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-

1126430 Ontario Inc. o/a Little Texas Bar & Grill Licensee

DECISION

Panel: S. Grace Kerr, Board Member Guy Maurice, Board Member

Decision Date: September 4, 2008

Hearing Location: Belleville, 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 ) Phillip Morris, Representative 1126430 Ontario Inc., Licensee ) Lawrence Arkilander, Representative

Allegations

1. A hearing into a Notice of Proposal number 16012 dated February 19, 2008 to suspend liquor licence number 0809441 (the “Licence”) issued to 1126430 Ontario Inc. operating as LITTLE TEXAS BAR & GRILL, 290 North Front Street, Belleville, Ontario, K8P 3C6 (the “Licensee” or the “establishment”), on the basis of alleged violations of section 43 of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on June 10, 2008 in Belleville, Ontario.

Decision

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

Preliminary Matters

3. Charles St. George, a director, officer, and shareholder who appeared on behalf of the corporate Licensee, was advised of his right to have legal counsel, but waived that right. He wished to proceed with the hearing with the assistance of Mr. Lawrence Arkilander, a registered paralegal.

4. A witness exclusion order was made on consent.

Registrar’s Evidence

5. Stacy Lanois, the Registrar’s only witness, testified that she has been a Liquor Inspector with the AGCO in the Hastings/Prince Edward/Leeds/Grenville counties’ area since June, 2001. She attended at the establishment for a routine inspection at approximately 12:26 a.m. on July 29, 2007 (‘the night in question’), unaccompanied.

6. Ms. Lanois provided a physical description of the establishment, and indicated that it has an indoor capacity of 655 persons, its fenced-in patio being licensed for 79 persons. She said that this is not a crowded patio when it is at capacity.

7. Ms. Lanois also detailed three methods in which she has been trained for counting the number of patrons in an establishment: a) pre-meditated counting, which requires more than one inspector using a counter and involves notifying the staff that a count will be undertaken; b) closing out an area, such as the patio, and counting everybody out of it; and, c) a quick, snap-shot count, which is done on a walk-through basis. Ms. Lanois used the last method. She said that she does not need or use a counter when counting in this fashion as she can keep track of up to 100 persons in her head.

8. On the night in question, Ms. Lanois entered the establishment after showing her badge to the doorman. A DJ was playing music. She did a quick walk through of the interior of the establishment and found no issues.

9. At approximately 12:30 a.m., Ms. Lanois went out onto the patio via the patio door. No one was posted there. Instead, the security person was at the patio’s east corner. Knowing its licensed capacity of 79 persons was low for the size of the patio, she did a quick head count. She started at one side of the patio, and did a sweep through, counting everyone in front of her. She counted 112 persons. The count took her about 30-35 seconds to a minute or, according to Ms. Lanois, “not long”.

10. Ms. Lanois testified that there was not a significant number of people coming onto or leaving the patio while she made her count.

11. At 12:35 a.m., after some interaction with Mr. David Stanzel and Ms. Sandy Howard, both staff members of the establishment relating to an intoxicated person who had come from another establishment and tried to enter the establishment, Ms. Lanois returned to the patio and did another count. Using the same methodology as before, this time her count was 117 persons. Again, no security person was at the door to the patio.

12. Ms. Lanois returned to the interior of the establishment and advised Mr. Stanzel that the patio was over-crowded. She also spoke with the security person who was located on the patio, and he told her that usually the establishment has two security persons posted to the patio; however, on the night in question, one person had not shown up for work and that it was hard to control the number of people on the patio.

13. In cross-examination, Ms. Lanois admitted that her count was not accurate, which can only be achieved by sealing off an area. She stated that accuracy is important when a count is close to the establishment’s legal capacity. She acknowledged that a count would be more accurate if another inspector had been with her also doing one. She also said that it is easier to do a count if all persons in the area being counted are standing, which was the case here. While she is “not perfect”, she told the Board that in the years that she has been an AGCO Liquor Inspector, the accuracy of her counts has not been an issue before.

14. In re-examination, Ms. Lanois stated that she allows a margin of error of 10-15 people in establishments with smaller capacities. Only if patrons come in while she is doing a count and walk past her does it affect her count: she does not believe that 33 persons walked past her in this case – at most, 10 persons walked by her.

Licensee’s Evidence

15. Mr. David Stanzel, who has worked for the establishment for 3 years and is its head doorman, was the Licensee’s first witness. Mr. Stanzel also worked for the Liquor Control Board of Ontario for six years as a customer service representative.

16. Mr. Stanzel was working at the establishment on the night in question. He acknowledged that Inspector Lanois advised him the establishment was overcapacity on the patio. After she left, he went to look at it and said that there were 40-45 people on it. This was a “guestimation”, or a “quick count”, according to Mr. Stanzel.

17. Mr. Stanzel testified that, between 12:30 a.m. – 1:00 a.m. on the night in question, there were maybe 450 people in the establishment in total.

18. In cross-examination, Mr. Stanzel said that if the patio was at capacity, it would “look crowded”. He was aware of the allegation of overcrowding on the night in question, but did not make any notes regarding what happened. In Mr. Stanzel’s witness statement, Exhibit 1, there is nothing to indicate that the total crowd that night numbered 450 persons or that at approximately 12:30 a.m. he counted 45 people on the patio.

19. In response to Mr. Morris’ questions, Mr. Stanzel testified that his job on the night in question was to provide security at the front door to the establishment. There are no records to show what times he went out to the patio. He acknowledged that he was not on the patio at the times Ms. Lanois did her counts.

20. Indicating that the patio has never been overcapacity, Mr. Stanzel also testified in cross-examination that if it was, it would be shut or slowed down. He acknowledged that vacating a patio is a “pretty extraordinary thing” and that the patrons would be unhappy if made to leave.

21. Ms. Sandy Howard testified next on behalf of the Licensee. She is the manager of the establishment, and was present on the night in question. Ms. Howard has worked in licensed establishments for over 12 years.

22. Ms. Howard was working in the establishment’s office when she was told by Mr. Peter Argiris, one of the owners of the establishment, that an AGCO Liquor Inspector was present. She observed the Inspector’s actions via the establishment’s video surveillance system, which consists of 19 cameras projecting onto a 32-inch monitor.

23. Via a camera that is mounted on a soffit, Ms. Howard saw the Inspector on the patio and testified that she did not see the inspector move; rather, she remained stationary, according to Ms. Howard.

24. Ms. Howard pointed out to Mr. Argiris that there were a number of clear spaces between the patrons. She said that if the patio had been overcapacity, it would have been dealt with immediately by removing people from it and thereafter, as one patron left another one would be allowed to enter it.

25. Ms. Howard was not aware of Ms. Lanois’ count.

26. In cross-examination, Ms. Howard testified that she was responsible for ‘operations’ on the night in question. While she did not speak to the Inspector, she did speak with Mr. Stanzel that night about the alleged overcapacity problem. She made no notes about the situation. Her May, 2008 witness statement, Exhibit 2, was made based on the videotape recording she viewed that night, her memory, and the calendar she keeps in the office. She stated that the videotape recording was retained, and the fact that it was not tendered into evidence at the hearing was “not (her) decision”.

27. In answer to Mr. Morris’ questions, Ms. Howard stated that she counted the number of persons on the patio, although her statement (Exhibit 2) does not mention the number. She claimed not to have any concerns about overcapacity on the patio. Ms. Howard testified that Mr. Michael Seely was the security person working on the patio on the night in question, that Mr. Seely is no longer employed by the establishment, that usually only one security person is posted to the patio, and that this person does not normally stand at the door to the patio.

28. The Licensee’s final witness was Mr. Peter Argiris, who stated he is a part-owner of the establishment. He was present on the night in question and observed Ms. Lanois’ inspection from the establishment’s video-surveillance system.

29. Mr. Argiris said there were no safety concerns regarding the number of patrons on the patio that night. He also stated that he does not allow the patio to be overcapacity as it costs him money if the establishment’s licence is suspended.

30. Mr. Argiris said he did not know what the Inspector was doing on the patio; she only turned around when she left. He further testified that he was able to count the number of patrons on the patio from the videotape recording as the cameras have “clear resolution”: there were “no more than 35-40 people”. According to Mr. Argiris, while people were going out and onto the patio, there were lots of empty spots there.

31. Mr. Argiris made no notes regarding that night’s occurrence. He said that the establishment’s patio has never been overcapacity such that people have been asked to leave it.

32. In cross-examination, Mr. Argiris stated that no staff persons are posted to the door to the patio. The security person for the patio walks around it. He acknowledged that in his witness statement, Exhibit 3, while he knew of the allegation of overcrowding, there is no reference to the number of people on the patio on the night in question. He said that the video-surveillance tape of the night in question has not been destroyed; he has not looked at it since he did so on the night in question with Ms. Howard. He also testified that his count of 35-40 people on the patio was made at approximately 1:00 a.m. on the night in question.

Registrar’s Submissions

33. The Registrar submits that Ms. Lanois’ counts of 112 and 117 persons on the night in question puts the establishment’s patio significantly over its licensed capacity of 79 persons. He urges the Board to accept the Inspector’s counts as accurate, for a couple of reasons. Ms. Lanois testified that she has done many counts before which have been accepted by the Board. Further, she operates with a ‘margin of error’ of some 10-15 people. In this case, two separate counts, spaced about five minutes apart, are very close. While Ms. Lanois testified that her count was “inaccurate”, the Registrar urged the Board to accept that what she meant was “inexact”. At most, ten persons walked past her and were included in her count, in the Registrar’s submission, based on the evidence. Even if this is the case, the establishment’s patio was overcapacity by about 30% (or, 92/97 persons versus the 79 persons legally allowed there), according to Registrar’s counsel. In any event, the Registrar urges the Board to find that Ms. Lanois’ counts were reasonably accurate at 112 and 117, respectively.

34. The Registrar argues that the Board should give no credence to the Licensee’s argument that the only way to do an accurate count is to vacate the patio. And, while an owner has the authority to vacate premises (as per section 34 of the LLA), an AGCO Liquor Inspector does not have that power. In fact, none of the Licensee’s three witnesses spoke of doing so; they only said they would control the entry to and exit of people from the patio.

35. No one voiced a concern to the Inspector at the time of her attendance, or about her count or her methodology, according to the Registrar.

36. The Registrar also urges the Board to have doubts about the Licensee’s evidence as to the number of persons present in the establishment, and on the patio, in particular, on the night in question. The numbers given by the three witnesses in their oral testimony do not appear in any of their Witness Statements. There is supposedly a video-surveillance tape of the patio on the night in question, which should provide an exact number of the people on the patio at any point in time as well as evidence of the Inspector’s exact movements. That video evidence, which is referred to in Mr. Stanzel’s and Mr. Argiris’ witness statements and which could be totally exculpatory, was not brought to or tendered into evidence at the hearing.

Licensee’s Submissions

37. According to the Licensee’s representative, there is no corroborating evidence to the Inspector’s count, which she admits was “inaccurate”. Also, the Inspector is not a tall person who would have difficulties counting patrons who might be taller than her and who were moving around. The Inspector should have asked the patrons to vacate the patio. The Licensee urges the Board to believe that they would have co-operated.

38. None of the Licensee’s witnesses are new to bar services and appreciate the safety, financial and personal implications of being overcapacity. In other words, the Licensee has no reason to allow the patio to become overcrowded. The Licensee’s representative urges the Board to prefer their viva voce evidence over their witness statements.

39. The Licensee has a high-quality system for monitoring capacity levels and all of its witnesses have testified that the establishment is never allowed to be overcapacity. The Inspector has conducted inspections of the establishment before the night in question and never found it to be overcapacity.

40. The Licensee argues that it is not possible for three persons to count 45 people on the patio in contrast to Ms. Lanois’ count of 112, a difference of about 70 people, according to Mr. Arkilander. It is a credibility issue, according to the Licensee, that should favour the Licensee.

41. Since the law works on accuracy, the Licensee submits, there needs to be an accurate account. The only way to achieve one is for the patio to be emptied, which is also the only “fair thing” to do to the Licensee. In other words, the Licensee’s representative urges, the Registrar has not proven his case beyond a reasonable doubt.

Registrar’s Reply

42. The Registrar submits that there were not three counts of 45 persons by the Licensee’s witnesses. Rather, Mr. Argiris counted 35 persons about a half hour after the Inspector left; Ms. Howard said she did her count “after” the Inspector did hers; and, Mr. Stanzel had no idea of the time frame he was using, but it was not when the Inspector was there because he was stationed at the front door at the time.

43. The Registrar argues that it is “pure speculation” that the Inspector could have vacated the patio and that the patrons would have been happy to comply.

44. There is no evidence that the Inspector required a chair to do her count; besides, the Licensee’s witnesses said there was space between the patrons so the Inspector could see to do her count, the Registrar submits.

45. The Registrar urges that there is no legal requirement to corroborate an AGCO Inspector’s count and asks the Board to give no weight to that argument by the Licensee.

46. Finally, the Licensee’s argument that it has no reason to allow overcapacity because of the negative implications applies to all establishments.

Analysis and Findings

47. The Board has carefully considered the evidence presented. It finds that on July 29, 2007, at approximately 12:30 a.m., Ms. Lanois, an AGCO Liquor Inspector conducted a head count of the establishment’s patio and determined that there were 112 persons on it. The Board also finds that, on that same date at approximately 12:35 a.m., Inspector Lanois conducted a second count and determined that there were 117 persons on the establishment’s patio. The establishment’s patio was licensed for 79 persons. The Board concludes that while these numbers may not be exact, they are nonetheless reasonably accurate and certainly sufficiently above the Licensee’s legal capacity as to constitute a breach by the Licensee of section 43 of the O.Reg.

48. What’s more, even if 10 persons walked past Ms. Lanois and, as such, were double-counted, her counts would still be 102 and 107 respectively. These figures put the establishment overcapacity on its patio by about 29% and 35%, respectively and represent a significant degree of overcrowding. These numbers also constitute a violation of section 43 of the O.Reg. Further, the Board accepts Ms. Lanois’ testimony that ‘ten’ is the maximum number of people who might have walked by her.

49. The Board has also considered the acknowledged ‘margin of error’ of some 10-15 persons that Ms. Lanois factors in when deciding whether an establishment is overcapacity based on her count(s). Re-doing the calculations to allow for this possible margin of error only changes the numbers of Ms. Lanois’ counts to 97-102 and 102-107, respectively; it does not alter the determination that this establishment was overcapacity on its patio on the night in question.

50. The following factors are significant to the Board’s finding that the Inspector’s count was sufficiently accurate as to be relied upon by it to find that a breach of the legislation occurred:

• The Inspector’s evidence was credible and was given considerable weight. She gave her evidence in a straightforward manner. She made admissions against interest (e.g. that her count was “not accurate”, meaning, inexact). Immediately upon completing her inspection, she advised Mr. Stanzel of the overcapacity problem and made her notes;
• Inspector Lanois was trained and experienced in the method of counting she used;
• While corroborating evidence is generally helpful to the Board in coming to a decision when overcapacity is alleged, it is not a mandatory requirement; matters of credibility relating to and the weight to be given an inspector’s evidence as to the count should be determined on a case-by-case basis;
• Vacating the patio was not the only way to do an accurate count in this case. It is completely speculative that the patrons would have willingly vacated the patio without incident;
• The clear spaces that existed between patrons (as testified to by the Licensee’s witnesses) aided the Inspector in obtaining an accurate count of the persons on the patio;
• None of the Licensee’s witnesses made notes about their respective substantially lower counts, either on the night in question or shortly thereafter. This would reasonably have been expected, given their knowledge of the seriousness of the Inspector’s allegation as each of them testified. This would also have provided essential corroborating evidence supporting their viva voce testimony. Furthermore, neither did any of the Licensee’s witness statements refer to their counts. In all of these circumstances, the Board concludes that their oral evidence was self-serving and untruthful; and,
• The Licensee did not produce the high quality, clear resolution video-surveillance tape of the patio that was made on the night in question and which has not been destroyed. Being the only evidence that could have produced an exact count of the number of patrons on the patio that night, the Board draws a negative inference against the Licensee for its failure to produce this vital piece of potentially exculpatory evidence.

Conclusion

51. Based on the evidence and for the reasons described above, the Board FINDS that the Licensee violated section 43 of the O.Reg on July 29, 2007.

52. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within twenty-one (21) days of the date of this decision. The Licensee’s representative shall have fourteen (14) days to serve and file a written response. Registrar’s representative may serve and file any reply within ten (10) 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 Rule of Practice.

DATED AT TORONTO THIS 4th DAY OF SEPTEMBER, 2008

S. GRACE KERR, BOARD MEMBER GUY MAURICE, BOARD MEMBER

SGK/cp