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-
910327 Ontario Inc. O/A Centretown Pub
Licensee
DECISION on findings
Panel: Allan Higdon, Board Member Joan Lougheed, Board Member
Decision Date: October 24, 2008
Hearing Location: Ottawa, 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 ) Joyce Taylor, Representative 910327 Ontario Inc., Licensee ) Ainslie Dunstone, Representative
Allegations
1A hearing into a Notice of Proposal number 16316 dated May 27, 2008 to suspend liquor licence number 22051 (the “Licence”) issued to 910327 Ontario Inc. (the “Licensee”) operating as CENTRETOWN PUB, 340 Somerset Street West, Ottawa, Ontario, K2P 0J9 (the “Premises”) on the basis of an alleged violation of section 43 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the of the Liquor Licence Act (“LLA”), was held on September 25, 2008 in the City of Ottawa.
Decision
2After considering all the evidence and submissions the Board the Board FINDS the Licensee violated section 43 of the O.Reg. Reasons follow.
Preliminary Matters
3On consent of all parties, the Board ORDERED the exclusion of all witnesses.
4Mr. Bruce Davis appeared on behalf of Mr. Edward Roger St-Jean, a director, officer, and shareholder of the corporate licensee. Mr. Davis was also excluded as a witness.
Registrar’s Evidence
5Andrew Rowntree is an Alcohol and Gaming Commission (“AGCO”) Inspector. He attended the Centertown Pub on January 6, 2008 at approximately 12:11 a.m., accompanied by AGCO Inspector Norm Marcotte. He noted there was no door staff when they entered the Premises, which is a renovated older house.
6He noted the patio and downstairs areas were not busy. The upstairs area was busy, with music playing. No security staff was seen on the staircase overseeing patrons exiting or entering the upper area, and no staff was seen doing a count of patrons. Mr. Rowntree stated the staircase was very narrow in this older house, being approx 3 ½ feet wide, making it difficult for patrons to pass on the stairs.
7Mr. Rowntree stated the upstairs was seen to be very crowded, with loud music and dancing. It was difficult for people to move through the upper level.
8Prior to doing his count, Mr. Rowntree verified the capacity of the two upper rooms as being a total of 78. He prepared his counter and proceeded to do a count, while walking from one end of the rectangular room to the other. He recorded a count of 108 patrons on the floor, which he noted was over capacity.
9After comparing his count with the count done by Mr. Marcotte, both Inspectors approached the bartender on the main floor, asking for the Manager. They proceeded to the lower level/basement area and spoke with Licensee’s staff, Gavin McIver and Marcel LaCroix.
10Both staff members responded to the overcrowding, saying they would rectify this immediately and sent someone upstairs.
11Mr. Rowntree informed them he would be submitting a report to his Supervisor for disposition. He stated the two staff did not dispute the count and they appeared to be unaware of the occupancy count on the second floor.
12On cross examination, Inspector Rowntree stated he did four other site visits on this same evening. His notes were completed within two hours of the inspection. He did not show the mechanical counter to the staff of Centretown Pub and his count took approximately two to three minutes. After his count, he met downstairs with Inspector Marcotte to compare the numbers. Inspector Marcotte counted 95 patrons and Rowntree stated he counted 104. Both numbers indicated overcapacity. Staff did not ask to see the counters, did not do their own count, and seemed to be more concerned with “fixing the issue”.
13In answer to questions, he stated that security staff were not wearing clothing to identify themselves. Inspector Rowntree was not certain if there was an emergency exit on the top floor, but stated he suspected there would be one. He also stated the setting of the mechanical counter would not be written in his notes since the procedure is part of their training.
14Norman Marcotte testified as an Inspector for the AGCO. He arrived on the Premises at approximately 12:11 a.m. with Inspector Rowntree. He noted, on entering the Premises, that there was no security personnel at the door, and the lower/basement level had a two-man band playing with about 15 patrons present.
15When he went to the upper floor, he noted no one approached him and the area was very crowded and busy. He stated patrons were seen still going upstairs and there was no security staff visibly present. He did not recall seeing anyone leaving the upper floor and did not know or recall other exits on this level.
16The witness stated he and Inspector Rowntree did a room count. Marcotte’s mechanical count indicated 95 patrons on the upper level. He stated this establishment was in Inspector Rowntree’s area and therefore Inspector Rowntree took the lead in talking with the person(s) in the basement. When made aware of the situation, staff stated they would rectify the overcrowding immediately and did not ask for a second count. Inspector Marcotte left the Premises shortly after this.
17On Cross examination, Inspector Marcotte stated the room was crowded; the count was done as he walked through the room. He counted everyone he could see. At the end of his count, he met with Inspector Rowntree to compare numbers.
18In answer to questions, Inspector Marcotte stated the downstairs was quiet and the count could be done without the use of mechanical counters. He felt that the “rough count” on the upper level was reasonably accurate and explained the only way to get an accurate count would be to empty the room and count the patrons one by one as they left.
Licensee’s Evidence
19Gavin McIver has been an 8-year employee of Centretown Pub, working in a variety of roles, including busboy, waiter, bartender and security. He has Smart Serve Certification.
20He testified that on January 6, 2008, a co-worker told him Inspectors were on site. To his knowledge they did not identify themselves to anyone.
21At approximately 12:30 a.m., he met with the Inspectors in the Silhouette Bar on the lower level, in the hallway. The Inspectors advised that a count had been done on the upper floor and it was over capacity. They had spoken to Marcel, a bartender, before he was approached. Mr. McIver stated he was told Inspector Rowntree had counted 113 patrons and Inspector Marcotte had counted “at least 96”.
22Mr. McIver stated he did not know how the count was done. When asked which number was the right number, the Inspectors told him it did not matter since the area was over capacity. He did see a small black device in Mr. Rowntree’s hand but did not see the actual counter. He stated he did not agree with the count. When he went upstairs, the room was “pretty much empty and not busy at all”.
23He stated the second floor is accessed from the front entrance, up one flight of stairs. There is a back staircase for emergencies.
24On cross examination, the witness stated he knew the mechanical counter was small enough to fit in a pocket and did not ask to see the number on the counter. In response to questions about communication to management, he stated he did not leave a note about the inspection for the manager. He did “jot down” notes when he got home but did not provide them to anyone at any time. He stated his notes were not made at the time of the incident. The signed statement, Exhibit #2, was prepared by the Licensee’s Counsel following a phone interview. He did sign this statement, as it was accurate.
25In response to questions, Mr. McIver said no one was working security on this evening. He was stationed on the main floor and “staff were outnumbering patrons that night”.
26Marcel LaCroix has been a bartender at Centretown Pub since 1985. He has Smart Serve Certification.
27He stated the Inspectors came to his bar downstairs between 11:00 p.m. and 11:30 p.m. They showed their identification and asked him to go around with them for the inspection. He said he could not do this since the band was playing and he was the only one working the bar and could not leave.
28The witness stated Gavin said he would go with the Inspectors. “After the tour, they came back to the bar”. Although Mr. LaCroix did not speak with them, he indicated he overheard them talking about the count with Gavin. He estimated that Gavin and the Inspectors were gone about 10 minutes.
29In cross examination, Mr. LaCroix stated he was in charge that night and heard enough of the conversation to know there was a problem on the upper floor. He thought he heard there were 103 patrons on this level. He was not sure of the time of the inspection; he never left the bar and never did a count.
30Bruce Davis is an 8 year employee at the Pub and has been the General Manager for 3 years. He gave a description of Centretown Pub, stating:
- It has 3 bars on 4 floors
- The 2nd & 3rd floors are for dance
- The washrooms are on the mezzanine floor
- Service is pub style
- Staffing includes two door staff with one on duty each day; their job is to control flow and capacity
- Staff are posted at the front lobby entrance to the main floor
- Staff have been given counters to use
- There is a total of 12 staff
31Mr. Davis said he received a call at home, from a waiter, Eric Hatherald, who stated Inspectors were on site and there seemed to be an issue with the number of people. He followed up with a call to Gavin and Marcel.
32Mr. Davis stated he was looking at the possibility of applying to increase the capacity to ensure they would not exceed capacity in the future.
33On cross examination, he stated he did not know if there was security at the door on this evening and could not provide the capacity number of each floor.
Registrar’s Submissions
34Ms. Taylor stated the allegations have been proven on a balance of probabilities. The Inspectors found the second floor overcapacity. Each did a count, with the result being 104 and 95 patrons on the floor. There was no door staff and no one was controlling the main door or the entry to the second floor.
35The Registrar’s representative stated Mr. LaCroix confirmed he heard the Inspector state there were 103 patrons on the upper level. This number is in line with the evidence of the Inspector.
36Ms. Taylor stated Mr. McIver did not record any information in a communication book and there is nothing in the witness statement about him personally doing a count. As well, he has not produced the notes he says he made. The statement submitted, as Exhibit #2, was created on September 15, 2008, with the numbers he recalls. Ms. Taylor submitted that although Mr. McIver believes he remembers, he did not do a count and has admitted that he was not present for the count.
37The Registrar submitted the only people who can give direct evidence of what the floor looked like are the Inspectors. The alleged recount by Mr. McIver is not in his witness statement and is not in a communication book. His notes have not been produced. Therefore we should not have regard for his evidence.
38In conclusion, the Registrar stated it is clear that the Mr. McIver was busy that evening with many responsibilities, keeping him from doing counts. However, the evidence of the Inspectors is clear and credible. They counted using mechanical devices and the difference of 9 patrons in their counts is acceptable under the circumstances.
39It is clear that the area was overcrowded.
Licensee’s Submissions
40Mr. Dunstone expressed concern the Inspectors’ evidence was inconsistent and ambiguous and they had made their notes together. He proposed it was not plausible to recall the level of detail they did, eight months later.
41Details of the resetting of the counter were not in Mr. Rowntree’s notes and Mr. Dunstone submitted this was a critical piece of evidence. The Licensee’s Representative was concerned that no second count was done to ensure accuracy given the disparity between the two numbers in the first count.
42Mr. Dunstone stated he assumed the true number is closer to 95 patrons, since there is a margin for error with a “rough” count, as described by the Inspectors. The Licensee’s Representative stated it is a concern that Mr. McIver received a flippant response when he asked about the differences in both counts.
43In closing, Mr. Dunstone stated the discrepancies in evidence and the fact that neither Mr. McIver nor Mr. LaCroix admitted to overcrowding is of great concern. As the potential consequence is so great for this business, there should be no finding.
Reply
44Registrar’s Counsel responded no evidence was given that the Inspectors did not use a counter. A counter is small and staff did not ask to see them. Nothing indicates that this was an atypical count. If the Inspectors had the exact same number for their counts, then it would have suggested collusion. Mr. LaCroix also indicated he overheard the Inspector state a count of 103 patrons was done.
45From the evidence, the Registrar stated that it appears neither staff person had been upstairs and would not know if it had been overcrowded. There is evidence of a lack of control over the dance floor, and this resulted in overcrowding.
Reasons and Analysis
46The Board has given careful consideration to all of the evidence and submissions, including the licence profile and the statement by Gavin McIver, both submitted as Exhibits.
47The Board accepts the evidence of the Inspectors as being reasonable and credible and prefers their evidence to that of the Licensee’s staff when their evidence conflicted. The Inspectors indicated they followed normal procedure, resetting a mechanical device before beginning their count. They counted patrons as they moved from one end of the room to the other in a methodical manner. Although the specific steps were not recorded in their notes, it is reasonable to accept this evidence, since the routine of doing a count is part of the training that is received.
48The Board notes there were variations in the count numbers by all parties. Although there is a difference in the numbers done during the count done by the Inspectors, the Board accepts this variation is small and showed only a difference of 9 patrons. From the evidence given, it is clear to the Board this area of the Premises was overcrowded and over capacity. The area is licensed for only 78 patrons and counts showed 95 and 104 patrons were present.
49Evidence indicates the room was crowded, people were dancing, and the washrooms for the building are also on this floor. The discrepancy in the count of the two Inspectors is reasonable under these conditions. The fact remains that both numbers indicate overcrowding. As well, the issue of overcrowding was not disputed by the staff on duty that night.
50It is of concern to the Board that there was no evidence of security being visible and on duty, monitoring the entrance to the Centretown Pub or monitoring the staircase to the upper floor. Evidence was given that security staff could not be identified, and this was not disputed.
51The variations in times and recollection of events between staff raises concern about the accuracy of their recall. As well, there is the absence of a communication book and absence of the notes that Mr. McIver states he made at home, to provide clear evidence supporting the testimony of staff about the events of that evening.
52In reviewing all the evidence, the Board is also very concerned about the safety of the patrons. It was stated that the main staircase to the upper floor is very narrow and it is difficult for people to pass on the stairs. This was not disputed by any party. As well, neither Inspector noted the location of the emergency exit, although the staff stated that there is a second emergency exit.
53Access and egress is vital for any business, especially if an emergency should occur. An older house raises greater challenges when used as a place of business and may require more diligence to ensure that overcrowding does not occur and room capacity is controlled. It is important that security be strategically positioned and that patrons be able to easily identify security on duty. Mechanical counters are important tools for security staff to monitor the number of patrons entering or leaving. It was evident from the testimony of staff that no one had used a counter on this evening.
54Evidence indicates that staff readily responded to the overcrowding issue when Inspectors made them aware. They stated they would respond immediately. The Inspectors left shortly after, leading the Board to believe that they were satisfied that the situation was being rectified.
55It is incumbent on the staff, at all times, to monitor patrons in all areas of the Premises. The Licensee must ensure that systems are in place to oversee the activities of patrons on the Premises, notwithstanding that these are different floors or levels.
Conclusion
56For the reasons given, the Board FINDS the Licensee violated section 43 of the O.Reg.
57The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file her 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 24th DAY OF OCTOBER, 2008.
ALLAN HIGDON, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER
JL/cp