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-
4062205 Canada Inc. O/A Lobby Lounge and Restaurant
Licensee
DECISION ON FINDINGS
Panel: Brian J. Ford, Board Member Eleanor Meslin, Board Member
Decision Date: January 30, 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 ) Phillip Morris, Representative 4062205 Canada Inc., Licensee ) Mitchell Worsoff, Representative
Allegations
- A hearing into Notice of Proposal number 16122 dated March 13, 2008, to suspend liquor licence number 28927 issued to 4062205 Canada Inc., operating as LOBBY LOUNGE AND RESTAURANT, 192 Bloor Street West, Toronto, Ontario, M5S 1T8, on the basis of an alleged violation of section 43 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act, was held on October 17, 2008, in the City of Toronto.
Exhibits
- Plan of the Establishment
- Letter to the Alcohol and Gaming Commission (“AGCO”) dated December 20, 2007
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated section 43 of the O.Reg. Reasons follow.
Registrar’s Evidence
Devin Sookdeo is an Alcohol and Gaming Commission of Ontario (“AGCO”) inspector and he advised the Board he attended at the Lobby Lounge and Restaurant on September 9, 2007 at 12:16 a.m. in the company of AGCO Inspector Steve Hetherington.
Inspector Sookdeo gave a description of the establishment along with the allowed capacity. The inspector stated the establishment’s main floor is rectangular, running north to south and the capacity for the main floor area is 171, the basement is 39 and the patio is 18.
Inspector Sookdeo stated when they arrived at the establishment they observed a long line-up outside the entrance. On entering, he identified himself to a security person and asked him what the count for the number of patrons in the establishment was. Inspector Sookdeo was advised that there were 210 patrons in the establishment.
Inspector Sookdeo stated he found the bar to be very crowded with patrons standing shoulder to shoulder. He also noted that people were being let in after he entered.
After entering, Inspector Sookdeo and Inspector Hetherington walked through the crowd to the south end of the bar, turned around and walked back toward the front, doing a count of patrons on their mechanical counters. Inspector Sookdeo stated while walking towards the front during the count process he had to stand still at times as it was very crowded.
Inspector Sookdeo stated he counted 210 patrons on the main floor not including the basement or patio. He stated it took about six minutes to complete the count. He stated that Inspector Hetherington told him that his count was 208. Inspector Sookdeo stated the establishment was licensed for 171 patrons on the main floor and that the establishment was over by 37 or 39 patrons.
When asked if he noticed any movement of patrons from the basement to the front door he said he did not. He added that he checked the basement and that there were only three to five patrons in the basement.
Inspector Sookdeo then spoke to the manager, Mr. Michael Etherington, and told him of his findings. Mr. Etherington said in reply “it’s the film festival”. Inspector Sookdeo advised the manager that it was important to monitor the capacity even during the film festival.
Under cross-examination, Inspector Sookdeo was asked if he asked the manager of the establishment to see the liquor licence and he stated that he did not. He stated that he did not need to, as he knew the main floor capacity of the establishment having checked it before he arrived.
He reiterated that the crowd was shoulder to shoulder in the establishment and that it was very crowded. He also said that he did not see anyone moving out of the establishment. He did not take a count on the patio.
On re-direct, Inspector Sookdeo stated again that he did not see anyone going out or going to the basement while he was taking the count.
Stephen Hetherington is an AGCO inspector and he advised the Board that he attended at the Lobby Lounge and Restaurant on September 9, 2007 at 12:16 a.m. in the company of AGCO Inspector Sookdeo.
Inspector Hetherington stated that when they arrived at the premises there was a long line-up at the front door. On entering the establishment he said that it was very crowded. He, along with Inspector Sookdeo, proceeded to the rear of the establishment. Once at the rear they turned and started towards the front counting the number of patrons using mechanical counters. Inspector Hetherington stated he counted 208 patrons on the main floor. He also stated Inspector Sookdeo told him that he had counted 210.
Inspector Hetherington described the crowd as shoulder to shoulder and that he found it hard to move around in the establishment.
When asked if he was advised if there was a party in the basement of the establishment, he stated that he had not been advised by any of the employees or the manager of a party in the basement.
Under cross-examination, Inspector Hetherington stated he walked to the back of the establishment and then started his count. He did not do a count of the patio or the basement. He stated that he carries his counter with him all the time and has never had a mechanical problem with his counter.
Neline Fernando is an AGCO inspector, and she advised the Board that she attended at the Lobby Lounge and Restaurant on September 13, 2007, at 1:32 a.m., in the company of AGCO Inspector Jade Leadbetter. On arriving at the establishment, Inspector Fernando identified herself to the security at the front door and entered the establishment.
Once inside the establishment, Inspector Fernando stated that it was very busy on the main floor and the crowd was standing shoulder to shoulder. She then stated that on seeing the size of the crowd she started to do a count of the number of patrons in the establishment. The inspector told the Board that she started her count at the front of the establishment and moved towards the rear.
Inspector Fernando stated that Inspector Leadbetter assisted with the count by helping her manoeuvre through the crowd. Inspector Leadbetter cleared a path for her to move forward.
Inspector Fernando stated she counted 198 patrons in an area she said was licensed for 171. Inspector Fernando stated that the area near the stairs leading to the basement was busy but not crowded, but that the establishment was crowded throughout.
After she finished her count she went back to the front of the establishment to speak with the security person and to see their mechanical counter. She was advised by the security that they had a count of 227 persons on their counter. She then spoke to the manager, Mr. Etherington, and advised him of the overcrowding and he said they keep it under 180.
Under cross-examination, she stated that she spoke to the security person and was told they had 227 on their counter. When she asked how many had left and if there was an out counter, one of the security persons went to find out. This person was gone for several minutes and when he returned he said he could not find an out counter or anyone who had one.
Inspector Fernando stated that she also checked the basement and that at the time there was only a small number of patrons there. She then submitted a plan of the establishment Exhibit #1).
On cross-examination Inspector Fernando stated that she was greeted by two security persons, speaking to the one who was counting people entering the premises and he told her his count was 227. The other security person went to try and find if there was an out counter.
Inspector Fernando stated when asked she did not remember whether the patio door was open or closed. She also stated there were approximately 20 people on the patio but that she did not do a count.
Inspector Fernando said that the lighting in the premises was dim and she did not recall anyone coming from behind her when she did her count.
In response to a question from the Board, Inspector Fernando stated that the establishment was very crowded except in the area by the stairwell leading to the basement.
Jade Leadbetter is an AGCO inspector and she advised the Board that she attended the Lobby Lounge and Restaurant on September 13, 2007 at 1:35 a.m., in the company of AGCO Inspector Neline Fernando.
Inspector Leadbetter stated that on entering the establishment, she found it to be very crowded. She stated that Inspector Fernando started a count using a mechanical counter and she assisted by making a way through the crowd. Inspector Leadbetter described the crowd of patrons as shoulder to shoulder. On finishing the count Inspector Fernando advised her that there were 198 patrons in the establishment.
Inspector Leadbetter also stated that she did not see any movement from the basement of the establishment. Nor did she see any entry or egress of people through the main door.
Inspector Leadbetter said that they spoke to Mr. Etherington, the manager, and advised him of the overcrowding and that he seemed surprised that the establishment was over-crowded. Mr. Etherington told the inspectors that they usually keep it under 180. She did not recall him saying anything about a party.
The inspector corroborated Inspector Fernando’s testimony regarding their request for an outcounter and being told by the manager that none was found.
On cross-examination, Inspector Leadbetter said that she or Inspector Fernando may have asked questions of the manager, Mr. Etherington, but she noted they were beside each other. She also stated she asked Mr. Etherington if he knew what the capacity was and he told her it was 171.
Inspector Leadbetter stated that the establishment on the main floor was extremely busy and that the patrons were standing shoulder to shoulder and that there were no visible places throughout the establishment. She indicated that she did not check behind her during the count. She also stated that she was aware of the capacity before she entered the premises.
Licensee’s Evidence
Jeffery Mandell, principal for the licence holder Lobby Lounge and Restaurant, has been involved since 2003. Mr. Mandell told the Board that the establishment is made up of three separate sections, the main floor which has a capacity of 171, the basement, with a capacity of 39 and the patio, with a capacity of 18.
Mr. Mandell stated the capacity of his establishment was established on his application, by the fire department of the municipality. He also noted that there is only one way to get in or out of the establishment and that this is through the door from Bloor Street.
Mr. Mandell noted that when people exit from the basement they must pass through the main floor level of the establishment before they can go outside.
He indicated that the Lobby Lounge is used as a event location during the film festival and a number of events were booked during that time.
Mr. Mandel stated that the basement lounge was booked for a party on September 8-9, 2007 from 9:00 p.m. until 12:30 a.m. He also stated the lounge was booked on September 13, 2007 as well. Because of the film festival they were licensed to serve until 4:00 a.m.
Mr. Mandell stated the AGCO inspectors have been to his establishment before and there have not been any capacity issues.
Mr. Mandell stated that Mr. Michael Etherington does not work for his establishment now.
Mr. Mandell stated that he wrote to the AGCO (Exhibit #2) on December 20, 2007, asking for advice regarding the likely capacity on September 8 and what to do about having only one exit. He was particularly concerned that when a party in the basement lounge would be exiting through the main floor, which could be at capacity, it would then appear to be over- capacity, with the exiting of the people from the basement, since some might linger.
Mr. Mandell, under cross-examination, stated Mr. Etherington left the employ of his establishment in January 2008 and he had no address to subpoena him as a witness.
Mr. Mandell stated the security on duty the two nights in question was a person by the name of C.J., who was out of town and could not appear at the hearing. None of the other staff attended as witnesses.
Mr. Mandell stated that the 39 people in the basement had to get out and they could only do it through the front door. His belief is that they are allowed to get out of the building through the main floor and that the overlap of people on the main floor was not an infraction, or a safety issue in his opinion.
In response to the Board’s question regarding any policy for people leaving the basement and not lingering on the main floor, Mr. Mandell replied he had no policy.
Registrar’s Submissions
September 9, 2007
Mr. Morris stated the capacity of the establishment is 171 for the main floor, 39 for the basement and 18 for the patio. The capacity, Mr. Morris stated, was set by the fire department of the municipality for the safety of the patrons.
Mr. Morris stated that the AGCO inspectors went from the back of the establishment to the front during the count and noted that the patrons were standing shoulder to shoulder. He also stated that the inspectors found it difficult to walk through the crowd. He indicated that it was irrelevant what went on behind the inspector doing the count.
Mr. Morris also stated the AGCO inspectors did not notice any movement of people going out of the establishment. There was no continual movement of people to the exit. Mr. Etherington could have mentioned to the inspector about the party in the basement but did not.
The AGCO inspectors also went into the basement lounge and only found three to five people present. The inspectors did not see numbers of people moving out of the basement.
September 13, 2007
Mr. Morris stated on this occasion the count was done from another direction, from the front to the back of the establishment. The AGCO inspectors on this occasion noted the establishment was very busy and patrons were standing shoulder to shoulder.
Mr. Morris stated the inspector doing the count needed the help of the other inspector to help her to make her way through the crowd of people who were not moving. He also stated that the Inspectors did not say that a bunch of people were leaving the basement.
Mr. Morris stated the inspector spoke to the manager on September 9 and voiced her concerns with regard to the over-crowding, but nothing had changed on September 13 regarding over-crowding. There was also no evidence of an outcounter in the establishment.
Mr. Morris contends that there was a breach of section 43 of the O.Reg on both dates.
Licensee’s Submissions
Mr. Worsoff questioned if a breach of section 43 of the O.Reg was clear then why delay the issue of an NOP for five months. He also stated that the policy in place wherein the Licensee is given a chance to explain himself or herself is a process which uses anything said against the Licensee. He stated that the system is very prejudicial against the Licensee.
The issue of over-crowding is a problematic one in that the establishment has only one door for entry and exit.
The Licensee was not told that he must have more than one door for his establishment. He also noted that on the two dates in question the establishment was very busy.
Mr. Worsoff stated that the capacity of the basement is 39 and when people who are in the basement have to get out of the establishment they have to move through the main floor area to get to the only exit. The structure of the establishment is such that there has to be some overlap.
Mr. Worsoff notes that the total capacity of the establishment was not exceeded, that capacity being 171 on the main floor, 39 in the basement and 18 on the patio for a total of 228.
Mr. Worsoff stated the Licensee had not been told he had to build a separate door or that he had to have security escort people out, therefore there has to be some overlapping. People leaving the basement do not immediately leave since it takes time to leave a party.
Mr. Worsoff stated that it is not as simple as a few extra people on the main floor. There is only one door in the establishment and he asks that his client not be penalized.
Registrar’s Reply
Mr. Morris stated that this is a case of the Licensee thinking he had done nothing wrong. He did something wrong.
He also said it is misleading to state that delay of the NOP for five months was because a breach was not a breach. The delay was not because of lack of certainty. The Licensee was told of the violations on September 9 and 13.
The issue of capacity control is not up to the Registrar, it is up to the Licensee. It is the same for every other bar; it is up to the Licensee to police his own establishment. The issue is one of safety. If that is breached even for a short time, that is a violation.
Mr. Morris also noted that the capacity numbers are set by the local fire department, not by the Registrar.
Analysis/Reasons/Findings
The Board heard evidence from AGCO Inspectors who testified that they went into the Lobby Lounge Establishment on September 9, 2007 and September 13, 2007 and that the main floor area appeared to be over-crowded. The Inspectors then conducted counts using a mechanical counter on September 9, beginning at the back of the establishment and found that there were 208 or 210 patrons in the area licensed for 171 and on September 13, the inspectors conducted a count using a mechanical counter and found that there were 198 patrons in an area that was licensed for 171.
There was no evidence on the part of the Licensee to dispute the accuracy of the counts.
The Board notes that on September 9, the manager of the establishment was told of the over-crowding and replied it is the time of the film festival. The manager offered no other explanation for the over-crowding.
On September 13, the inspectors spoke to the manager, who seemed surprised at the count, but offered no explanation for the over-crowding.
The Licensee testified that while he had not been at the establishment on either date, a possible explanation was that people were exiting the basement area of the establishment caused the over-crowding when the counts were done.
The Licensee stated that at times there are parties in the basement and the people attending the parties have to exit through the main floor area of the establishment. The Licensee testified that there were parties booked in the basement on both nights and this may be a reason for the over-crowding.
The Board notes that the evidence of the AGCO inspectors on both nights was that there were only three to five people in the basement when they checked. They also testified that there was no apparent movement of people from the basement area to the exit of the establishment when they were conducting their counts.
The Board does not accept the Licensee’s explanation that numbers of people leaving the basement, to exit at the front door, may mingle with those on the main floor and therefore distort the capacity count. Patron capacities for areas of the establishment are set for safety reasons and it is the Licensee’s responsibility to make sure they are followed.
The Board having considered all the evidence in this matter finds that, on the balance of probabilities, there was a breach of section 43 of the O.Reg on September 9, 2007 and September 13, 2007.
Conclusion
For the reasons given, the Board FINDS the Licensee violated section 43 of the O.Reg.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file his written response. 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 30th DAY OF January , 2009
BRIAN J. FORD, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER