Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7907/AGRPPA
CASE NAME: 7907 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
Jason Russell Codling o/a Krooked Kilt Applicant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Applicant: Self-Represented
For the Respondent: Aviva Harari, Counsel
Heard in Windsor: June 11, 2013
REASONS FOR 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 January 16, 2013, imposed a monetary penalty on Jason Russell Codling o/a Krooked Kilt ("Applicant/Codling/Krooked Kilt"), with respect to contraventions of section 43 of Ontario Regulation 719/90, that the licence holder failed to ensure that the number of persons on the premises to which the licence applies, does not exceed the capacity of the licenced premises as stated on the licence.
As a preliminary matter, on request and consent of the parties, the Tribunal made an order for the exclusion of witnesses.
Registrar's Witnesses
Alexander Trillanes ("Trillanes") is an inspector with the AGCO. He carried out inspections of the Krooked Kilt on the nights of September 28, 2012 and October 26, 2012. Trillanes was with AGCO Inspector Decker on both occasions. The inspections occurred after midnight, therefore on September 29 and October 27.
Trillanes said he was familiar with the establishment as he had visited it on many occasions in the past and had not previously found any infractions.
On September 28th, he arrived at 12:03am (morning of the 29th) and noted there was a large group of people between the front of the establishment and the fencing along the street which was under construction.
When Trillanes entered, he noted that there were not a lot of people in the immediate entry area, but lots of people at the bar area. He described it as being dense with patrons and if it was shoulder-to-shoulder, there was a chance it could be over capacity.
Trillanes said he went to the doorman for a count. The doorman gave him a count of 145, including staff and since the establishment's licenced capacity, including staff, was 131, he decided to do his own count.
The AGCO inspectors use mechanical counters provided by the AGCO. Trillanes tested his unit before beginning the count to ensure it was functioning properly.
He then made his way to the back of the establishment and walked to the front counting everyone in front of him, excluding anyone who came in front of him from the rear. Inspector Decker completed his count independently. Trillanes said he counted 158 while Decker told him he had counted 168.
After discussing the counts with the licensee (Codling), the licensee went back in to do his own count and also take action to reduce the number of patrons.
Trillanes said he and Codling subsequently went back in to do another count. Trillanes said he then counted 129 persons while Codling counted 127. In either case, the number of patrons was now found to be in compliance.
On the October 26th visit, Trillanes said he arrived at 12:22am (the 27th). He was again with Decker.
They noted there was a line-up at the front door and decided to go around to the back where they saw the back door, or emergency door, was open and there was no staff monitoring it. When they went in through that door, they noted the crowd was "dense" and they could not see to the front of the bar.
Trillanes said he and Decker began their counts from the rear and independently worked their way to the front. They both checked their counters before beginning and used the same method to count, as he had previously described.
The result was that Trillanes counted 158 patrons and Inspector Decker counted 162. When Trillanes asked the doorman for his count, he was told 130 (by the doorman).
The doorman then decided to do his own count and invited Trillanes to count alongside. The result on this count was that Trillanes had 161 and the doorman counted 145.
When the counts were brought to Codling's attention, they went to the back door where Codling found a part of the door mechanism was missing which kept the door from locking.
During cross-examination, Trillanes was asked if, in his experience, he found it unusual that the counts on the September 28th inspection went from 162 to 129 in the time it took for them to recount. Trillanes agreed that it was unusual.
Murray William Decker ("Decker") is an inspector with the AGCO and has been with the AGCO for 12 years. He has also visited the Krooked Kilt on many other occasions and not found any infractions.
Decker's testimony regarding his arrival time, the shoulder-to-shoulder crowd, and the counting process essentially mirrored Trillanes' testimony.
Decker confirmed the doorman gave them a count of 145. When he and Trillanes did their own counts, the results were 168 and 158 respectively.
Decker said that Codling completed his own count and managed to reduce the number of patrons so that by the time he and Trillanes left, the capacity count was in compliance. This was the first time Decker could remember the establishment being over capacity.
On October 26th, the inspection began at 12:22am (being the 27th) and the establishment was again found to be over capacity.
Decker's description of going to the back of the building and finding the back door open with no one there, and the shoulder-to-shoulder crowd, mirrored Trillanes' testimony. Both inspectors started their counts from the rear and Decker said he counted 162. Trillanes did another count with the doorman while he (Decker) made sure no one came in that way.
Codling then showed them how the back door would not properly lock.
Through cross-examination, Decker said he thought the time between the first count and the reduction of capacity to compliance, during the September 28th visit, was about 15 to 20 minutes. He did not think that the time during which the numbers were brought into compliance that night was unusual.
Applicant's Witness:
Jason Russell Codling is the establishment owner and licensee. He began his testimony by reading a handwritten statement which he said was authored by Matthew Paul ("Paul"), the doorman on the two inspection dates.
In the statement, Paul claims that he did a capacity count every 15 minutes to ensure the establishment was in compliance with its capacity limit. He also stated that if the back door was open and that over capacity had resulted, it would not have been for more than six minutes.
The Tribunal notes that Paul was not available to provide his testimony first-hand or to be cross-examined and therefore gives the statement less weight than the viva voce evidence. Codling explained Paul's absence by saying he had not thought it would be necessary for Paul to attend.
Codling said that on the night of September 28th he was working at the bar when the AGCO inspectors brought the over-capacity situation to his attention. He confirmed they went outside to discuss the counts of 158 and 168. He then went inside to do his own count, as well as a second one with Trillanes.
On the final count with Trillanes, the establishment was found to be in compliance with the capacity limit and Codling confirmed the inspector thanked him for bringing it into compliance.
He was advised the over-capacity incident information would be forwarded to the AGCO.
On the night of October 26th, Codling was again working at the bar when Trillanes and Decker came in for a routine inspection. When he went to speak to them, after being advised of their presence by the doorman, Codling learned the inspectors had capacity counts of 162 and 158.
Codling said he was "shocked to hear these high numbers" as measures to prevent an over-capacity situation occurring again had been added. This included hiring additional staff to oversee the back door and to do counts every 15 minutes.
Codling went outside with the inspectors to discuss the issue, following which they did another count and in a "very short time" were found in compliance.
The inspectors then told Codling about the issue with the rear door which could have allowed the over-capacity condition to occur.
Codling said that on the following day he put in an order for the door to be repaired as it "definitely was an issue to be addressed". He also asked door staff to complete counts every 15 minutes "to ensure we were in compliance".
In summary, Codling testified the door has been fixed, additional staff has been hired and surveillance cameras have been installed. There is now one staff person at each of the front and rear doors, as well as an additional staff person to roam 'and count every 15 minutes - and that count is then compared with the count at front door. In addition, if there is any crowding, it is be cleared to allow for the flow of people without being blocked.
In cross-examination, Codling confirmed he subsequently installed the video surveillance to monitor for over-crowding. Further, on September 28th there were two door staff while on October 26th, there were three door staff. He also confirmed that staff communicate face-to-face and that he had full confidence in his doorman.
Closing Submissions
The Registrar's Counsel, Ms. Harari, asked for the Order of Monetary Penalty to be confirmed as the evidence on over-crowding was clear.
In the first instance (September 28th), the doorman had given the inspectors a count of 145 while their counts were higher. Ms Harari noted the inspectors brought the over-capacity issue to the licensee's attention and inferred that it might have remained so if the inspectors had not pointed it out.
Ms. Harari acknowledged that while counting is not an exact science, she was at the least relying on the doorman's count.
On October 26th the inspectors again found the establishment to be over-capacity and, Ms. Harari submitted the steps and actions put in place after the September incident had failed because they were insufficient to monitor the capacity. The inspectors, on this occasion counted 161 and 158 and when a second count was done with the doorman, the count was still over capacity.
Ms. Harari closed by submitting that over-capacity, even a small amount, is a safety issue in case of an emergency.
The Applicant, in his closing submission, admitted the over-capacity count for the October inspection but argued that for the September inspection there was too little evidence to explain how, within minutes of the inspectors' counts, there could have been a reduction in the number of patrons so as to bring the final number into compliance.
Codling submitted that door staff is expected to monitor and maintain capacity and he questions how inspectors can come up with an over-capacity count but on recount, find the capacity to be within the allowed limit.
He argued that over-crowding does not increase revenue but rather leads to a reduction in service and can also lead to fights or bad-tempered situations which he does not want to happen.
Codling pointed out that Decker and Trillanes have been to the establishment many times without incident and since he understands weekly inspections may occur, it is his intention to be compliant and he has taken steps to prevent over-crowding.
Application of Law to Facts
The Tribunal has carefully considered the evidence and submissions of the parties and finds that the Licensee breached section 43 of the O. Reg. and upholds the Order of Monetary Penalty levied against the Licensee.
For a finding under section 43 of the O. Reg., it must be established that the number of persons in the licensed area, including employees of the licence holder, exceeded the capacity as stated on the licence. The onus lies with the Registrar to prove the allegation on the balance of probabilities.
In this case, the Registrar alleged that on two occasions (September 28, 2012 and October 26, 2012), 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, did not exceed the capacity of 131 persons, as stated on the licence.
The facts in this matter are found to be straight-forward, especially as the licensee acknowledged the over-capacity situation on the night of October 26th and therefore the breach on that date is not disputed.
Regarding the incident of September 28, 2012, the evidence of the two AGCO inspectors is that the establishment's doorman stated his count was 145, including staff.
The inspectors then individually testified that they counted 168 persons (Decker), including staff, and 158 persons (Trillanes), including staff.
Their testimony was that they then brought this over-crowding situation to licensee's attention. Codling did not dispute their counts and went in to do his own count. He also reportedly took steps to reduce the number of persons in the establishment.
Inspector Trillanes testified that after Codling came back out he and Codling went back in to do another count together.
The result of their second count was that he (Trillanes) counted 129 and Codling counted 127.
If the doorman's count of 145 is used as a baseline count reference, this would be a reduction of at least 16 persons in the time it took for Codling to do his own count (or more), depending on which counts are accepted. In this instance, the Tribunal accepts the doorman's reported count of 145 and Codling's final count of 127. Trillanes testified he then thanked Codling for bringing the capacity into compliance. Codling's own testimony included a confirmation of Trillane's statement.
Regarding Codling's submission, that there was too little evidence to explain how the count could go down by 37 "within minutes", the Tribunal finds that bringing the capacity count into compliance within about "15 to 20 minutes" (as testified to by Decker) as being fully reasonable.
The Tribunal also factors into its finding Codling's evidence that he took the time to do a recount on his own and make sure the number of people was in compliance with the licensed capacity.
Therefore, and based on the foregoing evidence, the Tribunal finds that the number of persons, on September 28, 2012, including employees of the licensee, exceeded its licensed capacity by at least 14 persons.
Accordingly, the Tribunal is satisfied that on a balance of probabilities, the Registrar has proved its case and finds that on both occasions (one acknowledged and one found), the licensee breached section 43 of Ontario Regulation 719/90.
Order
The Tribunal confirms the monetary penalty imposed in the Registrar's Order of January 16, 2013.
LICENCE APPEAL TRIBUNAL
Simon Dann, Presiding Member
Released: July 3, 2013