Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 7812/AGRPPA
CASE NAME: 7812 v. Registrar of Alcohol and Gaming
Appeal from an Order of Monetary Penalty of the Registrar of Alcohol and Gaming under the Alcohol and Gaming Regulation and Public Protection Act, 1996, R.S.O. 1996, c. C. 26
1577311 Ontario Inc. o/a The Carlton Lounge Applicant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Terrance A. Sweeney, Vice-Chair
APPEARANCES:
For the Applicant: Jerry Levitan, Counsel
For the Respondent: Tamara Brooks, Counsel
Heard in Toronto: March 18, 2013
DECISION AND ORDER
BACKGROUND
This is a hearing before the Licence Appeal Tribunal (the "Tribunal") arising out of an Order of Monetary Penalty issued by the Registrar of Alcohol and Gaming, under the Alcohol and Gaming Regulation and Public Protection Act, 1996 (the "Registrar" and the "Act" respectively). The Order dated December 6, 2012 imposed a monetary penalty on 1577311 Ontario Inc. o/a The Carlton Lounge (the "Applicant"), with respect to a contravention of Section 43 of Ontario Regulation 719/90 under the Liquor Licence Act.
DECISION
The Tribunal carefully considered all of the evidence and submissions. The Tribunal confirms the Order of Monetary Penalty for the reasons which follow.
EVIDENCE
For the Respondent
Amanda Higuera is an inspector with the Alcohol and Gaming Commission of Ontario ("AGCO"). She has held that position since 2004.
On the 30th of June, 2012, she attended at the premises of the Applicant with an OPP officer and Raman Sharma, another inspector with the AGCO. She had been to the establishment about five times before. She arrived at 12:23 a.m. and left about 12:45 a.m. This was a routine inspection. She encountered a patron who may have been intoxicated. She asked for security and five security people came. She spent about five minutes with that person.
The patio seemed busy and crowded. It was hard walking around the pool because of the number of people there. She had a mechanical counter with her. She advised the Applicant's General Manager that she was going to do a count. She sat on a raised area to do part of her count and then walked in a clockwise fashion around the pool. She counted 248 patrons in the patio which is only licensed for 214. She spoke to the General Manager and asked why no one was counting "ins and outs" on the patio. The General Manager said it was a "slow night" and that the inside room was not "near capacity". She told the General Manager "...that even if it is a slow night you have to have a count". She checked with the security guard on the main door who told her that his count for both the inside room and the patio (which are separately licensed as to capacity) was 494 people.
On cross examination she admitted that she did know how many people may have left during her count and that her count may not have been accurate. She admitted that none of her colleagues was checking the exit during her count. She also said, however, that the security man on the patio did not have a count.
Raman Sharma is an inspector with AGCO. He has a year's experience. He confirmed that he was part of the AGCO team on the night in question. He had been there a few times before. He mentioned the patron who may have been intoxicated (but was later found to be asleep). He spent about five minutes with her. The patio appeared busier than on his previous visits. He too had a mechanical counter and started his count on the raised area. He then walked along the east side of the pool. He wanted to have an accurate count. He did not count those who were moving away from him. He only counted "sitters, dancers and standers" and calculated that there were about 274 people on the patio. He and Ms. Higuera spoke to the General Manager and advised her of the overcrowding.
On cross-examination he agreed that it was possible that his count and Ms. Higuera's were wrong. He did not check the exits when he was walking around. He did say, however, that "he believed ...his count was reasonably accurate". He agreed with Counsel that there was a security guard at the exit from the patio.
For the Applicant
Richard Scholten was the Assistant Manager at the establishment on the night in question. He is still employed by the controlling group of the Applicant, but at a different location.
His job on June 30, 2012 was to be in charge of the patio. He had five security men on the patio but some of the time they were "roaming". He said that normally the ratio of "inside" to "patio" patrons was 60% inside and 40% patio. He said that the patio was not overcrowded, based on the aforementioned ratio, mechanical counters and his overall experience. There was one security person with a counter on the raised area. Mr. Scholten would occasionally walk through the patio. He would check the counters every fifteen or twenty minutes and thus would get a good sense of the crowd.
On cross examination, when he was asked what the count of the security on the patio was, he said "couldn't tell but below 200". He said that he relied on the 494 count at the front door, the ratio and the counters. He assumed that "we were OK" but the inspectors did say that they might be in trouble.
Trina Parnell was the General Manager on June 30, 2012. She no longer works there, but is employed elsewhere in the Applicant's organization.
She testified that they were not over capacity as she checked with the security on the front door 20 minutes before and 20 minutes after the inspection team left. There were about 350 people overall in the two areas each time she checked. She said she checked "with Richard" and there were about 200 people on the patio. When the inspectors left, Ms. Higuera told her that they were "10-20 people over".
On cross examination, she said that she was surprised that they were over the limit based on the 60-40 split. She also said that Richard's count may have been visual.
Ryan Hoehstrak was the security person on the front door on June 30, 2012. He said that it was not that busy for a summer night. He had a mechanical counter that recorded "ins and "outs". He said that AGCO inspectors never ask about the "out number". There was one person on the patio with a counter. The sheet with that tally, however, was destroyed after the weekend. He did not recall whether either manager checked on the count.
ISSUES
Were there more than 214 patrons on the Applicant's patio when the AGCO team inspected the Applicant on June 30, 2012?
Did the Applicant breach Section 43 of Ontario Regulation 719/90 under the Liquor Licence Act?
APPLICATION OF LAW TO FACTS
The Tribunal is forced to choose between two widely different versions of the facts. The Tribunal agrees with Counsel for the Applicant who argued that the AGCO count would have been more accurate had, for example, the OPP officer been placed at the exit from the patio during the AGCO count. He could have thus counted the "outs" to produce a net figure. Nevertheless, the Respondent has produced two credible witnesses in Ms. Higuera and Mr. Sharma, each of whom did an actual count. They did not say that their count was precise, but both held firm in their assessment that the number of patrons on the patio was significantly greater than the allowable number of 214.
Against this, the Applicant produced three witnesses who seemed to rely on a number of factors in estimating the number of patrons on the patio. They referred to the count at the front door which showed that the Applicant was well below the overall capacity of both the inside room and the patio. They also referred to the 60-40 ratio and the experience of, for example, Mr. Scholten and the "clicker count". Yet no evidence was adduced by the Applicant as to the actual number of patrons on the patio. Mr. Scholten's evidence in this regard was not helpful. He said, when asked on cross-examination as to the actual count, "...couldn't tell...below 200".
The Tribunal accepts that the "count sheet" was destroyed on the weekend. But Ms. Higuera told Ms. Parnell when she was leaving that the Applicant was over capacity on the patio. The Applicant knew, or ought to have known, that it was potentially in trouble with the AGCO. One would think that in such a case, the "count sheet" would have been maintained
The Tribunal is left to weigh the actual counts conducted by the inspectors against what might be considered estimates, at best, from the Applicant's witnesses. Even allowing for a slight margin of error in the count, the more compelling and reliable evidence is that of the inspectors. The Tribunal, therefore, finds that the counts of the AGCO team were reasonably accurate. It is more likely than not that there were more than 214 patrons on the patio at the time of the inspection.
The Respondent has proved its case on a balance of probabilities. The Tribunal finds that there was a violation of section 43 of Ontario Regulation 719/90
ORDER
The Tribunal confirms the monetary penalty imposed in the Registrar's Order of December 6, 2012.
LICENCE APPEAL TRIBUNAL
_________________________
Terrance A. Sweeney, Vice-Chair
Released: April 4, 2013