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-
1222368 Ontario Ltd. O/A Bow and Arrow Pub (The)
Licensee
DECISION
Panel: Dianne Axmith, Board Member S. Grace Kerr, Board Member
Decision Date: February 22, 2008
Hearing Location: Toronto, 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 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Daniel Alakas, Representative 1222368 Ontario Ltd., Licensee ) Karen Zvolony, Representative
Allegations
- A hearing into a Notice of Proposal number 15595 dated August 22, 2007 to suspend liquor licence number 23776 issued to 1222368 Ontario Ltd. operating as BOW AND ARROW PUB (THE), 1954 Yonge Street, Toronto, Ontario, M4S 1Z4, on the basis of alleged violation of section 43 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on January 18 and February 5, 2008 in the City of Toronto.
Decision
- After considering all the evidence and submissions, the Board FINDS there has been a breach of section 43 of the O.Reg. Reasons follow.
Registrar’s Evidence
AGCO Inspector Jade Leadbetter testified that she attended the Bow and Arrow Pub on March 17, 2007 at approximately 8:33 p.m. She observed two males seated immediately inside the vestibule who appeared to be employees. They were not using a mechanical counter to monitor people entering the establishment. Neither individual spoke to her as she passed the stairs and went directly into the main area on the ground floor. She was accompanied by Inspector Sandiland and they did not identify themselves to any staff member. It was her observation that the establishment was very busy and they decided to do a head count.
After ensuring that her mechanical counting device was in good working order, she immediately began counting patrons and staff while moving from the front of the establishment through to the back. A floor plan of the premises was entered as Exhibit 1(a) and (b). It was her testimony that she counted 126 people including those individuals she believed were staff. She observed no staff member at the rear exit. This is far in excess of the 80 allowed on the license. The counting took approximately five minutes to complete. She and Inspector Sandiland were not together and conducted their counts independently. It was her understanding that Sandiland had counted 120 individuals.
From the main level, she climbed the stairs to the second floor and could tell at a glance that it was not at capacity, which is 58 on that level. She noted that license holders cannot combine capacities for multiple levels.
She returned to the vestibule and identified herself to the two men seated, informing them of her count on the main floor and expressing concern about safety issues with overcrowding. She also suggested they should utilize a mechanical counter to ensure accuracy and compliance for both levels of the establishment in the future.
Ms. Leadbetter stated that while she counts patrons and staff, she believed Ms. Sandiland counted only patrons. She also went into detail about her method of counting and that she only includes patrons who are stationery, not those who appear to be in transit to some other part of the establishment.
On cross examination, the inspector testified that she observed the two staff members sitting in the vestibule for about 10 seconds or less. She saw no lineup outside the establishment and did not observe anyone in the stairwell. Patrons were not crowded shoulder to shoulder and moved freely throughout the premises.
She agreed that by executing her count from the front to the back she would have had her back turned when counting in Area #3 as identified on Exhibit #1(a). She reiterated that she counts people sitting and standing but not in transit and acknowledged that it might be possible for people from Areas 1 and 2 to go upstairs as she moved to the back of the building but certainly not 40 or more. She does not recall if she could see the exit doors at all times.
Ms. Leadbetter did not check the washrooms or the patio and did not seal the exits before doing her count but was confident her numbers were accurate. She spent approximately two minutes upstairs and about two minutes speaking to the men at the door. She did not ask to speak to the manager.
On re-direct, Ms. Leadbetter stated she did not observe an influx of people coming forward while doing her count and if people did come in from the patio that would only increase her count. She had a clear view of the stairway but felt that was irrelevant. When asked if there could be any margin for error in her tally, Mrs. Leadbetter responded "my count is my count". While other methods can be used, she chose to move forward into the establishment on this particular occasion.
AGCO Inspector Lyn Sandiland also testified about her observations on the evening of March 17, 2007. She and Inspector Leadbetter had been doing a St. Patrick's Day blitz of several establishments and entered the Bow and Arrow through the front door. There was no lineup outside and the two males in the vestibule did not challenge their entry. She saw no persons on the stairs and after testing her mechanical counter in her usual fashion to ensure she started counting from ‘0’, she began taking a head count because the establishment looked very busy.
It was Inspector Sandiland's testimony that many patrons were seated but a few were standing. There was not much movement except by those she could identify as staff. In total, on the Main Floor she counted 120 patrons plus 2 bartenders, 2 wait staff and the 2 males at the front door. She saw nobody exit or enter from the Dart Room. (Area 5 - Exhibit #1(a)).
When she finished on the Main Floor, she went upstairs with Inspector Leadbetter where she counted 36 people on that level. After that, but before they exited the establishment, Inspector Leadbetter spoke to the staff at the front door.
Inspector Sandiland described her method of counting. She does not include people who move past her when doing so. It was her opinion that this was an easy establishment in which to conduct a count and stated that the distance between the Dart Room (Area 5) and Area #3 would take less than three seconds to traverse.
On cross examination, Inspector Sandiland said it probably took less than a minute to count patrons on the second floor and less than three minutes to complete the count on the main level. Her observations were made primarily from the central area. She agreed that no other infractions were observed that evening and that she could move around the establishment with ease because most people were seated and the tables were mostly full.
Inspector Sandiland agreed that her back would have been turned at some point during her count, but that it would have been obvious to her if there had been a major shift of patrons from one area to another. She did not break down her count by the areas identified on Exhibit #1(a) and did one count only. She was not aware of a heated patio out back and cannot recall seeing a door leading out to it.
On re-direct, the inspector reiterated that if she had observed movement that could impact her count, she would have repeated it.
In answer to a Board question, Inspector Sandiland stated there is little chance of error in her counting methodology but she will always do a second one if she thinks there could be. It would not be fair to a licensee if she is not confident in her totals.
Licensee’s Evidence
Peter Marusinec is the owner and General Manager of the Bow and Arrow Pub. This establishment has been operating for 15 years and he has been a principal of it for the last 5. The establishment has a clean record and caters to an affluent clientele, many of whom are regular patrons. He is 100 percent involved in the day to day operations of this business and described the physical layout of the establishment confirming the identifiers noted in Exhibit #1(a).
A series of photographs were entered as Exhibit #2(a)(b)(c) and (d), visually demonstrating the areas identified on Exhibit #1(a).
Mr. Marusinec testified that at approximately 8:10 p.m. on the evening of March 17, 2007 he completed a count in his head of the number of patrons on the Main Floor and determined the number to be 78. He always does a count from the back to the front (opposite to that done by the inspectors) and it was his contention that this is the only way to do so with accuracy. According to him, if you do it from front to back, errors can occur particularly when observing Area 3. He also stated it takes him five minutes to count on the main floor and about two minutes upstairs. When people are in transit you sometimes have to count twice. He was confident of the accuracy of his count.
On that St. Patrick's night, there was an Irish karaoke in the establishment and the patrons were largely in groups of four to ten. One group of about thirty supporters of a rugby team was in the process of leaving the second floor as he completed his count. He also spoke about another group of about 20 soccer players who were just entering to go upstairs.
He had a staff of seven working that night and it was his testimony that only one individual was assigned to the front door and another to the back. Because his count was close to capacity, he gave the front doorman instructions not to let anyone else in and went to the kitchen to take care of other business. On regular nights, he does not have anyone on the door because overcrowding is unlikely to occur.
Mr. Marusinec stated they have never had a problem before this inspection occurred nor have they had one since. Since the alleged infraction, he has hired a new manager who has established a policy manual that includes instructions about avoiding overcrowding. A letter from Patrick Marusinec to AGCO Legal Services was entered as Exhibit #3.
On cross examination, Mr. Marusinec detailed the responsibilities of each staff member on duty that evening. He agreed that he was in the kitchen taking care of a problem when the inspectors entered and did their count. He does not know firsthand how many people were in his establishment at that precise time. He does not use a mechanical counter but feels his counts, done in his head, are accurate because so many of his patrons are regulars and he knows them well.
Mr. Marusinec does not recall being interrupted during his count and does not stop to talk to patrons while doing so. He reiterated the importance of counting from the back to the front because people can enter through the back patio and you cannot see that when moving in the opposite direction. He believes his method is more accurate.
He was firm in his statement that only one individual had been assigned to the front door and suggested that perhaps the second person there when the AGCO Inspectors arrived and entered the establishment was a friend of his staff person. He doubted that this person would have caused enough distraction to the doorman such that he allowed entry to patrons when told not to. He could not explain the unchallenged entry of the two inspectors. It was only after he learned about the visit from the inspectors that he assigned someone to monitor the back patio door. Not all of the rugby group had left when he emerged from the kitchen.
Mr. Marusinec denied that he had hired a new General Manager because of the overcrowding incident. The individual who had been working the front door that evening was no longer employed because of cash and liqour counts. Further, he will now get a mechanical counter only because the inspector suggested they should have one. Finally, despite his earlier statement about a "manual" he stated that establishment policies regarding over-crowding are not written but are discussed thoroughly with staff members as a team.
On re-direct, Mr. Marusinec reiterated that he does not normally need a doorman but had one on St. Patrick's Day specifically to deal with capacity. On a typical evening, he is not busy enough to require it. Policies are discussed at staff meetings but not written down. He agreed that when he was in the kitchen, people could have entered the establishment, but suggested that others could have left also.
On questions from the Board, Mr. Marusinec stated that on a typical night he would have a staff of only four to service about 50 patrons. The upstairs bar would not be open except for a special event. Of the 78 patrons he counted on March 17, 2007, he estimates that about 75% were regulars.
He thinks Shane Theoret, the staff member who was posted at the front door on March 17, 2007 when the AGCO Inspectors arrived, quit working at the Bow and Arrow because of changes being made but he did not really give a definitive reason.
Mr. Marusinec believes his establishment should qualify for a greater capacity than 80 on the main floor because it is twice the size of upstairs which is licensed for 58. He should have applied for an increase, but understands he cannot apply for an increase while this overcrowding matter is still outstanding.
Robert Costelloe is the new General Manager of the Bow and Arrow. He has been employed in that capacity since June, 2007. He has had extensive experience designing and operating restaurants with five different liquor licenses, all with clean records. He has a policy that staff must check for potential overcapacity three times a day and the counts are always done from the back of the establishment moving forward to the front. It is his opinion that this is the only method that can be used to achieve accuracy because of pillars and the raised level of one area in the establishment. He believes it should take 8 to 10 minutes to do a proper count on the main level, and 5 to 6 minutes upstairs.
Patrons enter and exit from both the front entrance and the patio doors where parking is available in the back. It was his contention that if counting from the front to the back you could encounter people entering, exiting or going upstairs.
It was his testimony that on a normal evening they usually have about 50 to 60 patrons. The clientele are regulars and mature individuals. They do not encourage younger patrons.
On cross examination, Mr. Costelloe agreed that he was not present on the night of March 17, 2007. His direct testimony referenced policies included in a Manager's Manual, but agreed he would not be surprised to learn that Mr. Marusinec had testified no such written manual exists. There was no such manual when he began his employment and he stated that although it was not now in written form, his directive about head counts is discussed with staff.
Mr. Costelloe testified that mechanical counters are used on busy nights, but later changed his testimony to say that they do not yet have them because in his opinion they are not needed.
He was hired to address many concerns or problems with the establishment including food costs and he did not replace any manager. He believes the existing policies of the Bow and Arrow were sound and he has added to them.
On a normal night, it takes from 4 to 6 minutes to do a head count. He believes that time is appropriate because of the layout and architecture of the establishment. While there may not be a written manual, weekly meetings are held with staff and managers are reminded to do three head counts daily - one by the day manager and two by the night manager.
The rear patio is only used seasonally but large parties can leave through those doors although the front door is used more frequently. Mr. Costelloe believes it is possible to count patrons more than once if they are moving from the front of the establishment to the back.
In answer to Board questions, Mr. Costelloe stated he believes there could be a margin of error in head counts of up to 10% on a normal night and 15% to 20% on a busy night. He believes this is possible because there could be a number of people in the washrooms when the count is done and provided an example of a count done recently where an undercount by some 20% - 25% had occurred.
Registrar’s Submissions
On behalf of the Registrar, Mr. Alakas submits there is credible and sufficient evidence proving overcrowding on the night of March 17, 2007. Two experienced inspectors conducted separate counts with mechanical devices on a very busy St. Patrick's evening. They moved from the front to the back and testified they did not include anyone moving from behind to the front of them in their numbers.
Both inspectors agreed they turned their backs to a portion of the establishment while counting, but for only a few short seconds. This would not be enough time for a significant number of people to get around them and be counted twice. Inspector Leadbetter found 126 individuals in the establishment, including staff, and is confident of the accuracy of this count. It took approximately 4 minutes to complete and this is consistent with testimony from the licensee about an appropriate amount of time to do so.
Similarly, Inspector Sandiland counted 120 patrons plus staff members and described it as "an easy count". She would have repeated the exercise if she sensed any significant shift of patrons from one area to another. The time taken for her count is one minute different than what the Licence holder suggests is required.
Mr. Marusinec conducted his count at approximately 8:10 p.m. and then went to the kitchen where he remained during the time the inspectors arrived at 8:33 p.m. and until they left. Despite his instructions not to let anyone else in, the inspectors entered unchallenged. He also testified that someone was posted at the rear door but no one was observed by either inspector.
The license holder really has no idea how many people were present when the inspectors did their count because he was in the kitchen. He does not know if the rugby group had all left or where the soccer players were.
There was vague testimony about a policy manual but ultimately an admission that no such document exists. Mr. Costelloe's testimony is irrelevant because he was not even employed at the time of the incident.
Mr. Alakas submits that the Board should rely on the logical, credible and consistent testimony of the inspectors. The Licensee has not proven there is any substantial difference in counting from the front to the back of the establishment versus back to front.
He asks the Board to find there has been a breach of Section 43 of Ontario Regulation 719/90 under the LLA.
Licensee’s Submissions
On behalf of the Licensee, Ms. Zvolony submits the Bow and Arrow was not overcrowded and that the inspectors' counts were inaccurate because they did them while moving from the front of the establishment to the back which has been proven by testimony to be problematic. They could not have an unobstructed view of the entire establishment by using this method and admitted their backs were turned at a certain point. When you are counting Areas 1 and 3 your back is turned to Areas 2, 4 and 5. You cannot see Areas 5 or 3 when counting Areas 1 and 2. It is her submission that patrons could be counted twice if they moved from one area to another.
Ms. Zvolony further suggests the inspectors should have counted a second time to ensure accuracy and that a margin of error always exists. She submits that the time taken for the counts was more appropriate for a normal evening and that it should have taken longer on a busy night particularly for someone unfamiliar with the establishment. The layout means it can't be done in four minutes.
There was karaoke entertainment that evening which caused constant movement and Inspector Sandiland testified she did not even notice the rear patio doors. It was Licensee’s counsel’s contention that the only way to achieve accuracy is to seal the doors before counting. The inspectors agreed the place was busy but they could still move freely throughout the space, another indication that it was not over capacity.
Rugby players were coming down from the upper level and soccer players were going up. The Licensee's count included the soccer team and excluded the rugby group. This count was taken at approximately 8:15 p.m. and it defies logic that more than 50 patrons could have entered in 20 minutes while he was in the kitchen. Mr. Marusinec counted 78 persons when going in and 75 after he learned about the inspectors' visit. Ms. Zvolony also suggests that because the patrons are mostly regulars, it is less likely that Mr. Marusinec would count them more than once if they were moving around, but the inspectors might.
Reply
On reply, Mr. Alakas implored the Board to see the argument of front to back versus back to front for the “smoke and mirrors” it is. No matter which way you do the count, your back is turned to some area and the space is small enough that a large group could not move without observation. The inspectors did not suggest there was a margin for error in their counts and in fact would have repeated them if they thought that was a possibility. The front and rear exits did not have to be sealed because the inspectors were moving forward. It was the inspector’s testimony that anyone entering from the back would not have been counted.
Mr. Alakas submits it does not defy logic that 50 patrons could enter or leave when the Licensee himself described two large groups moving around. To be able to move freely in the establishment does not speak to capacity.
Analysis & Reasons
The evidence from both inspectors in this matter was credible and their separately taken counts were consistent after accounting for staff included in Inspector Leadbetter’s count. After carefully reviewing Exhibits 1 and 2, this Board is not convinced there is any substantial difference in whether someone counts from the back to the front, or from the front to the back of this establishment. There will be minor blind spots no matter which method is used. The inspectors testified they did not count any individuals who were moving from behind them to the front of them which, in essence, minimizes the possibility that some people were counted twice.
The Board has also considered Mr. Costelloe’s testimony about a "margin of error" and finds that if one existed, such as patrons in the washroom when the count was done, that would likely add to the total numbers counted by the inspectors.
While Mr. Marusinec testified that he instructed the staff member at the front entrance not to let any more patrons in, the inspectors were clearly not stopped when they arrived approximately fifteen minutes later. Mr. Marusinec admitted he was in the kitchen from the time he gave those instructions and did not come out again until after the inspectors had left. Since the doorman, Shane Theoret, did not testify at this hearing, we have no way of knowing why he allowed entry to the inspectors, and perhaps others, despite those instructions.
In her submissions, Ms. Zvolony stated Mr. Marusinec did a count after the inspectors left and it came to 75. This evidence was not elicited from the Licensee during his testimony and the Board has discounted it.
The Board was also troubled by the changing testimony from the witnesses for the Licensee regarding the existence of a formal policy manual, the use of mechanical counters and exactly when a doorman was assigned to the rear exit. When pressed, both individuals changed their stories.
If the total number of patrons over capacity was small, we might have concluded that a possibility of error in the count was reasonable. But even if we accepted the theory put forward on behalf of the Licensee that there can be a 10% margin of error, the difference between 80 and 126 is far in excess of that percentage. Based on the evidence, we have concluded that overcrowding did occur on the evening of March 17, 2007.
Conclusion
For these reasons, the Board FINDS there has been a breach of section 43 of the O.Reg.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file 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 a 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 22nd DAY OF FEBRUARY, 2008
DIANNE AXMITH, BOARD MEMBER S. GRACE KERR, BOARD MEMBER
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