Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8196/AGRPPA
CASE NAME: 8196 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, S.O. 1996, c. 26
Carl Alexander Rose-Green and Patrick Dolley o/a Turntable Restaurant & Lounge Applicants
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Applicants: Self-represented
For the Respondent: Aviva Harari, Counsel
Heard in Toronto: December 12, 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 June 7, 2013, imposed a monetary penalty on Carl Alexander Rose-Green and Patrick Dolley o/a Turntable Restaurant & Lounge with respect to contraventions of Ontario Regulation 719/90 (the “O. Reg.”).
A penalty of $1000 was imposed with respect to a contravention of section 43 of the O. Reg. in that the licence holder failed to ensure that the number of persons on the premises did not exceed the capacity of the licensed premises as stated on the licence. A penalty of $150 was imposed with respect to a contravention of section 39, in that the licence holder failed to ensure that all managers, persons involved in the sale or service of liquor, and security staff held a certificate demonstrating the successful completion of an approved server training course.
PRELIMINARY MATTERS
Mr. Rose-Green advised the Tribunal that his counsel had unexpectedly failed to appear at the hearing and requested an adjournment. Ms. Harari objected to the adjournment and advised the Tribunal that before the commencement of the hearing, she had attempted to assist Mr. Rose-Green in contacting his counsel. She further advised that she understood that there was a dispute with respect to whether or not counsel had in fact been retained and that payment was at issue. Mr. Rose-Green confirmed that there was a dispute and indicated he had last seen counsel in early December but had been unsuccessful in attempting to reach counsel either the day before or the morning of the hearing. Mr. Rose-Green indicated that he would be the only witness for the Applicants.
The Tribunal noted that at the pre-hearing held on August 8, 2013, the hearing was scheduled to take place on October 1, 2013. On September 27, 2013, the hearing was adjourned at the request of the Applicants due to the unavailability of their counsel and the hearing was rescheduled to take place on December 12, 2013, a date agreed to by both parties. The Applicants therefore had ample opportunity to resolve any issues with counsel. The Tribunal denied the adjournment request and the hearing proceeded.
REGISTRAR’S EVIDENCE
The evidence of the Registrar comprised the testimony of Lusill Chan who was employed by the AGCO as an inspector from April, 2012 to October, 2013.
On February 24, 2013, at 12:21 a.m., Ms. Chan conducted an inspection of Turntable Restaurant & Lounge which was located in her assigned territory and which she had previously inspected. Ms. Chan testified that when she arrived at the premises, approximately ten to twelve people were waiting outside to enter. The security guard at the front door was slowly letting people in. Ms. Chan waited two to three minutes before she entered and during this time she noted that the security guard had no visible mechanical counter. On entering, she noticed that the premises were more crowded than she had seen on her previous inspections and therefore she conducted a count using a mechanical counter.
To conduct the count, Ms. Chan moved from the front of the premises to the back. She testified that she had some difficulty working her way through because people were standing shoulder to shoulder and, in fact, she had to use her arm to move them out of her way. The patrons were not moving but were standing or dancing in spot. Ms. Chan’s count totalled 119. Because she was not accompanied by another inspector, Ms. Chan conducted a second count, moving from the back of the premises to the front door. This count totalled 121.
Ms. Chan testified that when she entered the premises, she asked the security guard to refer her to the manager or owner. She was referred to S.L., who confirmed that he was in charge that night. After conducting the counts, Ms. Chan provided the totals to S.L. and reminded him that the licensed capacity was 90. She also asked him to produce his Smart Serve card and explained the requirement for server training certification. He indicated that he did not have this.
Ms. Chan also spoke to the security guard who indicated only 83 persons were on the premises and produced a mechanical counter from his pocket which displayed 83. She noted that after she told him the premises were over capacity, he began to stop additional people from entering.
APPLICANTS’ EVIDENCE
Mr. Rose-Green testified that he arrived at the premises at 1:30 a.m. on February 24, 2013. Because he was not able to be on site earlier, he had hired his occasional patron and neighbor, S.L., only to pick up bottles. Mr. Rose-Green stated that it was the bartender, who has Smart Serve certification, who was in charge that night. He indicated that S.L. was “not intelligent enough to be manager” but noted that S.L. might well have told the inspector that he was in charge. Mr. Rose-Green further noted that this was the only time S.L. had worked for the Licensees and therefore they were not in violation of the regulations which provide 60 days in which to obtain server certification.
Mr. Rose-Green stated that when he arrived at the premises he counted 80 persons. Because he was not present at the time of the inspection, he is relying on information provided by the security guard who informed him that 83 patrons and 3 staff were present at the time the inspector arrived. Mr. Rose-Green further noted that he was told that to confirm the numbers, an offer had been made to the inspector to have everyone leave the premises and to conduct a count jointly as they re-entered.
Mr. Rose-Green indicated that the security guard has worked at the premises for over three years and he trusts him completely. He also stated that the security guard knows all of his employees. The security guard was unable to attend the hearing because he had recent surgery.
THE LAW
The relevant sections of the O. Reg. are set out below:
s. 39. On and after January 1, 2008, all current and new licence holders shall ensure that all managers, persons involved in the sale or service of liquor and security staff whom the licence holder employs or, in the case of a stadium, uses, hold, within 60 days of the commencement of starting to so act, a certificate demonstrating the successful completion of a server training course approved by the Board.
s. 43. The licence holder shall ensure that the number of persons on the premises to which the licence applies, including employees of the licence holder, does not exceed the capacity of the licensed premises as stated on the licence.
APPLICATION OF LAW TO FACTS
In reaching its decision, the Tribunal has carefully considered the evidence of the parties.
The onus lies with the Registrar to prove, on a balance of probabilities, that there have been contraventions of the regulations.
For a finding under section 43 of the Regulation, 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 approved capacity of Turntable Restaurant & Lounge is 90.
The Tribunal accepts the evidence of Ms. Chan with respect to the number of persons in the establishment at the time of her inspection. Ms. Chan testified that she conducted a count because the premises, which she had inspected before, appeared crowded to her. She noted that individuals were standing shoulder to shoulder and that she had to use her arm to move people out of her way as she conducted two counts using a mechanical counter, the results of which, 119 and 121 persons, were very consistent.
The Tribunal notes that the lower of these two numbers is 32% over the establishment’s approved capacity. It further notes that notwithstanding the fact that the security guard told both the inspector and, when he arrived at the premises later, Mr. Rose-Green, that capacity was only 83, Ms. Chan testified that no counter was visible when she observed the guard for two to three minutes before she entered the premises as he was admitting new patrons. Further, when she later told the guard her count totals, he removed the counter from his pocket.
The security guard was not a witness at this hearing and no evidence was provided to refute Ms. Chan’s testimony. Accordingly, the Tribunal finds that the Registrar has proven its case and the Licensees have breached section 43 of the O. Reg.
With respect to section 39 of the O. Reg., which sets out the requirement for server training certification, the evidence of both Ms. Chan and Mr. Rose-Green is that employee S.L. did not possess this certification. Ms. Chan indicated that the security guard, whom Mr. Rose-Green testified knows all his employees, told her, and S.L. confirmed, that S.L. was in charge at the time of the inspection. Mr. Rose-Green testified that S.L. was hired only to clear bottles because he himself could not be present and indicated that S.L. was not capable of being in charge. Given the spontaneity with which Mr. Rose-Green provided his somewhat unflattering opinion in this regard, the Tribunal is inclined to believe him. More important, however, is the fact that Mr. Rose-Green testified that February 24, 2013 was the first and only day S.L. worked for the Licensees. The Registrar provided no evidence to indicate that S.L. had been employed for more than the 60 day period which section 39 provides for an individual to successfully obtain server training certification. The Tribunal therefore finds that the Registrar has failed to prove the allegation and the Licensees have not breached section 39 of the O. Reg.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal confirms the monetary penalty of $1,000 imposed under the Order of Monetary Penalty dated June 7, 2013, with respect to the breach of section 43 of the O. Reg. The Tribunal orders that the monetary penalty of $150 with respect to the alleged breach of section 39 of the O. Reg. be set aside.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Released: December 23, 2013