Registrar, Alcohol and Gaming Commission of Ontario v. Central Bar & Grill Ltd., 2009 CanLII 29722

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

Registrar, Alcohol and Gaming Commission of Ontario Registrar

-and-

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

DECISION ON FINDINGS

Panel: Guy Maurice, Board Member Eleanor Meslin, Board Member

Decision Date: April 21, 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 ) Daniel Alakas, Representative Central Bar & Grill Ltd., Licensee ) A.H. Herman, Representative

Allegations

A hearing into Notice of Proposal number 16878 dated November 26, 2008, to suspend liquor licence number 90060 issued to Central Bar & Grill Ltd. (the “Licensee”), operating as CENTRAL BAR & GRILL, 1946 – 48 Weston Road, Toronto, Ontario, M9N 1W2 (the “premises” or “establishment”), on the basis of an alleged violation of section 43 of Ontario Regulation 719/90 (“OR 719/90”) made pursuant to the Liquor Licence Act (the “LLA”), was held on March 30, 2009 in the City of Toronto.

Decision

After considering all the evidence and submissions, the Board FINDS that the Licensee violated section 43 of OR 719/90 on March 8, 2008. Reasons follow.

Preliminary Matters

Registrar’s Representative requested that the NOP be amended to remove the following wording in paragraph 2 of the Particulars: “…one hundred and twenty-one (121) people in an area licensed for one-hundred and fourteen (114) people…”
Mr. Alakas indicated that the liquor licence was divided into three areas and each area was licensed separately. There was no overall area licensed for 114 people.
Mr. Herman opposed the amendment believing that the figures as outlined were incorrect.
The Board, after examining a copy of the liquor licence, accepted Mr. Alakas’ amendment to the NOP.
On consent, the Board ordered that witnesses be excluded.

Registrar’s Evidence

Eric W. Dugan is a Sergeant (“Sgt.”) with Toronto Police Services. He attended the bar on March 8, 2008 at 1:15 a.m. to inspect the premises. On entering, he checked the liquor licence that was posted and noted there were three licensed areas: the north room for 67 persons, the south room for 40 and the north-east section for seven persons.
He indicated that when he entered there was a security person at the front door. The south room had no problems, but when he entered the north room, it was very over crowded with people jammed side by side, making it almost impossible to walk through the room. There was no security in the doorway between the north and south rooms. The north room had a DJ and a pool table and the south room had a bar and kitchen.
Since Sgt. Dugan was in uniform when he decided to take a count, he did so from one place and did not attempt to walk through the crowded north room. He did not use a counting device and began the count from those closest to him. Anyone leaving would have had to walk past him. He could only clearly see about 80% of the room, but counted 90 people in that area. It took him about five minutes to do the count. He did not recall seeing any staff during his count.
He then proceeded to count in the south room, which was not congested at all and presented no counting problems. His count was 31 people.
Sgt. Dugan then spoke with the owner, Mr. Allen, and advised him of the counts and the overcrowding and told Mr. Allen that he should have someone monitoring the entrance to the north room. While speaking with Mr. Allen, Sgt. Dugan noticed more people entering and advised security to stop people entering. Mr. Allen expressed his concerns and said he wanted to work with the police.
On cross-examination by Mr. Herman, Sgt. Dugan indicated he was aware of the licensed capacity of each area. He indicated that the door person advised him that the headcount was 121 people. When asked about possible difficulty counting from a stationary position, Sgt. Dugan responded that since he was over six feet tall, he had no problem counting heads. He reiterated that of the 80% of the room that he could clearly see, he counted 90 people. When he advised the owner of the overcrowding in the north room, the owner did not seem to know that the licensed capacity was for each room, not in total.

Licensee’s Evidence

Patrick Allen has owned the bar for three years. His counsel offered the following, which were entered as exhibits:

Exhibit #1 – Photo of the entrance to the bar Exhibit #2 – Photo of the south section and bar Exhibit #3 – Photo of the south section past the bar Exhibit #4 – Photo of the main entrance into the south section Exhibit #5 – Photo of the south section from the rear, looking forward Exhibit #6 – Photo of the north section with the pool table Exhibit #7 – Photo of the entrance into the north section

Mr. Allen stated that it would be impossible for the police officer to make a count, since people were constantly moving around. He said he was also over six feet tall and he could not do a count. He indicated that since the incident, he only allows 100 people in the bar at a time and has cameras recording the bar.
Regarding March 8, 2008, Mr. Allen indicated the count of 121 included five or six of the staff. On weekends he has four security, two kitchen staff, and two or three bartenders. He regularly checks the count with his security. There is a constant flow of people between the north and south rooms, because the only washroom is in the north room.
On cross-examination, he told Mr. Alakas that on March 8, he did not have a specific count of the north section. His counts are done by security and the figure of 121 included staff. He has no staff doing counts between the north and south rooms.
Kimberly Anne Hamilton has worked at the bar as door security for over two years. She works Fridays and Saturdays beginning at 10:00 p.m. until closing. She searches all patrons entering, stamps their hands and, using a mechanical counter, counts everyone entering and leaving. When she starts work at 10:00 p.m. she walks through the establishment and counts all the patrons inside at the time, stamping their hands. Once the total reaches 114 she locks the doors and only allows new entries as people leave. If patrons exit only to smoke, she re-stamps them on their return. She does not keep track of patrons moving between the north and south rooms.
On cross-examination Ms Hamilton did not have a clear recollection of the evening of March 8, 2008. She indicated that there were usually two security staff at the door (one male, one female for searching) and one security person inside.
Alana Fraser has been employed for two and one-half years as a bartender and waitress. On March 8, 2008 she was acting as bartender. Although she was told that there was a discrepancy in the count, she did not believe they were over-capacity because she judged by the number of people at the bar, and it was not over-crowded. She stated that the counts taken were not room by room, but for the whole establishment. They usually close the doors when the count reaches 100. She indicated that because the bar was in one room and the washroom in another, there was a constant flow of people between the rooms.
In response to Mr. Alakas, Ms Fraser said that she had done a head count once, without a counter, but found it was very difficult to do.

Registrar’s Submissions

The Registrar is asking for a finding of overcrowding under section 43 of OR 719/90.
Mr. Alakas submitted that neither the Licensee nor his staff understands the capacity outlined in the liquor licence. They speak only of 114 people, although the capacity is split between rooms.
There was no evidence given to contradict the officer’s count.
To say it was impossible to make the count is not a defence. If there are difficulties then the Licensee should make other arrangements to conduct counts. All the witnesses stated that there was no door staff monitoring the count between rooms.
Sgt. Dugan’s evidence was that the north room looked overcrowded and he did a count of the 80% of the room that he could see and he stopped counting at 90 people.
There was no evidence that the Licensee did a count, although he testified that he knew they were overcapacity at 121 people. The Licensee took no steps to monitor each room’s capacity and his door security testified that she only counted overall capacity.

Licensee’s Submissions

Mr. Herman submitted that there was doubt regarding the manner in which the count was conducted. The security person indicated that she kept an accurate overall count by using a mechanical counter, while the officer relied only on a head count without a counter, in a crowded room, with people moving back and forth between the rooms. The accuracy of the officer’s count is in question and there was no corroboration of his count.
Mr. Allen admitted to the count of 121 but indicated that it included his staff of about seven people, which would put the count at 114 and agreed that the only count was done at the front door. He also testified that he had asked the officer’s advice to ensure a correct count.
Mr. Herman asked the Board to weigh the evidence that the Licensee runs a proper establishment against the vagueness of the officer’s numbers.

Registrar’s Reply

There is no vagueness, there was specific overcrowding in the north room. Sgt. Dugan had no difficulty counting 90 people in the north room, even though he did not count the whole room.
Mr. Allen admitted to the count of 121, which was overcapacity. He also lacked the knowledge regarding staff inclusion in the count.

Analysis/Reasons/Findings

The Board has carefully considered the evidence and submissions in this matter.
The evidence of Sgt. Dugan that he counted 90 people in an area licensed for 67 people is uncontradicted by the Licensee’s witnesses. The Licensee gave no evidence that its staff did a count of that area.
The Licensee’s argument that Sgt. Dugan could not make an accurate count by standing in one spot and counting as many heads as he could see from his height of over six feet, is not reasonable. Sgt. Dugan’s evidence in that regard is uncontradicted by a Licensee’s count. The Board accepts the evidence of Sgt. Dugan, which it found to be reasonable and not exaggerated as he was candid in that he stopped counting at 80% of the room that he could easily view and count.
From their evidence, the Licensee and his staff believed that the licensed capacity was 114 persons, the total of the three licensed areas. They did not appear to understand that each area had its own separate licensed capacity. Even using the Licensee’s understanding of the capacity, he admitted that on March 8, 2008, there were 121 people in the premises, seven over capacity.
The Board does not accept the Licensee’s rationale that the reason for the overcapacity was that his staff was included in the count. Once again, he misunderstands the LLA. Staff are always included in the licensed capacity, and, therefore, in any count.
The Licensee indicated that since the incident he has placed cameras in the establishment and asked the police for assistance. The Board notes however that cameras can’t count patrons, and he has taken no steps to assure the Board that he will have security monitor the area between the north and south rooms or train staff regarding capacity in each area, as outlined in his liquor licence.

Conclusion

Therefore, the Board FINDS the Licensee contravened section 43 of OR 719/90 of the LLA.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within ten (10) days of the date of this decision. The Licensee’s representative shall have ten (10) days to serve and file a written response. Registrar’s Representative may serve and file any reply within five (5) 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 21st DAY OF April , 2009

GUY MAURICE, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER