Registrar, Alcohol and Gaming Commission Ontario v. Central Bar & Grill Ltd., 2008 CanLII 91774

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

Registrar, Alcohol and Gaming Commission Ontario Registrar

-and-

Central Bar & Grill Ltd. O/A Central Bar & Grill Licensee

Panel: Patricia McQuaid, Vice-Chair Jacqueline R. Castel, Board Member

Decision Date: June 18, 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: Richard Kulis, Representative Central Bar & Grill Ltd., Licensee: Patrick Allen, on his own behalf and on behalf of the Corporate Licensee

Allegations

A hearing into Notice of Proposal number 16061, dated February 26, 2008, to suspend liquor licence number 90060, issued to Central Bar and Grill Ltd. (the “Licensee”), operating as CENTRAL BAR & GRILL, 1946-48 Weston Road, Toronto, Ontario, M9N 1W2, on the basis of alleged violations of section 43 of Ontario Regulation 719/90 (the “O.Reg.”) made pursuant to the Liquor License Act (LLA), was held on May 23, 2008, in the City of Toronto.

Decision

On the basis of the evidence and admission of the licence holder, detailed below, the Board FINDS that the Licensee violated section 43 of the O.Reg on September 22, 2007. On the consent of the parties, the Registrar and the Licensee also made submissions at the hearing as to an appropriate sanction. Having carefully reviewed and considered all of the evidence and the submissions, the Board ORDERS that the liquor licence shall be suspended for five (5) consecutive days. 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 licensed representative.
Mr. Kulis informed the panel that both parties are in agreement that the Licensee exceeded its maximum capacity on September 22, 2007. The parties dispute the amount by which the maximum capacity was exceeded.

Registrar’s Evidence

Amanda Higuera, a Liquor Inspector with the Alcohol and Gaming Commission of Ontario (AGCO) since May 2004, conducted an inspection at the Licensee on September 22, 2007, in response to a complaint from a member of the public about over-crowding. Ms Higuera took notes of her observations when she attended the premises. With the permission of the Board, she used her notes to refresh her memory at the hearing.
Ms Higuera entered the licensed premise at approximately 1:30 a.m. on September 22, 2007. She immediately observed that it was very busy and crowded. There were three (3) security officers at the front entrance. The security officers did not have counters to monitor capacity.
Ms Higuera noticed that it was hot inside the licensed premise, and in the north section she could only walk slowly, pressing against people to pass by. In the south east area of the premise, where the maximum capacity on the license is 47, she counted 68 people. In the north section of the licensed premises, where the maximum capacity is 67, Ms Higuera counted 204 people.
In response to a question from the Board, Ms Higuera stated that she performed the count with a colleague, who was walking behind her with a counter.
Ms Higuera informed Mr. Allen, the owner, of the over-crowding and safety concerns shortly after arriving. She stated that Mr. Allen was very cooperative and acknowledged the over-crowding.
Ms Higuera stated that the north section of the premise would qualify for a higher capacity, although still significantly lower than the patron count on September 22, 2007. She indicated that Mr. Allen told her he has not applied to raise the maximum capacity because of the cost.

Licensee’s Evidence

Mr. Allen did not call any witnesses. He told the Board that this is the first time he has been in business for himself and since opening the business two years ago, he has been struggling financially. He stated that the neighbourhood is rough. He also stated that he always cooperates with the liquor inspectors and the police. He explained that he has not been able to apply to increase to the maximum capacity because his landlord will not give him a floor plan of the property, a requirement for the application, and he cannot afford the cost of obtaining one from an architect.
In response to a question from Mr. Kulis, Mr. Allen estimated there were 150 people, rather than 204, in the north section of the premise.
Mr. Allen stated that since the incident of September 22, 2007, he has hired an extra bartender to assist in monitoring the number of patrons. He has also introduced a policy of stamping customers’ wrists when they enter, so that staff can determine whether they were previously in the premise if they exit and re-enter. Mr. Allen also stated that he will be hiring a different security company, which employs uniformed, Smart Serve trained officers.
In response to a question from the Board, he stated that he hopes to hire the new Security Company within the next week or two.

Reasons and Order

Based on the evidence of Ms Higuera and Mr. Allen’s admission that the premise was over-crowded on September 22, 2007, the Board FINDS that there was a violation of s. 43 of the O. Reg. It is not necessary for the Board to determine whose count or estimate of the patron count was more accurate. Regardless of whether the patron count was 204 (Ms Higuera’s count) or 150 (Mr. Allen’s estimate), the Board is satisfied that the Licensee exceeded the maximum capacity by a significant amount on the day in question. The fact that the Licensee may qualify to have its capacity increased is not relevant, as the Licensee has a legal obligation to comply with the existing capacity on its license.

Submissions on Sanction

Mr. Kulis stated that the Registrar is seeking a 10 day suspension of the liquor licence, given the significant public safety issue associated with over-crowding. Mr. Kulis noted that the Licensee also served a three day suspension for a different LLA offence (permitting drunkenness) in May 2007. Mr. Kulis acknowledged that the Registrar did not have the benefit of all of the information presented at the hearing when the Notice of Proposal was issued. Mr. Kulis also noted that the Licensee has been cooperative and has taken steps to help prevent over-crowding in the future. While Mr. Allen has had some problems, he is not an ungovernable Licensee. Mr. Kulis also acknowledged the Licensee’s financial difficulties in pursuing an application for additional licensed capacity.
Mr. Allen asked the Board for leniency, stating that a 10 day suspension would put him out of business. He indicated that he was looking for a “reasonable” suspension, given his circumstances.

Reasons

Over-crowding is a serious public safety issue and the sanction must serve as both a specific and general deterrent. In the circumstances, however, the Board finds that a 10 day suspension would be too harsh. In reaching this conclusion, the Board considered that it was the Licensee’s first infraction for over-crowding and that the Licensee cooperated fully with the Liquor Inspectors. The Board also considered the remedial measures the Licensee has taken to minimize the likelihood of over-crowding in the future, including hiring an additional bartender and introducing a policy of stamping customers’ wrists at the door. Further, the Board considered that the Licensee is in the final stages of hiring a new security company. Although the Board is sympathetic to the Licensee’s financial difficulties and problems experienced in running a successful business in his area, this was not the Licensee’s first offense under the LLA, and the over-crowding was significant.

Conclusion

Accordingly, the Board ORDERS that liquor license number 90060 issued to Central Bar & Grill be suspended for a period of five (5) 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 18th DAY OF JUNE, 2008

JACQUELINE R. CASTEL, BOARD MEMBER PATRICIA MCQUAID, VICE-CHAIR

JC/sm