, Registrar’s representative wrote to the Panel to withdraw the Supplementary NOP dated January 29, 2007 alleging violations of subsections 34(1) and 44(1) of the O.Reg. The Panel accepted the withdrawal.

4. Registrar’s representative requested the exclusion of witnesses. The motion was granted.

Registrar’s Evidence

5. James Owen has been an Inspector with the AGCO since 1999. On the night of July 9, 2006 the witness arrived at Clancy’s. It was the night before a suspension was due to start. A line-up of about 20 people was on the sidewalk. The witness entered Clancy’s Pub and went onto the outside patio, which is very long and narrow. No doorman was visible at the entrance of the patio. The witness spoke to the manager, Chris Potter, and asked him how many patrons were on the north-east patio and was told 13 people, as of five minutes ago. The witness proceeded with a count and arrived at a total of 26 patrons on the patio which has a legal capacity of 18. When the witness told the manager this count, the manager began removing patrons. The witness did another count of the patio and this time counted 29 patrons. Another recount confirmed the same number. The manager did a count also and then stated, “We’re trying. How did this happen?” Mr. Potter then mentioned the establishment was short one doorman. At 12:50 am the witness left the premises.

6. On cross-examination the witness stated he was alone during his inspection and did not use a counter. He stated it was easy to count patrons as the patio was long and narrow. The witness confirmed that he and the manager walked to the open patio door. Inside it was dark and poorly lit. It took about one minute for him to count the patrons. He noted a male was starting to remove people from the patio before he began his first recount although he did not actually see people leave the patio. His count did not include himself or the manager. The witness acknowledged the patio was very crowded and it was hard to work through the crowd.

Licensee’s Evidence

7. Michael Stone is a doorman and bartender at Clancy’s Bar. On the night of July 9, 2006 he was working as a doorman at the door to the side patio of the subject premises. He counted patrons entering Clancy’s, the adjacent Red Dog, and Clancy’s patio, the three premises having a combined capacity of 245 people. Every ten minutes he does a count of each room with a counter and reports the count to the front door. He first saw the Inspector around 1:00 am when the witness was on the patio. Minutes before meeting the Inspector he had done a patron count and noted 18 people on the patio.

8. The witness saw the Inspector and the manager talking on the patio while the witness was at the door of the patio. The witness did not hear any of the conversation between the two. The manager asked him to clear some people off the patio which he proceeded to do, removing 5-6 people. He did another count and stated the number remaining amounted to 20 people. The witness did not see the Inspector walk to the end of the patio. He was on the patio for about a minute before he was aware of the Inspector’s presence.

9. On cross-examination, the witness stated he has worked at Clancy’s for three years. As the doorman, he was responsible for noting the capacity of all three licensed premises, totalling over two hundred people. Each head count takes about 2-3 minutes and each room is reported individually to the front door where admission is controlled.

Registrar’s Submissions

10. The Registrar alleges in the Notice of Proposal that a patio licensed for 18 patrons contained 26 people. Inspector Jim Owen attended the premises and immediately noticed that there was no door security at an open door from the sidewalk. The Inspector proceeded to the side patio as this was known as an area of previous difficulty. No door security was at the entrance of the patio either. The Inspector counted people on the patio and arrived at a count of 26. The manager began removing people while the Inspector conducted a second count, this time arriving at a figure of 29 patrons. Retracing his steps, the Inspector did another count that confirmed the 29 figure. The manager was also counting and stated, “How did this happen?” The Inspector left the bar at 12:50 a.m.

11. The Inspector did three counts – one found 26 patrons in the area, the two other counts confirmed 29. The testimony of the Inspector was clear and exact.

12. The witness for the Licensee stated he was working at the premises on the night of the inspection. He counted each room every ten minutes and reported the number to the front door. However, he could not remember who did the actual recording. The witness was very vague about the timing of events. In the end, he admitted that there were 20 people on the patio even after 5 to 6 people were removed. His testimony is unreliable and inconsistent. On the balance of probabilities, it is clear the Licensee was in violation of Section 43 of O.Reg in that the licensed capacity was exceeded.

Licensee’s Submissions

13. The testimony of the Inspector is unreliable. He stated he arrived at the premises and immediately conducted a count on the patio and noted 26 people. He then returned and did two more counts, again without a counter, and arrived at a figure of 29 patrons. If 5-6 patrons had been removed as alleged, it would have been impossible for the second and third counts to be higher than the first.

14. The patio area is narrow. It would have been very difficult to conduct an accurate count with people moving, sitting, leaving and entering. The Inspector should have used a counter and prevented people entering and leaving so that he could conduct a proper count.

15. Mike Stone gave credible testimony despite understandable nervousness. He stated the Inspector did not walk down the length of the patio and back, conducting two separate counts. Mr. Stone stated there were only twelve people on the patio after five or six were removed. Therefore there were a total of 17 people on the patio with a capacity for 18. That is the most reliable count made on the night in question. The Registrar has failed to make his case based on the balance of probabilities.

Reply

16. The notes of the Inspector were not made exhibits and the Inspector never referred to any contradiction between his notes and his oral testimony. His first count was made from a doorway while his second and third counts were made as he walked from end to end of the patio. This obviously permitted a more accurate figure. The Inspector stated there was no need to use a counter for an area licensed to hold only 18 people. It would have been impractical and disruptive to patrons for entrances to be blocked while the Inspector took a count.

Reasons

17. The Board heard evidence from only two witnesses, one for the Registrar and one for the Licensee. In essence, the issue boils down to one of credibility of the witnesses.

18. The allegation is that the number of patrons on a licensed patio exceeded the number allowed by law. Inspector Owen testified he visited the premises and did three counts of patrons on the patio, all without a counter. The first count was 26 patrons and the second and third counts revealed 29. All counts were in excess of the permitted limit of 18 patrons. Mr. Stone stated his count showed that once five or six patrons were removed only 12 remained. Therefore at no time did the patio exceed its limit of 18 patrons.

19. The Board considers the removal of patrons from the patio - a point agreed upon by both witnesses - as clearly indicative that the patio was over capacity. If the patio contained only 17 or 18 patrons as alleged by Mr. Stone why were five or six removed? Obviously some imperative compelled the manager and Mr. Stone to clear patrons off the patio. There would be no need to do so if the patio had been within its licensed capacity.

20. The Board notes that Inspector Owen is an experienced officer, having worked in his capacity since 1999. The patio is a small space licensed for only 18 people. The Inspector made three counts, two of them made walking from one end to the other of the patio. All his counts showed the patio to be well beyond capacity.

21. The Inspector noted the spontaneous cry of the manager, “We’re trying. How did this happen?” This was accompanied by the manager’s explanation that the club was short a doorman. This statement corroborates the observation of the Inspector that he entered the premises through a door without any security.

22. The Board finds the testimony of the Inspector to be more credible than the witness for the Licensee for the reasons stated above.

Conclusion

23. For the reasons given, the Board finds the Licensee violated section 43 of O.Reg.

24. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file her written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file his/her written response. Registrar’s Representative may serve and file any reply within three (3) days of receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission at the address on the front page of this decision in accordance with the Board’s Rules of Practice.

DATED AT TORONTO THIS 30th DAY OF JULY, 2007

ALLAN HIGDON, BOARD MEMBER GUY MAURICE, BOARD MEMBER

AH/sm