Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7139/LLA
CASE NAME: 7139 v. Registrar of Alcohol and Gaming
Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 - to Suspend a Licence
1634168 Ontario Inc. o/a Ye Olde Brunswick House Applicant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION AND ORDER ON SANCTION
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Applicant: J. Randall Barrs, Counsel
For the Respondent: Aviva Harari, Counsel
Heard in Toronto: May 16, 2012
DECISION AND ORDER ON SANCTION
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, dated July 14, 2011, which proposed to suspend a licence for fourteen days. 1634168 Ontario Inc. o/a Ye Olde Brunswick House (the "Applicant") appealed this Notice of Proposal to the Licence Appeal Tribunal.
The appeal of the Notice of Proposal was heard on May 16, 2011. In its decision issued on , the Tribunal found that the Applicant had breached section 43 of Regulation 719/90 by exceeding the establishment’s licenced capacity but had not breached section 45.1 of that regulation with respect to failing to ensure that reasonable measures were in place and reasonable efforts were made to deter disorderly conduct in the vicinity of the licensed premises.
The Tribunal has carefully considered the submissions of the Registrar and Applicant on sanction.
In her submission on penalty, Ms Harari recommended a suspension of ten to twelve days, stressing that capacity is related to public safety and that exceeding capacity potentially puts patrons at risk. She further argued that the establishment took no measures to correct the capacity when management was presented with the inspectors’ count results. Ms Harari also asked the Tribunal to consider that because a cover charge was in place, the licencee benefited financially when capacity was exceeded on March 18, 2011.
In his submission on penalty, Mr. Barrs argued that because the Tribunal did not, in its decision, specifically state by how much the licencee exceeded capacity, that the assumption must be that capacity was exceeded by only one. He further argued that the evidence presented at the hearing relating to the difficulty of serving patrons and securing the premises when it approaches capacity indicates that there is no financial benefit to the establishment of being over capacity. He submitted that a warning would be sufficient sanction particularly given there have been no previous findings against the Applicant.
A sanction is intended to achieve the goals of both specific and general deterrence. The Tribunal notes that over capacity crowding presents a potentially serious public safety risk. The evidence of Inspector McFadden was that patrons were standing “shoulder to shoulder” and she had never seen the establishment with which she is familiar and which she had inspected before as crowded as it was on March 18, 2011. She testified she had some difficulty performing her count, because she could not access some areas and in some instances the crowd in fact blocked her view. Mr. Joseph testified that it was difficult to move “without bumping into people”.
While the Tribunal did not specifically state by how much the establishment was over capacity on March 18, 2011, it did note in its decision that, notwithstanding the difference between the two inspectors’ counts, it stretched credulity to believe that those counts could be in error by the numbers by which they exceeded the establishment’s count were the establishment’s count to be accepted as correct.
The Tribunal does note, however, that the Applicant did have a system in place on March 18, 2011 to count patrons entering and leaving to control capacity, notwithstanding the Tribunal’s conclusion that that system failed the Applicant that day. In reaching its decision on sanction, the Tribunal also takes into account the previous good record of the Applicant.
The Tribunal has therefore determined that suspension of the Applicant’s liquor licence for a period of six (6) days is appropriate.
The Tribunal orders that the Applicant’s liquor license be suspended for a period of six (6) days to be served on days on which the establishment normally operates. The Applicant shall submit proposed suspension dates to the Registrar within seven (7) days of the date of this decision, failing which the Registrar may set the suspension dates without further notice to the Applicant.
LICENCE APPEAL TRIBUNAL
_________________________
Mary Ann Spencer, Member
Released: June 19, 2012