Registrar, Alcohol and Gaming Commission of Ontario v. Maria Garcia operating as Classic Cocktails Bar & Grill, 2011 CanLII 10869

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-

Maria Garcia operating as Classic Cocktails Bar & Grill Licensee

DECISION ON FINDINGS

Panel: Allan Higdon, Board Member Bruce S. Miller, Board Member

Decision Date: January 26, 2011

Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative Maria Garcia, Licensee ) John Paul Evans, Representative

Authorities

Central Bar and Grill, [2008] O.A.G.C.D. No. 377 Einstein’s, [2005] O.A.G.C.D. No. 511 Central Bar and Grill [2009] O.A.G.C.D. No. 14

Allegations

1A hearing into Notice of Proposal number 17989 dated April 13, 2010 to suspend liquor licence number 202416 issued to Maria Garcia. (the “Licensee”), operating as Classic Cocktails Bar & Grill (the “establishment” or the “premises”), 1805 Wilson Ave., Unit 5, North York, Ontario, M9M 1A2, on the basis of an alleged violation of section 43 and subsection 45(2) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the Liquor Licence Act (“LLA”) and an alleged breach of conditions on the licence, was held on November 9, 2010 in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board FINDS the Licensee violated section 43 and subsection 45(2) of O.Reg 719/90, made pursuant to the Liquor Licence Act (“LLA”) and breached conditions on the licence.

Preliminary Matters

3Mr. Evans requested an order to exclude witnesses that the Board ORDERED on consent.

4Mr. Morris submitted a copy of the liquor licence for Classic Cocktails Bar & Grill dated September 2, 2009 that the Board entered as Exhibit # 1.

Registrar’s Evidence

5Leah MacDougall has been a Liquor Inspector with the AGCO since January of 2008.

6Classic Cocktails Bar & Grill is located on the south side of Wilson Avenue near Weston Road. It is located in the eastern half of a large strip mall. The main door is at the front and there is a patio on the east side. The patio is accessed from inside the premises. It is licensed as a restaurant but operates more like a nightclub in the evening. It caters to a younger urban crowd.

7Entrance is located through one main door where security is located with a metal detector. You then go through another door to get in the premises. The dance floor is directly in front and a low wall surrounds the dance floor. The bar is on the east side.

8Mr. Morris submitted a diagram of the premises that the Board entered as Exhibit # 2.

9Classic Cocktails Bar & Grill has a licensed capacity of 222 for the inside and 72 for the patio.

10Condition two of the liquor licence requires the following:

There shall be security personnel wearing clothing that readily identifies them as security and the security personnel shall be stationed as follows:

a) Three male and one female security at the front door;

b) Two security on the patio;

c) One male and one female security at the entrances to the washrooms;

d) Two security patrolling the licensed premises.

11The Inspector went to Classic Cocktails Bar & Grill on November 29, 2009 at 1:57 AM for a routine spot inspection. She was accompanied by AGCO Inspectors John Hesch and Brad Capes and by personnel from the Toronto Municipal Licensing and Standards branch.

12After speaking to security at the entrance, the witness used a mechanical counter to count the number of individuals in the interior of the premises. She counted the individuals on the exterior of the dance floor and then counted the dance floor. It was hard to walk through the premises as it was crowded. She found there were a total of 305 individuals. The doorman had an entry count of 289 and an exit count of 19 for a total of 270 persons on the inside and on the patio.

13Inspector Capes did a secondary count as more people were entering the premises. He had a count of 321 for the interior of the premises.

14There was a strong odour of marihuana near the washroom but she was unable to locate the source of the odour. There was supposed to be a male and female security guard in the area of the washroom.

15The other Inspectors told her that “joints” were being rolled on the patio.

16There were 12 persons on the patio.

17The Inspector is familiar with the smell of marihuana as she participated in a controlled burn of the drug during her training.

18She spoke to the Licensee, Maria Garcia, who told her they were using a combined capacity count of both the interior and the patio. She advised Ms Garcia the two capacities must be kept separate. She also advised Ms Garcia about the marihuana. She left the establishment at 2:24 AM.

19The witness did another inspection at the premises on January 23, 2010 with AGCO Inspector Trevor Joseph and Toronto Police Officers Duane St. Jean and Mike Tucker. They arrived at 1:14 AM.

20She went on the patio. There was only one security guard on the patio. The guard told her they only keep one guard on the patio until it gets busy.

21There was only one female security guard at the entrances to the washroom.

22The security at the entrance had an entry count of 265 and an exit count of 37 for a total of 228 in the premises. Security advised her that the count did not include staff, which they are supposed to include.

23The Inspector did not conduct a count as it was extremely busy and she was grabbed by a male patron who tried to pull her on the dance floor.

24Ms Garcia told her that the second security guard was not at the entrance to the washrooms as she had posted him at an exit door on the other side of the room. She left the premises at 1:45 AM.

25She conducted another inspection on January 30, 2010 and arrived at 1:22 AM with another AGCO Inspector and Toronto Police Constable (“PC”) St. Jean.

26Mr. Evans objected to the evidence of that date being heard, as the allegations concerning that date did not form part of the allegations as laid out in paragraph 3 of the Notice of Proposal. Mr. Morris replied that paragraph 3 only referred to the fact that the Licensee had been notified of the alleged contraventions and that the allegations concerning January 30, 2010 were fully laid out in paragraph 5.

27Mr. Evans stated he had received full disclosure on the January 30, 2010 allegation in response to a question from the Board.

28The Board ruled against the objection as the allegations were laid out in the Notice of Proposal and the Licensee had been given full disclosure.

29The witness continued with her testimony and stated security at the front door had an entry count of 222 and an exit count of 52. Security advised her they thought the capacity was 279.

30She conducted a count and found there were 268 individuals in the interior.

31There was no female security guard at the front door. The two male security guards were there.

32She left the premises at 1:45 AM.

33On cross-examination she stated the premises are located in an industrial complex.

34The Inspector has inspected the establishment in the daytime but has never seen any patrons there. She inspected it 6 to 8 times from September 2009 to April 2010. The premises are subject to risk based licensing after a shooting occurred there. A person was killed in the parking lot.

35She has never counted all the security guards who are working there.

36On November 29, 2009 there were 12 persons on the patio. There were no narcotics seized. The “joints” were observed by Inspector Hesch and Toronto Police Sgt. Dugan. The Inspector considers her count more accurate than that of the doorman as she is impartial and includes staff in her count.

37On January 23, 2010 she did not count how many security guards were working in total or how many people were on the patio. There were no security guards standing at the door of the patio. She believes the count was higher than what security claimed it to be. Ms Garcia pointed out the security guard who was supposed to be outside the washroom and was in fact standing across the room.

38She did not remember any patrons being on the patio on January 30, 2010. There was security on the patio. She did not try to confirm that the female security guard was in the washroom.

39On reply the Inspector stated that it is illegal to smoke in a nightclub. People use the patio to smoke even when it is cold. They also bring their drinks onto the patio.

40In response to questions from the Board, she replied she did not conduct a count on January 23, 2010 as she did not feel safe. She also stated she checked to ensure security were in position as per the liquor licence on her visits. She only testified to the ones who were not in the proper position.

41Eric Dugan has been a police officer with the Toronto Police Service for 31 years and currently holds the rank of sergeant.

42He went to Classic Cocktails Bar & Grill on November 29, 2009 at 2:00 AM to assist with a liquor inspection.

43He looked over the fence of the patio from the outside and saw three females sitting on a bench. The one closest to him was rolling what appeared to be a marihuana cigarette. She was doing it openly. There were two security guards about 12 feet from her and they were facing her. One of the security guards noticed him as he was in police uniform. The security guard spoke to the females who got up and walked into the bar.

44He spoke to the female in question in the bar. She said she was rolling a joint for a friend and had discarded it when she was told that he was there.

45The bar was overcrowded and congested. He did not do a count but has done counts on previous occasions at the premises and it appeared to be overcrowded to him that night. Security at the front door told him there were over 300 people. He left the premises after being there for 20 to 30 minutes.

46On cross-examination he stated he did not ask the doorman if he could see his mechanical counter.

47He knows the establishment and there were more than 222 people inside. The patio was also quite busy.

48There was no reply.

49In response to a question from the Board, he stated he has made numerous marihuana seizures and arrests.

50Duane St. Jean is a Detective Constable with the Toronto Police Service and has worked as a police officer since 2001.

51He went to Classic Cocktails Bar & Grill on January 23, 2010 to assist with a liquor inspection. He had been there before and went straight to the patio, as there is a history of marihuana use on the patio. There were about 15 people on the patio.

52He returned to the front door. There was a male and a female security guard there. He asked them for the count and was advised that the guard who was doing the count had left to go to the patio. Patrons continued to enter the premises. The security staff did not know how many patrons had entered since police and the liquor inspectors had arrived.

53The security guard returned and advised that the count was 236 in and 30 out for a total of 206. He stated capacity was “220 or so”.

54A male and a female arrived. The male security guard checked the male with his metal detector wand. The wand showed a red light and the security guard told him that was due to metal in the male’s boot which the guard did not physically check. The female security guard did not inspect the female’s purse. He advised the security staff of the need to do proper checks.

55The witness went to the washrooms. There was a female security guard there but no male security guard as required. She told him the male security guard was on the other side of the room. He could see the male security guard on the other side of the room which was quite busy.

56He went to the patio and counted 22 persons on the patio.

57In his view the bar was very crowded. You had to push your way through the crowd to move.

58He spoke to Ms Garcia. He advised her she had to include staff in the capacity count. They both went to the front door. Security had an entry count of 265 in and an exit count of 37. He told Ms Garcia not to allow any more patrons in until the numbers went down.

59He left the premises at 1:45 AM.

60He returned to the premises for another inspection on January 30, 2010 at 1:22 AM. There were three male security guards at the front door when he arrived and there was no female security guard. The counter showed there were 222 persons on the premises. The bar was crowded and you had to turn sideways to get through. An Inspector told him there were 268 persons on the inside.

61He spoke to Ms Garcia who told him the female security guard at the front door had left her post to use the washroom.

62On cross-examination he stated security was very receptive when he raised his concerns on January 23, 2010. He did not know how many security guards were on the premises as it was busy and he could not see them all. The security guard across the room from the washroom was 15 to 20 meters from the washroom.

63On January 30, 2010 he did not conduct a count. He does not know if there were any people on the patio.

64There was no reply.

65Trevor Joseph has been an Inspector with the AGCO since July 1993. He was part of an inspection team at Classic Cocktails Bar & Grill on January 23, 2010. They arrived at 1:14 AM.

66There was a female security guard at the entrance to the washrooms. There was no male security guard which was in contravention of a condition on the licence.

67Security staff advised him there was an entry count of 265 and an exit count of 37 for a net count of 228 individuals on the premises.

68There were no questions on cross-examination.

69In response to questions from the Board he stated he did not know how many persons were on the patio. He also did not know if the net count included persons on the patio.

70Brad Capes has been an Inspector with the AGCO since February 2008. He was part of an inspection team at Classic Cocktails Bar & Grill on November 29, 2009. They arrived at 2:00 AM. The premises were very crowded.

71He used a mechanical counter to count the number of persons in the premises. He started at the rear and went through the crowd towards the patio. There were 321 persons in the premises that is licensed for 222. Inspector MacDougall told him she had counted 305 persons.

72Inspector Hesch told him that he had seen a female smoking a marihuana cigarette in front of security.

73He left the premises at 2:24 AM.

74On cross-examination he stated the difference between the two counts was due to people coming in from the patio.

75He never went out on the patio.

76He believed his count was accurate. He did not think there was a need to clear patrons out and count them as they left the premises.

77On reply he stated 15 to 17 persons came in from the patio.

78It is easier to count when an establishment is crowded as persons cannot move around.

79John Hesch has been an Inspector with the AGCO since March 2008. He was part of an inspection team at Classic Cocktails Bar & Grill on November 29, 2009. They arrived at the premises at 1:57 AM.

80Sgt. Dugan advised him that a female was rolling a marihuana cigarette. They were able to locate the female patron. She told him she threw it away when she saw the police officer.

81He went out on the patio and could smell the odour of marihuana. He also saw a marihuana roach in an ashtray on the patio. He received training concerning the smell of marihuana and also encountered it while he was an auxiliary member with the Ontario Provincial Police.

82There was a security guard standing on the patio. He told him about the female and the roach and the security guard advised he did not see anything.

83The premises were very crowded and it was difficult to walk through the crowd.

84There were ten to fifteen people on the patio along with two security guards.

85On cross-examination he re-affirmed he could smell the odour of marijuana on an open patio. He also stated he believed the marijuana roach was not seized.

Licensee’s Evidence

86Maria Garcia has owned and operated Classic Cocktails Bar & Grill for three and a half years. The premises are open seven days a week. She understands the conditions attached to her liquor licence.

87The city gave her a food and a nightclub licence. She had to get the nightclub licence as the city harassed her because her establishment played music.

88You have to walk through the bar area to access the patio.

89The witness requires ten security guards on duty. This is difficult as sometimes security guards can call in sick at the last minute. On all three nights in question she had ten security guards on duty.

90For the past two months she has also hired two off duty police officers to patrol the parking lot on Friday and Saturday evenings.

91All patrons must enter via the main front doors. They are all checked. All patrons must also leave by the main front doors.

92Her head of security has twenty years of experience. He is responsible for hiring the security staff.

93She does not believe it is possible to accurately count the number of people in the interior and on the patio, as you need to stop people from moving from area to area during the count.

94She does not allow illegal drugs on her premises and reminds her staff about this constantly. She was never advised about the alleged marijuana incident.

95There were 270 persons in her premises on November 29, 2010.

96On January 23, 2010 there were 228 persons in her establishment. There was no male security guard at the entrance to the washroom as he was positioned across the room to guard an emergency exit door. He was still able to observe the entrance to the washroom. She only had one security guard on the patio as it was not busy on the patio.

97She is currently trying to increase the capacity of her establishment.

98Mr. Evans submitted correspondence from the Toronto Fire Service stating they did not object to the interior capacity being increased to 240 that the Board entered as Exhibit # 3.

99There was no female security guard by the front door on January 23, 2010 because she had gone to the washroom.

100The bar looks more crowded than it is as everyone gathers by the front. The only incident was a shooting but that occurred in the rear parking lot.

101On cross-examination she stated she agreed to the conditions that are attached to her licence.

102The witness pointed out the female security guard who was supposed to be by the front door and had gone to the washroom on January 23, 2010 to the Inspector. She had evidence the security guard was there on her video surveillance tapes but she never thought about bringing the tapes to the hearings. The security guard was only in the washroom for about seven minutes.

103She made a decision on the evening in question when the male security guard was not at the entrance to the washrooms to station him across the room for security reasons. She cannot always hire extra security guards at the last minute if she needs one.

104She could not remember who decided only to have one security guard on the patio on the night when that incident occurred. She then stated it was her decision.

105The capacity of her establishment is 222 for the interior and 72 for the patio.

106They only count people who enter and exit the premises. Security staff is supposed to monitor the patio and she “assumes” they are doing a good job.

107She does not know what marihuana smells like. She hires security staff for that purpose. Smoking is not permitted on the premises.

108There was no reply.

109In response to a question from the Board she stated she didn’t know if security included staff in their counts.

Registrar’s Submissions

110The Board requested written submissions on disposition from both Mr. Morris and Mr. Evans. Mr. Morris raised the following points in his submissions.

111The capacity of the indoor area is 222 and the capacity for the patio is 72. Capacities may be established by the Building Code Act, the Fire Protection and Prevention Act or by the formula set out in the regulation. The Board or the Registrar may also lower the capacity if there is a public interest hearing.

112In this case there was no direct evidence as to how the capacity was set. There was evidence (Exhibit # 3) the Toronto Fire Service was prepared to increase the interior occupancy to 240. The Board can infer the original capacity was likely set by the Toronto Fire Service and that 240 represents a maximum capacity in the interest of public safety. Any application to increase the capacity would have to be approved.

113The Board has routinely held that capacities cannot be added between rooms, floors and indoor/outdoor spaces. Mr. Morris provided the Board with three previous Board decisions, Central Bar and Grill [2008], Einstein’s and Central Bar and Grill [2009]. It is the responsibility of the licensee to ensure capacities are not exceeded in individual areas.

November 29, 2009 Incident

114Inspectors Capes, Hesch and MacDougall both found the premises to be crowded and hard to walk through. Inspector Capes had an interior count of 321 persons and Inspector MacDougall had an interior count of 305. Sgt. Dugan found the bar to be very congested and similar to other occasions when he had done a count and found it to be overcrowded.

115The doorman had a count of 270 persons. Inspector MacDougall testified there were 12 persons on the patio. The doorman’s count would leave 258 persons in the interior. The doorman also advised Sgt. Dugan there were over 300 persons.

116Closing premises to do a count poses a safety risk. The mechanical count is an accurate method that has long been accepted by the Board.

117The Licensee advised the Inspector that she was using a combined capacity.

118The Board should make a finding that the Licensee breached section 43 of O.Reg 719/90 by permitting 321 persons in a premises licensed for 222 persons.

119Sgt. Dugan observed a female on the patio openly rolling a marihuana cigarette. There were two security personnel in front of her who did nothing. When confronted, the female admitted the substance was marihuana and that she had discarded it. In addition, Inspector Hesch smelled the odour of marihuana on the patio.

January 23, 2010 Incident

120Inspector MacDougall found only one security guard on the patio instead of the required two. The guard said there was only one guard there until the patio got busier. The licence does not give that discretion to the Licensee. The Licensee breached condition 2(b) of the licence.

121Inspectors MacDougall and Joseph found a lone female security guard at the entrance to the washrooms instead of the required male and female security guard. The male security guard had been stationed by the Licensee across the room. The Licensee breached condition 2(c) of the licence.

122When Inspector McDougall spoke to security she was given a count of 228. This count did not include staff. Inspector MacDougall found the premises to be very busy as did PC St. Jean. The Licensee breached section 43 of O.Reg 719/90.

January 30, 2010 Incident

123Inspector MacDougall counted 268 persons in the interior. Security thought the licensed capacity was 279. The Licensee breached section 43 of O.Reg 719/90.

124Inspector Dougall and PC St. Jean both observed there was no female security guard at the front as per the licence. They were advised that she was in the washroom however, in the 23 minutes Inspector MacDougall was on site she never saw the female security guard at the front door. The Licensee breached condition 2(a) of the licence.

Licensee’s Submissions

125Maria Garcia is the sole proprietor of Classic Cocktails Bar & Grill. The premises are open seven days a week. The premises operate as a nightclub from 9:00 PM to 3:00 AM on Friday and Saturday nights. The clientele are primarily black. As a result there are security provisions attached to the licence during these periods of time.

126The outdoor area of the patio can only be accessed by entering the main door of the premises and walking through the interior. Patio customers who wish to use the washrooms and other service facilities must enter the interior to do so. Lastly, patio customers must enter the interior to exit the premises.

127Customers congregate around the dance floor when the premises are operated as a nightclub. The dance floor is located by the main door and as a result this area is congested.

128Section 43 of O.Reg 719/90 (overcrowding) 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.

129There is no definition in the Act or the Regulations for the word “premises”. The legal definition must be interpreted with reference to the description of the premises in the licence which is defined as including both the indoor and outdoor areas. Therefore, the capacity of the premises is 294.

130The Registrar’s position puts the Licensee in an untenable position.

131Registrar’s counsel submits that capacity is a safety issue. There was no evidence that the number of patrons found on the premises poses any risk to the public. The real issue in this case is whether it is fair or just that the business can be operated without breaching the regulations. The Licensee “concedes” that on November 29, 2009 there were 270 people on the premises and that on January 23, 2010 there were 228 persons on the premises. She maintains that there were 170 persons on the premises on January 30, 2010.

132With respect to the allegation concerning a controlled substance, it should be noted Sgt. Dugan did not smell marihuana on the patio nor in the interior of the premises. He did not arrest the woman who admitted to rolling the marihuana cigarette. He did not see or seize any suspicious material in ashtrays on the patio and he did not speak to the Licensee about the incident.

133Incredibly, Inspector Hesch saw and smelled marihuana on the patio. He testified he did not seize anything, as it is not his job. He did not see fit to share his observations with Sgt. Dugan.

134No marihuana was seized. No person was charged with possession. It is submitted that this allegation has not been established.

135With respect to the allegations concerning a breach of conditions it should be noted the conditions of the licence require the Licensee to hire a total of ten security officers when the business is operated as a nightclub. The evidence is that the requisite number of security officers was working on January 23 and January 30, 2010. The Licensee concedes there was only one security officer working on the patio on January 23, 2010 as it was very cold and the patio was not being used for the sale and service of liquor.

136There was also an allegation that a male security guard was not present at the entrance to the washrooms as required. The guard was present but was stationed approximately 30 feet away and was able to see the entrance to the washroom.

137On January 30, 2010 there was an allegation that there was no female security guard at the entrance. She had temporarily left her post to go to the washroom. It was 30 minutes before closing and it is submitted that few people would be entering the bar at that time.

138The breaches of the security conditions are not material and there was no risk to the public.

Registrar’s Reply

139There was no evidence that the conditions were imposed because of the race of the clientele.

140Section 43 clearly refers to “the capacity of the licensed premises as stated on the licence”. The licence provides two separate categories, indoor and outdoor.

141The evidence for public safety is the fact that Fire Services set the capacity.

142Sgt. Dugan never entered the patio nor did he go to the area of the club where the odour of marihuana was observed.

143The Licensee has no discretion where to locate the security guards unless she chooses to hire more than the required 10.

144The amount of risk is related to what sanction is to be imposed and not to whether a breach has occurred.

Reasons and Analysis

145The Board has carefully considered all the evidence and the submissions presented.

146The Board will deal with each date on which the allegations occurred separately.

November 29, 2010

147There was an allegation that there were 321 people in an area licensed for 222 and that a female patron was rolling a marihuana cigarette and there was a strong smell of marihuana in the premises.

148Section 43 of O.Reg 719/90 states the following:

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.

149The Liquor sales licence for the premises (Exhibit # 1) states “In respect of the premises listed” the capacity for the “main floor” is 222 and the “outdoor areas” main floor is 72. The licence clearly identifies two separate areas in the premises with two separate capacities. The Board has held that capacities for different areas cannot be combined in previous decisions Central Bar and Grill, [2008], Einstein’s, [2005] and Central Bar and Grill [2009]) which were referred to by Mr. Morris.

150Inspector MacDougall found the premises to be crowded and hard to walk through. She used a mechanical counter and found there were 305 individuals in the inside of the premises. Inspector Capes did a secondary count and found there to be 321 persons in the inside of the premises. He attributed the difference to the fact that people were coming in from the patio. The Licensee advised Inspector MacDougall that they were using a combined capacity count. The Inspector advised the Licensee both capacities must be kept separate.

151Sgt. Dugan, an experienced police officer, corroborated the Inspectors’ evidence. Sgt. Dugan testified the bar was congested. Security told him there were over 300 persons in the bar. He did not perform a count but has done such counts in the past at the premises and based on his experience he felt the bar was overcrowded.

152The Licensee maintained there were 270 persons on the premises. Inspector MacDougall testified there were 12 persons on the patio. This would still leave 258 persons in the interior that is well above the licensed capacity of 222.

153The Licensee produced evidence from the Toronto Fire Service that they were not opposed to an interior capacity of 240. However, this would still need to be approved by the AGCO.

154Mr. Evans argued that the conditions do not allow the business to be operated without breaching the regulations. The patio can only be accessed by the interior. Patrons leaving the patio or wishing to use services in the interior create a flow between the two areas. However, it is the responsibility of the Licensee to ensure that the separate capacities are not exceeded. This type of situation is not unique to this Licensee. There are numerous licensed premises with areas that have separate capacities. The Licensee needs to take the appropriate steps to ensure that the separate capacities are respected. Such steps may include, but are not be limited to, additional training for staff, improved communication among staff and/or design changes.

155The Board understands that there may be safety issues in trying to clear premises and to count people as they leave. The Board appreciates that it is difficult to count the number of persons in a crowded premises and that there may be minor variations in a count. However, it is clear based on the balance of probabilities that the interior of the premises was significantly overcrowded on November 29, 2009. The Board FINDS the Licensee breached section 43 of Ontario Regulation 719/90.

156Subsection 45(2) of O.Reg 719/90 states the following:

The licence holder shall not permit a person to hold, offer for sale, sell, distribute or consume a controlled substance as defined in the Controlled Drugs and Substances Act (Canada) on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.

157Sgt. Dugan testified he looked over the fence of the patio from the outside and saw three females sitting on a bench. The one closest to him was rolling what appeared to be a marihuana cigarette. She was doing it openly. There were two security guards about 12 feet from her and they were facing her. One of the security guards noticed him as he was in police uniform. The security guard spoke to the females who got up and walked into the bar. He subsequently spoke to the female in question in the bar. She said she was rolling a joint for a friend and had discarded it when she was told that he was there.

158Inspector Hesch went on the patio and testified he could smell the odour of marihuana. He has received training concerning marihuana recognition. Inspector Hesch also found a marihuana roach in an ashtray on the patio.

159The only evidence to refute the allegation was that the Licensee testified that she does not allow illegal drugs on the premises and she constantly reinforces this with staff.

160Sgt. Dugan has 31 years of police experience. He testified in a clear and consistent manner, as did the Inspectors. It is clear based on observations, physical evidence and the admission by the female that marihuana was both held and consumed on the premises. The evidence was also clear that the female was rolling a joint on the patio directly in front of the Licensee’s security staff. There was evidence of the smell of marihuana on the patio where security staff was located. The Licensee should have known or ought to have known that drugs were being consumed or held on the premises. The Board FINDS the Licensee breached subsection 45(2) of O.Reg 719/90.

January 23, 2010

161This date deals with an allegation there were at least 228 people in an area licensed for 222. There was also an allegation that there was only one security employee on the patio and no male security present at the washroom.

162Inspector MacDougall testified that security advised her there were 228 persons on the premises and that this number did not include staff. The regulation is clear that staff must be included in the count. Inspector MacDougall advised it was very busy but she did not conduct a count as she had safety concerns after a male tried to grab her in an attempt to get her on the dance floor.

163PC St. Jean testified he was on the patio on two occasions and there were about 15 persons on his first visit and 22 on his second visit. He advised the Licensee not to let in any more people as he felt the bar was very crowded.

164There was no independent count made by the Inspector or by the police officer. The Licensee’s staff had a count of 228 persons in the entire premises that did not include staff. However, there were between 15 to 22 persons on the patio. There was also evidence that this count was less than accurate as the security guard doing the count vacated his position for a while at the front door. There is insufficient evidence for the Board to make a finding that the premises were overcrowded on January 23, 2010 and the Board DISMISSES the allegation.

165Condition two of the liquor licence requires, “There shall be security personnel wearing clothing that readily identifies them as security and the security personnel shall be stationed as follows:

a) Three male and one female security at the front door;

b) Two security on the patio;

c) One male and one female security at the entrances to the washrooms;

d) Two security patrolling the licensed premises.

166Inspector MacDougall testified there was only one security guard on the patio and that the guard told her they only have one security guard on the patio until it gets busy. The Licensee testified it was her decision to have one security guard on the patio. It was clear this condition was breached.

167PC St. Jean and Inspectors MacDougall and Capes testified there was only a female security guard at the entrance to the washroom. The evidence was clear that the male security guard had been posted on the other side of the room by the Licensee. It was unchallenged that the male security guard could see the washroom but he was located on the other side of the room. It was clear that the Licensee breached this condition.

168The licence requires ten security personnel to be in specific areas. The Licensee testified that she had ten security personnel working on the three different nights in question and this was unchallenged. However, the licence does not allow the Licensee any discretion as to where to post her security personnel. If the Licensee wishes to post security in different areas than prescribed by the licence she has two choices; she can hire additional personnel or apply to change the conditions. The Board FINDS the Licensee breached conditions 2(b) and 2(c) of the licence.

January 30, 2010

169The allegations on this date are that there were 268 persons in an area licensed for 222 and there was no female security guard at the front door.

170Inspector MacDougall testified she conducted a count of the interior and found there were 268 persons. PC St. Jean testified the premises were very crowded and you had to turn sideways to go through the crowd. Security said there were 222 on the premises and advised the Inspector they thought the capacity was 279. The Inspector testified in a clear and consistent manner. She is experienced in conducting counts. PC St. Jean corroborated her evidence. Security staff was unsure of the licensed capacity and the Board prefers the evidence of the Inspector and PC St. Jean and based on the balance of probabilities FINDS the interior was overcrowded.

171The inspection team arrived at the premises at 1:22 AM. Inspector MacDougall and PC St. Jean testified there was no female security guard at the front door as per condition 2(a) of the licence. They were advised she was in the washroom. However, in the 23 minutes Inspector MacDougall was there she never saw the female security guard. The Licensee admitted she had security surveillance showing the guard was there but inexplicably chose not to bring it to the hearing. The Board FINDS the Licensee breached condition 2(c) of the licence.

Conclusion

172Therefore, for the reasons given, the Board FINDS the Licensee violated section 43 and subsection 45(2) of O.Reg 719/90, made pursuant to the LLA and breached conditions on the licence.

173The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file his written response. Registrar’s Representative may serve and file any reply within three (3) days of receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission at the address on the front page of this decision in accordance with the Board’s Rules of Practice.

DATED AT TORONTO THIS 26 DAY OF JANUARY , 2011