Wild Indigo v. Registrar of Alcohol and Gaming, 2013 CanLII 69340

Licence Appeal Tribunal

DATE: 2013-10-25

FILE: 8257/AGRPPA

CASE NAME: 8257 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

Wild Indigo Applicant

-and-

Registrar of Alcohol and Gaming Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Applicants: Samantha Glass, Paralegal and Student-at-law

For the Respondent: Rena Khan, Counsel and Kate Varva, Paralegal

Heard in Toronto: October 9, 2013

DECISION AND ORDER

BACKGROUND

1This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of Order of Monetary Penalty # 814 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 July 25, 2013 imposed a monetary penalty on Wild Indigo (the “Applicant”), because of alleged overcrowding.

2The Act does not give the Tribunal authority to alter the amount of the penalty. The hearing focussed solely on the Registrar’s allegation that in the early morning hours of May 25, 2013 the Applicant had more patrons in its premises that the maximum permissible number of 29. The Tribunal heard evidence from Devin Sookdeo, an inspector of seven years’ experience with Alcohol and Gaming Commission of Ontario who conducted the inspection giving rise to this proceeding and from Angeline Zoupas, a part owner and manager of the Applicant. If the Tribunal finds that the maximum number was exceeded, then the penalty of $1,500.00 set out in the Order will be imposed.

3Mr. Sookdeo stated that he went to the Applicant’s premises around 1:52 a.m. on the morning of May 25, 2013. As he neared the front door he could see through the front glass windows that the premises were crowded. As he entered, he noted that there was no staff or security at the front door. Using a mechanical counter, he then counted patrons as he moved from the front entranceway towards the rear. He could see the exit onto the rear licensed patio and, while he was doing his count, he did not notice anyone enter or leave the patio. He counted 48 patrons inside the bar. Another 9 patrons were on the rear patio, an area licensed for 35 patrons. Mr. Sookdeo described the patrons inside the bar as standing, socializing or dancing. The premises were sufficiently crowded that patrons were standing shoulder to shoulder and he had to push his way through on occasion. Had patrons been moving through the bar towards either the exit or the outside patio, Mr. Sookdeo stated that he would not have counted them. As it was, none were doing so.

4Ms Zoupas was on duty on the night in question. It was her evidence that it was not a particularly busy night although the physical layout of the bar does create spaces were standing patrons may be shoulder to shoulder. The reason for the excess of people in the bar, according to Ms Zoupas, is the need for patrons leaving the patio to egress through the bar. Just as Mr. Sookdeo arrived a group of people were leaving from the patio and were on their way to the front door. She advised the Tribunal that the group, about 10 to 14 in number, had been having a birthday party on the patio. The host stayed behind to pay the bill and the other revellers were in the process of leaving. Mr. Sookdeo conceded that it was possible a large group had left the patio just as he was entering but in his evidence he specifically stated that no-one was moving towards the exit. Had they been doing so, he would not have counted them.

5The layout of the Applicant’s premises creates a potential for overcrowding. The inside area is licensed for 29 persons and the outside area for 35. Anytime there is a full house inside, a single patron entering from the patio, either to leave or use the restroom facilities, creates an overcrowding problem. In submissions, Ms Khan stated that inspectors have discretion to take this momentary increase of patrons inside the bar into account. Without the exercise of such discretion, the Applicant’s use of both patio and interior simply is not workable. The Applicant argues that the overcrowding observed by Mr. Sookdeo was such a temporary condition brought about by a large party leaving the patio area and that there, was, in fact, no overcrowding. The Tribunal does not accept this submission.

6Mr. Sookdeo was in the bar for 9 minutes. He observed people standing around, dancing and socializing. He did not see anyone leave or move around the bar. His evidence is simply inconsistent with a suggestion that the bar was overcrowded simply because patrons were transiting to the exit. Further, Mr. Sookdeo counted 48 patrons in the bar. Ms Zoupas upper limit for the birthday party group was 14. She thought it was between 10 and 14 people. Accepting Ms Zoupas evidence that the group of 14 were on their way to the exit there was still overcrowding, 34 patrons in a bar licensed for 29. On the evidence, the Tribunal finds that the Applicant was in breach of its licensing terms on the evening of May 25, 2013.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to enforce Order for Monetary Penalty # 814 in the amount of $1,500.00.