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-
Elgin Street Holdings Inc. O/A Lieutenant’s Pump Restaurant
Licensee
DECISION
Panel: David C. Gavsie, Chair, AGCO Guy Maurice, Board Member
Decision Date: July 8, 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
Elgin Street Holdings Inc., Licensee ) Gordon Douglas, Representative
AUTHORITIES
R. v. Zack, [1999] O.J. No. 5747
Rooster (Re), [2006] O.A.G.C.D. No. 334
Sin City Bar & Eatery (Re), [2007] O.A.G.C.D. No. 229
Allegations
A hearing of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held in Ottawa on May 2 and 15, 2008 regarding Notice of Proposal number 15673 issued on September 31, 2007 (the “NOP”) to suspend the licence of Elgin Street Holdings Inc. operating as LIEUTENANT’S PUMP RESTAURANT (the “Licensee”), 361 Elgin Street, Unit 1, Ottawa (the “Premises”), licence number 200346 (the “Licence”), on the basis of alleged violations of section 43 of Ontario Revised Regulation 719/90 (the “O.Reg”).
The NOP alleged two breaches on the same evening of section 43 of the O.Reg, namely that the licence holder failed to ensure that the number of persons on the premises to which the licence applies, including employees of the licence holder, does not exceed the capacity of the licensed premises as stated on the Licence.
Decision
- After considering all the evidence and submissions the Board makes a finding that section 43 of the O.Reg was breached at 11:45 p.m. on June 2, 2007. Reasons follow.
Motions During the Proceedings
A motion to exclude witnesses was made. On consent, the Board ORDERED witnesses to be excluded other than AGCO Inspector Mark Lambert and John Couse, principal of the Licensee.
At the start of the hearing on May 15, 2008, Mr. Douglas requested to add two witnesses, a photographer and Melanie Grant. Ms. Taylor objected on the grounds that the Board had issued a disclosure Order on December 27, 2007 and Mr. Douglas and the Licensee had plenty of time for disclosure to be made. Ms. Taylor also said that AGCO Inspector Lambert was not present on May 15 and that these new witnesses, previously undisclosed, would prejudice the Registrar’s case after she had closed her evidence.
The Board DENIED Mr. Douglas’ request to add two new witnesses on the grounds that the Board had issued a disclosure Order on December 27, 2007, and the Licensee and its representative had plenty of time to provide disclosure to the Registrar but had not done so with regard to these two new potential witnesses and their evidence.
Registrar’s Evidence
AGCO Inspector Mark Lambert gave evidence. He has been an inspector since July 17, 2006. He is familiar with the Premises. He was there the evening of June 2/3, 2007. Inspector Lambert had notes which he was allowed on consent to use to refresh his memory.
Inspector Lambert said there was a celebration that evening along Elgin Street which was named the “Sens Red Mile”. That evening was the first home game for the Ottawa Senators in the Stanley Cup finals. That strip of Elgin Street where the Premises are located was busy other nights during the National Hockey League playoffs, and the Ottawa Senators run for the Stanley Cup that spring and early summer.
Inspector Lambert stated that he was at the Premises three different times that evening. He was accompanied by Const. Steve Carroll of the Ottawa Police Services (OPS). Inspector Lambert had been told by his supervisor, Det. Const. Luc Bouvier of the Ontario Provincial Police (OPP) that OPS had asked to accompany him on inspections. Det. Const. Bouvier had told Inspector Lambert to advise OPS immediately of any infractions he saw. Inspector Lambert said he did not see Const. Carroll take any notes.
Inspector Lambert said he received an e-mail from Det. Const. Bouvier assigning him to Elgin Street for a number of Senators games. A copy of the e-mail dated May 31, 2007 at 4:31 p.m. was placed into evidence (Exhibit 1). Inspector Lambert pointed out a sentence in the e-mail which read: “It will be a zero tolerance approach”.
A second e-mail from Det. Const. Bouvier dated May 31, 2007 at 4:38 p.m. was placed into evidence (Exhibit 2). This one referred to a possible issue with OPS.
Inspector Lambert said he first visited the Premises at 10:01 p.m. on Saturday night, June 2. He was accompanied by Const. Carroll.
The main part of the Premises is down stairs. Inspector Lambert stood at the top of the stairs to make his observations of the crowds. He explained that patrons go down the stairs, through a gate where staff stood, along a corridor, and then in the front door of the Premises.
Through Inspector Lambert, a copy of the outdoor part of the Premises was introduced into evidence (Exhibit 3). Inspector Lambert showed on Exhibit 3 where he stood at the top of the stairs. There is a street level patio area to his left. He noticed the upper patio was congested with people. He checked the lower patio area which he noted was busy but not overcrowded.
Using a mechanical counter, Inspector Lambert counted 42 people on the upper patio. Capacity for it on the Licence is 37. It took Inspector Lambert a minute or two to do the count. He walked north along the sidewalk to do his count. He said there were no obstructions so he could clearly see the patrons. There was some movement, but Inspector Lambert was confident his count was correct. Most people were seated or standing at tables.
Inspector Lambert said he told Const. Carroll about the infraction and that he would speak to the manager to tell him about it. Const. Carroll was beside Inspector Lambert, but did not do his own count.
Inspector Lambert asked to speak to the manager, Scott. He advised Scott of the overcrowding which was a safety risk and that it was an infraction under the Liquor Licence Act (“LLA”). Inspector Lambert told Scott to bring the number down to capacity right away. Scott acknowledged this but made no comment.
Inspector Lambert paid a second visit to the Premises at 11:45 p.m. the same night. He went there to ensure they had complied with his request to eliminate overcrowding.
Inspector Lambert stated that the Premises were busier from his viewpoint standing at the top of the stairs. Both the lower and upper patio appeared very congested to him.
Inspector Lambert did a head count using his mechanical counter which he set at zero to begin. He counted 56 on the upper patio which was licensed for 37, and 37 on the lower which was licensed for 27.
Inspector Lambert told Const. Carroll about the overcrowding. Const. Carroll said nothing. Inspector Lambert went to the lower patio, told Scott about the overcrowding on both patios. Scott acknowledged Inspector Lambert’s comments, but said nothing and gave no explanation.
Inspector Lambert visited the Premises for a third time that evening at 1:19 a.m. on June 3, 2007. Again he was with Const. Carroll. He noticed the upper patio was very congested. He stood in the same place.
Using his counter, Inspector Lambert counted 48 people on the upper patio. He told Const. Carroll this who acknowledged it, but said nothing. Inspector Lambert attempted to access the front area. He could not access any staff.
Inspector Lambert said he did a total 12 inspections that night on or near Elgin Street. Two other establishments were visited more than once.
Inspector Lambert said after the Sens Red Mile celebration, he received excellent feedback about his performance, some verbal and some by e-mail from Det. Const. Bouvier dated June 13, 2007 at 3:05 p.m. (Exhibit 4).
Inspector Lambert received a further complimentary e-mail from Det. Const. Bouvier dated August 31, 2007 at 4:22 p.m. This was also placed into evidence (Exhibit 5).
Inspector Lambert said he received a lot of positive feedback from OPS. A letter dated September 27, 2007 from OPS to Sgt. Marlin of the OPP, his direct supervisor, was placed into evidence (Exhibit 6).
Inspector Lambert said the upper patio is separated from the public sidewalk on Elgin Street by a black wrought iron fence that is 42 inches high. It has decorative points on the top of the fence. There are no exits from or entrances to the upper patio from the sidewalk. To get on to the upper patio, one has to go down the main staircase, through the lower patio and take an inside staircase up to the upper patio.
In answer to questions on cross-examination, Inspector Lambert went over his training how to perform counts, indicating there are different ways to do so.
Inspector Lambert said there could have been 10, 000 people along the Sens Red Mile the night of his inspections. The street was closed to vehicle traffic.
In doing his count, Inspector Lambert said he started on the landing to observe both patios. He moved north along the sidewalk. There were no obstructions between him and the fence. No people were standing in a line-up. He was always the closest person to the fence.
Inspector Lambert said he was certain about his numbers. He stated he did not observe anyone jumping the fence surrounding the upper patio. He did not hear anything about this. He would not have counted anyone who did jump the fence. He would have advised the Licensee about this.
Inspector Lambert said he advised Det. Const. Bouvier by telephone on each occasion he did the count. Later, he sent him a report.
Licensee’s Evidence
John Couse, the sole director, office and shareholder of the corporate Licensee, gave evidence. Mr. Couse has been in the restaurant business for 37 years. He has been the owner-manager of Lieutenant’s Pump since 1992.
Mr. Couse said that the clientele of Lieutenant’s Pump is wide, reflecting the make-up of the neighbourhood – professionals, young families, seniors, university students.
On the evening of June 2/3, 2007, the upper patio had 9 tables and 32 seats. The lower patio had all the tables and chairs removed. The reason for the latter was that the seating was a magnet for friends joining friends. A smoking area was also created on the lower patio where people could stand, smoke quickly and get back into the restaurant.
Mr. Couse said that to enter the restaurant, one came down a staircase from a landing off of the sidewalk. The person turned left and then right heading down a corridor. At the end of the corridor the person would turn left towards the entrance of the indoor restaurant.
Mr. Couse states that from the beginning of the hockey playoffs to June 2, 2007, the crowds got larger. It was rare to have a line-up at the beginning of the playoffs. But he had to add four door staff on the nights of hockey games because they were better trained to handle the crowds.
The security staff were posted at the bottom of the staircase. They controlled the entry gate. The line-up of patrons wanting to get in would start there going up the stairs towards the landing and the sidewalk. A second security person stood at the end of the corridor, and a third stood at the entrance to the restaurant. This latter person also controlled a gate entrance to the lower patio.
A winter picture of the lower patio was placed into evidence (Exhibit 7). Mr. Couse pointed to where the third person stood controlling the flow to the restaurant and to the gate.
Mr. Couse said that afourth security person stood in the middle of the stairs going from the lower patio up to the upper patio. He controlled the capacity of the upper patio. If the upper patio was full, this person would tell the doorman in the corridor below so no more people would be allowed in. The stairs were the only entrance to the upper patio.
On Exhibit 7, Mr. Couse pointed out an interior fence on the lower patio which was added for the hockey playoffs. It was installed the day of the first playoff game in Ottawa in the Spring of 2007.
Mr. Couse said he had previously told Const. Carroll that the fence was installed and asked him how to split the capacity numbers for the lower patio. Const. Carroll said he thought half and half, but since he was not certain, he told Mr. Couse he would check.
Const. Carroll later that previous evening told Mr. Couse that he had checked, and it was half and half. By adding the fence, the lower patio which was licensed for 27, was split. Const. Carroll told Mr. Couse to split the capacity numbers, one-half inside the fence and one-half in the corridor made by the fence.
Mr. Couse said that he was having difficulty controlling the crowd during the playoffs and needed to be able to close the patio without closing off the restaurant. He therefore needed a separate gate to close off the patio without interfering with the restaurant.
Mr. Couse stated that he was not at the Premises on the night of June 2/3, 2007. Scott McMillan, the assistant manager, was in charge. Mr. Couse had worked out a system and procedure to control the lower patio on the first night of the playoffs, and it worked well.
The person in the corridor kept people moving. There were not more than 15 people in the corridor at any one time.
Mr. Couse said there was a smoking area on the lower patio. If more than 15 people were smoking there, any additional people would be sent upstairs and outside to smoke. They would be given a ticket to use when they came back into the Premises. A ticket system was in use for washroom use, or if someone wanted to make a telephone call.
Mr. Couse said each of four doormen had roles and responsibilities. The first, Rob, stood at the bottom of the entrance steps and maintained a count. He had a mechanical counter. He counted people coming in and people leaving. If capacity was reached, he would start a line-up.
Mr. Couse said that he set a lower capacity of 160 inside the restaurant. This provided a margin of safety if everyone on the patio wanted to go inside.
Mr. Couse said that he has a computerized system called “pixel point” which shows hours worked by each employee. The shift summary for the evening and early morning of June 2/3, 2007 was placed into evidence (Exhibit 8). It showed the names of people who worked, their start and end times and total number of hours worked.
Mr. Couse said that Ex. 8 showed that Robert Gill, the doorman he referred to, clocked out at 3:22 a.m.
The second doorman stood in the corridor in from of a planter. This person was a temporary person and therefore was not shown as an employee on Exhibit 8.
Mr. Couse said that the third doorman was Scott Clark. He stood at the front door of the restaurant, at the gate onto the lower patio. According to Ex. 8, Mr. Clark finished work at 3:45 a.m.
Mr. Couse stated that the fourth doorman, Chris Labelle, stood on the stairs between the two patios. His shift ended at 3:33 a.m. Mr. Labelle monitored the capacity on the upper patio and co-ordinated with Mr. Clark regarding it.
Mr. Couse said that his staff wore the same shirts. These were Ottawa Senators’ jerseys with the word “staff” on a breast pocket and on the back of the jerseys.
In answer to questions on cross-examination, Mr. Couse said he submitted an explanation as to the overcrowding allegations to the AGCO in August 2007. His letter of August 10, 2007 was put into evidence (Exhibit 9).
Mr. Couse said that in preparing Exhibit 9, he did a quick assessment and gave a quick answer. Then when it became evident there would be a hearing, Mr. Couse said he received more detailed information from his staff.
Mr. Couse noted a couple of inconsistencies in Exhibit 9. His will-say statement was introduced into evidence (Exhibit 10). He agreed that he did not say he would clarify or correct anything in Exhibit 9.
In looking at Exhibit 8, Mr. Couse agreed that 13 staff were working at 10:00 p.m., as was Rob the temporary employee. At the time of the second inspection, Mr. Couse agreed that at 11:45 p.m. there were 10 staff working plus the temporary employee.
At the time of the third inspection at 1:19 a.m., Mr. Couse agreed there were 9 staff working plus the temporary employee.
Mr. Couse said he made an application to the AGCO in April, 2008 to alter the capacity for the lower patio. He did not need it over the winter. He stated he did not have advance written permission from the AGCO to divide the lower patio into two. He did not call the AGCO before installing the fence.
Mr. Couse explained his reason for installing the fence as a crowd control measure because people were moving both in and out. Staff had to escort people across the patio both ways.
Mr. Couse said he installed the fence because he had been warned about overcrowding on the lower patio three or four times.
In answer to a question on re-direct, Mr. Couse said that Scott McMillan’s name was not on Exhibit 8.
Const. Stephen Carroll of OPS, badge 848, was called to give evidence. He has been with OPS for 21 years in various capacities - a patrol, emergency response, neighbourhood and traffic officer. In June, 2007, Const. Carroll said he was doing foot patrol in the Elgin and Gladstone Streets area. The Senators playoff run was going on.
Const. Carroll said he had 15 years experience with the emergency services unit doing crowd control and ensuring public order. He worked the Grey Cup, protests on Parliament Hill, marches downtown.
On June 2/3, 2007, Const. Carroll said he was with Inspector Lambert. There was a large crowd downtown. There was a Saturday night playoff game in Ottawa. The Red Mile along Elgin Street had been designated as such by the City. Market area police staff had been relocated to Elgin Street because of the crowds on the street and sidewalk.
Const. Carroll said that the crowd was festive. There was no animosity.
Two news releases from OPS were placed into evidence through Const. Carroll (Ex. 11 and Ex. 12). Ex. 11 was issued June 2, 2007 at 11:00 p.m. saying Elgin Street was closed.
Const. Carroll said there was a march that night from Ottawa Festival Plaza to Parliament Hill. As the crowd returned, OPS had to close the road to vehicles as a safety measure. “The people were given the street”, in Const. Carroll’s words.
Const. Carroll was walking the area, going from bar to bar, talking to the owners and staff. After the supper hour, Const. Carroll met up with Inspector Lambert. Const. Carroll said he had been advised to accompany Inspector Lambert in uniform, to make sure Inspector Lambert had no problems. Const. Carroll knew the street and bar managers.
Const. Carroll said he was there to help Insp. Lambert whose job was to look at overcrowding. Const. Carroll said it was hard to do a count with a mobile crowd. Const. Carroll said he personally cannot do an accurate count.
On their first visit to the Premises, Const. Carroll said they were doing a head count in the patio area. People were moving back and forth. Const. Carroll found it frustrating. He could not do a count. Const. Carroll said he was there as back up.
At the end of the night, Const. Carroll went to the Premises. The crowd was starting to dispense. It was shortly after midnight. That evening they had gone from location to location. They were in places for no more than 2 or 3 minutes at a time.
Const. Carroll said the lower patio area of the Premises had been reconfigured. A railing was put in dividing the area for more control. A gate system was in effect to control numbers.
Const. Carroll stated that people were trying to enter or exit the Premises. They stepped over or climbed over a railing. People were entering establishments that evening along Elgin Street through windows and doors. Some establishments had to put staff at a gate. Const. Carroll said lots of bars had lots of problems that night.
Const. Carroll said that the upper patio of the Premises runs along the sidewalk. At the north end, the patio is beside steps up to an apartment building. There is a large cement handrail to the apartment. People were climbing over it to get into the upper patio of Lieutenant’s Pump. Although Const. Carroll did not see this, tactical OPS officers told him it was happening over the radio, and told him to check it out.
Const. Carroll said the upper patio did not look to be crowded to him, but he did not perform a count. He also said that the Lieutenant’s Pump is generally a quiet well-behaved bar.
In answer to questions on cross-examination, Const. Carroll said he did not make notes that night. He does not know what Insp. Lambert’s counts were. They went into 20 to 30 bars that night.
Const. Carroll said he has never done a liquor inspection by himself. He has not had training to do that. This was Insp. Lambert’s expertise. Const. Carroll said he has no reason to doubt Insp. Lambert’s competency.
Const. Carroll stated he had no need to make notes as he was watching Insp. Lambert’s back to make sure he was safe. He did not see the Premises as being overcrowded. He did not agree with Insp. Lambert.
Const. Carroll was shown his will-say statement. A copy was placed into evidence (Ex. 13). He said he saw staff escorting some people out of the patio, but he did not see anyone jump the fence to get in.
Scott McMillan gave evidence. He has been employed at Lieutenant’s Pump as assistant manager for just over 2 years. His job is to oversee the running of the restaurant to ensure things run smoothly. He takes direction from John Couse.
Mr. McMillan said they employed a strategy during the 2007 Stanley Cup playoffs. Their concern was capacity on the lower patio. Mr. McMillan stated they added extra staff as doormen to maintain capacity numbers. They worked all playoff games.
On the evening of June 2, 2007 Mr. McMillan was working. Mr. Couse was not there so Mr. McMillan was the person in charge. He made the decisions regarding staff duties.
Before the game began that evening, Mr. McMillan met around 4:00 p.m. with the four doormen on the patio – Robert Gill, Scotty Clark, Chris Labelle, and Mike Digaetano.
Robert Gill was stationed at the base of the front steps at the entrance to the lower patio. He was counting the number of people who entered and he was watching for any intoxicated people trying to enter.
Mike Digaetano was stationed in the corridor near a planter. His job was to ensure people continued to walk through the corridor.
Scotty Clark was stationed at an inner gate. Chris Labelle was stationed on the steps leading up to the upper patio.
Mr. McMillan explained that prior to June 2, Mr. Couse had put in a new fence on the lower patio to create a corridor for crowd control purposes.
As the night progressed, Mr. McMillan felt it was more prudent to allow people in the area as long as capacity was not exceeded. As the hockey game ended that night, the Premises became more crowded. Mr. McMillan explained that a maximum of 13 people were allowed in the corridor, and 13 were allowed inside the fence in the lower patio so as not to exceed the permitted capacity for the lower patio of 27.
Mr. McMillan said he performed a count every half hour on each patio.
Around 10:00 p.m., Mr. McMillan said he was behind the bar just inside the front door of the restaurant. Chris Labelle came in and asked Mr. McMillan to come outside to talk to Inspector Lambert whom he had met before.
Inspector Lambert told Mr. McMillan that the upper patio was over capacity of 37 by 5 people. Mr. McMillan said he would take care of it. He went up to the upper patio and counted 32 people on it and therefore no action had to be taken. Mr. McMillan did not get a chance to speak to Inspector Lambert because he had left. Mr. McMillan said he stood at the top of the stairs to make his visual count. Chris Labelle also did a separate count and also counted 32.
Around 11:45 p.m., Mr. McMillan was behind the front bar inside the restaurant. Mr. Labelle came in and said the Inspector was back and wanted to speak to Mr. McMillan. They were in the same place as before. Inspector Lambert said the patio was over capacity, but did not specify upper or lower.
Mr. McMillan went to Chris Labelle and asked him to do a count. Both did a count, and each was over by about 5 people. Mr. McMillan asked Mr. Labelle how this could have happened. Mr. Labelle told him that people were jumping the fence into the upper patio and that some had come downstairs.
Mr. McMillan said he took Mr. Labelle’s post and escorted people off the patio being the people who had ostensibly jumped the fence.
Mr. McMillan stated it was busy for the rest of the evening until 12:30 a.m. He made sure that the inside capacity was maintained at 150. If it rained, there would be room inside to accommodate people from both patios.
He sent a server home around 11:00 p.m., but then asked her to stay to help out. Once the game ended, the inside part of the Premises started emptying out because the action was outside. Two servers inside wanted to work outside because it was busier.
Mr. McMillan said the crowd opened the gate when Rob left for a moment and surged on the patio. This was around 12:15 a.m. Mr. McMillan restored capacity.
At 1:30 a.m., Mr. McMillan announced last call because people on the street were rowdy. He did not want to admit any intoxicated people. He patrolled the patio until the establishment closed.
In answer to questions on cross-examination, Mr. McMillan said he was inside the restaurant most of the evening of June 2, 2007. He would come out and do periodic checks, but then go back inside.
Mr. McMillan said that Rob Gill had a counter, but that he did not. That evening the Senators were playing at home. The game was over by 10:00 p.m., so people inside wanted to move to the patio outside.
Mr. McMillan said he made a decision not to let people on to the patio. There was a line up but no one was getting in.
Mr. McMillan was shown his witness statement for this hearing, a copy of which was placed into evidence (Exhibit 14). In answer to questions, Mr. McMillan said he did not know with absolute certainty if in fact the patio was under or over capacity at 1:19 a.m.
In answer to a question on re-direct, Mr. McMillan said his conversations with Inspector Lambert lasted for 1 minute.
In answer to questions from the Board, Mr. McMillan said that police officers pointed out people on the patio that had jumped the fence, and they were escorted out. He did not know how many.
Chris Labelle gave evidence. He has been employed at Lieutenant’s Pump for 2 ½ years. He is now a cellar master. He orders alcohol and stocks inventory.
In June 2007, he was the cellar master but also did patio monitoring. He worked the night of all games. As the playoffs went on, the bar got busier.
The bar implemented a ticket system once capacity was hit, if a person wanted to go out to smoke, they had to take a ticket to go outside the fenced area. The ticket would allow them back in. Rob gave out the tickets.
Mr. Labelle said that when the Sens Mile concept started in Ottawa, Mr. Couse put in an extra fence to make a corridor. This made it easier for people to go in and out. It enabled Scott to keep people moving.
Mr. Labelle was stationed on the stairs leading up to the upper patio. His focus was numbers on both the upper and lower patios. He worked with Scott. Mr. Labelle said he performed a count every 20 minutes.
Mr. Labelle stated that a person who was on the upper patio who wanted to use the washroom inside the restaurant would be given a ticket by Scott, go use the washroom, come back with the ticket, give it to Scottie Clark, and return to the upper patio.
Mr. Labelle said he worked June 2nd and 3rd. He started at 4:00 p.m. Security staff got together and planned how they were going to act. They took their posts around 5:00 p.m. or 5:30 p.m. A line-up started at 6:00 p.m. The game started at 8:00 p.m.
Mr. Labelle testified that patrons wanted to get inside the upper patio. Some jumped the fence. Mr. Labelle escorted them out. There were no television sets on the upper patio so those who did jump the fence wanted to go down the stairs to go inside where the television sets were on showing the hockey game.
At 10:00 p.m., Mr. Labelle saw Const. Carroll come down the stairs with Inspector Lambert who told Mr. Labelle the bar was 3 over capacity. Inspector Lambert asked Mr. Labelle to get Scott McMillan.
Mr. Labelle did get Mr. McMillan, and went back to his post. Inspector Lambert and Const. Carroll left.
Mr. Labelle did a count on the upper patio as did Mr. McMillan. Each one came up with the same number – 32, which was 5 under capacity. It took them about a minute to do the count.
Around 11:40 p.m. to 11:45 p.m., Mr. Labelle said he saw Inspector Lambert and Const. Carroll a second time. Mr. Labelle had a problem with a female who he said had jumped the fence four times. He described her dress – red tank top, red capris and white sandals.
Inspector Lambert was upset. He told Mr. Labelle that people could not be in the corridor, sitting on a flower bed or standing. Mr. Labelle asked Inspector Lambert how to do that, and cleared up the corridor. Inspector Lambert said Mr. Labelle was doing a great job, but to go and get Scott McMillan.
Mr. Labelle said there were others who hopped the fence. When the game was over, people rushed out of the inside portion of the bar wanting to get on the upper patio to see what was going on at street level.
Mr. Labelle said the fence was about three and a half feet high with nubs at the tip. Between 11:00 p.m. and 11:45 p.m. people were constantly jumping the fence. They would not wait in line. Mr. Labelle said he escorted 8 to 10 people out.
Mr. Labelle saw two police officers standing outside the upper patio. The officers pointed out the fence jumpers to Mr. Labelle. They were tactical officers with the word “police” on the front and back of their uniforms. They had firearms.
Mr. Labelle said he would do frequent counts and everything was fine.
Inspector Lambert returned. Mr. Labelle was escorting women off the Premises. Inspector Lambert’s concern this time was the corridor on the lower patio. He said it had to be cleared out. Mr. Labelle went to get Scott McMillan at Inspector Lambert’s request to have him speak to Inspector Lambert, and returned to his post.
Mr. McMillan came over to where Mr. Labelle stood, and said Inspector Lambert told him they were over capacity. Mr. Labelle said they had problems with fence jumpers. Both did counts and found there were 4 to 5 over on the upper patio and 3 to 4 over on the lower patio.
Mr. Labelle’s explanation for this was that while he was moving people out of the corridor and going to get Mr. McMillan for Inspector Lambert, people jumped the fence and came down the stairs in his absence from his post.
Mr. Labelle said the numbers were perfect when he was kicking the girl out of the Premises. A few minutes later the numbers were up. The police officers pointed out people tohim who had jumped the fence while he was away. Mr. Labelle removed them and got the numbers down.
By 12:15 a.m. to 12:30 a.m. things had died down. Elgin Street was re-opened to traffic.
Mr. Labelle saw Inspector Lambert for the third time that night around 1:20 a.m. he was with Const. Carroll. They were heading south on Elgin Street towards another restaurant. Neither of them came close to Lieutenant’s Pump.
Mr. Labelle described the upper patio as having tables with umbrellas opened. Usually there were 32 chairs, 9 tables and 8 umbrellas. There is also a huge mature tree on the upper patio with rocks around it. He also described a large menu holder at the main entrance on the patio fence facing people entering the Premises. Mr. Labelle said it was about 5 feet high and a metre wide.
In answer to questions on cross-examination, Mr. Labelle said one can see the upper patio if you move down the sidewalk away from the menu board.
He indicated he had not seen Inspector Lambert’s notes. His evidence was based on his memory. He was told Inspector Lambert’s visit times to the Premises were 10:00 p.m., 11:45 p.m. and 1:19 a.m. on June 2/3, 2007.
Mr. Labelle said when he started working at Lieutenant’s Pump, it was his job for 6 months to monitor the patios, but it was not his regular job by June 2, 2007.
Around 8:10 p.m. or 8:15 p.m., Mr. Labelle experienced fence jumpers. He caught them, told Scott Clark and then removed them. When he saw a jumper he would call the person and tell him to leave. If they went down the stairs to the lower patio, Mr. Labelle would tell other security persons.
Later around 11:45 p.m., the jumpers would ignore Mr. Labelle so he would have to go get them to have them removed.
Mr. Labelle said he did not have a counter.
In answer to questions from the Board, Mr. Labelle said prior to the night of June 2, there were no problems with fence jumpers. But that night the crowds kept getting bigger. Mr. Labelle estimated there were 3 or 4 jumpers before 10:00 p.m., probably between 8:00 p.m. to 9:00 p.m. Between 11:00 p.m. and midnight, Mr. Labelle said 8 to 12 people jumped the fence including one woman four times.
Mr. Labelle said nothing about the fence jumpers to Inspector Lambert.
Scottie Clark was called to give evidence. He started working at the Premises in March 2007. He stocks bars, cleans up bottles and acts as a doorman. He has taken a police course at Algonquin College in Ottawa and is now studying a law course at Carleton University.
On June 2, 2007 his post as a security person was at the corner of the gate to the lower patio at the front door to the inside of the restaurant. Mr. Clark said the capacity of the lower patio was 27. A fence had been installed to create a corridor. The capacity on each side of the fence was 13.
Mr. Clark described a ticket system used for people on or crossing the lower patio to go inside the Premises to use the washroom. It worked well.
Mr. Clark said there were no chairs or tables on the lower patio on playoff hockey game nights. They kept it clear so there would be no obstructions.
Mr. Clark said one had to be on the lower patio to do an accurate count of people on it. Standing on the Elgin Street sidewalk, one could not see the full lower patio. This was also true if a person walked along the Elgin Street sidewalk.
Similarly it would be difficult to do a count of the upper patio by walking along the Elgin Street sidewalk.
Mr. Clark said by 11:00 p.m., it was very busy. People lined up to get on the patio. They were disgruntled because they could not get in.
Mr. Clark said he did a count every 15 to 20 minutes with Mr. Labelle who had to escort some people out because they had jumped the fence.
In answer to questions on cross-examination, Mr. Clark said it would take Mr. Labelle 15 to 20 seconds to escort people out. During that time, Mr. Clark would watch the stairs going to the upper patio. He would not let anyone go up to the patio during this time.
Mr. Clark did not have a counter. He never did a count of the upper patio.
Mr. Clark said he had instructions to stay at a capacity of 160 inside the restaurant even though the permissible capacity was 227.
Registrar’s Submissions
Ms. Taylor began her submission by reporting the allegation in the NOP, namely that the Premises were overcrowded on the night of June 2/3, 2007.
Inspector Lambert’s evidence was clear as were his observations. On his first visit at 10:00 p.m., 42 people were on the upper patio which is licensed for 37. On his second visit, he counted 56 on the upper patio and 37 on the lower patio which is licensed for 27. On his third visit, there were 48 people on the upper patio at 1:19 a.m.
Mr. McMillan stated in his evidence that ther were more than 37 people on the upper patio during Inspector Lambert’s second inspection.
Inspector Lambert’s counts should be preferred over those of Licensee’s staff. The latter were not done at the same time at Inspector Lambert made his counts.
Inspector Lambert spoke to Mr. Labelle right after doing his first and second count. Mr. Labelle went to get Mr. McMillan. Mr. McMillan came out to speak to Inspector Lambert. After that Mr. McMillan crossed the lower patio and went up the stairs to the upper patio to commence his count which he did without using a counter.
Inspector Lambert was the only person who used a counter which indicates his counts were accurate.
All witnesses for the Licensee, other than Const. Carroll, are employees, and as such, have an interest in the outcome of the hearing.
Regarding Const. Carroll, he said that AGCO inspectors have much more expertise than he does. He did not have a counter. He had no training in doing liquor law inspections by himself. He saw his role as ensuring Inspector Lambert could do his job without being impeded.
Const. Carroll testified that the establishment did not look over-crowded to him. This evidence should be looked at skeptically because he said that meant the place would be packed with no one being able to move.
Ms. Taylor said that capacity or occupancy is set by the Fire Code, Ontario Regulation 213/07. In table 2.7.1.4, it states occupancy is 1:1 – area to a person. It would have to be two or three times this before people could not move. In this case, no one alleged the establishment fit twice their authorized capacity.
Const. Carroll’s evidence is not of much assistance to the Board. He did not take notes that evening which does not reflect favourably on his evidence. His recollection of that evening was much more vague than Inspector Lambert. He said they visited the Premises twice, but it was actually three times.
Mr. McMillan did not use a counter. He was inside when Inspector Lambert made his counts. Mr. Clark did not see what was going on on the upper patio. Mr. Labelle was prone to exaggerate.
At 8:00 p.m., Mr. Labelle said there were fence jumpers. He should have known that when the game ended at 10:00 p.m. to 11:00 p.m., there would be more. He did not raise it with Mr. McMillan. In addition, he was not at his post all the time because he escorted the fence jumpers out of the Premises.
Ms. Taylor said that on the balance of probabilities the allegations in the NOP had been shown to have taken place, namely that there were two occasions on June 2, 2007 when the upper patio exceeded capacity.
Licensee’s Submissions
Mr. Douglas disagreed with Ms. Taylor’s interpretation of what Const. Carroll inferred when he said the establishment did not look crowded. Also in the role he was playing that night, Const. Carroll had no obligation to take notes. He had a recollection of events and volunteered to make himself available.
Mr. Labelle is a boisterous person. There was no evidence to suggest he has a high opinion of himself which leads to exaggeration. He presented his evidence clearly and concisely. His evidence is credible.
Mr. Labelle noted there were problems with fence jumpers at 8:00 p.m. He did not perceive this to be a problem. He removed them. He did his job. He repeatedly did counts.
Mr. Couse’s evidence was about increasing security staff before June 2. He also made physical changes adding an interior fence to make a corridor between the entrance stairs and the entrance to the inside restaurant.
Since the corridor divided the lower patio, Mr. Couse asked Const. Carroll how he should divide the capacity for the lower patio. Const. Carroll told Mr. Couse to divide it evenly.
Mr. Douglas said if the motive of the establishment in advance of that evening was to flaunt the law, they would not have staffed with 4 security people and would not have installed an interior fence along the lower patio. Neither would they have maintained capacity inside the restaurant at 160, which was 67 below permitted capacity on the Licence.
Mr. Douglas reviewed Const. Carroll’s evidence and his experience in regulating sizeable crowds in Ottawa. He was asked to do counts while with Inspector Lambert on June 2. When he did and compared them with Inspector Lambert, their numbers did not always match. Const. Carroll did correctly estimate the numbers on the street to be about 10, 000.
Const. Carroll said he heard on his radio that there were fence jumpers going on to the upper patio of Lieutenant’s Pump. There were two police officers watching the stairs being used by the fence jumpers.
Const. Carroll said that in his view, a proper count could only be done by means of an “exit count”. Inspector Lambert’s counts were quick.
Const. Carroll came to give evidence under oath. He advised the Licensee he was available if he received authorization, which he did. His evidence was objective and should be given credence. His motivation was to ensure justice was done.
Inspector Lambert’s evidence showed his clear observations. He said where he stood during each visit. It was the same place, namely at the top of the front stairs on the sidewalk. He stood at the railing and said he had no obstructions. However Mr. Labelle testified there was a large menu board between where Inspector Lambert stood and the upper patio. Inspector Lambert made no reference to the menu board nor to any umbrellas on the upper patio.
Inspector Lambert said he moved north along the sidewalk to do his count. He did not go downstairs to observe people on the lower patio. Yet at 11:45 p.m., he said there were 56 people on the upper patio and 37 on the lower.
Mr. Clark was asked if one could see the lower patio from where Inspector Lambert was standing. He said “no” because of obstructions from tables, chairs, people and umbrellas on the upper patio.
At 1:19 a.m., Mr. Labelle said there was no line up at the establishment. He saw Inspector Lambert leaning over the fence. There were empty seats on the patio. Inspector Lambert’s evidence that it was crowded inside was not correct. He spoke to no one. Ms. Grant had been let off. The four door staff were on duty until 1:45 a.m.
Each of Messrs. Labelle, Clark and McMillan said they conducted repeated counts during the evening. Mr. Labelle did leave his post to escort fence jumpers out of the Premises, and to get Mr. McMillan at the request of Inspector Lambert.
The Licensee’s position regarding the 11:45 p.m. inspection is that as the result of Mr. Labelle leaving his post, they went over capacity. Mr. Labelle said they were not over capacity when he left to get Mr. McMillan.
The Licensee’s position is that no findings should be made by the Board.
Registrar’s Reply
Ms. Taylor in reply stated that Const. Carroll had a duty to take notes, and not to do so is a dereliction of duty. She referred to the case of R v. Zack which she said stood for the proposition that if something was not in an officer’s notes, it did not happen.
Ms. Taylor also referred to previous Board decisions of Rooster and Sin City, both cases involving an AGCO inspector who did not take notes.
The substance of what happened must be in notes. Const. Carroll made no notes even when he differed from Inspector Lambert’s counts.
Mr. Couse was not in the Premises on the night of June 2/3, 2007 to make sure the systems were working. There is no due diligence defence at the findings stage. Motive is irrelevant. It may go to sanction. It is not relevant as to whether a breach occurred.
Inspector Lambert was using a hand clicker. It did not take much time for him to count as he did.
The crowd on the street is irrelevant. This hearing deals with a controlled licensed area.
Overcrowding is a serious issue. Licensees have responsibility for areas under their control. It is up to them to deal with problems.
Reasons
The allegations of the Registrar contained in the NOP are that on June 2, 2007, 42 people were in an area licensed for 37, and at 11:45 p.m., there were 56 people in the same area.
Evidence for the Registrar consisted of one witness, AGCO Inspector Lambert who testified that he performed three counts of people in the area in question, namely the upper patio, on the night of June 2/3, 2007.
Inspector Lambert used a mechanical counter on each occasion, recording the following occupancy of the upper patio:
a) at 10:00 p.m. – 42 people;
b) at 11:45 p.m. – 56 people;
c) at 1:19 a.m. – 48 people.
The permitted capacity of the upper patio pursuant to the Licence is 37.
Inspector Lambert was certain about his numbers. He started his count at a landing outside but near the southwest corner of the upper patio, proceeded north along a city sidewalk to continue his count, and concluded it at the northwest corner of the upper patio.
Inspector Lambert testified there were no obstructions and although there was an iron fence separating the upper patio from the city sidewalk, he walked along the fence being the closest person to it.
Inspector Lambert did not observe anyone jumping over the fence from a stairway that is the entranceway to an apartment building along the north side of the upper patio, nor he testified did he hear anything about this.
John Couse, the principal of the corporate licensee, testified for the Licensee as did three employees of the Licensee. Mr. Couse was not at the Premises on the evening of June 2/3, 2007. The three employees were present.
Also giving evidence was Const. Stephen Carroll of the OPS who accompanied Inspector Lambert as the latter did his inspections along Elgin Street that night, including the three at the Premises.
The Ottawa Senators of the National Hockey League were playing a home game, their first, of the Stanley Cup finals. The game started around 7:30 p.m. or 8:00 p.m. the evening of June 2, 2007 and ended some time between 10:00 p.m. and 11:00 p.m.
The area along Elgin Street for several blocks including where the Premises are located was dubbed the “Sens Red Mile”. As the evening progressed Elgin Street in this area got more and more crowded to the point where OPS, as a matter of public safety, had to close the street to vehicle traffic (Exhibit 11). They estimated 10, 000 people were on Elgin Street that night (Exhibit 12).
When the hockey game ended, people who had been inside watching it on television came outside. It was a pleasant spring evening.
Three of the Licensee’s witnesses working at the Premises testified they conducted frequent counts of the upper and lower patio on that evening, and everything was fine. None used a mechanical counter.
They also pointed out potential obstructions in conducting a count of the patios from the city sidewalk. They referred to a large menu board affixed to the railing of the upper patio at the landing leading to the entrance stairs to the Premises, and as well, chairs, tables, umbrellas, and a large tree on the upper patio.
Finally, they testified that people were jumping over the north fence of the upper patio and that when caught, these people were escorted out.
Const. Carroll testified that he heard over his police radio that people did jump the fence onto the upper patio. They were seen by two members of the OPS’ tactical team standing near the Premises who reported this. These officers also pointed out the fence jumpers to Chris Labelle, one of the Licensee’s employees.
Mr. Labelle’s evidence was that he estimated 3 to 4 people jumped the fence between 8:00 p.m. to 9:00 p.m., and that eight to twelve people jumped the fence between 11:00 p.m. and midnight, including one woman who he described as having jumped the fence four times.
Const. Carroll was with Inspector Lambert that evening. He estimated they visited 20 bars. He said at first he did not conduct counts at Lieutenant’s Pump, but then said later his numbers did not agree with those of Inspector Lambert. Also, Const. Carroll said the upper patio did not look crowded to him. Inspector Lambert said the upper patio appeared congested. Const. Carroll also said people were moving around constantly on the upper patio, possibly explaining why he had difficulty in doing a count or why his numbers differed from those of Inspector Lambert. In any event, Const. Carroll’s evidence was inconsistent and as a result, the Board placed little weight on it on the capacity issue.
Scott McMillan did admit during his testimony that at 11:45 p.m. when he and Chris Labelle conducted a count of the upper patio as the result of Inspector Lambert advising them the patio was over capacity, both of them determined capacity was exceeded by 5 people. However this was during the time that Mr. Labelle said 8 to 12 people jumped the fence.
Mr. McMillan also said that when he and Chris Labelle conducted a count at 10:00 p.m. again after Inspector Lambert told them they were over capacity, each of them counted 32 people on it. Capacity is 37.
Mr. Labelle said that things had quieted down by 12:03 a.m. He did not indicate there were any fence jumpers after midnight. At 1:19 a.m., Inspector Lambert conducted his final count of the evening determining that there were 48 people on the upper patio. No evidence was presented on the Licensee’s behalf to counter this number. However this particular occurrence is not referred to in the particulars of the NOP and it is possible the Licensee presented no evidence for that reason.
The Board has reviewed and assessed the evidence. In performing his counts at 10:00 p.m. and 11:45 p.m., the Board believes that Inspector Lambert did them very quickly and did have obstructions to deal with, namely the menu board, umbrellas on the upper patio and generally, noise and other potential distractions coming from a large crowd on Elgin Street.
All witnesses gave their evidence in a credible, forthright manner. But just as Inspector Lambert insisted his counts were accurate, so did the employees of the Licensee who were in the Premises that night. They testified they conducted numerous counts, and only at 11:45 p.m. as the result of Inspector Lambert’s advice that they were over capacity, did they agree in this one instance that they were over capacity by five people. This admission by Licensee’s witnesses leads the Board to conclude that the Licensee did violate section 43 of the O.Reg at 11:45 p.m. that evening. The wording of that section places a mandatory obligation on the Licensee to ensure capacity is not exceeded. However, for the reasons stated above in paragraph 210, the Board cannot conclude that section 43 of the O.Reg was breached at 10:00 p.m.
The Board finds the explanation by the Licensee’s witnesses as to why they were five people over capacity at 11:45 p.m. being caused by people who jumped the north wall fence very plausible, and will certainly consider it in determining the appropriate sanction in this case. With 10,000 people being on the street at one point that evening, one can imagine the pandemonium. Section 43 of the O.Reg is a very important and serious provision of the LLA and O.Reg and a breach, whether “technical” or otherwise must be dealt with strictly. However, if there were circumstances beyond the control of the Licensee, that will be taken into account by the Board in the sanction determination. In this case, when the Licensee’s employees found they were over capacity caused by the circumstances, they immediately dealt with the problem and got back down to capacity.
As a final note, the Board was impressed by the controls and security measures put into place by the Licensee for that evening in particular and for the hockey playoffs in general.
Due diligence is not something the Board normally considers in determining whether or not there has been a violation of the LLA or the O.Reg. Due diligence is definitely a factor which the Board takes into account in determining the appropriate sanction.
Conclusion
- 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. The 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 8th DAY OF JULY, 2008.
DAVID GAVSIE, CHAIR, AGCO GUY MAURICE, BOARD MEMBER
DCG/cp