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-
1646886 Ontario Inc. operating as Island Mix Restaurant & Lounge Licensee
DECISION ON FINDINGS
Panel: Allan Higdon, Board Member Joan Lougheed, Board Member
Decision Date: December 13, 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 1646886 Ontario Inc., Licensee ) Randall Barrs, Representative
Exhibits
- floor plan
- photo of front door of premises as it looks today
- photo of trip ledge at front door
- 3 menu items: poster, lunch and take out menu
- letter from Mayor dated March 8, 2011
Allegations
- A hearing into Notice of Proposal (“NOP”) number 18068, dated July 7, 2010 to suspend a licence and NOP number 18217 dated July 30, 2010 to suspend liquor licence number 203683 (the “licence”) issued to 1646886 Ontario Inc. (the “Licensee”) operating as ISLAND MIX RESTAURANT & LOUNGE, 1050 Brock Road, Units 14 & 15, Pickering, Ontario, L1W 3X4, on the basis of alleged violations of subsection 45(1) of the Liquor Licence Act (the “LLA”) and clause 50(c), section 43 and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on May 4 and July 11, 2011 in the City of Toronto.
Decision
- After considering all the evidence, exhibits and submissions, the Board FINDS the Licensee contravened clause 50 (c) and subsection 45(1) of the O.Reg and DISMISSES the allegations under section 43 of O.Reg and subsection 45(1) of the LLA.
Preliminary Matters
As a preliminary matter and on consent of all parties, the Board ORDERED the exclusion of witnesses.
On consent of all parties, Kemel Yusef, a principal in the business, is to appear as a witness, and will remain in the hearing room.
Registrar’s Evidence
Clay Foley, an Inspector with the Alcohol and Gaming Commission of Ontario (AGCO), was conducting early hour morning inspections with other Inspectors, including Ryan Baird, John Hesch, and Chris Tassone on February 27, 2010.
At 4:05 a.m., they arrived at the restaurant, and noted a few cars in the parking lot which seemed to indicate that there may be people present inside the establishment.
The main entrance door was locked. The team knocked on the door and on the glass window, indicating to those inside who they were. There was a video surveillance camera outside and badges were presented to the camera in the event the Licensee was monitoring the camera to see who was at the door.
The Inspector stated that part of the window had a frosted covering that extended 8 to 10 feet high and he could not ascertain if people were inside.
Colleagues boosted Inspector Foley up so he could see through the window. He saw four people. He was certain they knew he was there and seemed amused that he was there. He saw a glass on the bar, but was not able to ascertain the contents.
Inspector Foley and his colleagues continued to knock on the door and call out, identifying themselves. He stated that Inspector John Hesch placed a phone call to the establishment and someone answered. Shortly after, a person entered the vestibule to unlock the door and permit the inspection (Exhibit #1). It was approximately 4:11 a.m.
Inspector Foley stated Inspectors Baird and Tassone spoke with the owner and discussed the infraction of obstruction. The witness indicated that he did not hear this conversation.
During the inspection, Inspector Foley checked to be sure all signs of alcohol was removed. He stated that there were no concerns in this regard. He did note that the fire exit sign was not lit and a locked door was not equipped to allow emergency exit. He stated that this was an infraction.
The inspection concluded at 4:25 a.m.
On cross-examination the witness stated that the business is located in the end unit of a strip mall. He did not think he had been to the restaurant before and was not familiar with the area.
Inspector Foley did not recall if music was playing and he did not know who the people were inside the establishment. He stated that he was certain a female saw him when he was looking over the frosted glass. It took approximately five to six minutes for the door to be opened from the time of their arrival.
In response to questions, Inspector Foley stated that in this time, a person could have come to the vestibule and safely scrutinized them.
While waiting for access, the Inspector did not see or hear evidence of the clearing of signs of service.
Clayton Richer, an officer with the Durham Regional Police, was working in uniform on March 28, 2010 when he arrived at the premises at 1:09 a.m. with inspectors from the AGCO.
Officer Richer stated that the establishment was very busy. There were lots of patrons inside and some were seen outside. After speaking with the doorman, he went inside and approached a male who appeared intoxicated on the dance floor.
Officer Richer stated that there were four or five security on duty and security had a view of the dance floor.
He saw a male carrying a bottle of Heineken beer and staggering. The music was loud and he asked the patron to go outside to talk. The male gave his name and date of birth and did not provide further identification. The officer noticed a wet shirt where the patron had spilled something. The male told him he was drunk and had spilled beer.
Officer Richer stated that he saw signs of intoxication: the odour of alcohol, slurred speech, incoherent at times, and poor balance. The male almost fell over in the parking lot. The male went home with a friend who appeared sober.
Officer Richer stated that he was in the establishment three or four minutes while the inspectors spoke with one of the principals of the business, Mr. Harricharan.
On cross-examination the witness stated that the male patron was not happy to be taken out of the establishment. He confirmed that the male patron said he was drunk, not just that he was drinking.
Ryan Baird, an AGCO inspector, was at the establishment on February 27 and March 28, 2010.
On February 27th he attended the establishment at 4:05 a.m. with Inspectors Tassone, Foley, and Hesch. He observed parked cars on the lot. Both front and side doors were locked. Inspector Foley was lifted up to look inside, seeing patrons there who waved at him.
Inspector Baird stated that they knocked several times and showed their identification to the cameras. He said that there were two cameras at the front entrance.
When no one came to the door, Inspector Hesch phoned. Mr. Yusef answered the door. Patrons were seen in the bar area. Inspector Tassone spoke with Mr. Yusef.
They left at 4:25 a.m. No violations were noted. He stated that he was concerned of a possible violation relating to the locked door. He did not confirm the identification of the persons in the establishment or ask for their identification.
On March 28, 2010 he arrived at the establishment at 1:12 a.m. with Inspectors Richer and Hesch. Inspector Baird started, but did not finish his count with Inspector Hesch. A male patron was seen in the dance area. He was talking with Inspector Richer and Inspector Baird followed the officer and patron outside, noting that he had slurred speech, was unsteady on his feet and almost fell backwards in the parking lot. No staff was seen assisting the male patron. He did see security on the premises. He thought there was one at the door and one security circulating.
The patron eventually left with a friend.
Inspector Baird stated that he and Officer Richer took the male outside where there were less people and less noise.
The Licensee, Sunil Harricharan, was advised of the intoxicated male and told that a report would be made to the AGCO supervisor.
The team left at approximately 1:30 a.m.
On cross-examination, Inspector Baird confirmed that on February 27th the glass was frosted, excluding the doors. He had not been to the establishment before. No violations were found and four people were inside the establishment. He did not know if these people were staff or patrons.
He stated that the doors could have been locked while the Licensee was cashing out. He stated that he did not recall a push bar on the side door and/or a problem with a fire exit sign
Inspector Baird said that on March 28th he saw security at the door, but did not know if he had a counter. Someone reported the count of patrons to him.
In response to questions he stated that there were no signs of service on the February 27th inspection and he did not complete his count on March 28th.
John Hesch, an Inspector with the AGCO, arrived at the establishment on February 27th, 2010 at 4:05 a.m., along with Inspectors Baird, Foley and Tassone.
He was not able to enter right away, as the front door and side doors were locked.
He saw cars parked outside and lights on inside the establishment.
With frosted glass on the lower window, he hoisted up an inspector to look inside and Inspector Foley told him that he saw glasses on the bar.
Inspector Hesch went around to the side of the building, saw lights on inside the kitchen, and saw silhouettes inside the door which has an opaque glass door.
He knocked on the door and identified himself. No one responded. He placed a phone call to the establishment at 4:10 a.m., while in an alley at the side door of the premises, and talked with the owner, advising him that they were inspectors who were just outside. He asked the Licensee to open the door. Six minutes later they entered by the front door. He went to the kitchen.
He saw a small beer glass inside the dishwasher; it still had a foamy consistency which appeared to be recent and had not dried onto the side of the glass. He stated that there was not enough content to send for testing, there was no notable smell and he could not positively identify the contents.
Inspector Hesch stated that they were let into the premises at 4:11 a.m. and he felt that one minute should be all the time needed to let someone in for an inspection.
Inside he observed a non-functioning fire exit light over the main entrance. The Licensee was advised of the violation and they left at 4:25 a.m.
On March 28, 2010, he arrived at 1:12 a.m. to conduct an inspection with Inspectors Baird and Richer. He did a mechanical count of patrons and noted 208 people in an establishment licensed for 178 or 180 persons.
Inspector Hesch spoke to the security person at the front door. The security had two counters: one for patrons entering and one for patrons leaving. The counters indicated the inside count was 487 and 285 had left, indicating to him that there were 202 people inside.
The witness stated that Officer Richer was dealing with an intoxicated male. Together they spoke with the co-owner, Mr. Harricharan, advising him of the infractions and left at approximately 1:30 a.m.
On cross-examination Inspector Hesch stated that he did not go upstairs at the establishment to see how cameras were set up. He did not obtain information about the identity of the people inside the establishment and only spoke with Mr. Yusef.
When questioned again about the glass in the dishwasher, Inspector Hesch stated that the contents were wet; the foam was not dried and smelled like beer. He said it was not soap inside the glass.
Inspector Hesch stated that on March 28th, the establishment was crowded. Some tables had been removed for dancing. He stated that there was not a lot of movement inside and he was able to conduct a count from one end moving to the other end. Number discrepancies can occur if he counts patrons and staff whereas staff might only count patrons.
He did not see the side door standing open, did not see a door security there and the owner did not advise him that there was a second security at the side door.
Licensee’s Evidence
Byron Thompson has worked part-time for six years as head of security.
Mr. Thompson stated that security at both the front door and side door, have counters. The two communicate with each other to watch the capacity numbers.
On March 28, 2010 it was security person, Mr. E., who did the count that was shown to the Inspectors. Mr. Thompson was at the side door and from memory he recalled that he had let 30 people exit by that door. In total five security persons would have been on duty that night. He said that none of the Inspectors ever talked to him or approached him about his count.
On cross-examination Mr. Thompson stated that he was stationed at Door #1 (side door seen on Exhibit #1). He would communicate with other security using a walkie talkie.
He stated that he did not see a drunken patron and did not know what time the Inspectors had arrived and found a patron believed to be drunk.
For the panel, Mr. Thompson clarified that patrons do not enter by the side door, they only exit. Smokers go out the front door to smoke.
Sunil Harricharan is one of four partners in the business and was working on March 28th. He stated that he could not believe they were over the capacity limit, when Inspector Hesch told him. He told the inspector that security at the side door could show that they were not over capacity, but Inspector Hesch did not check with security at the side door.
In answer to questions about the intoxicated person, Mr. Harricharan stated that there is a 3 inch drop as you leave the door and the sidewalk has a slope. He said that it may have appeared that he was falling.
Mr. Harricharan said he was about five feet from the patron while he was being questioned by the officers for about twenty minutes to a half hour. They surrounded the patron and it seemed intimidating. Mr. Harricharan stated that he did not know the male patron and he did not speak with him.
In Reply Mr. Harricharan said that he went outside to talk with the Inspection team. As he passed security, he was told by them that they were not over capacity.
While outside, Inspector Hesch pointed to a male patron and told Mr. Harricharan that he was intoxicated.
Kemel Yusef is a partner in the business. The establishment is located at the back end of a plaza. In the plaza area is a 24-hour Country Style Donut shop and a massage parlour that is open late. The Island Mix is not on a main road and the area is dark. Staff usually leaves two at a time for safety.
On February 27,2010 he started work at 7 p.m., in the role of manager.
He stated that security usually leaves around 3 a.m., but from time to time, they choose to stay during closing and preparations for the next day.
Security did not stay on February 27th, and the front door was locked for added security as they might have $6,000.00 in cash receipts.
Mr. Yusef stated that they have never been inspected at 4 a.m. and only recalled an inspection occurring as late as 3:15 a.m. He stated that at 4 a.m. he was waiting for the dishwasher to finish in the kitchen while bartenders were cleaning up. He said that two staff were drinking coffee and water while he had a coke.
Mr. Yusef saw silhouettes in the window and thought it was just passersby.
They tried to pull open the side door and then moved to the front door before banging on the front window. He said he was concerned that they might be broken into.
One staff person, Ms Davidson, tried to look to see who was there when one man stood on the shoulders of another to look in over the frosted glass.
Mr. Yusef went with Melissa Beeransingh to check the camera in the office upstairs.
The money was locked up in the safe before they went to view the camera and identify the persons outside. He stated that he recognized Inspector Tassone. As he was going down the stairs, the phone rang and he told the caller that he was coming to let them in.
Mr. Yusef stated that the view on the camera was the first time he realized who was there. He did not hear them calling and only heard the banging on the door.
The witness stated that there was no alcohol present when the inspectors entered. Staff normally use plastic cups, which are thrown out on leaving.
On cross-examination Mr. Yusef stated that he would not have been able to hear anyone at Door 1 (side door, Exhibit #1) when sitting at the bar. There were no glasses or bottles on the bar counter when the Inspectors came in.
In answer to questions, he stated that there are cameras on all three doors to the establishment. In response to questions from the Panel, Mr. Yusef stated that even though he was concerned about a possible break-in, he made the decision not to call police immediately. His staff remained at the bar while he was upstairs.
Tamara Davidson stated that she has worked at the Island Mix for four years and was on duty on February 27, 2010.
At 4 a.m. she heard banging on the doors and was nervous since it was late. Mr. Yusef told her and staff not to answer until he went upstairs to check the cameras. After Mr. Yusef answered the phone, he went to open the door.
Ms Davidson stated that the banging started at the side door and then moved to the front door. She was not able to see who was there. A male face appeared in the window, scaring her, especially since it was up so high.
Ms Davidson said Mr. Yusef was upstairs about three or four minutes.
On cross-examination Ms Davidson said that they usually finish, closing around 3:30 a.m. She did not think that the full restaurant lights were on.
When asked what people were drinking, she stated that she had a bottle of water, someone had a coke and a coffee. They were just sitting and talking, getting ready to leave when they heard banging and did not hear anyone shouting.
Melissa Beeransingh was working on February 27th. She stated that she and other staff were talking after finishing their duties when they saw four or five silhouettes and could hear banging at the side door. The persons came around to the front door and she said that she and other staff present, did not know who was there. She saw a head appear at the top of the windows. Mr. Yusef ran upstairs to check cameras. He was coming downstairs when the phone rang; he answered and then opened the door for the Inspectors.
She had just finished a coffee and thrown out the plastic cup. She recalled Mr. Yusef drinking coke in a plastic cup.
On cross-examination, she stated that she went upstairs with Mr. Yusef, going through the kitchen. Ms Beeransingh stated that you cannot see through the kitchen door and a person would have to open it to see who was outside.
Ms Beeransingh stated that she asked Mr. Yusef to call police but he said he wanted to check the camera first.
Amil Kevin Yusef is a partner in the business. He indicated that the business has been a success with restaurants open in Pickering and Vaughn with other locations being pursued.
He identified his partners as: Kemel Yusef, his brother, and Kemol Mohamed, a cousin and Sunil Harricharan, a cousin-in-law and said he holds a degree in Business Administration. He was employed by Scotia Bank until he decided to work at the restaurant full time, along with Mr. K. Yusef.
Duties with the business locations are shared. A full-time manager position was put in place to provide additional support to the partners.
Mr. A. Yusef stated that the capacity of Island Mix was increased from 135 to 180 persons six years ago. He reviewed the layout of the restaurant (Exhibit #1) and the positions of staff and security. There are 16 cameras; four are outside and the computer itself is in a locked office upstairs. A password is needed to open the system.
He indicated that the frosting on the glass window panels has been lowered recently to provide better visual from outside. The new windows are tinted (Exhibit #2).
On February 27th the door was clear and the windows were frosted quite high up. There is a riser from the walkway to the door, creating a trip ledge (Exhibit #3).
When staff is closing cash, they could be handling $8,000.00 to $9,000.00 dollars and they try to do it privately, after security checks and with the front door locked. Once locked, staff exit by one of the side doors.
Mr. A. Yusef stated that they had never had such a late inspection. The business is in an area of very little traffic and is located at the furthest end of the plaza from Brock Road.
Mr. A. Yusef spoke of their community involvement (Exhibit #5) and their menu (Exhibit #4).
Mr. A. Yusef stated that on a busy Saturday night they would have security at Door #1 (side door) to control traffic and smokers. This door is used as an exit door for patrons, to reduce congestion at the front door. Smokers go out the front door and use the parking spaces in front, in an area that security can monitor.
He stated that if security knew capacity was an issue for the Inspectors they would have sent them to security at the side door for further clarification. Mr. A. Yusef stated that in six years, they have never had an issue with over capacity.
Referring to the events of March 28th, Mr. A. Yusef stated that he has asked the landlord to build a ramp at the entrance due to the trip ledge causing problems for patrons.
On cross-examination Mr. A. Yusef stated that he was not present on either of the two dates in question at this hearing. He stated that there are five or six security for special events, not for regular dining hours. The Licensee has worked with the fire marshal to ensure compliance.
In response to questions from the Panel, Mr. A. Yusef stated that on entering the vestibule, there is a solid wall straight ahead, a stained glass window to the left, which does not allow you to see in or out.
Mr. A. Yusef stated that security is provided by a company that the Licensee hires. When security is on the door, patrons have a pat down and wand check using both male and female security.
Reasons and Analysis
The Board has carefully reviewed and considered the evidence, exhibits and written submissions of both parties in this matter.
The Board heard in evidence that the Licensee has made physical changes to the premises, including having the trip ledge at the entryway repaired and removing the frosted glass which caused concerns about visibility and safety in evidence. These changes occurred after the events of February 27, 2010 and March 28, 2010, and although the Board commends the Licensee for the actions taken, it must be stated that the decision reached gave consideration to events and conditions as they existed on the dates the allegations occurred.
Re: Clause 50(c) of O.Reg 719/90
The legislation states in part that “the licence holder shall ensure that the premises comply with the Fire Protection and Prevention Act…”
There was no dispute by witnesses that a light was out for a fire exit sign. Although the Board agrees with the Licensee’s counsel that this may have just occurred, the Board also acknowledges that if an emergency occurred and patrons were searching for an exit, the location of exit doors is critical to the safety and protection of patrons and the public.
It is the responsibility and obligation of the Licensee to ensure that the signage is maintained at all times. For this reason the Board FINDS that the Licensee violated clause 50(c) of the O.Reg
Re: [subsection 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html#sec45subsec1_smooth) of the [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)
For a finding under subsection 45(1) of the LLA, the evidence must demonstrate that that the Licensee failed to facilitate an inspection or withheld, destroyed or concealed relevant information.
In submissions, the Licensee’s counsel questioned the justification for an inspection. The Board notes the legislation states in part, “…the licence holder obstructed a person carrying out an inspection under the Act.”
It is the opinion of the Board that there is a lack of evidence to make a finding under subsection 45(1) of the LLA. The reasons follow.
The testimony of three Inspectors was similar and concise and the evidence of the Licensee’s witnesses was also given in a clear and consistent manner.
The Board will first address the matter of the glass that was mentioned by two inspectors. Inspector Foley saw a glass through the window, but could not identify if there was any liquid in the glass. On entry, a glass was found in the dishwasher, but there was no sample taken and the evidence was inconclusive as to whether it had contained alcohol that had just been disposed of. Inspector Hesch stated in chief that it did not have an odour, but when questioned in reply, stated that he thought there was an odour of alcohol.
The Board prefers the evidence of the Licensee’s witnesses who were consistent in stating that they were having non-alcoholic drinks and were talking at the conclusion of the evening closing, when the Inspectors arrived.
None of the four inspectors gave evidence that they had looked further for evidence of alcohol being concealed or destroyed. The Board is not satisfied that the presence of one glass, with unconfirmed residue, in the dishwasher, is adequate evidence that there was alcohol or that alcohol was concealed or destroyed.
In respect to the allegation of obstructing an inspection, the Board notes that the evidence was consistent from all witnesses. The Inspectors arrived around 4 a.m. after seeing lights in the establishment and cars still parked outside. It is the view of the Board that this is within the responsibility of an AGCO Inspector and they are to be commended for stopping to follow through.
The question before the Board is whether the delay in opening the door is indicative of obstruction of an inspection. The Board notes that it is the right of an inspector or police officer to conduct an inspection at any time and it is the responsibility of the Licensee to comply.
In this instance, the Board gave consideration to the specific details and circumstances relating to the incident of February 27, 2010.
The Board heard from all the witnesses that the frosting on the windows was very high, requiring an Inspector to be lifted up to see inside. Staff saw a head appear above the frosted glass and the silhouettes of others outside. It is the view of this Board that to see the face of an unidentified person above a frosted window in this manner and knowing others were there, too, it would be of concern to the Licensee and staff.
It would be reasonable to use caution before opening the door at this late hour and to take steps to confirm the identity of the persons outside.
There is a solid wall directly across from the front door, making it difficult for someone inside to see who is at the front door. The Board also heard consistent evidence that Inspectors were knocking at the side door first and then at the front door.
The Board accepts the evidence of the Inspectors that they were shouting out their identity and accepts the consistent evidence of the Licensee’s witnesses that they did not hear this at the time there was banging on the door.
The Board heard evidence that there are two other late night businesses in the plaza. It is common sense that a Licensee would lock the doors until the day’s cash receipts are in the safe and to check the security camera before opening the door at 4 a.m. The Inspectors gave consistent evidence that they had held their identification up to the camera to be seen, indicating an awareness of surveillance equipment and knowing that they could not directly see or be seen from inside.
The Board accepts that there would be a delay while the Licensee went upstairs, unlocked the office, opened the security program and checked the appropriate camera.
In reviewing the question of whether the police should have been immediately called. The Board took into consideration that the front door was locked for security during closing procedures and there was a camera on the door that would provide information about the people at the door. Staff had been told to stay put and not to answer the door, and cash receipts were put in the safe as the Licensee went to check the camera. It is the opinion of the Board that these actions are rational under the circumstances.
In making a decision, the Board gave consideration to the establishment being in a remote part of the plaza, the late hour, the sequence of events from the time the inspectors arrived, actions taken by inspectors and the Licensee both inside and outside the premises, and the time before the door was opened. The Board is satisfied that in considering the totality of evidence the timeframe is reasonable under the circumstances.
In considering the totality of consistent evidence the Board is of the opinion that the Registrar has not met its onus, on the balance of probabilities, that the Licensee obstructed the inspection. For this reason the Board DISMISSES the allegation under subsection 45(1) of the LLA.
Re: subsection 45(1) of the O.Reg
In making a decision the Board must be satisfied through a two-part test. First to establish, on the facts, that there was drunkenness in the licensed establishment under the Licensee’s control and second, that the Licensee knew or ought to have known that the patron was drunk, thereby permitting drunkenness.
The Board heard from both Officer Richer and Inspector Baird that a male patron was seen inside the premises on the dance floor and seen to be staggering and wearing a wet shirt.
As the male was taken outside, away from the loud music, they both noted indicia of intoxication: slurred speech, the odour of alcohol, incoherent at times, and poor balance with the male almost falling over in the parking lot.
The male told Officer Richer that he was drunk and spilled beer. He was sent home with a friend who was sober.
Officer Richer stated that he was in the premises three or four minutes when he saw the drunken male patron. The Board is of the opinion that this same patron would or should have been visible to security and staff of Island Mix.
The Board heard in evidence that a raised ledge may have been a contributing factor in unbalancing the patron. The Licensee did not provide information relating to following up with security or other staff or provide additional evidence.
The Board gave consideration to the totality of evidence and accepts the clear and concise testimony of the inspector and police officer, who were both in close proximity to the patron and able to assess the state of intoxication of the patron.
In considering all the evidence, on a balance of probabilities, it is the view of the Board that the Licensee permitted drunkenness on the premises and knew or ought to have known a patron was drunk, thereby permitting.
Accordingly the Board FINDS that the Licensee contravened subsection 45(1) of the O.Reg.
Re: section 43 of the O. Reg
Overcrowding is a very serious public safety issue and an allegation that the Board takes seriously and gives careful review.
The Registrar pointed out that the capacity count of Inspector Hesch was close to the count of security at the front door. Both numbers indicated that the establishment was over capacity, but the numbers recorded by the front door security did not take into account the count of patrons who had exited from the side door.
The Board notes that an Inspector started a count and did not complete it. Therefore, there was no collaboration between the inspectors. A second count was never done to clarify numbers, and inclusion of the exit count at the side door never occurred.
Therefore the Board is not satisfied and finds that there is insufficient evidence to make a finding and DISMISSES the allegation under section 43 of the O.Reg.
Conclusion
For the above reasons, the Board FINDS that the Licensee contravened clause 50(c) and subsection 45(1) of the O.Reg, and DISMISSES the allegations under section 43 of the O.Reg and subsection 45(1) of the LLA.
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 13th DAY OF December , 2011
ALLAN HIGDON, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER