ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission of Ontario (Registrar)
-and-
Beaconsfield Lounge Partnership Ltd. O/A The Beaconsfield (Licensee)
DECISION on sanction
Panel: Kirsti Hunt, Vice-Chair, AGCO Decision Date: August 26, 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 Beaconsfield Lounge Partnership Ltd., Licensee: Jerry Levitan, Representative
Allegations
- A hearing into Notice of Proposal number 16229 dated April 28, 2008, to suspend liquor licence number 810816 (the "Licence"), issued to Beaconsfield Lounge Partnership Ltd., (the "Licensee"), operating as THE BEACONSFIELD, 1154 Queen Street West, Toronto, Ontario, M6J 1J5, (the "premises"), on the basis of an alleged violation of section 43 of Ontario Regulation 719/90 (O.Reg), made pursuant to the Liquor Licence Act, was held on August 7, 2008, in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated section 43 of the O.Reg.
Registrar's Evidence
Inspector Brad Foster of the Alcohol and Gaming Commission of Ontario (AGCO) attended at The Beaconsfield on January 5, 2008 at 1:28 a.m. with Inspectors Neline Fernando and Amanda Higuera. There was a line-up outside. Inside it was very crowded so he did a patron count by going from the north side of the premises to the south side looking at patrons and counting in his head. He did not count staff. His count was 98 persons in an area with a capacity of 78. He gave his count to the other two inspectors who spoke to the person in charge.
The inspector could not state that his count was 100% accurate. There was some movement of people but he did not see people enter or exit because the door was not in his view at all times. However, there was a line-up outside so there was not a large movement of people.
Inspector Neline Fernando added that while outside, she observed condensation on the window of the premises and a lot of people inside. There was a security guard outside and one seated inside. She informed the latter that they were doing a count inside and asked for his count. He had a count of 106 people who entered and 19 who exited for a total of 87 persons, which was over the permitted inside capacity of 78 persons.
It was very difficult for anyone to move and she had to push her way through the crowd to get to the bar counter. Inspector Foster gave her a count of 98 persons which did not include staff. She did not see anyone come in.
She spoke to the manager Chris Charon, and advised him that the premises was over capacity and advised him that security also had a count that was over capacity.
Inspector Amanda Higuera described the crowd inside as being shoulder to shoulder. One had to physically change places with some one else in order to move.
Licensee's Evidence
Mr. Carlos Fernandez, the general manager of the establishment, stated that their policy is they keep the premises at or under the legal capacity. The inspectors said the crowd was shoulder to shoulder however that happens when people crowd into certain areas when they are at or close to capacity.
Mr. Fernandez was not present on the night in question.
He informed the Board that the two doormen on duty that night were let go because they did not take steps to stay within capacity. To try to find out why the numbers were so high, the head of their security firm did a walk through of the premises and discovered that people were sneaking through the back door which is locked from the outside but has a push-bar on the inside (Exhibit 1). People outside were observed calling on cell phones to people inside who then would let them in through the back door. Before this, they did not know that there was a problem with the back door which had a sign saying "Fire Exit Only."
To remedy the situation, they put an alarm on the push-bar so that it sounds when the door is opened. Since then, the alarm has gone off a few times and staff have gone over to deal with the situation.
Submissions
The Registrar asked for a finding of a breach of section 43 of the O.Reg based on Inspector Foster's count of 98 persons, not including staff, in an area with a capacity of 78 and the observations of the other two inspectors. The doorman agreed that they were over capacity.
The Licensee agreed that the establishment was over capacity but that one did not know to what extent because the inspector agreed that he was not 100% sure his count was accurate.
Decision
The Board considered the evidence and the submissions as a whole.
Based on the Licensee's agreement that the premises was over the legal capacity, the Board makes a finding that a breach of section 43 of the O.Reg occurred on January 5, 2008.
Submissions on Disposition
The Registrar submitted essentially that based on the specific facts of this case, a seven (7) day suspension is appropriate as a specific as well as a general deterrence.
The Licensee submitted that the problem was corrected as soon as it became apparent so a specific deterrence is not needed. A two (2) day suspension would be excessive given the circumstances but would more than satisfy any need for general deterrence.
Decision on Disposition
- The Board finds that, in the specific circumstances of this case, a four (4) day suspension is appropriate as a specific as well as a general deterrence.
Analysis
The Board reviewed the submissions as a whole.
The Board takes overcrowding in premises very seriously. The Fire Marshall sets the capacity for licensed premises to ensure a safe number of occupants within and exceeding that capacity can potentially put both patrons and staff at risk. Fortunately, in this case, nothing untoward occurred.
A verbal warning had been issued in the past for overcrowding although no specific details were presented in evidence. However, beyond the warning, the Licensee has no history of infractions.
Based on the evidence of the inspectors, the premises were extremely overcrowded with people shoulder to shoulder so movement in the premises was very difficult. The inspector's count was around 98 persons, not including staff, in an area with a licensed capacity of 78. The doorman's count of 87 was also over the legal capacity.
The Board does note that after this incident, the Licensee took steps immediately to try to rectify the problem. The two doormen were fired. The problem at the back door (Exhibit #1) was identified and an alarm installed on the push-bar on that door. The door was locked from the outside but people outside were observed calling on cell phones to friends inside who then would open the back door to let them in. With the door being unmonitored, this was a foreseeable problem that was not being dealt with at the time of the infraction.
Based on the Licensee's evidence, that alarm had gone off a few times since and staff had gone to deal with the situation.
In the view of the Board, there is still a potential problem with that door which is at the end of a hall at the back of the premises. With only an alarm and no one monitoring the door, especially when the premises is busy, exit or entry by patrons can still occur before staff can make their way to that door. Once at the door, staff could have difficulty identifying who or how many people entered. Also patrons could leave with alcohol and be out of sight before a staff member reaches the door.
Given the past history of compliance and the remedial action taken by the Licensee, a seven-day suspension is not appropriate.
However, given that the premises was very overcrowded, the back door was a foreseeable problem and may still possibly be a problem, a four day suspension is appropriate as a specific as well as a general deterrence.
Order
Therefore, the Board ORDERS that licence number 810816 issued to Beaconsfield Lounge Partnership Ltd., operating as THE BEACONSFIELD, 1154 Queen Street West, Toronto, Ontario, M6J 1J5, be SUSPENDED for a period of four (4) consecutive days.
The Licensee shall submit proposed suspension dates in writing to the Manager of Hearings, Hearings Department, Alcohol and Gaming Commission of Ontario at the address on the front of this decision within seven (7) days of the date of this decision. The Board will set suspension dates without further notice to the Licensee if proposed dates are not provided within that time. The suspension must be served on days the establishment normally operates. The suspension may not start earlier than twenty (20) days from the date of this decision and must be completed within ninety (90) days of the date of this decision.
DATED AT TORONTO THIS 26th DAY OF August, 2008
KIRSTI HUNT, VICE-CHAIR, AGCO KH/ee