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-
Shooters Sports Bar Inc. O/A Shooters Sports Bar
Licensee
DECISION on findings
Panel: David C. Gavsie, Chair, AGCO Dianne Axmith, Board Member
Decision Date: February 26, 2009
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 ) Joyce Taylor, Representative Shooters Sports Bar Inc., Licensee ) Clive Hayes Preddie, on behalf of ) corporate licensee
AUTHORITIES:
1131422 Ontario Ltd. (c.o.b. Clancy’s)(Re), [2007] O.A.G.C.D. No. 310
1197801 Ontario Inc. (c.o.b. Body English)(Re), [2008] O.A.G.C.D. No. 252
2009355 Ontario Inc. (c.o.b. Copperfields Restaurant)(Re), [2008] O.A.G.C.D. No. 316
Barcode Café, [2007] O.A.G.C.D. No. 103
G.T. Roadhouse and Restaurant, unreported decision of the Alcohol and Gaming Commission of Ontario, 2002
Regina v. Royal Canadian Legion, [1971] O.J. No. 1673
Allegations
- A hearing into a Notice of Proposal (“NOP”) number 16102 dated March 11, 2008 to suspend liquor licence number 804183 (the “Licence”) issued to Shooters Sports Bar Inc. (the “Licensee”) operating as SHOOTERS SPORTS BAR, 980 Central Park Drive, Unit 10, Brampton, Ontario, L6S 3L7 (the “premises” or “establishment”), on the basis of alleged violations of section 43 and subsections 45(1) and 45(2) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on June 19, 2008 and January 12, 2009 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated section 43 and subsection 45(2) of the O.Reg and DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
Clive Hayes Preddie is a director, officer and shareholder of the corporate licensee. He appeared on behalf of the corporation and waived the right to be represented by a barrister and solicitor or a licensed representative.
On consent of both parties, all witnesses were excluded.
Registrar’s Evidence
P.C. George Douglas of the Peel Regional Police Service testified that he arrived at Shooters Sports Bar at approximately 11:47 p.m. on September 15, 2007. He was accompanied by Officers Viozzi and Arnold. They arrived in the same vehicle and were not in uniform.
He stated that the parking lot contained lots of cars. He described the location of the establishment and patio on the south side of an “L-shaped” plaza. Exhibits 1 and 2 were admitted to illustrate the establishment floor plan and exterior of the building.
Constable Douglas explained how he was able to determine the patio at Shooters had 33 patrons despite only being licensed for 19. He described how he counted from the parking lot looking over the patio fence, because the height of the fence precluded any chance to see patrons from a “close up” position. He stated he was able to count heads by standing some distance away.
He proceeded to the front door of the establishment where he observed a doorman and a line up of patrons waiting to enter. He asked the doorman if he knew what the inside patron count was and the doorman responded that he would get Clive. Mr. Preddie then came to the door.
Constable Douglas observed that no counter was being used at the front entrance and informed Mr. Preddie of the suspected overcapacity. Mr. Preddie produced a tally sheet which suggested a total of 107 patrons were inside. (Exhibits 3 and 4)
From the Officer’s vantage point at the front entrance, the interior appeared very crowded. The windows were fogged up from the heat inside and he did not proceed any further into the establishment for safety reasons. He informed Mr. Preddie that because he believed the bar was overcrowded, he and his colleagues would stay to monitor activities ensuring that no additional persons entered and to conduct an exit count at closing.
He estimated about 10 to 15 people were lined up waiting to enter the premises and another 30 to 40 were milling around the parking lot. It was his testimony that he heard Mr. Preddie inform those individuals in line that the bar was over capacity and no one else would get in.
Constable Douglas observed approximately 15 to 20 patrons exit the bar between 12:30 a.m. and 2:10 a.m. when the lights went on and there was a mass exodus. At that time, he counted another 140 people leave the establishment.
It was Constable Douglas’ testimony that he was standing outside the vehicle when he made those observations and he used a mechanical counter to determine the number. He estimated approximately 158 people in total left the establishment between 12:10 a.m. and when he returned to the front door to speak to Mr. Preddie. Only staff who were cleaning up were inside the establishment at that time and he did not count them.
Constable Douglas stated that Mr. Preddie was cooperative throughout the night and they spoke several times about various subjects including problems at bars in general as well as Constable Douglas’ belief about overcrowding in the establishment, the fact that intoxicated patrons had exited Shooters and that someone was observed smoking marijuana on the patio. Mr. Preddie disagreed with the allegations but was definitely aware of the Officer’s concerns.
On cross-examination, Constable Douglas confirmed elements of his testimony. He could not recall which officer drove that night or where he was sitting when inside the unmarked vehicle. In the three hours they were there, they moved around to various locations and were in and out of the vehicle frequently.
He was unable to recall whether they had visited the establishment earlier on that same evening. He agreed that Mr. Preddie had shown him a tally sheet which he disputed but made no attempt to confirm the number discrepancy by entering the establishment to count patrons himself. He reiterated that this was for safety reasons.
He agreed that he did not personally observe anyone smoking a controlled substance on the patio nor did he smell any odour of such a substance. Those were Constable Arnold’s observations.
When he did his count of the patio, he was 20 to 25 feet from the perimeter of the patio and was able to count the heads of people standing but could not see patrons who might have been sitting. Constable Douglas agreed that at no time did he ask anyone to reduce the number of patrons on the patio. He did converse with some exiting patrons he thought were intoxicated but did not attempt to identify any of them.
He did not seize or observe any controlled substance in or around the establishment. It was his estimation that the patio fence was about 5 feet high with an additional 1 foot of lattice work above it. He is 5 feet 8 inches tall and he stood on the ground when he counted patrons. He could not recall jumping up and down to make his count.
The Officer confirmed that he used a mechanical counter to tally exiting patrons while standing directly in front of the entrance/exit. He did not recall if he told the security/doorman what his count was and agreed that no charges were laid that night nor were any patrons charged with any offence. He agreed that his notes contained no reference to intoxicated patrons.
His primary focus was to count the exiting patrons and he believed his two colleagues were monitoring individuals as they left the establishment. He could not see the back door from where he stood taking the exit count. By his estimation, the major exodus lasted approximately 10 minutes.
The witness was asked why his notes described his exit numbers as “estimated” if he used a mechanical counter. It was his testimony that although he used a counter for the major exodus, he did not use it when counting the 15 to 20 that had left before 2:10 a.m. when the lights went on. He was unable to recall whether his colleagues were also using mechanical counters and he could not recall where they were positioned at the time he was conducting his count.
Constable Douglas did not enter the premises until after he made the exit count and he believed that was at approximately 2:20 a.m. He did not observe anyone consuming alcohol in the establishment but did see patrons exiting who appeared to have red eyes and were staggering. He did not conduct any breath tests, field sobriety tests or take any pictures. His only concern was that they were not driving. He did not see anyone vomit in the parking lot. He could not say whether or not anyone had a medical condition that would have caused the conditions he observed.
The witness agreed that it was his opinion only that overcrowding had caused the condensation he observed on the interior of the windows.
Constable Douglas stated that he may have discussed his notes with the other officers who were present that night but could not recall specifically doing so.
On re-direct examination, Constable Douglas stated it was his opinion that no patrons warranted arrest that night nor would it have been appropriate to administer any of the tests for intoxication he was questioned about. Those are used when individuals are operating a vehicle. They were exiting on their own and posed no safety threat.
He stated that Mr. Preddie disagreed with his patron count. He did not see the patio door open at all during the time he was there. He did not attempt to remove any patrons from the premises at any time.
Officer Douglas reiterated that he did not enter the establishment after his initial conversation with Mr. Preddie about overcrowding for safety reasons. He chose to wait until closing to do an exit count because that was safer.
On questioning from the Board, the Officer confirmed his belief that 15 to 20 patrons left the establishment prior to the mass exodus at which time he counted 140. That is how he concluded at least 158 patrons were present that night. He did not do a second separate count of patrons on the patio and he did not see any patron sufficiently intoxicated to warrant further action.
He did not observe any intoxicated patrons inside the establishment at any time.
The patio was illuminated although he could not describe the type of lighting and the parking lot is well lit. He could not say whether there is any elevation in the parking area that would facilitate his head count on the patio from a distance.
He was not aware of any other door to the establishment other than the one on the patio and any reference he made to the back door was a reference to the patio door.
P.C. Kris Arnold of the Peel Regional Police Service testified that she was with Constables Douglas and Viozzi on the night of September 15/16, 2007 when they attended Shooter’s Sports Bar. They had seen a flyer promoting an event at the establishment called a “Link Up Party” that stated security that night would be provided by the Peel Regional Police Service. They knew this to be incorrect. After visiting the bar at 6:15 p.m. to investigate the police security claim, Constable Douglas telephoned Mr. Preddie.
They learned that occupancy levels for the establishment were 87 inside and 19 outside on the patio. They left and returned at approximately 11:47 p.m.
Upon this second arrival, P.C. Douglas went to speak to Mr. Preddie and Officer Arnold proceeded to the patio where she counted 33 patrons in an area licensed for 19. She described the patio fence as approximately 6 feet in height with lattice on the top 12 inches. The Officer is 5 feet 8 inches tall and it was her testimony that she had to lift herself up to peer over the top of the fence.
Constable Douglas told the witness that Mr. Preddie disagreed about overcrowding and stated there were only 107 people in the establishment. There was a line up of about 10 to 20 people waiting to enter and the premises appeared to be quite crowded when she looked in from the foyer.
Patrons inside were standing shoulder to shoulder and heat emanated from the interior whenever the door opened.
The line up outside was getting longer as people were being dropped off and others arrived on foot. Security personnel appeared to be getting agitated as people attempted to rush the door whenever it opened.
While she and the other officers were not in uniform, they decided not to enter the establishment because of concern for their safety. After Mr. Preddie was advised there was overcrowding in the establishment she heard him yell several times to people in the line up “we are over capacity so no one is getting in”. Despite this, people still continued to loiter.
Officer Arnold testified that she returned to the patio fence and back of the establishment about five or six times throughout the course of the evening. There is a gap in the patio fence and on one occasion she observed a male smoking marijuana. In fact, he blew smoke in her face as she was peering in through the gap.
She informed Mr. Preddie of her observations and he went to investigate. He reported back saying he could smell nothing. When she described the individual to him as black, about 5 feet 8 inches tall and wearing a white hoodie and baseball hat, he again went to the patio to look. He then rushed back to the main entrance and into the bar and it was her assumption that he had recognized the individual and went to confront him. She did not accompany him and he did not return to speak to her about what he may have found.
Constable Arnold stated she is an experienced drug enforcement officer who has taken specialized courses at the Ontario Police College and been involved in over 200 arrests involving marijuana.
It was the officer’s testimony that it was unusual to stay at an establishment for such a long period of time but under the circumstances (overcrowding and a large number of people in the line up and parking area) they decided the situation required monitoring.
At approximately 2:10 a.m. patrons began to leave the establishment. She was about 15 feet away from the front exit making her observations. She stated that 15 to 20 people had left in the hour and a half prior to the major exodus which began at 2:10 a.m.
Among those exiting prior to 2:10 a.m., she recognized the promoter of the evening’s event, an individual named Grand Master who was accompanied by his son who was about four years old. She thought this was inappropriate. She did not observe anyone entering the establishment after the initial conversation with Mr. Preddie about overcrowding.
She counted 138 patrons who exited after 2:10 a.m. She did not use a counter and recorded the numbers in her notebook. That number included the three staff members she later saw when she looked through the window after the lights were on. Along with the 15 to 20 patrons who left earlier, she concluded there had been 158 in the establishment. She did not see the rear door open at any time that night. She had attended the premises on one previous occasion.
It was Officer Arnold’s testimony that at closing, her primary focus was counting the exiting patrons. She stated that her partners were busy dealing with other problems and she would have advised them of her numbers.
Constable Viozzi informed her that he had observed intoxicated people coming out of the establishment but she did not see them because she was focused on the count.
A call was made for uniform back up to help disperse the crowd from the parking lot. They left at approximately 2:24 a.m.
On cross-examination, the witness stated that Constable Viozzi drove the vehicle that night and that she was in the front passenger seat. She was informed of the establishment’s licensed capacity by Constable Douglas. His telephone conversation with Mr. Preddie was regarding that night’s event. The witness had been in the establishment about a year prior to this incident.
Constable Arnold explained how she pulled herself up on the fence in order to count patrons on the patio and agreed that it would be impossible to try and do a count from 15 to 20 feet away because the fence would block your view. Her feet were off the ground when she counted. She said people on the patio looked at her as she pulled herself up and peered over the top. She again described the male she observed smoking marijuana.
She did not enter the establishment to apprehend this individual but had informed Mr. Preddie so that he would deal with it. Her concern was patron safety due to overcrowding. She did not speak to this individual nor did she observe him exit the establishment. No substance was collected or removed.
The witness explained that it was her judgement that it would be unwise to enter the establishment in order to apprehend this individual for safety reasons.
She performed only one patio patron count during the whole evening despite being in and out of the vehicle several times. She advised Mr. Preddie of her observations but did not inform any security officer. Her primary focus that night was on counting patrons and she reiterated that neither she nor Officers Douglas and Viozzi had mechanical counters. She informed them that she counted 138 exiting patrons at closing.
Constable Arnold agreed that no individuals were arrested that evening by any of the officers present. She did not observe intoxicated persons in the parking lot. She never ventured beyond the establishment foyer nor did she ever have a concern for her safety while in the parking lot.
On re-direct, Constable Arnold stated the three officers had not anticipated being at the establishment for such a long period of time. She is confident that her patron count numbers are accurate. She did not have a counter with her because she was involved in undercover work earlier in the evening where it would not have been appropriate to have one. They did not anticipate “babysitting” the establishment or the events that subsequently arose. She explained why her notes show the count in “chunks” of people
In answer to Board questions, the witness reiterated her belief that 33 patrons were on the patio. She was up on the fence about 10 to 15 seconds which was long enough to count accurately and to notice strange looks from the patrons. Because she had to hold herself to peer over the fence, a mechanical counter would have hindered her task.
The witness elaborated on the fence gaps and described them as about 1-1/2 inches to 2 inches between the slats and post and that she was 100% positive pot was being smoked by the individual she described to Mr. Preddie.
Constable Michael Viozzi is a member of the Peel Regional Police Service Vice Unit. He attended Shooters at approximately 6:43 p.m. with Officers Douglas and Arnold on the night in question to investigate erroneous information on a flyer stating that Peel Regional Police Service would be providing security for a special event that night. He knew this was incorrect because all such security duty must go through the Vice Unit.
Mr. Preddie was not there and Officer Douglas telephoned him from the vehicle to discuss this misinformation. He described this as a pre-emptive courtesy call to review the rules particularly regarding overcrowding and drugs etc.
Constable Douglas voiced these concerns because of similar problems with other establishments in the area. All three officers were in the vehicle during that conversation.
After the telephone conversation, they proceeded to other establishments in the area and then returned at 11:47 p.m. to Shooters where it was his testimony that he could see a large line up at the entrance and hear lots of noise coming from the patio. Constable Viozzi is 6 feet 3 inches in height and he stated he could easily see the tops of peoples’ heads over the patio fence.
He watched Constable Arnold go to the patio to conduct a head count and return to report to Constable Douglas that the number was 33. He was with Constable Douglas when he informed Mr. Preddie about the count. Mr. Preddie appeared to be surprised by this information. Mr. Preddie claimed there were only 107 patrons in the premises and Constable Douglas informed him that no matter what his total count was, the patio was only licensed for 19.
Officer Douglas also informed Mr. Preddie about the pot smoking that was observed. When Mr. Preddie entered the establishment, Officer Viozzi assumed he did so to deal with the overcrowding and to make patrons cease smoking marijuana. He recalled Officer Arnold saying there was a strong smell of marijuana.
He observed a rather large security/doorman outside the establishment and believed there was an additional one or two in the vestibule. Because of the large line up and apparent overcapacity, Mr. Preddie kept yelling that no one else would be allowed in. People were trying to rush the door but he did not think anyone was able to enter the establishment while Mr. Preddie was at the door. He stated that a few may have entered when Mr. Preddie was inside the premises.
The line up which went from the entrance towards the patio and the parking lot contained lots of people. Constable Viozzi testified that because of the situation, they knew they would be staying to “babysit” until the establishment was cleared. The crowd outside appeared to be getting unruly and unhappy that they could not enter. He did not know if they had purchased tickets for the event. It was not a warm night and women were not dressed for the weather.
At about 1:30 a.m. Constable Viozzi observed a male exit the establishment known to the Vice Unit as an event promoter called Grand Master. He was accompanied by a 4 year old boy. He appeared irate and got into a verbal confrontation with another male in the parking lot. The witness observed him take a cell phone from this second male and smash it on the ground. People began chanting “fight, fight, fight”. He could not say for sure if the other male had come from inside the establishment or from the line up.
Constables Viozzi and Douglas exited their vehicle to control the situation before it escalated. The male known as Grand Master then got into a vehicle with the little boy and drove away.
After that, the officers remained in position in front of the bar and observed 20 patrons exit between 1:33 a.m. and 2:10 a.m. They saw no patrons enter the bar during that time. Mr. Preddie was mostly at the front door going in and out occasionally.
At 2:10 a.m., the remaining patrons began to exit the establishment. Officer Arnold was assigned the task of conducting the exit head count. He was in the driver’s seat of the vehicle and believed that Officer Arnold was in the front passenger seat. He could not recall exactly where Officer Douglas was. They had moved the vehicle several times but were parked directly opposite the main door facing north when the exit count was being done.
As Officer Arnold was conducting the head count, he was observing the crowd as well as those in the parking lot. They then called for assistance by uniformed officers but apparently a neighbour had called before they did because of concern about the large crowd.
The establishment is in a strip mall with houses behind and a townhouse complex to the north. (It was noted that Exhibit 2 shows homes reflected in the establishment windows directly opposite.)
Constable Viozzi said he observed patrons who appeared unsteady on their feet and he believed they were intoxicated either by alcohol or drugs. One female patron exited with the assistance of another female and he watched her vomit after being placed in the back seat of a vehicle. His main concern was to ensure that no apparently intoxicated individuals were driving. No staff members were observed nearby at that time.
Constable Viozzi got the number 138 from Constable Arnold and he believed there were up to 75 additional individuals in the parking lot. He believed the count was taken over 5 to 10 minutes.
At no time did Constable Viozzi enter the establishment and he could not recall if any of his colleagues did. He did recall sticking his head through the door to look in the bar from the vestibule and knew he would go no further because of the crowded conditions. He could feel the humidity coming from inside which caused him to sweat in the vestibule.
At one point he thought about going in to find Mr. Preddie but officer safety concerns precluded it. He would not have been able to hear if one of his partners called and their presence was not welcome. He would only proceed inside in a situation like that if he was in uniform and with no less than five other uniformed officers accompanying him. He was wearing a badge that night.
Constable Viozzi testified that he saw a back door to the establishment when they circled the premises but could not say exactly where it is located. He just knows there is one and believes it is used for deliveries as there is a laneway only wide enough for delivery trucks. The lane was always empty when he saw it. At no time did he ever see patrons go around to the back.
At 2:24 a.m. when uniformed officers arrived, they left the establishment.
On cross-examination, Constable Viozzi stated that he had prepared the report for the Alcohol and Gaming Commission (“AGCO”) without consultation with the other officers. He decided to do so shortly after the incident but could not provide the exact date.
He believed that information about the licensed capacity came from the AGCO and they had it prior to visiting the establishment that night. He does not recall looking at the Licence that evening.
He confirmed that he was in the vehicle when Constable Douglas telephoned Mr. Preddie but does not know the telephone number he used or where Mr. Preddie was. He thinks the number was obtained from the bartender or another staff member.
When they returned to Shooters at 11:47 p.m., Constable Viozzi said Mr. Preddie was outside the front door. He never did a head count himself but observed Constable Arnold going to do the first one on the patio. He was proceeding to the front door as she was doing so.
Constable Viozzi stated the vehicle was parked directly in front of Shooters and agreed there was a sidewalk in front. He did not believe other vehicles were parked along the sidewalk. Their vehicle was parked in that position for most of the time between 11:47 p.m. and when they left.
Constable Viozzi testified that he did not see Constable Arnold actually do the head count. He only saw her walk in the direction of the patio. He could not recall who was sitting next to him when the exit count was being done. He also stated that he never saw Officer Arnold “off the ground” while counting the patio patrons.
Constable Viozzi stated he was sure he saw both Constables Arnold and Douglas with mechanical counters but was never shown them to confirm numbers. He was only informed of their results. He does not know where his mechanical counter was that night.
Constable Viozzi confirmed his testimony that he never ventured beyond looking into the establishment from the interior vestibule door for about five seconds where he felt heat and a lot of moisture coming from inside. He never observed staff serving an intoxicated patron but did smell narcotics although he could not see any specific individual with contraband. He did share that information with Constables Douglas and Arnold.
He reiterated his reasons for not entering the establishment and stated he never went to the patio area.
Regarding the female he observed vomiting, he agreed that he did not talk to her, did not obtain her identification and did not drive her home.
Constable Viozzi stated that the information for the patio and exit counts was given to him by Constable Arnold.
Constable Viozzi testified that he drove the vehicle to and from the establishment that night and that he believed he was the only driver.
On re-direct, Constable Viozzi again confirmed that he never saw anyone enter or exit through the patio or rear door that night nor does he believe it was used by any patron.
The female he observed vomiting definitely came from inside the bar. He saw her being assisted out through the front door and from his vantage point she displayed the classic signs of intoxication. After being helped into the back seat by another individual, she opened the door and vomited.
The officers were dressed in jeans and t-shirts and not carrying all their uniform gear such as pepper spray. Constable Viozzi said it would not be smart to enter a dark, overcrowded establishment where the patrons were not welcoming even when drug use is suspected.
On questions from the Board, Constable Viozzi explained the difference between plainclothes and undercover status. On this occasion, the officers had their badges around their necks and were carrying weapons. Everyone knew they were police officers and Mr. Preddie clearly knew who they were.
In the parking lot, he verbally identified himself as a police officer to the individuals who were involved in a potential incident. He did that so they would leave.
He was firm in his testimony that he did open the door, look inside and smell marijuana. In some cases where there is a concern for safety, they call for backup. If that had happened, they would have had to shut down the place and that would tie up a lot of resources. At the end of the night, someone in the neighbourhood called police and uniformed officers did arrive.
Licensee’s Evidence
Mr. Ben Peterson is a former employee of Shooters. He is familiar with the patio and testified that the surrounding fence is over six feet in height. He is six feet two inches tall and he cannot see patrons on the patio when standing outside the fence.
The witness testified that parking is allowed in front of the bar beside the sidewalk. Cars are allowed to park with the front of the vehicles facing the bar. There is additional parking beyond that.
The exterior of the bar is constructed with mirrored glass. You cannot see into the establishment from outside. Mr. Peterson also explained what can or cannot be seen from each door location. It was his testimony that the parking lot is flat with no slope.
It was Mr. Peterson’s testimony that daily journals are kept at the bar that document such things as police visits, closing times, etc.
On cross-examination, Mr. Peterson stated he was a bartender when employed at Shooters and had left a month ago. He acknowledged the hole in the lattice as shown on Exhibit #2 but stated he had never looked through it and acknowledged that he is sufficiently tall to do so if he stood on the wooden patio foundation/floor shown in the picture. He also agreed that the gate to the patio does not have lattice at the top.
Mr. Peterson was not working on the night of September 15/16, 2007.
On re-direct, Mr. Peterson agreed that the tear in the lattice is four or five poles down from the corner of the patio.
Statement from Clive Preddie
Mr. Preddie testified that he was at his home sleeping when he received a call from a staff member to advise him there was an officer who wanted to speak to him. Constable Douglas informed him that he would be attending the establishment again later that night along with other officers.
Constable Douglas advised Mr. Preddie of his licensed capacity both inside and on the patio, which he found strange, and that if he exceeded those numbers, the bar would be charged.
Mr. Preddie arrived at the bar around 10:00 p.m. and because of the telephone conversation with Constable Douglas he commenced to count the number of people in the establishment.
His count revealed 52 individuals in the bar at 10:26 p.m. (Exhibit 3). Exhibit 4 shows 58 at 11:00 p.m. A third count was conducted at 11:23 p.m. (Exhibit 3) showing individuals by location in the bar. According to Mr. Preddie, the total was 107 and he showed this to Constable Douglas. Later, when using a calculator he realized the correct number was 101.
Mr. Preddie stated he was standing outside the premises when Constable Douglas left his vehicle and came to talk to him. He provided his cell phone number and stated he would be leaving. They spoke for a while and Mr. Preddie testified that he remained outside the establishment for the rest of the night along with a security person. It was his testimony that the officers remained in their vehicle.
Throughout the rest of the night, Constable Douglas spoke to him at the door or summoned him to the vehicle or asked security to summon him. At some point he saw Constable Arnold make her way to the parking lot where she spoke to someone and then returned to the vehicle. At midnight, Constable Arnold approached him to state she smelled marijuana on the patio. He made his way to the patio via the outside of the building, jumped up on a garbage can that is strategically placed there for such observances, leaned in over the patio and inhaled.
He smelled no narcotic and informed Constable Arnold. She said nothing in reply but returned to the vehicle with a disgusted look on her face.
He then entered the establishment, made his way to the patio and walked the length of it to check again. He smelled nothing, exited and returned to his post at the front door.
It was Mr. Preddie’s testimony that at no time did Constable Viozzi speak to him nor did he ever leave the vehicle. Constable Arnold left the vehicle only twice – once to go to the parking lot and once to speak to him. Constable Douglas was the only officer who ever entered the premises and Mr. Preddie should know because he was standing there all the time.
When Officer Douglas entered it was about 2:20 a.m. and the establishment was nearly empty except for staff, security and the D.J.
Mr. Preddie had the establishment vacated early as a courtesy to Constable Douglas. They had developed a rapport throughout the evening and he knew Constable Douglas wanted to return to the station. When Constable Douglas entered the establishment he did not walk through the premises, but stood about two feet inside the second front door and was there for about 90 seconds before he shook his hand.
At no time that night did Mr. Preddie observe any of the allegations described in the NOP. He personally denied access to people and as is customary, events of the evening were journalized (Exhibit 5). These journal entries document everything that goes wrong such as violations or suspected violations and are created daily.
Mr. Preddie points out that the journal for September 15 which he filled out personally does not contain a reference to any potential charges. He pointed out that the visit by Constable Douglas was noted and that a count was requested and done. No incident was documented and Shandi (his employee) assisted him in the closing tasks noted.
On cross-examination, Mr Preddie stated that no patrons were allowed entry after the officers arrived. He denied that he ever said the establishment was overcrowded and no one would be allowed in.
He did not have a counter to tabulate his numbers and refuted that Exhibit 3 also shows the number to be 109. He could not explain what the number 109 referred to which is noted opposite Constable Douglas’ cell number.
When asked if the number 109 could have included staff he disagreed. According to him there was only one staff member on duty that night. That person was the bartender and there were six security men on duty. He stated that there were two in the vestibule throughout the night and that he was outside the bar all night as well spending a lot of time with patrons who were not allowed to enter. When asked, he stated that he did not spend all of the time between 11:45 p.m. and 2:15 a.m. watching the officers’ vehicle.
Mr. Preddie agreed that his journal did not reference any conversation with Constable Arnold. He stated that being told about the alleged marijuana would not warrant a journal entry because it was not substantiated.
Mr. Preddie disagreed that the January 3, 2008 letter to Karim Karsan of the AGCO (Exhibit 6) was an attempt to set down a complete response to the Letter of Incident (Exhibit 7) he received. Rather it was in his view a response to a request to write a letter that might eliminate further action based on a conversation he had with someone at the AGCO. He merely attempted to show that the officers had no basis for their allegations.
He agreed that his letter contained no reference to the garbage can he claims to have stood on to look over the patio.
In Mr. Preddie’s remarks after cross-examination, he explained that the letter was written months after the incident and came as a surprise to him particularly since no AGCO personnel were at the establishment that night.
He wanted them to know there was no merit in the allegations and requested that the Registrar go no further.
In response to questions from the Board, Mr. Preddie said he was sleeping when the call came from Constable Douglas and believes it was around 9:00 p.m. He had never received a similar call and was surprised.
He stated that he had a total of four conversations that evening with Constable Douglas – two when the officer was in the vehicle and two when he was out.
Mr. Preddie agreed that there were two occasions when he was not at the front entrance. The first when he climbed on the garbage can and the second when he went inside to walk the patio.
Mr. Preddie was certain that the officers’ vehicle never moved from the one location. He was firm in his belief that several cars were parked directly in front of his establishment and stated he had to walk between them when summoned to speak to Constable Douglas. They were parked in the driveway directly behind cars in front of the establishment blocking three vehicles and would have had to move if someone wanted to leave one of those spots.
Registrar’s Submissions
On behalf of the Registrar, Ms. Taylor submits that with respect to the allegation of a breach of section 43 of the O.Reg, the evidence from Officers Douglas and Arnold regarding their patron counts should be accepted. No credible evidence to the contrary was presented.
She reminds the Board that Mr. Preddie’s last patron count took place prior to the arrival of the police. Exhibit 3 suggests it was done at 11:37 p.m. That was more than two hours prior to the exit count.
Mr. Preddie was not at the door continuously and he cannot say that more patrons did not enter. There was a period when he went inside the establishment and this was confirmed by Constable Arnold.
Mr. Preddie testified that he knew numbers would be an issue that night. Constable Douglas testified that he took the somewhat unusual step to call him because there was a flyer indicating that Peel paid duty officers would be present. This was not true. Despite knowing this, Mr. Preddie did not ensure that mechanical counters were used to monitor numbers. He also did not perform his own exit count.
No individual who was actually present that night testified on behalf of the establishment to corroborate Mr. Preddie’s statements.
Ms. Taylor submits that where there is conflicting evidence between Mr. Preddie and the police, the conflict should be resolved in favour of the Police Officers.
Evidence was presented that Mr. Preddie yelled out to the crowd who wanted inside that “we’re overcapacity and no one is getting in”.
There was no evidence presented that any patrons used the patio or back doors for entry or exit.
With respect to subsection 45(2) of the O.Reg, permitting a narcotic in the establishment, Ms. Taylor submits that Constable Arnold gave clear evidence about how she looked through the patio fence and saw a male patron smoking a marijuana cigarette.
Her evidence was that she described the individual to Mr. Preddie who went over to the patio and returned saying he smelled nothing. She then described the individual and he went back to the patio and then rushed through the establishment to get out to the patio from inside.
Ms. Taylor cites Regina v. Royal Canadian Legion (paragraph 22) that provides the definition of the word “permit” as relevant to this case.
She believes that the Registrar has shown that a prohibited act – possession and consumption of a controlled substance – took place on the Licensee’s premises. Constable Arnold identified the drug by smell and saw a person consuming it.
The Licensee failed to prevent this. Mr. Preddie has not provided any evidence with respect to how he prevented this infraction from taking place. There was only a blanket denial that it occurred and it is the Registrar’s position that the Board should prefer the evidence of Constable Arnold in this matter.
Regarding a breach of subsection 45(1) – permit drunkenness, the Board heard the evidence of Constable Viozzi about a young woman he saw being helped out of the establishment. She was unable to walk without assistance and was helped to a car where she subsequently opened the rear door and vomited. The Licensee presented no evidence to refute this allegation.
Ms. Taylor refers the Board to the G.T. Roadhouse and Restaurant decision which she submits draws a clear distinction between section 29 of the LLA and subsection 45(1) which deals with the behaviour of patrons. The court puts it as conduct and comportment of persons in a premises and notes that a patron does not have to have drunk alcohol on those premises.
Whether or not there was any evidence of drinking at the establishment is irrelevant when dealing with a breach of subsection 45(1). The young woman leaving the establishment was showing signs of intoxication and vomiting and this is sufficient evidence for finding extreme intoxication.
This individual exited at closing time and it is the Registrar’s position that she was in the establishment and not prevented from being there.
In a recent case (Body English - 2008) a patron was brought out of an establishment by security. In this case, it was a friend or someone else who helped her out.
With respect to credibility, Mr. Preddie claims that he took certain steps like getting on a garbage can to investigate whether someone was consuming marijuana on the patio but he did not mention this in his letter of January, 2008 (Exhibit 6).
In that correspondence, he does give a detailed account with respect to overcrowding and what he did and all his dealings with Constable Douglas. He claims there was never an identifiable smell but does not say he got up on a garbage can and did not see anyone smoking or smell any marijuana. Ms. Taylor submits that if that actually happened, he would have referenced it in his letter.
Ms. Taylor also points out that there is nothing in the letter that expresses Mr. Preddie’s currently held belief that the officers did not have a clear sight line when they did their exit count. Since the focus of the letter is on overcrowding, one would expect that crucial piece of information to be included.
It is the Registrar’s position that the allegations in the NOP have been proven on a balance of probabilities.
Licensee’s Submissions
Mr. Preddie referred the Board to Exhibit 6 and suggested that Constable Douglas’ testimony was riddled with inaccuracies and contradictions.
He asked the Board to consider the contradictory testimony from the officers.
Constable Douglas stated he stood at the door with a counter between 2:10 a.m. and 2:15 a.m. Constable Arnold said no counters were used.
Constable Arnold said she took the count from inside the vehicle but does not remember seeing Constable Douglas.
Constable Viozzi said he sat in the vehicle while Constable Arnold was doing the exit count. He stated he remained in the vehicle and the count was not important to him. He said Constable Arnold had a counter.
If Constable Arnold was assigned to count, why did she not see Constable Douglas?
Constable Douglas did not recall who drove that night and thought they took turns. Mr. Preddie suggests they did not and that Constable Arnold was being truthful when she said Constable Viozzi was driving.
Constable Douglas stated he did his patio count from 20 to 25 feet away. He could not recall if there was a slope on the parking lot but Mr. Peterson testified it is flat and therefore impossible to count from a distance.
Constable Arnold suggested she took her patio count between the third and fourth pole while off the ground for 10 to 15 seconds and Mr. Preddie pointed out that the hole in the lattice is not anywhere near the location where she made her observation.
When asked about the vehicle location for the exit count, Constable Douglas said they were opposite the front door. Constable Arnold’s testimony mirrors that. Constable Viozzi says they were beside the sidewalk. It is Mr. Preddie’s submission that cars were parked there so this could not be true.
When Constable Douglas was asked about the male with marijuana, he had no knowledge of it. Constable Arnold testified that she was certain that a male was smoking marijuana and made that observation at 1:33 a.m. Constable Viozzi testified it happened when they arrived.
Constable Arnold said they did not have mechanical counters that night. If overcrowding was so important, why didn’t they?
Mr. Preddie submits the officers should have entered the establishment and only Constable Douglas did so at the end of the evening. Constable Arnold said she peeked in but Mr. Preddie submitted that she did not.
Mr. Preddie claimed that Constable Viozzi did not leave the vehicle despite the fact that he says he peeked in the establishment. He submits that this is not so. Constable Viozzi did not enter the door.
Constables Arnold and Douglas did not investigate any intoxicated persons. Constable Viozzi claimed he only ensured that intoxicated persons were not driving. Only today does he say he saw an intoxicated female coming out of the bar.
Mr. Preddie points out the inconsistencies in the officers’ estimates of the number of people in the line up and in the parking lot.
Mr. Preddie submits that Constable Douglas said he phoned an AGCO inspector from inside the van to determine the establishment’s licensed capacity and that is a lie because they went into the bar to find out. He suggests that Constable Arnold confirmed this when she testified that she knew of the capacity at 6:18 p.m. when at the establishment. Constable Viozzi confirmed this in his testimony.
It is Mr. Preddie’s submission that Constable Douglas called from inside the establishment at 9:00 p.m. and that it was a staff member who got him on the phone.
Mr. Preddie points out that Constable Arnold spoke about a gap in the fence but the Exhibits do not illustrate that. The fence is over six feet and it would be impossible for her to pull her head over the top of the fence.
Mr. Preddie submits that Constable Viozzi said he saw someone smoking marijuana when he stuck his head in the premises. Constable Arnold said it was on the patio. He encourages the Board to accept his testimony that she could not have made such an observation as described. She would have had to investigate further as would Constable Viozzi if that were so. It is his contention that a violation of subsection 45(2) has not been proven.
He cites AGCO v. Clancy to illustrate that a witness actually walked on the patio while doing a count. The Manager also did a count and said they were trying – but not enough.
In this case, nobody went into the bar therefore the allegations cannot be substantiated. Mr. Preddie’s testimony must be relied on in this matter.
In the case of Barcode, the inspector entered the premises, saw patrons who appeared intoxicated and spoke to them to confirm that was so. They secured I.D. so that a full defence could be made. Acknowledgement of a medical condition can affect an individual and produce similar manifestations.
Because a female vomited, no assumption can be made about intoxication. There was no evidence that this individual was drinking anywhere.
Because the officers did not enter the premises, it is Mr. Preddie’s submission that the Board cannot make findings in these matters. He contends that the Registrar’s evidence fell apart regarding their counts, their positions and the physical structure of the fence.
Mr. Preddie further submits that the evidence he provided at this hearing must supersede anything that is contained in Exhibit 6.
He asks why no count was done inside the establishment and why he was not informed that night of any violations. Licensees should be informed immediately so they can mount a defence.
Reply
In reply, Ms. Taylor pointed out that Constable Douglas did inform Mr. Preddie of their concerns that night. Mr. Preddie admitted in his testimony that Constable Arnold advised him of the alleged marijuana incident so this is not a situation where he should have been surprised by the allegations.
Mr. Preddie does not state in Exhibit 6 that this was the first time he heard about the alleged problems. He does not refer to any delay in his letter to the AGCO.
Constable Viozzi did state he observed the drunken female patron coming from within the establishment assisted by someone. Mr. Preddie was wrong to suggest otherwise.
Ms. Taylor submitted that while it may be preferable to have officers inside an establishment it is not always possible. Credible evidence was provided about why they did not enter that night.
Constable Viozzi did not testify that he was sweating that night. He said he stuck his head in and it felt very hot and humid.
Mr. Preddie seems to be accusing the officers of fabricating evidence and there is nothing to substantiate that. In the Copperfields decision, the Board made findings without remnants of any substance. Nothing was seized or analysed and no charges were laid but the Board made findings because of the training of the officers involved. Constable Arnold has had that training.
The fact that Officer Douglas did not see the marijuana smoker is irrelevant. He was some distance from the patio.
Whether the officers can or cannot recall who was driving the vehicle is irrelevant and does not go to credibility.
Mr. Preddie’s focus seems to be on collateral issues. The number of people in the line up or milling around has no relevance. Only the exit count numbers are pertinent.
Mr. Preddie seems to have an issue with Constable Douglas’ evidence but even if the Board removes his evidence from the mix, it is the Registrar’s position that there is ample testimony from Constables Viozzi and Arnold to sustain the allegations as outlined in the NOP.
Analysis and Reasons
The Board has thoroughly reviewed all the evidence and submissions in this matter.
The Board prefers the testimony of the police officers, as a whole, to that of Mr. Preddie. In some instances where the testimony of the police officers was not totally consistent or sufficient, the Board in dealing with this as noted below, has given the Licensee the benefit of the doubt.
With regard to section 43 of the O.Reg under the LLA, that the Licence holder failed to ensure that the number of persons on the premises did not exceed capacity, the Board has two conflicting versions of the tally of patrons who were present that night.
Mr. Preddie suggests that his evidence (Exhibits 3 and 4) should be preferred because at no time did any officer physically enter the establishment to perform a head count. All three officers provided testimony that they did not enter because of concern for their safety due to the overcrowded conditions they observed from the vestibule door.
At least one officer described the patrons as “unwelcoming” and the Board was initially confounded by this statement since all three testified they were not in uniform that night. When it was explained that although they were not in traditional uniforms but had badges around their necks as well as weapons which made them easily identifiable as police officers, their reluctance to enter the establishment became more understandable. Beyond this, Mr. Preddie, knew who they were and presumably so did his security staff and anyone in the line-up at the door. The Board also notes the testimony that the premises were dark, they were not in uniform and they were not in sufficient numbers to enter safely.
Their decision to wait and perform an exit count appears to have been a prudent strategy under the circumstances, and the Board does not find that the numbers would be any less accurate by employing such a method. It also seems unlikely that they would spend over two hours waiting for the establishment to close if they were not reasonably sure the premises was overcrowded.
A careful review of the evidence and Exhibits 3 and 4 also confirms that Mr. Preddie did not undertake a head count inside the premises after the officers arrived at 11:47 p.m. His last count was recorded at 11:23 p.m.
Mr. Preddie pointed out there was conflicting testimony from the officers about where each of them was physically located at the time the exit count was taken. In the Board’s view, this does not lessen the credibility of Constable Arnold’s testimony about how she tallied her numbers or the conclusion she reached. Whether a colleague was in or out of the vehicle or in the front or rear passenger seat seems to be secondary to the fact that Constable Arnold was assigned this task and her testimony about the methodology and accuracy of her count was believable, even under cross-examination.
The Board notes that there was conflicting testimony about whether mechanical counters were or were not used and by whom. The Board finds, on a balance of probabilities, that Constable Arnold did a count without a mechanical counter as per her testimony, and that Constable Douglas did a count with a mechanical counter, which Constable Arnold was unaware of. Constable Viozzi thought the other two officers both had mechanical counters, but it is clear that Constable Arnold did not. In any event the Board finds that a count was done by the two police officers, and that it approximated 158 persons. That number is above the permitted capacity for the premises which is 106 (87 inside and 19 on the patio). The Board notes that Mr. Preddie did not have a mechanical counter, and did not do his own exit count or provide any other persuasive evidence to contradict the police officers’ testimony regarding the number of persons in the premises.
Mr. Preddie submits the Board should accept his testimony about the location of the police vehicle but has not provided any theory about why this should impact the exit count numbers. By his own testimony, he had a clear view of the vehicle, its occupants and their entry and exit. Therefore, we must presume that so did the officers as they observed patrons leaving the front entrance.
Mr. Preddie stated that “he remained outside the establishment for the rest of the night along with security personnel”. This contradicts his own testimony about investigating the alleged marijuana smoker when he clearly left the entrance at least twice to go to the patio and then inside the establishment. In addition, the Board was somewhat confused about his statement that he went to the police vehicle at least twice “when his security guard summoned him”. If he was outside at all times, why would he have to be summoned by his security guard? A careful review of his testimony provides no answer to that question.
The Board has carefully reviewed the testimony provided about overcrowding on the patio that night. It found the methodology to accurately determine the number of people counted to be questionable. Constable Douglas testified he counted from a distance of 20 to 25 feet. Mr. Peterson testified the parking lot surface is flat. As a result, the Board wonders how Officer Douglas could observe 33 patrons when some would obviously be seated and the tops of their heads would not be visible over a six foot fence.
Similarly, the testimony from Constable Arnold about pulling herself up and peering over the fence for 10 to 15 seconds to count was also questionable. The Board is not persuaded that a quick look by Constable Arnold in this position for this duration of time provided an accurate count. As a result, the Board has disregarded testimony about the patio overcrowding and relied solely on the exit count results which the Board found to be credible.
Mr. Preddie claimed there was only one staff person on duty that night aside from himself and security personnel. It seems unlikely to this Board that one bartender could prepare and serve drinks for over 100 patrons inside the bar and on the patio. This was a specially promoted event to which an extraordinary crowd might be expected. The fact that six security staff were present, according to Mr. Preddie, suggests that more than one staff member would be needed for service. The Board believes Mr. Preddie was stating this in order to persuade the Board that there were fewer patrons in the premises than there actually were. The Board does not believe Mr. Preddie in this regard and finds that this diminishes his credibility.
The Board notes the fact that neither the bartender nor any of the security personnel on duty that night were called upon to give evidence at this hearing that may have helped to corroborate Mr. Preddie’s testimony. While corroborating testimony is not required, Mr. Preddie was aware of the issue of overcrowding both on that night and at the hearing.
For these reasons, the Board FINDS there has been a violation of section 43 of the O.Reg.
Regarding the allegation of a breach of subsection 45(1) that the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under control of the licence holder, the Board heard testimony from the police that they observed intoxicated patrons exiting the premises that night.
Their descriptions of these individuals were of a general nature involving some of the classic signs of intoxication. According to testimony, one female patron was observed being helped out of the establishment, presumably unable to do so on her own, and subsequently vomited after being placed in the back seat of a vehicle.
Mr. Preddie submitted that none of these individuals, including the apparently intoxicated female were identified or charged nor were any breathalyzer or field sobriety tests performed. During testimony, Ms. Taylor elicited the fact that these tests were inappropriate unless someone was operating a motor vehicle.
While the Board is confident that experienced police officers are adept at observing the classic signs of intoxication, it is troubling that no specific individuals were identified. Despite the fact that it may have been inappropriate to conduct sobriety tests, the simple identification of these people or testimony of a conversation where more detailed signs of intoxication could be gleaned would have been helpful and could have provided an opportunity for Mr. Preddie to do a follow up investigation.
Mr. Preddie also asserts that the female identified as being intoxicated may have had a medical condition that caused her symptoms. That could not be ruled out because the police did not approach her to investigate.
For these reasons, the Board DISMISSES the allegation that there was a breach of subsection 45(1) of the O.Reg.
Regarding the allegation of a violation of subsection 45(2) of the O.Reg, that the licence holder permitted a person to consume a controlled substance as defined in the Controlled Drugs and Substances Act, the Board must consider the testimony of Constable Arnold and that of Mr. Preddie.
The Board finds that Constable Arnold was credible in her testimony about what she saw and smelled through a gap in the patio fence, including her description of the smoke being blown in her face. She has had specialized training in these matters which must be considered. She reported those observations to her fellow officers and to Mr. Preddie. It was her testimony that she even described the individual for Mr. Preddie in order for him to investigate further.
She stated that Mr. Preddie went first to the patio fence and then, when subsequently provided with a description of the individual, went back again before entering the establishment to investigate further. In his testimony, Mr. Preddie confirmed his investigation of the matter but stated that he found nothing. The Board believes that Mr. Preddie made no real efforts to deal with the matter. Despite being advised by Constable Arnold who spoke to him twice about it, including her observation and then providing him with a description of the individual, and Constable Douglas, also discussing it with him, he entered the premises, allegedly did not see or smell anything, or did not report back to the officer about it after that. The Board believes that Mr. Preddie was being untruthful in this regard or was deliberately turning a blind eye to the matter.
In his submissions, Mr. Preddie stated that Constable Viozzi said he saw someone smoking marijuana inside the establishment. A review of the officer’s testimony reveals that he did not state that he “saw” someone smoking marijuana. He stated that he “smelled” marijuana when he poked his head in from the vestibule.
Mr. Preddie suggests that if the police were sure someone was smoking a controlled substance they should have entered the establishment to investigate. The Board has accepted the explanation given by the police for not entering the premises to count patrons. These reasons would apply equally to why they would not attempt to enter the premises and apprehend someone smoking marijuana.
In making a final determination in this matter, the Board has also carefully studied the photograph of the exterior of the patio (Exhibit 2). Due to the quality and angle of the photo, no gap is readily visible but no contradictory testimony was provided by Mr. Peterson that such a space does not exist.
Because of Constable Arnold’s special training in drug identification and enforcement, the Board accepts her testimony that an individual was openly consuming a controlled substance on the patio. The apparent lack of measures to prevent this, including the permitting of overcrowding, the lack of evidence that the patio was being supervised, not having sufficient staff to monitor the activities of patrons, and Mr. Preddie’s insufficient response to the police officers’ concern regarding the open use of a controlled substance clearly shows that the Licensee permitted the activity to take place.
For these reasons, the Board FINDS there has been a breach of subsection 45(2) of the O.Reg.
Conclusion
Therefore, 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 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 26^th^ DAY OF FEBRUARY, 2009.
DAVID C. GAVSIE, CHAIR, AGCO DIANNE AXMITH, BOARD MEMBER