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 of Ontario
Registrar
-and-
Central Bar & Grill Ltd. O/A Central Bar & Grill
Licensee
DECISION
Panel: Patricia McQuaid, Vice-Chair, AGCO Allan Higdon, Board Member
Decision Date: December 12, 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
Central Bar & Grill Ltd., Licensee ) Patrick Allen, on his own behalf
Allegations
- A hearing into Notice of Proposal number 16601 dated September 4, 2008 to suspend liquor licence number 90060 (the “Licence”) issued to Central Bar & Grill Ltd. (the “Licensee”) operating as CENTRAL BAR & GRILL, 1946-48 Weston Road, Toronto, Ontario, M9N 1W2 (the “premises”), on the basis of alleged violations of section 43 and subsection 45(2) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on December 3, 2008 in the City of Toronto.
Decision
- On the basis of the evidence, the admission of the licence holder, detailed below, and the submissions of the parties, the Board FINDS that the Licensee violated section 43 and subsection 45(2) of the O.Reg on May 3, 2008. Reasons follow.
Preliminary Matters
- Patrick Allen is the sole shareholder, officer and director of the Licensee. He appeared on behalf of the corporate Licensee and waived its right to be represented by a legal representative.
Registrar’s Evidence
Alcohol and Gaming Commission (“AGCO”) Inspectors Amanda Higuera and Helen Giorgoudakis attended at the licensed premises on May 3, 2008, arriving at approximately 2:03 a.m. Upon arriving, Ms. Higuera observed approximately 25 patrons outside the premises. Two security personnel were at the front entrance. The inspectors noted that the bar appeared busy. Ms. Higuera identified herself and asked the male security person if he knew how many people were inside and whether he had a counter. He did, showing her two mechanical counters. The first indicated an “in” count of 169 and the second, an “out” count of 41, for a total inside of 128 persons. The licensed capacity is 114; 67 in the north section and 47 in the south.
The inspectors entered the premises and conducted a count of the south section. They conducted independent counts; both arrived at a count of 58. The count in this section of the bar was easier to conduct as the majority of the patrons were seated at tables. There is no live band in this area and it is well lit.
The inspectors then entered the north section, resetting their counters to zero. They moved through this area of the bar, to the rear from where they started their count, moving south. In this north section of the bar, there is a dance floor in the centre of the room and a pool table. It is dimly lit. Most of the people were standing against the wall, not moving. Ms. Giorgoudakis stated that lots of patrons were dancing. It was difficult to walk through the area, at times she and Ms. Higuera walked in single file.
Both inspectors described moving toward the front of the section with counters, but before they reached the end of the room, both noticed, independently, the strong odour of marijuana. Ms. Higuera observed a lit marijuana cigarette being held, openly, by a male. At this point, she ended her count at 129 persons. Similarly, Ms. Giorgoudakis ended her count; her counter read 125. Neither Inspector noticed any bar security or staff in the area. They had not completed their count of this section. Ms. Higuera estimated there might have been another 20-25 people in the section, not included in the count. They did not observe any staff controlling the flow of patrons between the north and south sections. After observing the male for approximately 20 seconds, the inspectors proceeded to the south (front) section of the bar, where Ms. Higuera spoke to Mr. Allen, advising him that the premises were overcrowded, according to their respective counts, and that they had observed a male openly smoking a marijuana cigarette.
Ms. Higuera stated that Mr. Allen indicated to her that he thought they were overcapacity by 20 persons. She had spoken to Mr. Allen in the past about overcrowding, telling him that the two sections of the bar had separate capacities and had to be counted independently of each other, and has emphasized the need for mechanical counters. In addition, she had advised him about the procedure by which he could apply to the AGCO to increase his capacity. Her estimate was that capacity might be increased by 20-30 persons in each section.
Licensee’s Evidence
Mr. Allen acknowledged in his evidence that he was overcapacity on May 3, 2008. He does not agree, however, with the inspectors’ counts, asserting that he was only 20 persons over capacity.
He does have three security persons working, two at the front entrance and one person at the rear of the establishment in the washroom area. There are three exits from the bar, and patrons are, except for emergencies, allowed to use the front entry.
Mr. Allen stated that because of previous issues with overcrowding, he closely monitors the count, checking with security at the front every 20-30 minutes. About five minutes before the inspectors arrived he told security some people should be leaving. No one does a count in each section of the premises, rather the overall count is tracked.
His only problem with the AGCO has been overcrowding. He stated that he has served a five day suspension previously for that issue. Ms. Higuera has recommended that he apply to increase his capacity, but he did not pursue it due to financial considerations. However, recently his local councillor has become involved. The fire department has attended and conducted measurements in the premises which might enable him to make an application without incurring significant costs.
Mr. Allen described his challenges both financially and in terms of the area in which he is located. For financial reasons, he cannot hire additional security. He himself is present when the bar is open and he makes a point of wandering through the premises to monitor the crowd. Smoking is hard to control, but he can usually tell as he wanders through the premises if someone has lit up a cigarette. As soon as he smells anything he tells the patron to put it out. In addition, he has installed smoke detectors which shine a light when there is smoke. He was though not aware of anyone smoking on May 3rd, until he was advised by Ms. Higuera.
Reasons
The Board appreciates Mr. Allen’s candour in acknowledging his issues with overcrowding. He does not dispute that the premises were overcapacity on May 3rd. He asserts, however, that he was over by 20 in total, not by 58-62 in the north section and 11 in the south. The Board notes that although the licensed premises have capacity assigned to each section, Mr. Allen does not monitor the numbers in each separately, which is a problem given that the separate capacities must be enforced based on the current configuration.
The Board has, in the past, noted in its decisions that capacity counts may be subject to a margin of error. In this instance the two inspectors were remarkably consistent in their counts, especially in the more crowded of the sections where they both conceded a count was more of a challenge. However, even allowing for a margin of error of ten to twenty percent, which is generous, the north section count would be in the range of 35 persons over capacity, not insignificant in an area licensed for 67. Overcrowding is a public safety issue and while it is fortunate that, despite what appears to be a chronic problem with controlling numbers, no serious problems have arisen, whether the bar is 20 persons over capacity or 65, it cannot be condoned.
Mr. Allen has stated that he wishes to increase capacity (and described his challenges in so doing, with which the Board has some sympathy) and Ms. Higuera has recommended that based on his space that he make that application, but in the meantime he must abide by the current capacities. The Board therefore FINDS that there was, on May 3, 2008, a violation of section 43 of the O.Reg.
Regarding the allegation that a patron was smoking a marijuana cigarette, the Board accepts the inspectors’ testimony. Both observed the patron, having first had their attention drawn to him because of a strong odour which, through their training, and in Ms. Higuera’s case, also her experience, they were able to identify as marijuana. Mr. Allen again was candid in stating that he was not aware of anyone smoking. The Board therefore FINDS that there was a violation of subsection 45(2) of the O.Reg.
Conclusion
For the reasons given, the Board FINDS the Licensee violated section 43 and subsection 45(2) of the O.Reg.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his 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 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 12th DAY OF DECEMBER, 2008.
PATRICIA MCQUAID, VICE-CHAIR, AGCO ALLAN HIGDON, BOARD MEMBER