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-
7080565 Ontario Inc. operating as Angie’s Restaurant Licensee
DECISION ON FINDINGS
Panel: Patricia McQuaid, Former Vice-Chair Allan Higdon, Former Board Member
Decision Date: July 19, 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 7080565 Ontario Inc., Licensee ) Kenneth Heath, Representative
Allegations
- A hearing into Notice of Proposal (“NOP”) number 18545, dated March 1, 2011 to suspend liquor licence number 800177 (the “licence”) issued to 7080565 Ontario Inc. (the “Licensee”) operating as ANGIE’S RESTAURANT, 2647 Eglinton Avenue East, Scarborough, Toronto, Ontario, M1K 2S2, on the basis of an alleged violation of section 43 of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (the “LLA”), was held on June 27, 2011 in the City of Toronto.
Decision
- The Board FINDS that the Licensee contravened section 43 of the O.Reg. Reasons follow.
Preliminary Matters
- The Board ordered that witnesses be excluded, on consent of the parties.
Registrar’s Evidence
Three AGCO inspectors, Stephen Durham, Stephen Hetherington and Devin Sookdeo, attended at the licensed premises on June 26, 2010 at approximately 12:57 a.m. The inspection took place in response to a complaint received, one matter of concern was overcrowding. The complaint was not received by the inspectors personally but rather was an anonymous complaint to an AGCO enforcement clerk who in turn logs it into the AGCO system for follow up. The caller requested that an inspection be done on specific nights.
Upon arrival, the inspectors identified themselves to security at the front entrance. Each of the inspectors described the premises as busy, with patrons standing shoulder to shoulder. The premises has a licensed capacity of 30 persons. Inspector Hetherington used the term “visually overcrowded.” They each did independent counts with mechanical counters. Inspector Durham’s count, as he moved from the front to the back was 57. He estimated that it took about one minute to complete his count. Inspector Hetherington’s count was 56 patrons. He described the premises as narrow in width with a thick crowd in the bar area, making it difficult to move through. Inspector Sookdeo’s count was 58 persons. He described the premises as very crowded in the bar area such that he had to push his way through this part of the restaurant. It took approximately 4-5 minutes for him to complete his count.
There is a patio though there were few people on it.
Inspector Sookdeo took the lead in discussions with the Licensee, Mr. Jeffrey, as Angie’s Restaurant is in his area of primary responsibility. The security staff know him. They did not speak to the security person at the front door to request his count because they were secure in their numbers. When he discussed the issue with Mr. Jeffery, he told him that they were there in response to a complaint which included overcrowding and two other complaints which were, on investigation, unfounded.
Inspector Sookdeo went on to explain that there were more than 30 people in the establishment and that Mr. Jeffrey must monitor capacity and that a report would be submitted to the inspectors’ supervisor. Mr. Jeffrey did not dispute their count, but neither did he agree to their number. Inspector Sookdeo could not recall where this discussion took place though it was Inspector Hetherington’s recollection that the discussion took place outside, at the front of the premises.
Inspector Sookdeo described overcrowding as a safety issue, though both he and Inspector Durham conceded that they made no attempt to shut the premises down, with the assistance of police or fire officials. Inspector Sookdeo described it as more of a safety hazard to close down an establishment in that manner as it may cause a riot.
The inspectors left at 1:12 a.m.
Licensee’s Evidence
Richard Agard works as security at Angie’s restaurant and was working the night of June 26th. Part of his responsibility is to greet patrons and control the flow, making sure that their numbers do not exceed capacity. He uses a mechanical counter. An average night is not overly busy for them. Friday is the busier night.
On this particular night, he recalled that one of their regular patrons wanted to enter. He told him that they were full so he could not come in. The patron got a little loud. Two undercover police officers were on the street. They came over and identified themselves with their badges. They then entered the restaurant, walked around for about five minutes then left, advising that all was ok. This occurred about 10-15 minutes before the arrival of the inspectors.
The AGCO inspectors showed their badges to him when they arrived. He had seen the inspectors before. He estimated that inspectors attend about three times per month. They went inside and, about 15 minutes later, left. They had no conversation with him.
On cross-examination, Mr. Agard confirmed that he does not keep a log, but he did have a specific recollection of the evening because “Keith the regular wanted in and he would not allow it.” He does not keep a mechanical count of those who leave but because he knows most people who frequent the restaurant it is easy for him to identify them when they leave. As people leave, he will go inside to do a further count. He would usually do a count inside the premises every 15 minutes or so, working from the rear to the front. If he does leave the front door, he will ask Mr. Jeffery to take his place there.
Mr. Agard stated that the establishment has been overcrowded a couple of times before, for which they have been reprimanded by the AGCO, which is why he now makes sure they do not go over their capacity. He stated that their numbers were not over 30 that evening. At no time could he recall them ever going over 35. It would be almost impossible, based on the size of the establishment, to have 58 people inside. The inspectors did not ask him for his count that night nor was he told that they were over the permitted capacity.
Roderick Jeffrey, the principal of the Licensee was at the premises on June 26, 2010. There were people on the patio, approximately 12 people, between 9 and 11 p.m., after which they left. If the numbers are at capacity, he will ask patrons to sit on the patio. He then recalled that Keith, a regular, arrived. It was his birthday and his wife, daughter and son in law were present already. However, the premises were at capacity and they could not allow him to enter. He had done his own count, and makes notes of these, and knew he was at capacity.
Mr Jeffrey can remember the particular evening as Keith is a very good customer and to tell him that he cannot come in is significant. Two undercover police officers came in (though he did not talk to them and did not know they were in fact police until later), walked around and then told his security that all was ok. About 10 minutes after this, the AGCO inspectors arrived. He saw them walk around and do a count with their mechanical clickers.
Mr. Jeffrey knows the inspectors and Inspector Sookdeo in particular. They usually speak to him and have helped educate him about running a licensed establishment. Indeed, he thought that he had about 90 visits from the inspector, perhaps 7-9 times per month. The inspectors come because people are calling to complain, trying to put him out of business. His is a small family restaurant, largely patronized by pensioners and some people want him out of the plaza. Visits by inspectors have decreased substantially since October 2010 when one particular business moved from the plaza, a business which he believed to be the principal complainant.
On cross-examination, Mr Jeffrey stated that he could not recall if Inspector Sookdeo told him about the overcrowding that night. In his view, if he had known the number and it was so, he would have taken the suspension. Mr. Pollicelli put to him the recorded attendances by inspectors between February and June 2010 which were, at most, four times a month and as few as once per month, with two in June. Mr. Jeffery was of the belief that there were more than that and certainly more than two in the month of June.
Maggie Jeffrey also gave evidence. Mr. Pollicelli had not been given notice that she would be called as a witness prior to the hearing, but did, at the hearing, consent to her evidence being put before the Board. She stated that they were not overcapacity that evening. She generally works in the kitchen, but also generally oversees things. The security person will monitor their numbers. In her view, people have been complaining to the AGCO in an attempt to close their business and the investigation of every complaint has been unfair to them. Only recently have the complaints diminished.
Reasons and Analysis
The Board heard in evidence that the inspectors attended the premises in response to an anonymous complaint. One of the three matters complained of was overcrowding, particularly, it seems, on certain nights, Fridays among them. Upon their arrival, the three inspectors both made observations that the restaurant seemed very busy. Mr. Agard did state that Friday is their busy night. All three of the Licensee’s witnesses indicated an awareness of the importance of keeping the numbers within capacity. Indeed, they stated that a regular customer was turned away on his birthday because they were at capacity. The fact that undercover officers may have come in before the inspectors’ arrival, assists little on the issue of overcrowding as the Board does not know the reason for their attendance or what observations they may have made. There is no suggestion that it was an inspection under the LLA.
The inspectors each did a count. Their numbers are not identical, but they are very consistent. The number cited in the NOP is the lower number, 56, which is significantly in excess of the licensed capacity of 30. Mr. Heath, in his submissions, suggests that such a number in the small narrow space of this restaurant seems improbable. Yet, Inspector Hetherington did in fact describe the restaurant as visually overcrowded. Mr. Heath also, and quite candidly, stated that the evidence does pose challenges for his client and that he cannot discredit the evidence of the inspectors. The Board agrees. The evidence of the inspectors was credible and their separately taken counts were consistent. Given that evidence, and absent any evidence which effectively challenges it, the Board can only conclude that, on the balance of probabilities, that Angie’s Restaurant was over its licensed capacity on June 26, 2010.
The Board appreciated the frustrations expressed by Mr and Ms. Jeffrey regarding the number of inspections, apparently precipitated at least in part by anonymous complaints which may be unfounded, as was some of the complaint on June 26, 2010. They do seem to be making a genuine effort to run a responsible business. As a Licensee, the number of visits by inspectors may seem unfair even acknowledging that the inspectors are entitled and obligated to inspect. Whether there are three inspections a month as records indicate or seven, as perceived by Mr. Jeffrey, assuming that the establishment is not subject to risk based enforcement, visits are frequent. However, the Jeffreys did indicate that the number of inspector visits has recently diminished which may suggest that compliance issues have improved and/or complaints abated.
Conclusion
For the above reasons, the Board FINDS a violation of section 43 of the O.Reg on June 26, 2010.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file a written response. The Registrar’s representative may serve and file a reply within three (3) days of the 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 19th DAY OF July , 2011
PATRICIA MCQUAID, FORMER VICE-CHAIR ALLAN HIGDON, FORMER BOARD MEMBER