ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: ALCOHOL AND GAMING REGULATION AND PUBLIC PROTECTION ACT S.O. 1996, C.26, S.14.1, SCH, as amended
B E T W E E N:
Registrar, Alcohol and Gaming Commission of Ontario Registrar
-and-
1480136 Ontario Inc. o/a Mana Bar & Lounge Licensee
DECISION
Panel: Beryl Ford, Board Member S. Grace Kerr, Board Member
Decision Date: June 22, 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 ) Lorenzo Policelli, Representative 1480136 Ontario Inc., Licensee ) Randall Barrs, Representative
Authorities
Allegations
- An appeal of an Order of Monetary Penalty #0000000268, dated 22nd September 2010 and in the amount of $2,500 (the “OMP”), against liquor licence number 809438 (the “licence”) issued to 1480136 Ontario Inc. (the “Licensee”), operating as MANA BAR & LOUNGE (the “establishment” or the “premises”), 722 College Street, Toronto, ON M6G 1C4, on the basis of an alleged violation of subsection 43 of Ontario Regulation 719/90 (“the O. Reg.) made under the Liquor Licence Act (the “LLA”), was heard by the Board of the Alcohol and Gaming Commission of Ontario (“the AGCO”) in the City of Toronto on April 29, 2011.
Decision
- The Board FINDS that the Licensee contravened section 43 of the O. Reg, and accordingly, UPHOLDS the OMP. Reasons follow.
Preliminary Matters
Mr. Mikhail (Mike) Igorevich Amstislavskiy is the sole officer, director and shareholder of the corporate Licensee. He appeared on behalf of the corporate Licensee.
The Board ordered that witnesses be excluded on consent.
Registrar’s Evidence
Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector Trevor Joseph attended the establishment on June 20, 2010 with AGCO Inspector Josee McFadden to conduct a spot inspection.
They arrived at the establishment at 5:29 p.m. The patio appeared to be busy. Inspector Joseph conducted a count of 51 persons in an area that is licensed for 25 persons. He obtained the same number on his second count. Both counts were conducted from street level, which allowed him to look into the patio that is located down a stairwell.
In order to enter the establishment, patrons have to enter through the patio area.
Inspector Joseph spoke with Mr. Amstislavskiy and advised him of his count in relation to the patio’s licensed capacity. Since Inspector McFadden had counted 39 persons, he used the lower of the two counts and advised the Licensee that the patio was over-capacity by 14 persons.
Inspector Joseph advised that capacity levels are set for public safety reasons. Capacity levels are set by either the building, fire or health departments or, on rare occasions, by the AGCO.
On the day in question, the ‘Taste of Little Italy’ festival was taking place. Also, a World Cup soccer game (Brazil was playing) was being broadcast in the establishment.
In cross-examination, Inspector Joseph clarified that the Licence allows 25 persons to be on the patio, whether or not they are being served.
Inspector Joseph agreed that the street around the establishment was jammed with people. Indeed, the whole area was busy.
He also agreed that in order to get to the street, patrons of the establishment have to go through the various exit doors, onto the patio, and up the stairs.
Inspector Joseph did not see anyone leave the patio when he did his count.
He also testified that if he had seen people leaving the patio, he would have exercised his discretion (that is, whether to cite the establishment for an infraction) in the Licensee’s favour.
AGCO Inspector Josee McFadden also testified. When she arrived at the establishment on the date and at the time as previously noted, she conducted two counts using a mechanical counter: she counted 39 patrons the first time and 41 patrons the second time.
The patrons she counted were stationary.
She approached Mr. Amstislavskiy and advised him of the counts she had taken of the patio area. He told her that the area is uncontrollable as it is the only entrance and exit point for the establishment.
She did not see any efforts by staff members to bring the patio into compliance.
She and Inspector Joseph departed at 5:44 p.m.
In cross-examination, Inspector McFadden agreed that the roads around the establishment were “jammed” after the World Cup Soccer game ended.
She also agreed that ‘overcrowding’ was unusual to see at the time that she and Inspector Joseph inspected the premises.
She also agreed that the “Taste of Little Italy” festival brings a lot of people into the area where the establishment is located. She acknowledged that there were a lot of people on the sidewalk and street outside of the establishment.
According to Inspector McFadden, one side of the stairway (leading from the patio to street level) was full. There were a lot of people on the patio as well.
She did not know how many people remained inside the establishment, which has a capacity of 312 persons. She estimated that perhaps 15-20 people were inside.
In response to questions from the Board, Inspector McFadden stated that, both times, she only counted the people on the patio and did not include the people on the stairs.
Licensee’s Evidence
Mr. Mike Amstislavskiy gave evidence under oath. He was born in Russia, but has lived in Canada for 10 years. He is married, with two children.
He described the establishment as being somewhere “between a nightclub and a restaurant.” Its major crowd is South American and Latin people. He confirmed that the inside capacity is 312 including staff and that the outside (patio) capacity is 25 persons including staff.
According to Mr. Amstislavskiy, patrons are not served alcohol on the patio: it is strictly a smoking area. Patrons can bring their drinks to the patio when they go there to smoke.
Two security staff monitor the patio: one is posted inside the front entrance and the other is outside.
Altogether on the day in question there were 312 persons, including staff, at the establishment. Mr. Amstislavskiy testified that he never goes above 312 persons in total, inside and out, because he wants to “keep it below” the maximum total capacity.
The Brazilian soccer team was playing in the World Cup that day. During the game, no one was on the patio because there is no TV out there.
At the time of the inspection, Mr. Amstislavskiy counted 12 patrons on the patio, and inside, there were less than 20. The rest of the people were leaving.
At the time of the inspection, there were about 1,000 Brazilian fans on College Street. Mr. Amstislavskiy “got scared” and decided to close his doors. By 6:00 p.m., the establishment was closed, but there were still a lot of people on the street.
Mr. Amstislavskiy admits that there were more than 25 people on the patio at the time of the inspection, but argues that they were the people leaving; only a few were there, with a drink and smoking.
The premises are leased; he has looked into establishing a separate entrance to the establishment, but it is an historical building and there are too many limits for trying to modify it.
It is very hard for him to control this issue, especially when people are leaving.
Mr. Amstislavskiy provided photographs for the Board’s consideration, showing a crowded College Street with many Brazil fans walking about, which were not made exhibits.
In cross-examination, Mr. Amstislavskiy testified that he has been the owner of the establishment for eight years. In 2004-05, he increased the total capacity inside from 156 to 312.
He acknowledged that he licensed the patio for the benefit of his patrons around the time when the smoking by-laws came into effect.
On “normal nights,” there will barely be 20 people on the patio; he tries to ensure that patrons entering or leaving the establishment “keep moving.”
Normally, four security staff persons are working; on the day in questions, five were working.
He has a background in the navy; as a result, he has evacuation plans and conducts fire drills to ensure safety.
He considered it an “emergency situation” on the day in question, which is why he decided to close his doors by 6:00 p.m. He felt the number of people would be too hard to manage and decided in favour of safety over business.
On the afternoon in question, the establishment was operating as more of a “sports bar.” He could have continued to serve people without stopping, but the numbers that wanted to get in were tremendous. They also had previously been drinking; therefore, he closed until 9:00 p.m. and the first customers the establishment started to receive was not until 11:00 p.m. that evening, which is “usual.”
According to Mr. Amstislavskiy, the AGCO never told him to let out 25 people at a time in the event of an emergency; he tried to explain that he had no emergency exit.
He agreed that in June 2009, there was an alleged situation of over-capacity, in similar circumstances, and that he received a ‘warning.’
The establishment is located at the corner of Crawford and College streets.
At the time of the inspection, the people on the streets were not moving; they were staying steady. Mr. Amstislavskiy adjusts his behaviour in accordance with the situation. He did not want to cause a riot, therefore he had his patrons leave little by little.
Mr. Amstislavskiy does not participate in the “Little Italy” festival. According to him, the issue is the patio. He does not want to put his licence at risk.
Mr. Amstislavskiy agreed that he was tired and frustrated when speaking with the Inspectors. He asked them to come back in 15-20 minutes when the place was really going to be empty.
Mr. Kirill Guryev also testified on behalf of the Licensee. He has been working as a security person with the establishment for the past five years.
He stated that “a big game” was being played on the day in question: there were about 1,000 people on the street outside of the establishment and many of them were trying to get in because the establishment serves the South American/Spanish community.
The establishment was closed at 6:00 p.m. The inspectors arrived “about 10 minutes” before then.
Mr. Guryev was working the patio. He was located at the bottom of the stairs. Patrons were leaving. They were getting upset because there were so many people. He sees his job as trying to prevent trouble. There were so many people on the street, and he was waiting for room for them.
He agreed that there were more people than they were supposed to have on the patio, but that it was “cleaned up” in a matter of 5-10 minutes.
There were no questions for Mr. Guryev in cross-examination.
Written Submissions
- The Board requested and received written submissions on behalf of the Registrar and the Licensee.
Registrar’s Submissions
The Registrar argued that it has met its case and it has been proven that, on the balance of probabilities, the Licensee failed to ensure that the licensed patio area was within its stated capacity. Specifically, approximately 39 persons were on the patio area that is licensed for 25.
The Registrar relies upon the testimony of Inspectors Joseph and McFadden.
The Registrar acknowledges that College Street was busy on the day of the inspection due to a street festival (Taste of Little Italy) and the World Cup game.
The inspection was completed at 5:44 p.m., or about 15 minutes after the inspectors arrived and just over an hour after the World Cup game had ended.
The issue of capacity control is up to the Licensee. In this case, a reasonable plan – if not asking people to leave to street level – may have been to ask them to return inside to keep the patio area safe and within capacity.
It is no defence for the Licensee to receive a benefit from choosing to license his only area of entrance/exit.
The Registrar relies on the reasoning in the Lobby Lounge case. In that case, the Board rejected an external event (in that case, a film festival) as an “excuse” for overcrowding. Also, the Board did not accept the co-mingling of patrons as they moved from one licensed area to another through the only entrance/exit point as a defence to overcrowding, either.
Licensee’s Submissions
The Licensee urged that the Board is ultimately a “court of natural justice, governed by equitable principles” and that it would be contrary to those concepts to uphold the OMP, for the following reasons.
The situation that put the Licensee over-capacity on the patio by 14 persons was not within his control. Rather, the situation that caused the problem was on the street, at the top of the stairs leaving up from and down to his patio. The road was fully saturated with people.
The Licensee’s staff took it upon themselves, with one security person posted at the top of the stairs and another at the bottom, to move a few people at a time to the sidewalk and road as space permitted.
Only a few persons were actually using the patio; the rest were being “held” in an orderly fashion pending “placement” on the sideway and roadway.
The Licensee acted responsibly to ensure that the few patrons left at the establishment would not be endangered by pushing them onto an area where there was no room for them.
AGCO Inspectors should use their discretion reasonably, considering safety and the public interest, as this situation was “akin to a fire.” In this case, the Licensee argued, the Inspectors showed “very poor judgement” in exercising their discretion against the Licensee in that the patio was within compliance within minutes of the Inspectors leaving.
It is unreasonable to conclude that the Licensee should have directed the excess 14 patrons back into the establishment instead of safely moving them onto the street, as space permitted.
Reply Submissions
- There were no reply submissions.
Reasons and Analysis
The Board has carefully considered the evidence and the written submissions of the parties in this matter and finds that the Licensee breached section 43 of the O. Reg. As such, it upholds the OMP levied against the Licensee.
In this case the Registrar alleged that, contrary to section 43 of the O. Reg., the Licensee failed to ensure that the number of persons on the premises to which the licence applied, including employees of the licence holder, does not exceed the capacity of the licensed premises as stated on the licence: specifically, there were 39 persons on the patio that was licensed for 25 persons.
For a finding under section 43 of the O. Reg., the Board must make a two-part inquiry. First, it must be established that alleged overcapacity relates to a licensed area as stated on the licence. Next, it must be established that the number of persons on the licensed area, including employees of the licence holder, exceeded the capacity of the licensed area as stated on the licence. Finally, the onus lies with the Registrar to prove the allegation on the balance of probabilities.
Regarding the first part of the inquiry, the parties do not dispute that the licensed area in question is the establishment’s patio. Exhibit 1 shows the layout of the premises, including the outdoor patio area (“the patio”). The patio also serves as the ingress and egress of the establishment’s main, inside licensed area. The patio – and hence, the main entrance doors - is accessed by a set of stairs leading to/from the patio and College Street.
Based on the foregoing evidence, the Board finds that the alleged over-crowding took place in a licensed area as stated on this Licensee’s Licence, that is, the patio. In other words, the first part of the test has been met.
Next, the Board must assess whether or not the number of persons on the patio, including employees of the Licensee, exceed its licensed capacity. Again, there is no dispute that the licensed capacity for the patio is 25 persons. [It is also agreed that the licensed capacity for the inside area is 312 persons.]
Inspector Joseph twice counted 51 persons on the patio, counting from the top of patio stairs. Conversely, using a mechanical counter and counting from the ramp, Inspector McFadden first counted 41 persons, and the second time counted 39 persons on the patio.
Given the discrepancy in their counts, the Inspectors decided to use the lowest number, that is, 39 persons. As such, they concluded that the patio was over-crowded by 14 persons, and advised the Licensee accordingly.
The Licensee did not challenge the credibility of either Inspector as to their respective counts or counting methods. Indeed, in submissions, the Licensee acknowledged that the patio was over-capacity by 14 persons.
Based on the foregoing evidence, the Board finds that the number of persons on the patio, including employees of the Licensee, exceeded its licensed capacity by 14 persons. Put differently, the second part of the test has also been met.
In conclusion, as a result of the two-pronged test having been met, the Board finds that the Licensee breached section 43 of the O. Reg.
In an appeal of an OMP, such as this, the Board has limited options: it may either uphold the OMP or set it aside. Further, the Board does not have the power to vary the amount of the OMP. The authority for these propositions is subsection 14.1(6) of the Alcohol and Gaming Regulation and Public Protection Act (“AGRPPA”).
Before concluding this decision, the Board must address Mr. Amstislavskiy’s contention that there are mitigating circumstances that should be taken into consideration by the Board. Specifically, he argues that the circumstances in place at the time of the Inspectors’ arrival - and the resultant head count of the patio that put him overcapacity - were unusual and beyond his control.
Specifically, the Licensee urges, the photos provided to the Board show that essentially a solid wall of people occupied College Street at the time the Inspectors did their counts. The crowd was drawn to attend the Taste of Little Italy festival and/or included fans that were leaving the Licenced premises, as well as other local establishments, after watching an exciting game of World Cup Soccer. This crowd forced the Licensee’s patrons, themselves leaving following the end of the soccer game, to remain on the patio until the Licensee’s security staff could merge them into the crowd at a safe rate.
In other words, the Licensee argues that the overcrowding of the patio was unintentional. Also, it was a one-off situation and the Licensee did not have other options than to leave the (extra) patrons on the patio. While the Inspectors did not exercise their discretion reasonably, the Licensee urges the Board to find in his favour, instead, and to set aside the OMP.
While the Board has some sympathy for the Licensee’s apparent predicament, it disagrees that the circumstances were “akin to a fire,” as submitted, implying that Mr. Amstislavskiy had no choice but to have too many people on his patio at the time the inspection took place. If there had actually been a fire inside the establishment, the Board agrees that the Licensee might not have had any options but to move the patrons outside as soon and as quickly as possible.
But there was no fire; his was not an emergency situation. Rather, the circumstances that led to the overcrowding were foreseeable and Mr. Amstislavskiy should have anticipated and planned for them in order to avoid being overcapacity on the patio.
On the day in question, there was a street/area festival that typically draws large crowds of people to the area where Mr. Amstislavskiy’s business is located. Even though he does not participate in that festival, per se, Mr. Amstislavskiy would or should have known about the potential for large numbers of people on the street that day, having successfully operated his business in the area for about eight years.
Also, Mr. Amstislavskiy is an experienced Licence holder, doubling the inside capacity about six years ago. And, while aware that the patio area was the establishment’s only entrance and exit, in order to profit the business he nonetheless proceeded to licence it and add outdoor capacity to accommodate the introduction of smoking by-laws.
Furthermore, Mr. Amstislavskiy specifically anticipated a capacity crowd in his establishment on the day in question, ensuring that additional security staff people were working there. The draw to his South American-themed establishment was the Brazil team playing in a World Cup soccer game, of course. And, indeed, a total of 312 persons, including staff, were in the establishment that afternoon. Once the game was over, Mr. Amstislavskiy knew that his patrons would probably be leaving the establishment, not necessarily all at once but over a short period of time. They would need to exit through his one door, across the patio, up the stairs and onto College Street, where on the day in question, people were also gathering for the Taste of Little Italy festival.
In these circumstances, the Board believes that Mr. Amstislavskiy had at least two options other than to overcrowd the patio.
First, the patrons’ exit from the inside to the outside of the establishment could have been controlled so as to limit the number of patrons on the patio and thereby to remain in compliance with its established capacity.
Alternatively, as the Registrar’s counsel suggested, the Licensee could have – and should have – attempted to move some of the patrons back into the establishment upon realizing the situation that existed on College Street.
Adopting either option, or possibly even both options, would have been reasonable and especially sensible given that the inside of the establishment was essentially empty (under 20 people remained inside according to Mr. Amstislavskiy’s testimony.)
Instead, the Inspectors testified – and the Licensee did not dispute – that no efforts were being made to move the extra people off the patio and back inside the establishment. Neither were people being moved onto the street according to the evidence of both Inspectors.
The Board concludes that Mr. Amstislavskiy could easily have adopted either plan of action to avoid overcrowding the patio.
Capacity limits are primarily set for safety reasons: the Board believes that, generally speaking, Mr. Amstislavskiy understands this important purpose.
The notion of “safety” is not limited to fire situations, however. It includes any and all other circumstances where patrons’ wellbeing may be at issue. Having large numbers of people crammed into a small space and unable to move may be such a safety hazard. In this case, the people were also trying to navigate up stairs within a confined area. Unfortunately, Mr. Amstislavskiy did not recognize and attend appropriately to this safety hazard.
This was the unsafe situation the Inspectors found when they arrived, and accordingly, conducted their counts. They, therefore, exercised their discretion appropriately to address the overcapacity they encountered.
Accordingly, in the circumstances and for all of these reasons, the Board is satisfied, on a balance of probabilities, that the Licensee breached section 43 of the O. Reg.
Conclusion
- For the above reasons, the Board UPHOLDS the Order of Monetary Penalty #0000000268, dated 22nd September 2010 and in the amount of $2,500, against liquor licence number 809438 issued to 1480136 Ontario Inc. operating as Mana Bar & Lounge, 722 College Street, Toronto, Ontario, M6G 1C4.
DATED AT Toronto, Ontario, this 22nd day of June, 2011.
S. GRACE KERR, BOARD MEMBER BERYL FORD, BOARD MEMBER