Registrar, Alcohol and Gaming Commission of Ontario v. 1746988 Ontario Inc. O/A Remedy Nightclub, 2009 CanLII 4474

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-

1746988 Ontario Inc. O/A Remedy Nightclub

Licensee

AMENDED DECISION

Panel: David C. Gavsie, Chair, AGCO Brian J. Ford, Board Member

Decision Date: January 7, 2009

Hearing Location: Hamilton, 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 1746988 Ontario Inc., Licensee ) Robert Plouffe, Representative

Authorities

Ontario (Registrar of Alcohol and Gaming) v. Hosseini-Rad, [2004] O.J. No. 1273

Allegations

1A hearing into Notice of Proposal number 16796 dated October 31, 2008 (the “NOP”), to revoke, and an Order dated October 31, 2008, to immediately suspend on an interim basis, liquor licence number 802539 issued to 1746988 Ontario Inc. (the “Licensee”), operating as REMEDY NIGHTCLUB, 35 King Street East, Hamilton, Ontario, L8R 3L5, (the “establishment” or the “premises”) on the basis of alleged violations of section 6 and subsection 30(4) of the Liquor Licence Act (“LLA”), and section 43 and subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA was held on November 14, 19 and 20, 2008, in the City of Hamilton and on November 25, 2008 in the City of Burlington.

Decision

2After considering all the evidence and submissions, the Board FINDS the Licensee violated section 6 and subsection 30(4) of the LLA, and section 43 and subsection 45(1) of the O.Reg. Reasons follow.

Preliminary Matters

3An ORDER was made, on consent, for the exclusion of witnesses.

Registrar’s Evidence

4Renee Serianni is a Detective Sergeant (“D/Sgt.”) with the Ontario Provincial Police (“OPP”), with twenty years experience. D/Sgt. Serianni advised the Board that on October 28, 2008, she, along with Alcohol and Gaming Commission of Ontario (“AGCO”) Inspectors Scott Ristan and Darren Swartz, met with the Licensee to discuss concerns about the establishment.

5D/Sgt. Serianni stated that Constables Scott Nelson and Ray Nelson of the Hamilton Police Service (“HPS”) had laid charges regarding minors on the premises. She also stated that the AGCO inspectors found it difficult to do a proper inspection of the premises because of the low lighting and layout of the premises. This was particularly so when the Licensee had all-age events. The Licensee used a system of wristbands to distinguish between those who were of age and could have drinks and those who were under age and could not have drinks. The wristbands were difficult to see and could easily be hidden under the sleeve of an individual.

6D/Sgt. Serianni stated that she informed the Licensee that she would like to see a better method of identifying minors on all-age nights such as the use of a florescent stamp on the back of the hand of those persons who were under age. The stamp would be easily seen quickly with a flashlight.

7D/Sgt. Serianni stated the establishment had a total capacity of 592 for the two rooms that made up the nightclub. Both rooms were in the basement of a building located at 35 King Street East Hamilton, Ontario. One room was located at the north end of the building and the other room was located at the south end of the building.

8Ms Taylor, through D/Sgt. Serianni, submitted into evidence Exhibit #l(a) and 1(b) which are diagrams of the establishment. The diagrams were identical with 1(a) showing a room at the north end of the building identified as P1 and a second room identified as P2 at the south end of the building.

9D/Sgt. Serianni explained these rooms were joined by a hallway off of which were the men’s and women’s washrooms. P1 has a capacity of 342 persons and P2 has a capacity of 250 persons for a total of 592 persons for the two rooms of the nightclub.

10D/Sgt. Serianni stated both of the rooms were dark and that there were large pillars in the rooms, particularly in P2, which could conceal a person behind them. She stated the stairway leading to the basement from King William Street, which is the main entrance, is narrow.

11D/Sgt. Serianni stated that the combination of a dark interior and the large pillars made it difficult for AGCO inspectors and staff to see if minors were drinking.

12At the time of the meeting D/Sgt. Serianni felt that the Licensee was not doing enough to ensure that minors were not being served and to ensure that they could be easily identified, particularly on all-age nights.

13D/Sgt. Serianni emphasized to the Licensee that the use of florescent stamps would do a great deal towards enabling his staff and the inspectors in their jobs. She also pointed out to the Licensee that it was a very serious matter.

14D/Sgt. Serianni stated that Mr. Sanderson seemed willing to make the change suggested. He did not disagree with her or give any sense that he would not cooperate.

15Under cross-examination, D/Sgt. Serianni was asked if young people pass off drinks to one another and she said, yes, they do. She said that is the reason for wanting an easily identifiable mark on the youth.

16D/Sgt. Serianni also stated that the Licensee said he was getting away from all-age events. She also noted that the Licensee was very cooperative. D/Sgt. Serianni said that if there were no all-age events it would solve a lot of problems.

17D/Sgt. Serianni, in response to a question from the Board, stated she informed the Licensee that if he was to have another all-age event that he had to start using the florescent hand stamp immediately.

18D/Sgt. Serianni testified that on the night of October 30/31, 2008 members of a Multi-Agency Task Force (“MATF”) comprised of members of the HPS, the Hamilton Fire Department, the Hamilton Health Department (smoking by-law), AGCO inspectors and herself were inspecting liquor establishments in the area of the Remedy Night Club.

19The MATF went by the establishment at approximately 11:45 p.m. and noticed a large line up outside. The MATF finished an inspection of a club close by and then at 12:16 a.m. on October 31, 2008, they went to the establishment.

20On arriving, D/Sgt. Serianni noticed a large line of people outside the main entrance. She saw about sixty-five people leave this line up and go down King William Street.

21D/ Sgt. Serianni stated she went up to the main entrance door and identified herself to the staff there and was given entry. At this time AGCO Inspector Darren Swartz remained at the door.

22D/Sgt. Serianni went down the stairs and found the stairway to be congested and crowded at the bottom landing, leading into P1, the north room. She stated that she could not get into the room, that it was physically impossible. She made an attempt. However the people were just too tight and no one was moving.

23D/Sgt. Serianni stated that there is an emergency door which leads to a hallway off of which are offices. At that particular time she noticed an HPS officer go through this door and she followed him. She stated that she entered P2, the south room, from this area. On entering the room she noticed that the bar was immediately to her right.

24D/Sgt. Serianni stated that she did not find this room to be crowded and could move around the room without any difficulty. She noted however that there seemed to a number of young looking people in the room. She also noticed that there were no florescent markings on the young people.

25D/Sgt. Serianni asked a female server what was the system being used to identify minors. She was advised that patrons with bands were allowed to drink.

26D/Sgt. Serianni proceeded to walk through the room and noted that there were a number of patrons who were youthful looking. She approached some young women seated behind a pillar who were not drinking, and asked for identification. The women had identification and were eighteen years of age.

27Sgt. Serianni asked the women if they were asked for identification at the door and they replied they were and that they advised the staff that they were only eighteen. The staff then stamped them with a dark blue stamp on the hand.

28D/Sgt. Serianni stated that she then saw the Licensee and asked him if this was an all age-event and he replied that it was not an all-age event, which meant that only persons who were nineteen or over should be in the establishment.

29However D/Sgt. Serianni stated that when she identified the female patrons she felt this must be an all-age event.

30D/Sgt. Serianni stated that then she noticed a young male walking with a bottle of Molson beer in his hand. She took this youth, who stated that he was only eighteen, to the area of the back entrance off of King Street. She went to this area as it was quieter and she was able to check this person’s identification.

31The young male was identified as an eighteen year old from a local college, and he stated that he found the partially consumed beer and started to consume it.

32While at the King Street entrance which was up a flight of stairs she noted that there was a security guard there with a wand in his hand. She felt that the area outside the door was used as a smoking area. While in the area a group of people banged on the door wanting in and she directed them to the main entrance.

33The young male was concerned that he might be charged and asked to be able to contact his friends in the room. He text-messaged them and they said they would meet him outside.

34D/Sgt. Serianni stated she then left the King Street door area with the youth and spoke to the security guard at the bottom of the stairs and asked that he contact the Licensee as she wished to speak with him about minors on the premises.

35D/Sgt. Serianni stated while she was speaking to the security person she heard a loud bang coming from the top of the stairs. The staff member ran up the stairs to investigate. She also stated that at this time she noticed that room P2 was crowded.

36D/Sgt. Serianni stated that between the time she went to the top of the stairs and came back down, the room had filled with patrons. At this time she described the room filled with patrons who were shoulder to shoulder.

37D/Sgt. Serianni stated that she found it difficult to move in the room and she went along the wall to get out. She stated that moving in the crowd was slow and that it was extremely crowded.

38D/Sgt. Serianni stated that while she was making her way north along the wall of room P2 a fight broke out in the centre of the room. She said that two or three punches were thrown and that the security people were there right away. The security people separated the two combatants and held them in head locks moving them towards the hallway between P1 and P2.

39D/Sgt. Serianni stated that she had to push her way through the room in order to get to the stairway at the main entrance. While she was moving along the wall she lost her grip on the minor that she was escorting out of the premises.

40D/Sgt. Serianni stated that she met D/Cst. Jason Cattle of the HPS near the front entrance and at approximately 1:00 a.m., she advised him that they needed to have the premises vacated as it was extremely dangerous. She also stated that the crowded condition of P1 had not improved either.

41D/Sgt. Serianni stated that she saw staff members pushing young people to create space and that people were falling all over. At this point all efforts were being made to get people out of the premises.

42D/Sgt. Serianni stated that they had to yell in order to be heard over the noise.

43D/Sgt. Serianni stated that the decision to vacate the premises was made at 1:00 a.m. and while that was underway a fire alarm went off at 1:18 a.m. During the evacuation of the premises she said there were broken beer bottles and glass on the floor of the hallway at the main exit from P1, which led to the stairs and up to the main entrance.

44D/Sgt. Serianni stated that she, along with AGCO Inspector Swartz, made a sweep of the premises to ensure that everyone was out. She stated that when she entered the male washroom she noticed a considerable amount of blood on the floor and the sink. Using her cell phone camera (“Blackberry”) she took three pictures. These pictures were entered into evidence as Exhibits #2(a), 2(b) and 2(c). The pictures show a considerable amount of blood on the floor of the washroom and one of the sinks. D/Sgt. Serianni personally downloaded these photos to a printer and did not make any enhancements to them.

45D/Sgt. Serianni stated that she then went upstairs to the front entrance and met with the Hamilton Fire Department officers who advised her that they had conducted a count of the number of persons in the premises. She was advised that they had used two mechanical counters one with the count of 1,178, and the other with a count of 283, for a total of 1,461. Both were exit counts.

46D/Sgt. Serianni stated that the larger count was made at the main entrance to the club and the lower count was made at an entrance on the north-east corner of the premises. Fire officials completed both counts.

47D/Sgt. Serianni stated that the premises was clear by 1:30 a.m. She noted that the south door off of P2 was not used as an exit as the fire department officials said it was dangerous due to the broken glass on the floor. D/Sgt. Serianni saw the broken glass and took pictures with her Blackberry.

48D/Sgt. Serianni stated that she went back to the office area where she again met Chief Winn and Inspector Forester of the Hamilton Fire Department. Chief Winn stated that he wanted to speak to the Licensee. At that time the Licensee’s head of security known as Big Gill was present.

49D/Sgt. Serianni stated that Chief Winn gave the Licensee, Mr. Sanderson, a cautionary Charter warning that he intended to charge him with overcrowding. He then asked the Licensee if he had anything to say, at which point the Licensee exercised his right not to respond.

50When D/Sgt. Serianni later asked the Licensee about staffing issues he stated that he had sixteen security staff on duty and they had walkie-talkies for communication. He also stated that he was short-staffed and he was helping out at the bars in the establishment.

51When D/Sgt. Serianni asked the Licensee about the cover charge for the evening, he replied that he did not know as the promoter for the event sold the tickets and charged the cover charge.

52D/Sgt. Serianni stated that Mr. Sanderson said that he did not have a written contract with the promoter, later identified as, Mr. Gourav Bhargava.

53D/Sgt. Serianni advised the Licensee that she would be submitting a report for the Registrar.

54D/Sgt. Serianni stated she then spoke with Big Gill who advised her that the promoter was pushing people into the establishment and that when questioned about it he said, this is my gig, my show.

55Big Gill also informed D/Sgt. Serianni that the promoter took off with the money and cover charge receipts for entry to the establishment when the MATF arrived.

56Big Gill also informed D/Sgt. Serianni that the count that his people had at the door was 622, minus 29 or 30 who left for a net total of 595.

57D/Sgt. Serianni stated that she later interviewed Mr. Bhargava and Divyan Selvadurai and they informed her that the club security monitored the capacity at the premises.

58Under cross-examination for the October 30-31, 2008 incident, D/Sgt. Serianni was asked if at the time she would have been able to guess at what the capacity of room P1 would have been and she replied that she could not even guess as she could not see into the room. She also stated that she could not get into the room because it was so crowded.

59D/Sgt. Serianni stated that there was also a bottleneck at the bottom of the main entrance stairs.

60D/Sgt. Serianni was asked if she ever went into room P1 and she said that she did. However it was only after patrons were told to leave and most had left.

61D/Sgt. Serianni stated that the eighteen year old male had a bottle of Molson beer, but he was not intoxicated and was cooperative. She also replied that if a minor picks up alcohol the Licensee is held responsible.

62D/Sgt. Serianni was asked if D/Cst. Cattle was in uniform and she stated he was not. She stated that while the officers were not in uniform they did have shirts on that had police written on them.

63D/Sgt. Serianni was asked if people in the establishment panicked and she replied that they did not, but it was so crowded that they were stuck and it was very hard to move.

64When D/Sgt. Serianni was asked if she felt safe she stated that she did not feel safe due to the crowded nature of the establishment. She also stated that the main objective at this time was to get people out.

65Ryan Torrie is a Detective Constable (“D/Cst.”) with the HPS working in the Vice and Drugs section.

66D/Cst. Torrie stated he was on duty of the night of October 30-31, 2008 and that he was part of an MATF comprised of members of the HPS, the Hamilton Fire Department, the Hamilton Health Department (smoking by-law), AGCO inspectors and D/Sgt. Serianni.

67D/Cst. Torrie stated the MATF arrived at the establishment at 12:22 a.m., and he noticed that there was a large line up of approximately 150 to 200 people at the main entrance off of King William Street. D/Cst. Torrie stated that a considerable number of people in the line up left and went down King William Street toward another club.

68D/Cst. Torrie stated he entered the establishment through the front entrance and went down the stairs to a small landing which was packed with people. At this time he was with D/Cst. Shawihat of HPS and Hamilton Fire Prevention Chief Jim Winn.

69D/Cst. Torrie stated members of the MATF went their own way. He stayed with his partner, Cst. Shawihat. He noticed that the stairs were slippery and that there was a strong odour of alcohol in the stairway area.

70When he arrived at the bottom of the stairs he noticed that four bouncers were actually pushing people into the room on the left, which is known at P1, and then slammed the door shut. He stated at one point the door flung open and people spilled out.

71D/Cst. Torrie stated he looked into the room P1 and all he could see was a wall of people. He could not see the hallway to P2 and he could not get to the hallway to P2 because the room and hallway were completely packed. At this point he stated he went to the back through the office area of the club and came out near a bar in P2.

72D/Cst. Torrie said that when he got into P2 the room was very packed. He also said that he did not stay in the room very long. He said he wanted to get back to his team. He wanted his people out and he wanted the by-law people out.

73D/Cst. Torrie stated he found the situation too chaotic and too crowded and he felt it was dangerous. He again reiterated that he could not even get into P1. D/Cst. Torrie said that he did not feel safe in that environment.

74D/Cst. Torrie stated the fire department officers with the MATF wanted the people out of the hallway and stairway. At this time Big Gill, the security manager, started to move people out of that area.

75D/Cst. Torrie stated the floor in the stairway and landing area was very slippery and at one point a female patron slipped and fell. She was picked up and then she left. He also said it was Halloween and a number of patrons were dressed in costumes.

76D/Cst. Torrie stated that when the fire department officers asked to have the stairway and landing cleared some people became upset. When the premises were being cleared people wanted to get their coats and were told that they could get them later but at that time they were just to go outside.

77D/Cst. Torrie described the landing and stairwell as narrow with broken glass on the floor and being very slippery. He stated people were leaving the premises with glasses of alcohol and beer, which the officers removed from them. One of the patrons leaving the premises was bleeding from the head. He also said that several of the patrons appeared to be completely “out of it” (drunk).

78D/Cst. Torrie stated during the evacuation of the premises the situation in the hallway was tense and that backup was called. The crowd went from happy go lucky to challenging the police officers and being confrontational. He stated approximately 20 back-up officers arrived and that the additional officers had a calming effect on the crowd.

79D/Cst. Torrie stated that he had a conversation with the door staff and they told him that the promoter and owner told them to keep letting people in. He also said he told Big Gill that it was his responsibility to shut down the door. Big Gill told him that he was told to keep letting people in.

80D/Cst. Torrie stated that there was some panicking and one of the fire officers opened another exit. He also said that it took quite some time to clear the premises.

81D/Cst. Torrie stated that one issue of concern was that there were a number of people brought in by bus and that the buses would not be returning for pick up until 3:00 a.m.

82Under cross-examination, D/Cst. Torrie stated that Club 77 was approximately one and a half blocks from Remedy Nightclub and that approximately 150 people who were in line went that way.

83D/Cst. Torrie stated that there were a number of people who were intoxicated. He made this assessment based on the way they were acting physically on their way out of the premises.

84Nesreen Shawihat is a D/Cst. with the HPS, and works in the Vice and Drugs unit. She stated that she visited the establishment on October 31, 2008, at 12:22 a.m., while a member of an MATF.

85D/Cst. Shawihat noticed on arriving at the premises that there was a large crowd lined up outside the premises. She stated there were approximately 150 to 200 people in the line-up. She said when she neared the line-up she overhead that they were going to Club 77, located down the street.

86D/Cst. Shawihat stated she entered the establishment via the main entrance off of King William Street, along with D/Cst. Cattle and D/Cst. Torrie. On entering the stairwell area she found it to be crowded with people trying to get down to the bar area.

87D/Cst. Shawihat stated it took a few minutes to get to the bottom of the stairs. At the bottom there was a long hallway and this hallway had more people who were trying to get in the one room to the left.

88D/Cst. Shawihat stated that she and her colleagues had to get up against the wall and slide by the crush of people. Eventually they got to the hallway. She said that there were two open doors leading into the bar area and that bouncers were standing in front of them. The bouncers were trying to get people into P1 and they eventually cleared the hallway.

89D/Cst. Shawihat stated that she could not physically get into P1. She also said that the bouncers were holding the doors shut. She noted that a number of people were trying to get out or spill out because of the lack of room in P1 but the doors were being forced shut.

90At this point in time D/Cst. Torres told her that they would try and remove people from P1 as it was overcrowded and they had people move out of the hallway and stairway into the parking lot. She stated that the atmosphere was hot, humid and sticky in the landing area.

91D/Cst. Shawihat stated that she noticed a male who was bleeding from the forehead and asked him what happened. He told her that he had been struck over the head with a beer bottle. When she asked if he wanted medical attention he declined and said he did not know who hit him.

92D/Cst. Shawihat stated she saw two females who were intoxicated. One female in a short skirt was carried out over the shoulder of a male patron; she appeared to be conscious and was asked if she was okay. The female’s breath smelled of alcohol. She was talking very slowly and had to be carried. The D/Cst. noticed a second female who was able to walk but needed the assistance of friends. This female’s breath smelled of alcohol and her eyes were glassy. She had trouble speaking and she could not walk on her own.

93D/Cst. Shawihat stated she did not feel safe in the environment at the club particularly with the overcrowding. She found it very uncomfortable. She stated that at 1:06 a.m D/Cst. Cattle made the decision to shut down the bar for public safety reasons.

94D/Cst. Shawihat stated after the decision was made to evacuate the premises people became argumentative and the level of intensity got higher and two fights occurred. It was at this point that back-up was called.

95Under cross-examination, D/Cst. Shawihat said that the security people at the establishment were cooperative. She also stated the two female patrons could not walk on their own.

96David Forester is an inspector with the Hamilton Fire Department assigned to the Fire Prevention Unit.

97Inspector Forester stated that he was part of the MATF along with Fire Prevention Chief Jim Winn of the Fire Department. They arrived at Remedy Nightclub at 12:20 a.m. and on arrival noticed that there was a large line-up outside of the nightclub. Inspector Forester stated that a group in the line walked away when they arrived.

98Inspector Forester stated both he and Chief Winn were in uniform at the time. They went in the main entrance and Inspector Forester spoke with the doorman asking him what his count was. The doorman told him his counter showed 622. Inspector Forester said the capacity of the establishment was 592.

99On entering the stairway at the main entrance the Inspector found it to be congested. He said that when they got to the doors going into P1 they noticed it was a crush of bodies. The bouncer made room for them to enter; however it was so crowded they could not go across the room. They had to move along the wall. They moved along the wall to the north-east bar and spoke to the staff there.

100Inspector Forester asked the bar server if he could see the city licence and AGCO licence for the establishment. The City of Hamilton Capacity licence was not at the bar. He noted that the AGCO licence showed a capacity of 342 people for P1, which was the room he and Chief Winn were in. At this point he met Mr. Craig Sanderson, the owner of the bar, and informed him the door counter showed 622. He also told Mr. Sanderson that it was visibly over capacity. Mr. Sanderson said he would reduce the level in the bar.

101Inspector Forester then worked his way over to where Chief Winn was on a platform at the north-east corner of P1. The platform was raised which allowed them to make observations. Inspector Forester stated he was asked by the Chief to estimate the number of people in the room and that he would do the same.

102Inspector Forester estimated that there were approximately 700 people in the room. Chief Winn made his own estimate. At this point Chief Winn made the decision that they would have to evacuate the premises to get an accurate count.

103Inspector Forester stated they left via the stairs and exit at this north-east location and walked around to the north-west corner, the main entrance, and noticed people leaving.

104Inspector Forester started counting with the mechanical counter, which he noted was set at zero when he started. Chief Winn left to retrieve the department camera from their vehicle came back to him with the camera and asked him to go into P1 to take some pictures of the room. Inspector Forester said that he gave Chief Winn his counter, which at that time had a count of 187.

105Inspector Forester then went back into P1, which he noted was less crowded, had closer to 400 people and took some pictures. The time was 1:00 a.m. The pictures were entered into evidence as Exhibits #3(a) and 3(b). Both pictures were of room P1. Picture 3(a) was taken facing the north bar looking west; picture 3(b) was taken facing south.

106Inspector Forester stated that at approximately 1:18 a.m., the fire alarm went off while the evacuation of the building was taking place. At this time he stated that he opened a second exit, which is located at the north-east corner of the building and began to count people on his mechanical counter at that location. Inspector Forester stated that the counter he used was set at zero prior to his starting the count.

107Inspector Forester stated that at approximately 1:30 a.m. the building was cleared and he went to meet with Chief Winn. He informed Chief Winn that he had counted 283 and Chief Winn advised him that his count was 1,178 for a total count of 1,461 of people who exited the establishment.

108Inspector Forester was asked if anyone left through the exit at the south-west corner of the building. He replied that he did not know. However when he visited the area later, he noted that the glass door was shattered. He took two pictures of the door, which were entered as Exhibits #4(a) and 4(b).

109Inspector Forester, in response to a question of safety, replied that when he entered P1 he did not feel safe. He was worried that if there was panic that he could be knocked down and trampled. He is a big man but that would not make any difference in that type of situation. If there was a fire, smoke could fill the room quickly and there would be a large loss of life.

110Inspector Forester stated that after the premises were cleared he assisted in resetting the fire alarm.

111He and Chief Winn met with the owner of the club. Chief Winn gave the owner a caution stating that it was the intention of the fire department to lay charges for overcrowding. Inspector Forester stated that Mr. Sanderson was cooperative but chose to exercise his right to refrain from answering questions.

112Under cross-examination, Inspector Forester stated he did not know who the doorman was that gave him the count of 622. He was asked if he doubted the count. He replied that he did not until he got into the room and saw the crowded condition.

113When asked if he felt the room was overcrowded he replied that he did and noted that people were being pushed into the room.

114Inspector Forester stated that he would lay a charge of overcrowding based on the situation in room P1. He also said that he got his counter from the department van parked outside and that it took him five minutes to get the counter. Inspector Forester said that he noticed that the crowd became lighter in about 15 to 20 minutes.

115When asked about P2 Inspector Forester said that he did not enter P2.

116Inspector Forester stated when asked by the Board, that he had no personal knowledge of the Remedy Night Club prior to October 30-31, 2008.

117James Winn, Chief of Fire Prevention for the City of Hamilton Fire Department, has thirty years experience as a fire prevention officer.

118Chief Winn stated that he attended Remedy Nightclub along with Fire Prevention Inspector Forester and the MATF on October 31, 2008. He stated that they arrived at the establishment at approximately 12:25 a.m.

119Chief Winn stated that he and Inspector Forester met with D/Cst. Cattle and D/Cst. Torrie at the front door. There was a long line up of people waiting to get in at the front door when they arrived. He noted that Inspector Forester spoke to one of the doormen asking what the count for the establishment was and Inspector Forester was told 622.

120Chief Winn stated that they then attempted to get into the building and found that the stairwell was packed full of people waiting to get into the club. There were more security people at the bottom of the stairs.

121Chief Winn stated he was concerned about the people in the stairwell, feeling that they were blocking it and the exit. He then told the police officers and the security that they had to get the people out of the stairway.

122Chief Winn told the Board that he and Inspector Forester went into P1 after security personnel made room for them to enter. He stated the room was very crowded. He and Inspector Forester made their way to the north-east corner of the room to an elevated landing to look over the crowd and to conduct an estimation of the number of people in the room.

123Chief Winn stated that when they entered the room they had to move along the wall as they could not cross through the room due to the density of the crowd. Chief Winn described the room as wall-to-wall people just jammed in. It was so crowded that people could not dance. He also said that it took approximately 10 to 12 minutes to move across the room. Normally it would take 10 to 12 seconds.

124Chief Winn stated that in his 30 years as a fire prevention officer, this was the worst overcrowding he had ever seen.

125Chief Winn asked Inspector Forester to do an estimate of the crowd in the room and he would do one as well. Chief Winn estimated the crowd in the room to be at least 600 people. He explained that he did a quadrant estimate in P1.

126Chief Winn stated that Inspector Forester stated that he had spoken to the owner and he was advised the capacity for the room was 342. Inspector Forester also advised him that he told Mr. Sanderson that he would have to do something to reduce the number of people in the room.

127Chief Winn stated that he and Inspector Forester went up the stairs from the landing to the exit at the north-east corner onto King William Street. Once outside they encountered D/Cst. Cattle and noticed people were leaving the premises. D/Cst. Cattle informed him that he and the OPP officer made the decision to evacuate the premises for safety reasons.

128Chief Winn stated he had this conversation with D/Cst. Cattle at 12:40 a.m. At this point he instructed Inspector Forester to start a count and he went back to the fire department vehicle for the digital camera.

129Chief Winn stated that after he got the camera he went back to where Inspector Forester was and took over the count, using Inspector Forester’s counter, which at that time was at 187. He handed Inspector Forester his counter and the digital camera and instructed him to go into P1 and take some pictures of the room. Chief Winn explained that the reason he gave the camera to Inspector Forester was he was more familiar with its use.

130Chief Winn stated it was easy to count at the main exit, as the stairway was only thirty-five to thirty-seven inches wide. He stayed at the top of the stairs of the main entrance because he did not want to lose the count. He did not include in the count emergency personnel that were on the scene.

131Chief Winn stated that the premises were empty by 1:30 a.m. After the premises were empty he showed his count, which was 1,178, to D/Sgt. Serianni. His count and the count of Inspector Forester, which was 283, totalled 1,461, which were in addition to the people they saw coming out before the count started.

132Chief Winn stated he noticed during the evacuation of the premises, that people were argumentative with the police officers. A couple of young girls thanked him for emptying the club, as they felt unsafe. He also noted that he saw intoxicated patrons leaving the premises.

133Chef Winn stated that he asked to see the owner and was taken to him. He advised Mr. Sanderson that he would be charged under the Fire Code of Ontario and gave him a Charter warning.

134During his conversation with Mr. Avranjan Gill, the head of security, he was advised that there were 17 security persons on staff that night. He was also advised that the promoter was letting people in the rear door of the establishment.

135Chief Winn stated that Mr. Gill advised him that they had a count of 622 in and a count of 29 or 30 out. He advised Mr. Gill of his count and Mr. Gill did not respond.

136Chief Winn asked about the tickets at the door and was advised the promoter took off with them and the cash for the entry cover charge.

137Chief Winn was asked what the public safety issue would be if a there was a fire in the building. Chief Winn stated that there was almost three times the allowable number of people in the premises and there was no way to get them out in a timely or safe manner. He stated there was potential for injuries from crushing or trampling in a panic situation. He also said in the event of a fire there would be fatalities from smoke inhalation.

138Under cross-examination, Chief Winn stated that he started his count at 12:45 a.m., and finished at 1:30 a.m. He also said that he took over Inspector Forester’s counter when it was at 187.

139When asked if he knew whether people were being let in the back door he stated if they were he would not have been aware of it.

140When asked at what time the fire alarm went off, Chief Winn replied that it went off at 1:15 am.

Motion to Lift the Interim Suspension

141At the end of Chief Winn’s testimony on November 14, the Board adjourned for the day.

142Prior to adjourning, Mr. Plouffe, the representative for the Licensee, made a motion to have the Interim Suspension of the liquor licence of 1746988 Ontario Inc., operating as Remedy Nightclub located at 35 King Street East, Hamilton, Ontario, lifted.

143Mr. Plouffe stated that his client’s licence had been under suspension since the night of October 31, 2008.

144Mr. Plouffe stated that his client had behaved cooperatively with the problems pointed out to him by regulatory officials.

145Ms Taylor stated that the owner of Remedy Nightclub, Mr. Sanderson, did not implement the suggestions of D/Sgt. Serianni after their meeting of October 28, 2008. She also stated that the club was almost over three times its capacity.

146Ms Taylor stated the owner was cooperative but only after the situation was pointed out to him by the police and other officials.

147Ms Taylor stated that the Board cannot be confidant that the Licensee is going to follow the direction to keep his establishment under capacity. She further noted that he has been operating all-age events in the past and may continue to do so.

148Ms Taylor asked that the interim suspension be continued until the end of the hearing.

The Finding of the Board on the Motion to Lift the Interim Suspension

149The Board has heard evidence from witnesses for the Registrar of what appears to be very serious overcrowding, significantly exceeding the permitted capacity of the establishment.

150The Board has also heard that Mr. Sanderson was present in the premises and room P1 where the most serious overcrowding appeared to be. Evidence was heard that people could not move. Mr. Sanderson was working behind the bar in that room and would have seen the overcrowding.

151The Board heard from the Fire Prevention Officers that the consequences of overcrowding could have led to a terrible loss of life and injury.

152The Board has not heard any evidence from the Licensee in this regard.

153The Board CONFIRMS its oral ORDER that in the public interest the suspension of 1746988 Ontario Inc. operating as Remedy Nightclub is continued until the completion of the Hearing.

154Gourav Bhargava is a promoter and had a promoted event at Remedy Night Club on the night of October 30-31, 2008.

155Mr. Bhargava stated that he has done three events at the establishment since September 2007.

156Mr. Bhargava stated that he plans for an event four to five weeks prior to the event being held. He stated it was his understanding that he was allowed to bring to Remedy, between 850 to 875 people for the event.

157Mr. Bhargava stated he was told that the capacity of the establishment was 700 people.

158When asked who told him he could bring 800 to 875 people, he replied, Mr. Sanderson.

159Mr. Bhargava stated that he had 550 tickets printed for the event and sold 550 tickets. The tickets were sold for $10.00 each. He also stated that McMaster University students bought the tickets.

160On this occasion he also got calls from Laurier University, York University and Waterloo University. Buses were “laid on” for these people. They did not buy tickets. However they were charged $15.00 at the door.

161When asked who kept track of the number of people going into the club, Mr. Bhargava replied that the security people at the door, in particular a person known as Big Gill, who was in charge of security.

162When asked who was in charge of cutting off people at the door, Mr. Bhargava replied that the security were in charge. He said, “I can’t ask them to let more people in.”

163When asked what would happen if he was told the establishment was full, Mr. Bhargava said that he had an arrangement at a club, Club 77, down the street to take any overflow from the event. Club 77 would let anyone in who had a ticket for the event at Remedy.

164Mr. Bhargava stated that at approximately 11:30 p.m. some people left the line-up outside Remedy and went to Club 77. He also made an announcement that they could go there.

165Mr. Bhargava was asked if he had any authority over security at Remedy Night Club and he said he did not. He also said that the only other person who was in contact with security at the nightclub was Divyan Selvadurai, the D.J. Mr. Bhargava stated he spent the majority of his time outside at the main entrance.

166Mr. Bhargava stated the event he promoted at Remedy nightclub on the night in question was targeted to the age group of 19 to 23.

167When Mr. Bhargava was asked who made the decision to let people under 19 into the club, he stated that it was at the discretion of club security. He also said the decision was Mr. Sanderson’s as well.

168When Mr. Bhargava was asked how he was compensated for organizing or promoting the event, he stated that he got a flat fee and it also depended on how well the event went. He stated that if the event is more profitable then his pay increased. Mr. Bhargava stated that he got $1,100.00 for the event in question.

169Mr. Bhargava was asked if he was at the establishment when the MATF team arrived. He stated he was and that he was standing outside. He stated that they arrived at approximately 12:30 a.m. on October 31, 2008. The MATF team went inside and advised anyone who was outside to stay outside.

170Mr. Bhargava was asked at what point he left the club. He did not recall the exact time, but he did recall a police officer asking him to vacate the premise about forty-five minutes after the MATF arrived.

171Mr. Bhargava was asked how the police officers were dressed and he stated that they were in full uniform.

172Mr. Bhargava stated that he saw Big Gill, the head of security, periodically throughout the night.

173Mr. Bhargava stated after he left he went to a restaurant and while there he received a phone call from Mr. Sanderson and a police officer regarding people waiting for buses.

174Mr. Bhargava was asked about other occasions he held events at Remedy. He stated that he had held three. On those occasions there were between 700 and 750 people at each of the events.

175Mr. Bhargava stated that Mr. Sanderson told him that the legal capacity of the establishment was 700 people. He had never seen the occupancy licence for the establishment. He was not sure why he was given a higher number for the event on October 30-31, 2008.

176Under cross-examination, Mr. Bhargava was asked if he had any previous problems with overcrowding and he replied, not to his recollection.

177Mr. Bhargava was asked how many buses would be used to bring students to the event and he stated one or two and that they seat between 40 and 50 people each.

178Mr. Bhargava stated that he pre-sold 550 tickets for $10.00 each and sold another 300 at the door for $15.00 each.

179When asked about the line-up outside the establishment, Mr. Bhargava stated that it was out of control. He stated what he meant by that was they were all bunched up. He asked the security to straighten the line-up into a single file.

180Mr. Bhargava stated that he was outside most of the evening and he was not aware of how many people were let into the establishment.

181When Mr. Bhargava was asked if the security would bring to his attention that the premises was overcrowded, he replied that they were not working for him.

182Mr. Bhargava stated that the money collected at the door and from ticket sales was taken and then split up amongst the people who worked with him on this event. These people would include the cashier, the D.J. and others. He also stated that they get 100% of the revenue from ticket sales and cover charges.

183Mr. Bhargava was asked if more people attend then he gets more money, and he replied, yes, and that is why he inquires as to how many people the establishment can hold.

184Mr. Bhargava, in response to a question about capacity, again stated that it was his belief that the capacity of the club was between 700 and 750 people and that he was given this number by Mr. Sanderson verbally.

185Mr. Bhargava stated that the last group of people to arrive at the club was asked to go down the street to another club.

186Mr. Bhargava stated in response to a question, that when the AGCO arrived he figured it was about a capacity issue. He estimated the capacity was at about 850 to 875 people.

187On re-direct, Mr. Bhargava was asked if it was in his interest to push more people into the establishment to collect more cover charges. He replied that he has no control over who is let in by security.

188When asked by the Board what the crowd looked like he stated that it looked like there were 700-plus people in the establishment and he did not think that it was that packed. He then said he was not really good with numbers. Mr. Bhargava said that he was selling tickets at the door at 11:30 p.m.

189In explaining his group, he said it was more of a joint venture and that all are equal except when the profits are divided. On the night in question he stated that the group made $10,000.00 out of which he gets his flat fee of $500.00. The remaining $9,500.00 was split between him and the rest of the group.

190Mr. Bhargava stated that his group only has responsibility for marketing the event and no responsibility for overcrowding or monitoring the crowds.

191Mr. Bhargava stated that at some clubs he has a signed agreement, however for this event he did not have a signed agreement; it was all verbal.

192Darren Swartz is an AGCO inspector and he attended the establishment on October 31, 2008 at 12:20 a.m. with D/Sgt. Serianni and the MATF. He stated that when he arrived he noticed a line-up of people outside the establishment at the main entrance door off of King William Street.

193Inspector Swartz stated that he spoke to one of the security staff at the front door who had a counter and asked what the count was for the club and was advised 622 in and 33 out. He then asked what the capacity was and he was told 592. Inspector Swartz then advised the security person that he was at capacity and asked if he had included staff in the count and was told, no.

194Inspector Swartz stated that he entered the premises and when he got down to the landing leading into P1 he found that the room was jam-packed with people.

195Inspector Swartz stated he then proceeded to P2 with D/Sgt. Serianni where he found that the room appeared busy but not jam-packed. He found it easy to move about in the room. He estimated it to be under capacity for that particular room.

196Inspector Swartz stated that there appeared to be a lot of younger looking patrons under the age of 21 in the room.

197He and D/Sgt. Serianni spoke to a couple of young looking females sitting at a table and both produced identification showing that they were eighteen. He noted that they were not drinking. He stated however that he was concerned as he was under the impression that the event at the club that night was for age 19 and over.

198Inspector Swartz stated that D/Sgt. Serianni came over to him with a young male who had a half-full bottle of Molson beer. He stated that due to the loud noise he suggested that they go to the stairwell at the south-west corner of the room to interview the young man.

199The young man was identified as eighteen years of age and he stated that he had found the beer on a table. He said that he had consumed some of the beer.

200Inspector Swartz requested security get the owner of the establishment and have him attend at the location so that they could speak to him about the under-age youth. At 12:45 a.m. Craig Sanderson appeared in the stairwell and he was advised of the infraction.

201Inspector Swartz advised the young male that he would have to leave and asked if he had a ride home. The young man responded that he was with friends and he text messaged them.

202Inspector Swartz stated that when they were at the bottom of the stair and about to re-enter P2 they heard a loud sound like breaking glass from the top of the stairs. He stated he later learned that the glass entrance door had been smashed.

203Inspector Swartz stated that he and D/Sgt. Serianni started to work their way through the crowd in P2, which he noted was busier but he could still move through it. He also stated that while moving through the crowd a fight broke out between two males. He stated that security responded quickly to the fight.

204Inspector Swartz stated that two security people held the two combatants in headlocks and started to move them through the crowd. When they reached the area of the hallway between P1 and P2 it was jammed shoulder to shoulder and they could not move.

205Inspector Swartz stated that the crowd pushed him and he said the security people who were trying to get the two males out knocked a couple of patrons to the ground.

206Inspector Swartz stated that he did not feel unsafe or threatened but he did note that it was an unsafe situation.

207Inspector Swartz stated that at 1:00 a.m. he and D/Sgt. Serianni met with D/Cst. Cattle at the front entrance and made a decision to vacate the premises. He stated that the HPS advised people to leave and the lights to the establishment came on.

208While people were leaving, the situation became chaotic and there was a lot of pushing and shoving. He stated that there was what he called a logjam at the front entrance stairwell; people were not able to move easily. He also noted that the fire alarm went off at 1:18 a.m. Inspector Swartz stated that the Club was pretty well emptied by 1:30 a.m.

209Inspector Swartz stated that he and D/Sgt. Serianni looked through the establishment to verify it was cleared. He stated that he and D/Sgt. Serianni went into the male washroom and that there was a lot of blood throughout the washroom.

210Inspector Swartz stated that he learned the fire department officers had conducted a count and had counted 1,461 patrons.

211Inspector Swartz stated that Mr. Sanderson was advised that a report would be submitted to the Registrar on the matter and advised by D/Sgt. Serianni that they would be seeking a suspension for safety reasons.

212Inspector Swartz stated he then went to the exit, located Jeramy Ramry, the security person conducting the count and to whom he had spoken earlier. He asked Mr.Ramry how his count was conducted, and was advised by Mr. Ramry that he had been doing pat downs and then was handed a counter and told to count. He explained that patrons had already entered the premises when he started counting.

213Under cross-examination, Inspector Swartz stated that you could not pass through P1. He stated that he could see into P1 from the bottom of the stairs. He also said that he never entered P1.

214Inspector Swartz described the hallway between P1 and P2 as being narrow and having a potential for jamming up. He also said that P2 was not over-capacity in his opinion but that he had not conducted a count.

215Inspector Swartz stated that after the decision was made to vacate the premises there was a lot of pushing and shoving and the situation was somewhat chaotic. It was a dangerous situation.

216Inspector Swartz stated in re-direct that he told D/Cst. Cattle that the situation was very unsafe and noted that only a police officer could make the decision to vacate the premises.

217Jason Cattle is a Detective Constable with the HPS. He attended the establishment on October 31, 2008 at approximately 12:15 a.m. as a member of the MATF.

218D/Cst. Cattle stated that on arriving he noted that there was a long line-up of people outside the main entrance to the club. A number of the people in the line were moving along King William Street to the east and he noted that Club 77 was in that direction.

219D/Cst. Cattle stated that he entered the premises at 12:22 a.m. and noticed that there were a large number of people in the stairway and at the bottom of the stairs. He also stated that several security people were near the doors leading to P1. These security people were trying to push people into P1 and then push the doors closed.

220D/Cst. Cattle stated that the fire officers ordered the hallway and stairway to be cleared of people, which was done by the security people. He noted that the floor of the stairway and hallway were slippery and covered with broken glass.

221D/Cst. Cattle said that he could not get into P1 as it was just too crowded. At this point he felt that the room was way over capacity. D/Cst. Cattle stated that he spoke to some other officers who told him that P2 was just as bad.

222D/Cst. Cattle stated that D/Cst. Torrie and D/Cst. Shawihat directed security staff to move some of the patrons out to reduce the number of people and the overcrowding. While people were being cleared out of the hallway and stairway some pushing and shoving occurred.

223D/Cst. Cattle stated that he met with Chief Winn of the Fire Department and D/Sgt. Serianni and Inspector Swartz and they decided that the Club should be evacuated for public safety reasons.

224At 1:00 a.m. D/Sgt. Serianni and D/Cst. Cattle ordered the club evacuated. At this time D/Cst. Cattle also radioed HPS uniform assistance. The Gangs and Guns Unit, Tactical and Uniform Patrol officers arrived to assist.

225D/Cst. Cattle confirmed the evidence of the other officers that while people were vacating the premises there was a lot of pushing and shoving. He also noted a male who was bleeding from his head.

226D/Cst. Cattle stated that he did not speak to the promoter but he left messages for him on his cell phone voice-mail, regarding the buses for patrons of the Club.

227Under cross-examination D/Cst. Cattle stated he had been at the club previously and had never seen it that busy. He also stated that he could not get into P1 and that he did not go into P2.

228D/Cst. Cattle stated that the decision to close the club down was his and D/Sgt. Serianni’s.

229Scott Nelson is a HPS Constable (“Cst.”) and he attended at the establishment on September 5, 2008. Cst. Nelson stated that he and his partner Cst. Ray Nelson received a dispatch regarding a disturbance at the front of the club, regarding a male who would not leave.

230The officers spoke to the young male and he was cooperative and left. While speaking with the male he advised the officers that there were a lot of young people in the Club. Cst. Nelson stated that he and his partner Cst. Ray Nelson decided to enter the establishment.

231On entering the establishment, Cst. Scott Nelson stated that he and Cst. Ray Nelson went into P1 and looked around. He noticed a female patron who appeared to be under nineteen and he approached her. He asked for her identification and she stated that she had fake identification and could not produce any other identification.

232Cst. Scott Nelson stated the female advised him that she was 17 years of age. She was carrying a mixed drink and it smelled of alcohol. The young woman gave her name, date of birth and address to the officer and she was escorted out of the premises.

233The officers re-entered the establishment, going into P1. Once inside Cst. Scott Nelson observed a fight between two male patrons. At the time two security people from the club were in the process of breaking the fight up.

234One of the male combatants, after being separated, did a throat cutting gesture to the other. Cst. Scott Nelson told this person to stop. This male then proceeded to use foul language and poke his finger at Cst. Scott Nelson saying he could do whatever he wanted.

235The male patron then pushed Cst. Scott Nelson and a scuffle ensued. Cst. Nelson subdued this patron with the assistance of Cst. Ray Nelson. At the time Cst. Scott Nelson noted that this person was intoxicated. He was unsteady on his feet he smelled of alcohol. The patron was placed under arrest taken to the police station and charged with being intoxicated in a public place. The male was twenty years old.

236Both officers returned to the establishment and issued a part three summons to the owner, Mr. Sanderson.

237Under cross-examination Cst. Scott Nelson stated that he did not remember if the under-age female put the drink to her mouth.

238On re-direct, Cst. Nelson stated that the drinks were purchased from a bartender named Ashley Bennett.

239Ray Nelson is a Constable with the HPS and he stated that he attended the establishment on September 5, 2008 along with Cst. Scott Nelson; his evidence corroborated the evidence of Cst. Scott Nelson with regards to the altercation with the young male and the underage female.

240Cst. Ray Nelson stated that in addition he noticed that there appeared to be a large number of under age patrons in the bar. He spoke to a young female as well and found her to be consuming a beverage. When he spoke to this female he found out that she was 17 years of age. She was drinking a mixed drink that she stated she obtained from the bar.

241Cst. Nelson stated he smelled the drink and it smelled like alcohol. Cst. Nelson stated when he asked the female who served her, she stated that all three of the bartenders at the main bar had served her. She stated that she had gone up several times.

242One of the bartenders advised Cst. Nelson that she did not check the identification of the young female as she felt security had done so when they entered the premises. He advised the bartender it was her responsibility to check the identification of people that appeared under age.

243Under cross-examination, Cst. Nelson stated that the young woman looked and dressed like a kid and should not have been in the bar.

Licensee’s Evidence

244Craig Sanderson is the owner of the numbered company that operates Remedy Night Club. He is also the sole director and officer of the numbered company. Mr. Sanderson stated that he had owned the club since 2007.

245With regard to the incident of September 5, 2008, he stated that while he did not recall the time he saw the officers while they were doing a spot check of the club. He was asked how it was going and he said that it was a slow night.

246Mr. Sanderson stated that his establishment had called the HPS because of a young male causing trouble in the parking lot. He said that the male who was causing a problem was yelling that his younger sister was in the club and that she was only fifteen.

247The officers removed the young man and left. Mr. Sanderson said that he went back inside to his office and about ten minutes later a security person came and told him the police officers wanted to speak to him.

248The officers told him they were going to do a check of his establishment because of the names the troublesome young man outside used. Mr. Sanderson did not think that it was fair for them to do that.

249When asked about the process used to allow people into the establishment he stated that all are checked at the main entrance for identification. He stated that they accept government identification such as driver’s licenses, etc. Mr. Sanderson did not think that there was any way the female would have gotten in without an identification check being made.

250Mr. Sanderson stated that when Cst. Nelson wanted to speak to him about the minor in the premises he called his security staff at the door because he wanted them to hear what the constable had to say.

251Mr. Sanderson said that he was eventually charged under the Liquor Licence Act.

252Mr. Sanderson said that he was not happy with the reason the police were there. He stated they took the word of a minor over his, referring to the youth in parking lot who told the police about his sister.

253Mr. Sanderson stated that a few days before the night of October 30-31, 2008, he met with D/Sgt. Serianni regarding all-age events at the club and she had suggested that he use neon stamps that show up with a black light. He stated that he told her that he did not think it was a good idea.

254Mr. Sanderson stated that he said he could put under-age patrons in P2 and not serve alcohol in that room. He also told D/Sgt. Serianni he did not plan to have any more all-age nights. He further stated that he had not had an issue with minors before September 5, 2008.

255With regard to the night of October 30-31, 2008, Mr. Sanderson stated initially that he was aware of the presence of authority in the establishment around 10:45 p.m. and later changed that to 12:45 a.m. He said he met with D/Sgt. Serianni and told her the night was fine and there were no problems. He stated that on that night he was short staffed. Mr. Sanderson also stated that D/Sgt. Serianni asked if the event was a 19-plus night, and he replied that it was.

256Mr. Sanderson stated that he was at the bar on the night of October 30-31, 2008 and stayed the whole night. He was not aware that there was a problem of overcrowding.

257Mr. Sanderson said that he met Inspector Forester of the fire department at the bar and was asked to produce the capacity licence. He stated that Inspector Forester told him there were 622 people in the bar.

258Mr. Sanderson stated that the Inspector Forester asked him to move people into the other room P2 to reduce the number in P1 and to control the number of people in the room.

259Mr. Sanderson said there was confusion in the hallway at the entrance, which he believed was caused by the police, who were shouting out different things to everyone. He stated that people were congregating in the hallway which causes crowding.

260Mr. Sanderson stated people were pushed one way then another way. Some of the customers then got into debates with the police officers. Mr. Sanderson stated the MATF caused the state of confusion that was evident. Patrons wanted to get their coats and wanted to use the washroom. He stated that patrons started to give police officers a piece of their mind.

261Mr. Sanderson stated that he was in the hallway outside of P1 leading to the stairway and that officers were lined up against the wall. The officers did not interfere with anyone nor did they help. He felt the officers should have helped because of the commotion.

262Mr. Sanderson stated that he was upset that the MATF would not allow patrons to leave except through the main entrance.

263Mr. Sanderson stated that he had a conversation with D/Sgt. Serianni about the minor with a beer, and when asked if it was an all-age event he said that he did not think it was.

264After he spoke with D/Sgt. Serianni and AGCO Inspector Swartz, he went back to the commotion in the hallway. At the front door he spoke to the fire department official who made him aware that he was well over capacity and he might be shut down.

265Mr. Sanderson stated that Chief Winn got angry with him asking him how he could not know he was over capacity. Mr. Sanderson said he explained to Chief Winn he was helping the bartender and with the cleaning up.

266Mr. Sanderson said that from he saw he did not think his establishment was terribly over capacity. He also said he did not check the door count. He stated that one room was busy and the other not so busy.

267Mr. Sanderson stated Chief Winn wanted to confiscate the money and receipts from the door. He did not agree as it was not his money. It belonged to the promoter. He told the Chief Winn he could address the issue with the promoter.

268Mr. Sanderson said he was informed by D/Sgt. Serianni that the bar was to be shut down. He stated security personnel yelled out, we were doing a full evacuation of the premises.

269Mr. Sanderson said there were too many people trying to get out the same doorway. He said he got angry and told his security people to let people out from the other exits. Mr. Sanderson said Chief Winn had requested that only one exit be used so that a count of patrons could be done.

270Mr. Sanderson stated that he grabbed a doorman and opened another exit, the north-east door located in P1. He also said that someone opened an emergency door and it set off an alarm. At around the same time the fire alarm was pulled.

271Mr. Sanderson stated he ran into D/Cst. Torrie and who yelled at him telling him that the way things were was his fault. Mr. Sanderson said he tried to talk to D/Cst. Torrie in a normal tone but was unable to.

272After the premises was cleared Mr. Sanderson stated he was told to have a meeting with D/Sgt. Serianni, the fire inspector and Chief Winn. Chief Winn informed him of his rights and he decided to exercise his right not to comment.

273D/Sgt. Serianni and AGCO Inspector Swartz told Mr. Sanderson that he would be charged with liquor offences.

274Mr. Sanderson stated he completely disagreed when Chief Winn told him that the number of patrons in the establishment was 1,461. After he disagreed Chief Winn told him the numbers were right.

275Mr. Sanderson said he asked the doorman what his count was and was told it was 622.

276Mr. Sanderson stated that the sales of liquor would indicate that the number of patrons was closer to the 600 number. He stated if there were more, the sales would have been much higher.

277Mr. Sanderson stated the coat-check would have more as well. He stated only 115 coats were checked. He stated that there was $345.00 in the till and each coat checked is $3.00.

278Mr. Sanderson said there were two bartenders at the main bar in P1 and one at the other bar in P1, and two at the bar in P2. The sales receipts for the night were entered into evidence as Exhibit #5.

279The receipts show that the main bar sold 783 drinks for total sales of $3,809.75. The second bar in P1 sold 579 drinks for total sales of $2,927.25. In P2, cash register #1 showed a total of 314 drinks for total sale of $1,541.75 and register #2 showed a total of 206 drinks for a total sale of $1,018.50 and the back bar in P2 showed a total of 151 drinks for a total sale of $762.95.

280Mr. Sanderson explained that a total of 2,033 drinks were sold for total sales of $10,060.20. He stated that if there were 622 patrons that would be an average expenditure of $16.17 per patron and they would only consume 3.26 drinks each.

281He stated that if there were 1,461 patrons that would mean an expenditure of $6.89 per patron and they would have consumed only 1.2 drinks per person.

282Mr. Sanderson, when asked if he considered that the establishment was overcrowded, replied that he did not think it was overcrowded. He also said that he was completely shocked by the number of 1,461 patrons counted by the fire department officers. He said that there was no possible way he could have had that many patrons in his establishment.

283Mr. Sanderson stated that the promoter took 100% of the door sales and cover charge and he took 100% of the bar sales. He also said that the contract he had with the promoter was a verbal contract and that he had limited contact with the promoter.

284Mr. Sanderson stated that on the night of October 30-31, 2008 he was short-staffed and he worked helping with the bars in the establishment.

285Under cross-examination Mr. Sanderson stated Big Gill was the head of his security staff and was hired in 2007.

286Mr. Sanderson stated he became aware of the presence of fire department officials at approximately 12:30 to 12.45 a.m. Mr. Sanderson said that the fire department officer that spoke to him did not tell him there were 600 to 700 people in room P1. He was told the total number was 620.

287Mr. Sanderson stated that Inspector Forester advised him that he needed to move people out of P1.

288Mr. Sanderson stated that he had 17 doormen, nine bartenders, and three bar boys and himself working on the night of October 30-31, 2008.

289Mr. Sanderson was questioned as to what the line on Exhibit #5, which reads, no sales, meant and he stated that he was not sure what it meant. The principal means of payment at the establishment is cash. He does not accept credit cards; it is all cash. He has a bank machine in the establishment so patrons can get cash.

290Mr. Sanderson stated he believes the situation of a jammed hallway and room were the fault of the MATF and it was their fault that the situation was dangerous. He stated that the fire officers were telling people one thing and the police were telling the same people something else. He stated he does not believe the problems were caused by overcrowding.

291Mr. Sanderson stated that the situation would not have occurred if the fire officials had not said to move people to P2.

292Mr. Sanderson stated that it was he who ordered the opening of the door on the north-west corner of the building not the fire department. He was asked if he is saying that Inspector Forester of the Fire Department was incorrect in saying that he opened the door when the fire alarm went off. Mr. Sanderson replied, yes, he is incorrect. Then Mr. Sanderson stated that he did not witness the opening of the door.

293Michelle Osie is a bartender at Remedy Nightclub and was working on the night of October 30-31, 2008.

294Ms Osie stated that she was working in P1 at the bar at the south-east corner of the room. She stated that it was busy in the room but that she herself was not that busy. She also stated that she did not think that it was overcrowded. She did not think that it was crazy packed.

295Ms Osie said in the beginning of the night it was pleasant, no problems It got out of control when police and fire officials tried to evacuate the premises. People were not allowed to get their coats and got upset.

296Under cross-examination, she stated a police officer asked to see the three licenses behind the bar. When asked if she was sure it was a police officer she said she was pretty sure as he had a uniform on.

297Ms Osie, in reply to a question about how busy it was that night, replied that it looked busy in the room but she was not doing a lot of bar sales. She said people did not seem to be buying many drinks. She also said that patrons come there to drink and dance but that they did not buy a lot at the bar where she was working.

298On re-direct, Ms Osie stated her bar was not the primary bar and that it was in the back of the room. She also said that there was a little rush just before they had to close down.

299Sarah Moody stated that she was working the night of October 30-31, 2008 as a bar back and she did not serve any liquor. She stated that it was her job to keep the bar tidy and to look after restocking the bar.

300Ms Moody stated that her focus that night was in P1 although she was keeping an eye on both rooms.

301Ms Moody stated that around 12:30 a.m. the police arrived and asked patrons to leave. Ms Moody also stated that the evacuation was not in an orderly manner. She said it became congested and she could not get through the room.

302Ms Moody stated the police used the main door for evacuation and did not use the north-east door. They told her it was because they wanted to count people going out.

303Ms Moody stated that P1 was crowded but that she could still move around. However she said that after everyone was told to leave she could not get around.

304She stated that eventually people exited through the north-east exit. When asked if the fire department officer opened the door, she replied that a security person told her that Craig told him to open the door.

Reconvening of the Hearing on November 25, 2008

305The Hearing reconvened on November 25, 2008.

306Mr. Plouffe advised the Board that he had one more witness on behalf of the Licensee who was not available earlier in the hearing. Ms. Taylor objected, as she was ready to begin submissions and not prepared to cross-examine another witness.

307The Board ruled that the witness could be heard. The Board took into consideration the Licensee’s representative’s explanation that the witness was not available earlier; the seriousness of the allegations against the Licensee; and allowing the Licensee the opportunity to fully respond to the allegations.

308Avranjan Gill, known as Big Gill, is the head doorman and in charge of security at Remedy Night Club. He has worked there on and off for the past twelve months.

309Mr. Gill stated he was working on the night of October 30-31, 2008. He said that he started work at approximately 9:00 p.m. Mr. Gill said that he started at the front entrance with two or three other doormen.

310Mr. Gill stated that the promoter arrived at the establishment at approximately 9:15 to 9:30 p.m. and spoke to Mr. Gill advising him that he had sold 1,000 tickets. Mr. Gill also said the promoter had one security person with him.

311Mr. Gill stated the promoter had his own person to look after the cash at the door. The promoter also told Mr. Gill that he had rented out the club for the night and it should go according to what he wanted.

312Mr. Gill stated people began to arrive at approximately 10:30 p.m. There was a line for VIPs. Another line was formed for those without tickets. The promoter wanted Mr. Gill to let people without tickets in. Mr. Gill argued that those with tickets should get in first.

313At one point the promoter told Mr. Gill that he would let “his own people” in through the back door on King Street, which is located at the south end of the building.

314The doorman at the south end of the building told Mr. Gill that people were allowed into the premises but he did not know how many.

315The MATF arrived at approximately midnight and at that time the Promoter took approximately 50 or 60 people to the King Street south end entrance.

316After the MATF arrived, Mr. Gill went inside and was told that he had to get all of the people in the stairway and hallway leading into P1 out.

317Mr. Gill stated P1 was busy but he did not feel it was that busy. When Mr. Gill was asked to have everyone out he thought at first it was just the hallway but he was told everyone in the premises had to leave.

318Mr. Gill stated people were upset because they could not get their coats. He had to bring them their coats later on.

319Mr. Gill stated at approximately 1:30 a.m. the premises were cleared of patrons.

320Mr. Gill stated Mr. Sanderson was not aware of what was going on as it was the promoter’s call with regard to people being let in the back door and how many people got in. He stated that the promoter said he was fully in charge, as he sold the tickets and he rented the club.

321Mr. Gill stated his people had done a count during the night counting people going in and out. They counted 630 at the main entrance.

322Under cross-examination, Mr. Gill was asked who was his employer. He replied that it was Mr. Sanderson and that it was Mr. Sanderson who gave him directions.

323Mr. Gill also stated when the promoter arrived he told Mr. Gill he brought the doorman with him and that he had sold over 1,000 tickets. He also said that he had rented the club. Mr. Gill was asked if he confirmed any of this information with the owner, Mr. Sanderson, and he replied that he had not.

324Mr. Gill stated in his opinion he was not responsible for overcapacity and that capacity is the responsibility of the owner or promoter depending on the circumstances. Mr. Gill then read into evidence the last paragraph of his will-say statement (Exhibit #7), “When I work security I make it clear with the club/bar owner or promoter that security or I am not responsible for any over-capacity or any other liquor licence infractions because it is totally up to them.”

325Mr. Gill stated when asked about the capacity of the club, Mr. Sanderson told him the capacity was 630. He also stated he never checked the liquor licence to verify the capacity.

326Mr. Gill stated at first they were not counting people entering the establishment then they started but they did not count people going in the back entrance off King Street. He also said that he was not aware during the night that people were going in the King Street entrance and that he only heard it later from another security person.

327Mr. Gill was asked how he communicated with the other security on duty and he said they had two-way radios, which were used only in an emergency. A fight or disturbance would be an emergency. He also said that the security at the club was only responsible to keep order.

Registrar’s Submissions

328Ms Taylor stated it is the Registrar’s position that the allegations in the NOP have been proven on the balance of probabilities.

329Ms Taylor noted that the evidence of Constables Scott Nelson and Ray Nelson who found two young women who were permitted to have liquor on September 5, 2008 was not contradicted. The Registrar does not have to show that the liquor was consumed. Subsection 30(4) of the LLA states that “No licensee or employee or agent of a licensee shall permit a person who appears to be under nineteen years of age to have or consume liquor in the licensee’s licensed premises.”

330Ms Taylor pointed out that permit means fail to prevent and that the Licensee in this case failed to prevent two young women under the age of 19 from having liquor on his licensed premises, on September 5, 2008.

331With respect to October 31, 2008, it is also clear from the evidence that the Licensee breached section 43 of the O.Reg, which states, “the licence holder shall ensure that the number of persons on the premises to which the licence applies, including employees of the licence holder, does not exceed the capacity of the licensed premises as stated on the licence.”

332Ms Taylor points out that the fire inspectors counted 1,461 people coming out the exits. She notes that they started the count at 12:45 a.m. and that was the number in the establishment when they started the count. The evidence, Ms. Taylor states, was that people had already left before they started the count.

333Ms Taylor stated that there was detailed evidence from police, fire inspectors, AGCO Inspector Swartz and D/Sgt. Serianni as to how unsafe it was in the premises that night. Ms Taylor notes that the term “chaos” was used several times by people giving evidence.

334Ms Taylor noted that the Fire Prevention Chief stated in evidence that he had never seen over-crowding like this in his thirty years of experience; it was the worst he had ever seen.

335Ms Taylor opined that sales receipts are not sufficient to displace the count done by the fire inspectors. She also noted that the evidence of Ms Osie was that there was a lot of people not purchasing liquor that night.

336Ms Taylor stated that the description by the fire officers was that no one could move in the room. No one could get a drink even if he or she wanted too.

337Ms Taylor also stated that Inspector Forester before the count estimated that room P1 contained approximately 700 people.

338Ms Taylor stated that Mr. Sanderson’s representative did not put the alleged conversation between Mr. Sanderson and Inspector Forester, to Inspector Forester during cross-examination and he should have done so.

339Ms Taylor stated that even if a number was mentioned, Inspector Forester was only referring to P1, the room he was in.

340With respect to permitting intoxication, Ms. Taylor noted, the Board has heard from Detective Constables Torrie, Cattle and Shawihat. All saw intoxicated patrons going past them during the evacuation of the premises. She also noted that Mr. Gill did not see anyone enter the rear entrance.

341Ms Taylor stated that D/Cst. Shawihat gave detailed descriptions of two intoxicated females who she saw leaving the establishment.

342There is clear evidence of drunkenness that the Licensee permitted by failing to prevent.

343Ms Taylor also stated there is no direct evidence that anyone was allowed in the King Street entrance. Mr. Bhargava, the promoter, she states, denied having patrons go through that entrance. The evidence indicates that the patrons were heading towards Club 77 and not towards the south end of the building.

344Ms Taylor stated that there was evidence that the patrons of the establishment were told to evacuate and became disorderly to the point where a large number of additional police officers were required as back-up. The patrons were challenging the police officers and it was only when the back-up officers arrived that they stopped challenging their authority.

345She also noted that no one has accepted responsibility for what took place that night. Mr. Bhargava pointed to the security of the establishment, Mr. Gill pointed to the Licensee and the promoter. Mr. Sanderson said it was not his fault as he was busy helping the bars.

346The excuse was that everything was fine until the MATF arrived and forced everyone into the hallway.

347Ms Taylor stated that Mr. Sanderson is the sole owner, officer and director of the corporation that holds the licence. There is grave concern about his conduct on the night October 30-31, 2008, his failure to accept responsibility for what goes on in his establishment and about his failure to take capacity seriously.

348Ms Taylor notes that Mr. Sanderson did not deny telling Mr. Bhargava that his capacity was seven hundred, or that he upped it for October 30-31, 2008. This, in Ms. Taylor’s opinion, is an indication that the business will not be carried on in accordance with the law. No one has said this will be prevented in the future; there was nothing from Mr. Sanderson or from Mr. Gill, who is still head of security for the establishment, on this point.

349Ms. Taylor stated the Registrar is seeking a finding of breach of the following:

Subsection 30(4), LLA;

Section 43, O.Reg;

Subsection 45(1), O.Reg;

Clause 6(2)(d), LLA.

Licensee’s Submissions

350Mr. Plouffe stated Constables Scott Nelson and Ray Nelson found two female patrons who were required to produce identification and strangely could not when requested to do so by the officers.

351Mr. Plouffe asserts that the servers did not knowingly serve or permit these young women to have liquor. They believed that to gain entry to the establishment one has to produce a valid identification.

352Mr. Plouffe stated that D/Sgt. Serianni found a male who appeared to be 15 years of age and was in fact 18 years of age. In this case the issue is of appearance. Security’s job is to check identification. However he said that with so much bogus identification around these days it is difficult to tell what is real and what is not.

353Mr. Plouffe stated Mr. Gill had a count of 622 to 630 people in the establishment. He added that Fire Inspector Forester doing his own count estimated 700 people in the establishment.

354Mr. Plouffe stated that Chief Winn had difficulty with the fire department camera and asked Inspector Forester who was counting to take some pictures of the people inside the establishment. Chief Winn then took over the count for the Inspector. Mr. Plouffe then stated that Chief Winn somehow came up with a count of 1,461, which is double the estimation of Inspector Forester.

355Mr. Plouffe is of the opinion that asking the patrons to exit through one exit only so the Fire Department could conduct a count created a dangerous situation.

356Mr. Plouffe stated that AGCO Inspector Swartz used the word “chaos.” It is Mr. Plouffe’s opinion that when there are 700 people, Inspector Forester’s numbers, he noted, trying to exit one door, people would panic.

357Mr. Plouffe referred to the broken door and noted that when people are trying to get out things like that will happen.

358It is Mr. Plouffe’s opinion that the two female patrons observed by Detective Constables Cattle and Shawihat were not intoxicated, merely overcome by the crowd.

359Mr. Plouffe pointed out that there was discrepancy between the testimony of Mr. Bhargava and Mr. Gill as to the number of buses. Mr. Bhargava said there were two and Mr. Gill said there were five or six. He also stated that the only way to get people in if the north (main) entrance is jammed is to go to the south entrance.

360It is Mr. Plouffe’s opinion that the call for back-up by police officers was overkill. There were thirty officers who were not needed at the scene, he said. Mr. Plouffe stated that there was no fighting and patrons were exiting and did not challenge a lot. They were just asking for their coats.

361Mr. Plouffe stated that Mr. Bhargava did cause problems with over-capacity and that his motive was greed. So when the task force arrived the situation they encountered was overcrowding.

362Mr. Plouffe questions the accuracy of Chief Winn’s count as he was not the first one to start the count, it was Inspector Forester. Mr. Plouffe doubts there were 1,461 people in one room.

363Mr. Plouffe stated that the liability for running the establishment is on the shoulders of Mr. Sanderson and that Mr. Sanderson erred, and is not in denial that he had not periodically checked the count.

364Mr. Plouffe stated that security failed, and Mr. Sanderson who was trying to be helpful at the bar with staff, realizes that he is still responsible.

365Mr. Plouffe pointed out that Mr. Sanderson is always cooperative and helpful with the AGCO and Police.

366Mr. Plouffe stated that Mr. Sanderson will try to reorganize his establishment and take a hands on approach to see that a situation like this does not happen again.

Registrar’s Reply

367Ms Taylor stated that the number 700 mentioned by Inspector Forester was for P1 only, after doing a rough quadrant count. 700 had nothing to do with the count of people leaving that was subsequently done.

368Ms Taylor stated that Inspector Forester started the count and Chief Winn took over the count, which was at 187, not 700. Chief Winn’s count was eventually 1,178 through the main door and a further 283 through the northeast door counted by Inspector Forester.

369Ms Taylor stated there is no evidence that Chief Winn lost count at the main door and there is detailed evidence as to how the count was managed.

370Ms Taylor further stated that Inspector Forester never gave evidence as to the number of patrons in the entire establishment as he never went into P2.

371Ms Taylor also stated that the broken door at the south entrance had nothing to do with the evacuation, as it was broken before the evacuation started. D/Sgt. Serianni and Inspector Swartz gave evidence of hearing the door being broken.

372Ms Taylor also noted the evidence of Detective Constables Cattle and Shawihat who saw one unconscious girl carried out and another being helped to walk. There was also evidence of slurred speech, glassy eyes and the smell of alcohol on their breath. Mr. Plouffe is incorrect. D/Cst. Shawihat’s evidence is clear.

373Ms Taylor stated that Mr. Plouffe’s assumption was that the overcrowding was not dangerous. However the evidence is that the situation was completely unsafe. Mr. Plouffe in his submissions stated that there were no fights while the patrons were being evacuated. Ms. Taylor pointed out, however, that the evidence is that there were fights and disturbances, and there was broken glass and liquid on the floor, thrown there by the patrons.

374Ms Taylor stated that there is no question that the Licensee was cooperative when spoken to by authority but that was all after the fact. She said that Licensee has to do more than say nice things.

375Ms Taylor also noted that Mr. Sanderson did not testify that he made a mistake. He said that he had faith in his security. There is no evidence that he replaced them after such a failure.

376Ms Taylor noted that Mr. Plouffe said that Mr. Sanderson will take a hands-on approach to ensure it will not happen again. She asked, “What are the measures? What is the plan?”

377Mr. Sanderson, Ms. Taylor stated, faulted the fire department for the evacuation and Mr. Bhargava for selling too many tickets.

Motion to Lift the Interim Suspension

378At the end of the submissions, the Board heard a motion by Mr. Plouffe to lift the Interim Suspension.

379The Registrar took the position that the suspension should continue until the Board completed its final decision on the NOP. The reasons for the proposed continuation are contained in the submissions of the Registrar as to findings.

380Mr. Plouffe asked that the suspension be lifted, as Mr. Sanderson has not had an opportunity to reorganize or to educate his staff. The Licensee is ready to change his staff or to do whatever the Board feels will correct the problem.

381Mr. Plouffe noted it is the livelihood of the Licensee at stake here and he has already been suspended for twenty-five days, which is a substantial loss of business.

382Ms Taylor replied that the Licensee had from November 1st to the 25th to decide how he would change and what measures he would take to reorganize and retrain his staff. The Board has heard not evidence that he is willing to change his staff. He is already hands-on; he was there that night.

383Ms Taylor noted that it is not up to the Board to tell the Licensee how to run his business. He has to figure that out himself.

Decision of the Board on the Motion

384The Board decided that the Interim Suspension will continue until the Board has rendered its decision in this matter.

385The Board notes that the allegations are very serious, and there were 14 witnesses who testified over the course of several days of hearing and their evidence must be carefully reviewed.

Analysis/Reasons/Findings

Credibility

386The Board finds the Licensee’s testimony, was at times evasive and that key parts of his testimony are unreliable.

387Where there was conflicting evidence between the Licensee and the Registrar’s witnesses the Board prefers the evidence of the Registrar’s witnesses for the following reasons:

a) Their evidence was detailed and clear.

b) Their evidence was, as a whole, consistent, both internally and with one another.

c) They do not have an interest in the outcome of the hearing.

d) In some instances, the Licensee did not directly refute their evidence.

Some examples are outlined below.

Subsection 45(1) of the O.Reg

388Based on the evidence of the Hamilton Police Officers, D/Sgt. Serianni, and the AGCO inspector, the Board finds that the licence holder permitted drunkenness, riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under the control of the licence holder, on October 31, 2008, namely:

a) There were two intoxicated female patrons. One had to be carried out. The other also needed assistance as she also could not walk out of the establishment on her own. Other signs of intoxication were noted by the police officers.

b) The quarrelsome behaviour of patrons who were being evacuated from the premises, which necessitated the calling of a significant number of police officers for back-up in order to control and calm the situation.

c) There was a fight between two patrons in room P2. Notwithstanding that the Licensee’s security staff intervened quickly, the Board finds the Licensee, by virtue of allowing the gross overcapacity, permitted the disorderly conduct. The Board notes that the premises was so crowded that the Licensee’s security staff had difficulty in moving them out.

d) A number of patrons were observed to be “out of it” (drunk).

e) A patron was bleeding from the forehead due to being struck over the head by a beer bottle.

As a result the Board makes a finding that there was a violation of subsection 45(1) of the O.Reg.

Section 43 of the O.Reg

389Based on the evidence of Fire Department officers, Hamilton Police Officers, D/Sgt. Serianni and an AGCO inspector, the Board finds that the licence holder failed to ensure that the number of persons on the premises to which the licence applies, including employees of the licence holder, does not exceed the capacity of the licensed premises as stated on the licence, namely:

a) The Hamilton Fire Department Officers conducted a mechanical count of all the patrons leaving the establishment after the decision was made to clear the establishment due to severe overcrowding. The count was 1,461.

b) The Fire and police officers testified that the premises were so overcrowded that they could not move in room P1, and that P2 was very crowded as well.

c) The admission by the Licensee’s representative during submissions that the Licensee ultimately bears responsibility for the overcrowding.

d) The admission of the Licensee’s head of security that there was overcrowding, as their count of approximately 595 patrons did not include people who had entered prior to their commencing their count, others who were allowed by the promoter to enter via another door, or the presence of the Licensee’s staff.

390The Board rejects the Licensee’s estimate of the number of patrons present based on the number of drinks allegedly sold and the number of coats allegedly checked. The Board notes that these transactions were conducted on a cash basis and not necessarily verifiable. As well the Licensee was unable to provide an explanation for the “no sale” document. Even if the Licensee’s figures are accurate, it only provided evidence that the bar sales and the number of coats checked were low. It is not conclusive of the number of patrons who were present that night. The Board finds that the Fire Department’s count of 1,491 is far more reliable, as it was done systematically with mechanical counters and with the specific purpose of counting the number of patrons who exited the premises for dealing with the public safety issue of overcrowding.

391As a result the Board makes a finding that there was a violation of section 43 of the O.Reg.

Subsection 30(4) of the LLA

392Based on the evidence of two Hamilton Police Officers and D/Sgt. Serianni, the Board finds that the Licensee or the Licensee’s employee or agent permitted a person who appeared to be under the age of 19 to have or consume liquor in the licensed premises, namely:

a) Two Hamilton police officers on September 5, 2008 observed two female patrons who were found to be 17 with alcohol on the licensed premises. One minor patron testified that she had order several alcoholic beverages and was served by several different bartenders. The Board specifically rejects the explanation by one bartender that identification was not checked because it should have been done by the security at the door.

b) D/Sgt. Serianni on October 31, 2008 observed an 18 year old male patron walking around with a bottle of Molson beer in the licensed premises. The male patron was walking about openly, and given the gross overcrowding and the admission by the Licensee of the shortage of staff that night, the Board finds that the Licensee permitted the 18 year old male patron to have liquor in the licensed premises.

As a result, the Board makes a finding that there was a violation of subsection 30(4) of the LLA.

Clause 6(2)(d) of the LLA

393The issue is whether or not the past or present conduct of Mr. Sanderson affords reasonable grounds for belief that the Licensee will not carry on business in accordance with the law and with integrity and honesty.

394The Registrar’s case concerning clause 6(2)(d) of the LLA is based on the events of September 5, 2008 and of October 30-31, 2008 and on the Licensee’s inability to have instituted effective procedures to prevent serious overcrowding, drunkenness, disorderly conduct, and minors possessing alcohol, particularly when the Licensee had been warned of problems and advised to take corrective action on October 28, 2008.

395The Board in this case heard from a number of police and AGCO witnesses; each of these witnesses disputed the ability of the Licensee to carry on business in accordance with the law and with integrity and honesty. While most of the witnesses testified to the cooperative nature of the Licensee they also added it was only after issues were pointed out to him.

396The evidence is clear the Licensee gave false information to his own security personnel as to the permitted capacity of his establishment. He said it was 630 when in fact it is 592. The Board notes that Mr. Sanderson did not deny giving this incorrect number. The promoter testified that he was told that he could bring up to 875 people to the event that he was promoting. This figure was not disputed either. The promoter also testified that he had organized three previous events at these premises and had been told by the Licensee that the permitted capacity was 700. This was not disputed either.

397The Board finds that the Mr. Sanderson does not take the issue of overcapacity seriously, given not only the gross breach on October 30-31, 2008, but also his providing of misinformation to the promoter on previous occasions and also to his own staff.

398The fire officials who did a mechanical count show that there were at least 1,461 patrons in the establishment on October 31, 2008. This figure does not include some patrons who left earlier before the count commenced. It also does not include employees of the Licensee. This is approximately two and one half times the permitted capacity.

399Chief Fire Prevention Officer Winn informed the Board that in his 30 years of experience he had never seen an establishment this overcrowded. He further informed the Board that had there been a fire in this establishment there would have been tragic consequences with considerable loss of life and injuries. Chief Winn felt that the situation was extremely dangerous.

400The Board agrees. The Board notes that the nightclub premises are located in the basement, and the narrow stairway leading to it, was both slippery and heavily congested. There was also a bottleneck at the bottom of the stairs. This further added to the potential danger. Given the shocking degree of overcapacity, it was fortunate that there was no serious injury or worse that night.

401The Board notes that virtually all of the police officers who testified stated that they were very uncomfortable with what they felt was an extremely dangerous situation in Remedy Nightclub. They testified that it was so overcrowded that they could not even get into room P1. The officers feared for their own safety and the safety of the patrons.

402The Board notes that the Licensee was personally present in room P1 that was so overcrowded that people could not move. Inspector Forester of the Fire Department took pictures of room P1 shortly after the evacuation of the establishment had begun. Both pictures, Exhibits 3(a) and 3(b), show a very crowded room. The pictures show that people in the room were shoulder to shoulder.

403The Licensee, during his testimony, blamed the police and the fire officials for the problems, stating that everything was fine until they arrived. It was the Licensee’s belief that if the MATF had not come to his establishment there would not have been a problem. He did not believe that he was overcrowded and he did not accept any responsibility.

404The Board does not accept the Licensee’s explanation that he was busy helping at the bar and was not aware of the overcrowding. Even if the Board were to accept this assertion, which it does not, the Board would find that he was wilfully blind to the situation, given the testimony of how the security staff was pushing patrons into the premises.

405The Board notes that everyone was trying to avoid responsibility for the overcrowding on the licensed premises on October 30-31, 2008, including the Licensee, his head of security, and the promoter. Only during submissions by the Licensee’s representative was there an admission that the Licensee ultimately bears responsibility.

406The Board notes that the Licensee was interviewed by D/Sgt. Serianni on October 28, 2008 and was made aware of concerns of under-age drinking in his establishment, based on events that had taken place on September 5, 2008. He was also advised that he should not have all-age events at all. He was further advised that if he did have them, he was to implement immediately a procedure that would allow the easy identification of people who were under the age of 19.

407On the night of October 30-31, 2008 there was an all-age event at the Licensee’s establishment. This is clear from the evidence notwithstanding the Licensee’s previously stated intention that he no longer intended to hold all-age events. Furthermore, when questioned on the night of October 30-31, he stated that he believed it was a 19 and over event. His own staff provided testimony that contradicted this assertion. He had not implemented the recommended procedure, which he indicated to D/Sgt. Serianni on October 28, 2008, that he would. The Board prefers D/Sgt. Serianni’s testimony to that of the Licensee, who alleges that he told the D/Sgt. on that same day that he did not agree with the proposed procedure and advised that he would not implement it.

408Therefore, the Board believes that, on the balance of probabilities, the Licensee will not carry on his business in accordance with the law and with honesty and integrity.

409Based on the foregoing, the Board makes a finding under clause 6(2)(d) of the LLA.

Conclusion

410For the reasons given, the Board FINDS the Licensee violated section 6 and subsection 30(4) of the LLA, and section 43 and subsection 45(1) of the O.Reg.

411Further, the Board CONFIRMS its oral ORDER that the Interim Suspension currently in place on liquor licence number 802539 issued to 1746988 Ontario Inc., operating as REMEDY NIGHTCLUB, 35 King Street East, Hamilton, Ontario, L8R 3L5, remains in effect until the Board renders its final decision in this matter.

412The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file her written submissions by on or before January 9, 2009. 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 two (2) 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 7th DAY OF January, 2009