Registrar, Alcohol and Gaming Commission of Ontario v. 1326284 Ontario Ltd., 2009 CanLII 29774

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-

1326284 Ontario Ltd. operating as T.J.’s Hanger Sports Grill Licensee

DECISION

Panel: Patricia McQuaid, Vice-Chair, AGCO Bruce Miller, Board Member

Decision Date: April 3, 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 ) Dan Alakas, Representative 1326284 Ontario Ltd., Licensee ) Greg Burd, Representative

Allegations

1A hearing into a Notice of Proposal (“NOP”) number 16789 dated November 6, 2008 to suspend liquor licence number 24479 (the “Licence”) issued to 1326284 Ontario Ltd. (the “Licensee”) operating as T.J.’S HANGER SPORTS GRILL, 35 Broadway Avenue, Orangeville, Ontario, L9W 1J7 (the “establishment” or “premises”), on the basis of an alleged violation of section 43 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on March 9, 2009, in the City of Toronto.

Decision

2After considering all the evidence and submissions, the Board FINDS the Licensee violated section 43 of the O.Reg. Reasons follow.

Preliminary Matters

3The Board ordered that witnesses be excluded with the consent of both parties.

Registrar’s Evidence

4Harry Quirt is an Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector and has been so employed since 2001.

5He advised the Board he attended at T.J.’s Hanger Sports Grill on July 19, 2008 at 1:45 a.m. in the company of AGCO Inspector Darrel Sargent. He entered the establishment through the main gate which leads onto the patio.

6Inspector Quirt spoke to Mr. James Nanos who he knew was to be one of the owners. He asked Mr. Nanos what the licensed capacity was for the patio and was told that it was fifty-nine. Inspector Quirt then asked Mr. Nanos how many people were on the patio and he replied fifty-nine. Inspector Quirt asked Mr. Nanos if he wished to conduct a count of the number of persons on the patio with him to which Mr. Nanos responded by walking away.

7The patio is the main entrance area to the establishment. There is a double door and a garage door from the patio into the main bar area. There was no line-up into the patio. There was one staff member at the entrance to the patio. There was also a staff member at the garage door. The double doors were unlocked and closed. No staff member was at those doors. There is a small stand-up bar on the patio.

8Inspector Quirt used a counter to obtain the number of persons on the patio. He checked the counter to ensure that it was working properly. He walked outwards from the garage doors across the patio and counted seventy people. He stated it took three minutes to do the count.

9He stated that he breaks the bar into quadrants to do the count. He avoids counting a person twice by looking at the person’s face. He had been to the bar many times before. There are no chairs on the patio, only a few bar stools. It is a smoking patio.

10Inspector Quirt did not see anybody enter the patio while he was counting. He stated that some people would have walked back into the bar area after he did his count.

11Inspector Sargent was on the patio and did his own count. Inspector Sargent told him that he counted sixty-seven persons on the patio. He said that Inspector Sargent may have missed some people and that he might have started his count at a different time.

12He told Mr. Nanos that the patio was overcrowded. Mr. Nanos replied “What do you want me do about it Harry?” and smiled and walked away. Inspector Quirt did not speak to any of the bar staff prior to leaving at 2:15 a.m.

13On cross-examination he stated there are approximately seven hundred and fifty licensed premises in the area he was responsible for inspecting. He inspects T.J.’s Hanger Sports Grill twice a month. He does not do that with every establishment. He inspects some establishments only once a year. He inspects T.J.’s Hanger Sports Grill more often based on a risk enforcement model.

14Inspector Quirt stated he was not trying to be confrontational with Mr. Nanos when he asked him what the capacity was for the patio. He denied asking the question in an accusatory manner.

15He did not speak to staff nor did he ask them for their count of the persons on the patio. He did not see staff in possession of a counter. Inspector Sargent had a counter.

16Inspector Quirt testified that Inspector Sargent did his count within moments of his own. He could not have over-counted and if there was any error, he may have undercounted the number of persons on the patio. He was confident that there were not less than seventy people, but it was possible that there were more than seventy persons on the patio.

17He didn’t see anyone enter the patio while he was doing his count, but stated that it was possible. People may have gone into the bar after they were counted.

18The patio was not very big. He avoids counting someone twice by face recognition. It would have been more accurate to close the patio to make the count but it would have made for an unsafe situation in his view.

19The patrons were standing shoulder to shoulder in some areas while in other areas it was sparser, especially at the entrance and at the garage door area.

20He did not count Inspector Sargent when he did the count and only counted one staff member.

21He stated that he had been involved with T.J.’s Hanger Sports Grill before. When asked if he was involved with fifty-eight charges against the Licensee last year, he replied that he did not know the number but that it was substantial. When asked if he knew that none of the charges resulted in a conviction, he replied he did not as the charges were laid by the Orangeville Police Service.

22In response to a question from the Board he stated that the patio was fairly well lit.

23Darrel Sargent is an AGCO Inspector and has been employed as an Inspector since February 2008.

24He attended at T.J.’s Hanger Sports Grill on July 19, 2008 at 1:45 a.m. in the company of AGCO Inspector Harry Quirt.

25The patio was very crowded and he described it as “shoulder to shoulder”. He walked through the patio with difficulty.

26The entrance to the bar is through the patio which is at the front of the bar. There was one security staff member at the entrance to the patio. There is a garage door and a smaller door that leads from the patio into the bar. There was a staff member at the small door.

27Inspector Sargent did not know the capacity of the patio when he first entered. He checked the information that he had with him and found that it was fifty-nine.

28He conducted a count of the patio area with a mechanical counter. He started from the garage door which is at the furthest point of the patio. The main entrance was to his left and was about fifteen feet away from him. He stated that the patrons were standing, drinking and smoking. There was no room for any dancing.

29Inspector Sargent counted sixty-seven people. He did not include staff in his count. He didn’t recall how many staff were on the patio. He couldn’t recall if there was a bar on the patio.

30He stated it took a minute and a half to do the count. Inspector Quirt was right beside him when he did the count.

31They then spoke to a Mr. James Nanos who he understood to be an owner. Inspector Quirt spoke to Mr. Nanos about the patio’s capacity. Inspector Quirt asked Mr. Nanos if he would like to conduct the count with him and Mr. Nanos walked away.

32A short time later Inspector Quirt told Mr. Nanos that the patio was over capacity and he replied, “What do you want me to do about it”, chuckled and walked away with a sarcastic expression. He described Mr. Nanos’ reaction as not “friendly”, with a lack of regard to the severity of the situation.

33They continued their inspection and left at 2:22 a.m.

34On cross-examination Inspector Sargent stated that his training consisted of working several months with Inspector Quirt and that he also took a week long training course. There was training on counting patrons as part of the course.

35He answered that it would not have been preferential to cordon off the patio while he was counting especially since it was over capacity.

36He first learned of the capacity of the patio when he arrived. He confirmed the capacity by checking his IPAC (handheld device) after Inspector Quirt spoke to Mr. Nanos. He counted with his back to the garage door. He and Inspector Quirt did their separate counts moments apart. He did not observe Inspector Quirt counting as he was preoccupied with his own count. Inspector Quirt asked him for the count when he was finished.

37Inspector Sargent did not recall a doorman at the garage door. He didn’t approach any staff members as there was no reason to do so.

38He believed that Inspector Quirt’s count was seventy. The difference may have been due to the fact that he did not count staff. Mr. Nanos was present for the count but he didn’t recall exactly where he was.

39Inspector Sargent stated it was possible patrons entered or left the patio after he started his count. He said it was possible that his count could be wrong but only by one or two. He said it was “not likely” that his count could be out by as much as eight. It was possible that someone entered from the parking lot through the main entrance to the patio.

40People were standing shoulder to shoulder and there were no open areas to walk through. He didn’t count people twice as people were not moving around and that made it easier. It was possible, but not probable, that he could have counted a person twice. He did not count the staff, giving the benefit of the doubt to the Licensee.

41Inspector Sargent has done numerous counts before. He felt the patio was over capacity when he first arrived as it was difficult for people to move in and out. He did not recall if there was a vestibule between the staffed door and the inside of the bar. He did not recall the number of women on the patio. He only did one count and made a note of it a few minutes after leaving.

42He stated that he might have been to the establishment on one prior occasion. He didn’t recall if the patio got busier after if he did his count. He did not recall if Inspector Quirt did his count by walking from one end of the patio to the other.

43In response to a question from the Board he stated that he remained by the garage door while he did his count and did not walk across the patio.

Licensee’s Evidence

44Mr. Jason Gignac is thirty-three years of age and has worked for the Licensee as a doorman for the past five years. He also does security work for the City of Brampton.

45He was working at T.J.’s Hanger Sports Grill on the night of July 18 – 19, 2008. His security partner was a Mr. Sam Greene. He has known Inspector Quirt for about two years. He was standing on the patio about ten feet from the entrance when Inspector Quirt and the other Inspector arrived. The Inspectors did not speak to him when they arrived.

46The licensed capacity for the patio is fifty-nine and there were about thirty persons on the patio when the Inspectors arrived. He said that people file out and start to leave from 1:30 to 2:00 a.m. The door staff, who are identifiable by their clothing, checks to see that they don’t take alcohol out with them.

47Mr. Gignac stated staff is always watching the patio and once the number of patrons reaches forty they don’t let anyone else on the patio. He had a counter that evening. Everyone gets a stamp on their hand when they go into the establishment.

48He stated that the number of patrons on the patio never exceeded fifty-nine. The licensed capacity for the inside of the bar is two hundred and five, but there were only two hundred persons on the entire premises.

49On cross-examination he confirmed that there were “maybe” thirty patrons on the patio. He did not know the exact count. His last count had been at 1:30 a.m. He was positive that they were under capacity.

50Mr. Gignac stated that there is a “one in – one out” policy when the patio starts to get full. No one else is allowed on the patio until someone leaves.

51In response to a question from the Board, he replied there is no separate counter for the patio. He stated that there was a lot of moving about on the patio but that it wasn’t busy. He replied that Mr. Nanos never asked him for the count.

52Mr. Sam Greene is thirty-six years of age. He has worked in security for approximately fifteen years. He works the front door of T.J.’s Hanger Sports Grill and checks identification and for sobriety. He also checks for capacity on the patio.

53He knows Inspector Quirt and was there when he came on the patio. It was close to the end of the night. People were leaving and there were about forty people on the patio. Capacity is fifty-nine. They always have a buffer of ten to fifteen. He stated that he could tell when there were fifty-nine people on the patio. They always do a head count every twenty minutes or so.

54On cross-examination, Mr. Greene stated that he was working on the front gates and did not have a counter. Mr. Gignac was on the patio and he was doing the count. He said there were thirty-five to forty patrons on the patio when Inspector Quirt arrived. The last count had been forty. People walking in and out do affect capacity and that’s why they have a buffer.

55In response to a question from the Board he said he did not see Inspector Quirt do a count.

56Mr. James Nanos has owned T.J.’s Hanger Sports Grill for ten years with Mr. Steven Stevens and Mr. Tony Stevens.

57He has known Inspector Quirt for about five years. He feels that Inspector Quirt “picks” on him and that they have a bad relationship. Inspector Quirt asked him for the capacity of the patio and he said fifty-nine. Inspector Quirt asked him how many were on the patio and he responded fifty-nine, then shrugged his shoulders and walked away.

58Mr. Greene and Mr. Gignac are responsible for keeping the count on the patio. People were leaving and there were around forty persons on the patio. He did not have a counter.

59He now only works days so he does not have to deal with Inspector Quirt.

60On cross-examination, he stated that Inspector Quirt puts pressure on him to comply with the liquor laws. He stated that there were only forty people on the patio and that was light. Heavy would have been sixty. They operate with a buffer of ten under capacity.

Registrar’s Submissions

61The relationship between Inspector Quirt and Mr. Nanos has no relevance to this matter. Inspector Quirt is an experienced investigator. He enters the patio at 1:45 a.m. He goes to the garage doors with his back to the establishment and walks through the patio. There was not a large movement of people and he would have seen anyone leaving. The count would only have increased if individuals entered from behind him. He gets a count of seventy which includes staff.

62Inspector Sargent also does a count and his was sixty-seven. He states that there wasn’t much movement of patrons. His count does not include staff. There was evidence that there were at least two staff members on the patio and Mr. Nanos may have been there as well. Both Inspectors gave consistent evidence.

63Mr. Gignac estimates that there were thirty patrons on the patio. He doesn’t know the exact count. Mr. Greene estimates that there are around forty on the patio. He didn’t have a counter nor did he do a count. Mr. Nanos does not know the exact count but thought it was about forty.

64The evidence from both Inspectors was clear, consistent and methodical and should be accepted, in contrast to the evidence of the Licensee’s witnesses which was a mere estimation and does not detract from the inspectors’ evidence.

Licensee’s Submissions

65The case comes down to credibility. It is hard to believe that there is no movement of patrons at 1:45 a.m. on the patio. There is a simple way to do any count. The Inspectors could have asked staff to close down the patio until the count was done. They did not do this and opted for an unscientific method for the count.

66The count by Inspector Quirt cannot be relied upon because it takes three minutes to complete.

67Mr. Greene and Mr. Gignac are experienced staff. They testified that it wasn’t busy. One said that there were thirty patrons and the other stated that there were forty patrons.

68The Board should rely on the testimony of the staff and Mr. Nanos, given their experience and observations. Mr. Burd submits that the Registrar has not met the burden of proof.

Reply

69The issue is not if there was any movement but rather if there was any movement that affected the count.

70In a response to a question from the Board the Registrar’s Counsel stated it was the Registrar’s position that every person on the patio is to be counted whether they are coming or going from the establishment.

Analysis/Reasons/Findings

71The Board has carefully considered the evidence presented.

72The Board takes overcrowding in premises very seriously. The Fire Marshall sets the capacity for licensed premises to ensure a safe number of occupants within. Exceeding that capacity can potentially put both patrons and staff at risk.

73The Board heard evidence from AGCO Inspectors who testified that they went into the T.J.’s Hanger Sports Grill on July 19, 2008 at 1:45 a.m. and that the patio area appeared to be over-crowded. Each Inspector then conducted a count using a mechanical counter. One Inspector walked through the patio from the garage doors to the far side. He had a count of seventy persons, including staff.

74The other Inspector remained stationary, with his back to the garage doors, and had a count of 67 persons which did not include staff. There was evidence that there were two staff members on the patio and that the owner, Mr. Nanos, may have been on the patio as well. Both inspectors stated there was very little movement on the patio.

75The count was conducted in a relatively short time. One Inspector stated that his count took three minutes while the other Inspector stated his took ninety seconds. The evidence of both Inspectors was clear and consistent.

76The Licensee’s evidence as to capacity was based only on estimates. Mr. Gignac estimated the number at thirty persons while both Mr. Greene and Mr. Nanos estimated the number of persons on the patio as forty. Mr. Greene stated that Mr. Gignac was responsible for keeping track of the numbers on the patio. However, Mr. Gignac admitted he did not know the exact count and had not done one since 12:30 a.m. This, in spite of the fact he testified that from 1:30 a.m. to 2:00 a.m., people are filing out onto the patio in order to leave the premises.

77The Inspectors’ counts were based on actual counts using mechanical counters. Both counts were done separately, at the same point in time and were consistent with each other. Their observations of the persons on the patio, that is, that patrons were, at least in some areas, standing shoulder to shoulder, are consistent with a higher count than that estimated by the staff. The Licensee’s staff relied on estimates with a variation of between thirty and forty persons. The Board prefers the evidence of the Inspectors which it finds to be more reliable.

78The Board having considered all the evidence in this matter finds that even if one accepts that patrons may have been on the patio en route to leaving the premises, there was none the less at the time of the count, a breach of section 43 of the O.Reg on July 19, 2008.

Conclusion

79For the reasons given, the Board FINDS the Licensee violated section 43 of the O.Reg.

80The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file 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 a 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.