Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-11-27

FILE:

8915/AGRPPA

CASE NAME:

8915 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

1677195 Ontario Inc. o/a Che Burrito & Lounge

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Mary Ann Spencer, Member

APPEARANCES:

For the Appellant:

Lorne Honickman, Counsel

For the Respondent:

Tamara Brooks, Counsel

Heard in Toronto:

November 19 & 20, 2014

DECISION AND ORDER

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 13, 2014, imposed monetary penalties totaling $3,750 on 1677195 Ontario Inc. o/a Che Burrito & Lounge ("Che Burrito") with respect to two contraventions of section 43 and one contravention of subsection 45(1) of Ontario Regulation 719/90 (the "O. Reg.").

At the outset of the hearing on November 19, 2014, as a preliminary matter, Ms Brooks advised the Tribunal that there was some previously undisclosed documentation that the Registrar would require some time to disclose. She proposed that the hearing be adjourned until the following day, committing to provide the additional disclosure to Mr. Honickman by the end of the business day. With Mr. Honickman's consent, the hearing was adjourned to November 20, 2014.

On November 20, 2014, as a further preliminary matter, Ms Brooks advised that the Registrar was withdrawing the two penalties in the June 13, 2014 Order with respect to alleged contraventions on February 22, 2014. Therefore, the only matter before the Tribunal is the appeal of the monetary penalty of $1,500 with respect to an alleged contravention of section 43 of the O. Reg. on March 8, 2014.

With consent of the parties, the Appellant's Notice of Appeal, the Order of Monetary Penalty dated June 13, 2014 and a licence profile prepared by the Registrar were entered into evidence as Exhibits 1, 2, and 3.

REGISTRAR'S EVIDENCE

The evidence of the Registrar comprised the testimony of Alcohol and Gaming Commission ("AGCO") inspectors Brian Sharpe and Mark Hall.

Inspector Brian Sharpe testified he has been employed by the AGCO for eight years. Accompanied by Inspector Mark Hall, Inspector Sharpe arrived at Che Burrito at 12:01 a.m. on March 8, 2014. The establishment has two outdoor patios at the front and Inspector Sharpe noted that the upper of these was busy. When he and Inspector Hall entered, there was a security staff person at the establishment's inner door but he did not observe him to be keeping a capacity count and he did not speak to him.

Inspector Sharpe described the establishment as being busy and crowded with all of its booths occupied and people standing in the dance floor area. He therefore conducted a capacity count to ensure the indoor licensed capacity of 93 was not being exceeded. He did not conduct a count on the patios because, while he observed the upper patio to be busy, the lower patio did not appear overcrowded to him.

Using a mechanical counter which he had checked was working and had then reset to zero, Inspector Sharpe moved from the front of the establishment to the back, counting people to his left and right as he passed them or as they walked past him. The count totalled 101 people. He then conducted a second count moving in the reverse direction and counted 106 people. He did not observe where Inspector Hall was while the count was being conducted.

After he completed his count, Inspector Sharpe joined Inspector Hall and they spoke to Che Burrito owner Scott McDonald in the back kitchen of the establishment. Inspector Sharpe told Mr. McDonald that Che Burrito was over capacity and told him the count but did not show him the counter. Asked by Mr. Honickman if this was proper protocol, Inspector Sharpe stated that there is no formal protocol. Asked if he recalled telling Mr. McDonald "you look a little heavy", he stated that he did not recall and that this is language he would not normally use. Mr. McDonald advised the inspectors that the establishment was short staffed by one security person that night. Inspector Sharpe testified that most of their conversation was about a previous inspection but that the current infraction would have been their first topic.

Mr. Honickman asked Inspector Sharpe if he would agree that the most accurate way to conduct a count would be to count people as they exited in a controlled way and were not allowed to re-enter. Inspector Sharpe agreed that this method would be an option but stated that he had enough confidence in his count results to determine that there had been an infraction. He noted that a "count out" requires that people be posted at each exit to an establishment. Generally, AGCO inspectors like to have security, for example, police, with them when doing a "count out" because patrons can become upset if they are not allowed to re-enter. With respect to the count he conducted, Inspector Sharpe agreed that patrons were moving in the establishment and repeated that he only counted them as they passed by him or he passed by them. Asked why his second count was higher than his first, he said that because his back was to the door leading to the patio on his first count, it was possible that people had come into the establishment behind him.

Mark Hall has been employed as an inspector by the AGCO for six years after spending seven years as the security chief at Casino Niagara and seven years with the miIitary police. Inspector Hall testified that when he and Inspector Sharpe entered Che Burrito at 12:01 a.m. on March 8, 2014, he noticed it was busy and therefore he asked the security staff located outside the inner door what the count was. He was told 130. Inspector Hall then re-entered the establishment and performed two counts, starting at 12:02 a.m. and finishing at 12:06 a.m. Using a mechanical counter, he walked through the interior of the establishment in one direction for the first and in the opposite direction for the second. When performing his counts, he does not count anyone coming from behind him. The first count totalled 108 persons; the second totalled 99. Asked why the second count was different, he noted that people could have moved to the patio or the washrooms or have gone out the exit. He stated that he did observe some people go to the patio, although not nine people.

After completing his counts, Inspector Hall met Inspector Sharpe and they spoke to Mr. McDonald. There were two purposes: to inform Mr. McDonald of infractions from a previous date and to inform him that he was over capacity that evening and that this infraction would be referred to the AGCO Deputy Registrar for review. Inspector Hall stated that he believes that Mr. McDonald was surprised that the count showed the establishment to be over capacity. Asked if he recalled Inspector Sharpe saying "you look a little heavy" or "you look a little full", Inspector Hall stated he could not recall.

Inspector Hall testified that a "count out" would normally be performed when there was reason to believe there was a safety issue. He noted that it was a good method but it requires sufficient people to post at every exit. In his opinion, there was no reason to use this method at Che Burrito because it was not a large establishment.

Inspector Hall is familiar Che Burrito, having inspected it both before and after March 8, 2014. Asked by Mr. Honickman if he was aware of the efforts the licensee had made to ensure compliance with AGCO regulations, he stated that he is aware that there is a compliance plan in place.

APPELLANT'S EVIDENCE

Witness Nenad Kuruc became a 10% owner of Che Burrito in 2006 after he was initially retained as a security expert. He has worked in nightclubs since 1999, starting as security and later running clubs with his brother. Mr. Kuruc testified that in 2010, the AGCO asked bars operating in the Hess Village area for security compliance plans and he and his brother prepared Che Burrito's. He noted that Che Burrito had past infractions for being over capacity. Changes were made to address the issue and were included in the security compliance plan, the submission of which he acknowledged is a condition of the licence.

Mr. Kuruc was not at the establishment on March 8, 2014. However, he described how Che Burrito manages capacity. Generally, the establishment operates with four security staff, including one at the front door, the only entrance. This staff member uses two mechanical counters, one to count persons entering and one to count those exiting. Mr. Kuruc testified that to "err on the side of caution", Che Burrito sets a target of a total of 120 persons in the establishment even though the licensed capacity is 93 indoors and 50 on the patios.

Che Burrito's other security staff are positioned at the patio door, at the inside entrance way with a clear view of the dance floor, and at the back of the establishment near the washrooms. The security staff member positioned at the patio door also uses two counters to determine the number of persons on the patio. The indoor count is calculated by subtracting the patio count from the entrance door count. Mr. Kuruc noted that the accurate count is the one done at the entrance but noted that he and/or Mr. McDonald conduct a walk through count of the persons indoors approximately three times a night as a check on the counter numbers. To ensure they can see and count everyone in the establishment, Mr. Kuruc and Mr. McDonald perform their walking counts slightly differently because of their height difference. Asked if it would be feasible to do a "count out", Mr. Kuruc said it would because there are only two exits. Asked by Ms Brooks if the establishment would do one, he said no, noting that they are running a business.

Mr. Kuruc testified that it is his policy to cooperate with the AGCO inspectors. He noted that if he had been present and been told that the establishment was over-crowded, he would have requested to see the security staff counters to check their counts with those of the inspectors.

Witness Scott McDonald is the principal owner of Che Burrito, which opened in August, 2006. Before opening Che Burrito, he was a professional skateboarder. Mr. McDonald explained the establishment's policy of limiting its total capacity, as counted at the front entrance, to 120 persons. He noted that the security staff is required to keep a minimum of 30 persons on the patio to ensure that the licensed indoor capacity of 93 is not exceeded. He noted that if it is colder outside, they control the total capacity to 100 persons. In addition, the number of persons on the patio is not allowed to exceed 45 to ensure it stays within its licensed capacity of 50. He repeated that he and Mr. Kuruc perform three walk through counts nightly, especially if the establishment looks busy. Mr. McDonald was working on March 8, 2014. Because only two bartenders were working, Mr. McDonald was tending bar. However, when there was a lull, he would conduct a count.

Mr. McDonald testified that when he met with Inspectors Sharpe and Hall on March 8, 2014, they first spoke to him about the allegations stemming from an inspection on February 22, 2014. Inspector Sharpe then told him "you look full". He asked Inspector Sharpe if he needed to ask people to leave but was "told nothing". He did not hear any numbers and noted that if he had seen the numbers, he would have done another count. He added that he would have done everything he could have to show that the establishment was within capacity. The inspectors did say they would get back to him but this was with respect to the issues arising from the February inspection. On cross-examination, Mr. McDonald testified that because the inspectors said the establishment was full, he did two or three counts to ensure everything was okay.

Asked by Ms Brooks if he believed the inspectors were required to show him the counts, Mr. McDonald stated that there has always been good communication with the inspectors. He added that he was under the impression that everything was fine and noted that he had checked capacity five minutes earlier when he had spoken to the security staff member at the front door and been told there were 115 people in the establishment. He added that he checks with staff at both the front and patio doors and then calculates the indoor capacity. Asked why the security staff would have told Inspector Hall the number was 130, Mr. McDonald stated it must have been some miscommunication, adding that it was a "mellow" night and the establishment was not that busy. He then noted that it was 3 degrees outside that night and people were migrating to and from the patio.

Mr. McDonald acknowledged that he had paid a monetary penalty in the past for overcrowding but stated that since that incident Inspector Hall had inspected five or six times and everything had been okay.

THE LAW

Section 43 of the O. Reg. states:

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.

SUBMISSIONS

Registrar's Submissions

Ms Brooks submitted that the Registrar has established that Che Burrito was over capacity on March 8, 2014. She noted that that the four counts performed by Inspectors Sharpe and Hall all exceeded the licensed capacity of 93 and the Order of Monetary Penalty cites the lowest of the four. There is no evidence to suggest that the way in which the inspectors conducted their counts was unreliable; in fact, it was the same method that Mr. Kuruc and Mr. McDonald testified they use. There are also no numbers from the establishment to refute the inspectors' counts. She noted that while Mr. McDonald indicated that he was not specifically told there was overcrowding, his actions in performing his own counts later suggest that he was made aware.

Appellant's Submissions

Mr. Honickman submitted that the Tribunal must determine what constitutes reliability when considering the evidence. He noted that both Inspectors Sharpe and Hall agreed that the "count out" method is the most accurate and submitted that the walk through method used by the inspectors is a "step down", noting that the Appellant uses this method as a check only. He submitted that the variance among the four counts by the inspectors is indicative of the "fraility" of the method. The evidence of the Appellant is that chances are not taken; a ceiling of 120 has been established to ensure that the licensed capacity is not exceeded. He suggested that the primary objective of the inspectors on March 8, 2014 was to speak to the February 22, 2014 inspection. Consequently, Mr. McDonald was not given numbers and not told that people should be asked to leave. On the totality of the evidence, both what is and is not there, the Registrar has not proven the allegation.

ANALYSIS

The onus lies with the Registrar to prove, on a balance of probabilities, that there has been a contravention of section 43 of the O. Reg.

The evidence indicates that the results of each of the four counts conducted by Inspectors Sharpe and Hall on March 8, 2014 exceeded Che Burrito's licensed indoor capacity of 93. Inspector Sharpe's totals were 101 and 106. Inspector Hall's counts were 108 and 99. There is a difference of nine persons, or approximately 9%, between Inspector's Hall's counts which are the lowest and highest of the four. Both inspectors testified that the difference between their counts could be explained by patrons entering or exiting the premises or going to and from the patio which can only be reached from inside the establishment. Inspector Hall testified that he did observe some patrons exit to the patio, although not enough to make up the nine-person difference in his two counts.

The Tribunal acknowledges that Che Burrito does have a system in place to ensure approved capacity is not exceeded. It maintains a total capacity ceiling of 120 and requires that a minimum of 35 be on the patio. There was no evidence provided to indicate how or if the security staff positioned at the patio and front doors communicate their numbers to each other to ensure, for example, that no additional persons are allowed entry if patio capacity dips below the required minimum. Mr. McDonald did testify that he speaks to both security staff and then calculates the indoor capacity as a means of checking. And both Mr. Kuruc and Mr. McDonald testified that they perform walking counts, in essentially the same manner as the inspectors conducted their counts, to check the indoor capacity. That the owners undertake these counts implies to the Tribunal that the system of controlling total capacity to a maximum number and patio capacity to a minimum number has room for error.

Inspector Hall testified that the entrance door security staff told him the count totalled 130, in which case 37 people would have to be located on the patio in order for the establishment to stay within its licensed indoor capacity. Mr. McDonald suggested the 130 number was a "miscommunication" because a check he had conducted with staff five minutes before the inspectors arrived indicated the total was only 115. For the establishment to comply with its indoor capacity, 22 people would have to have been on the patio. Mr. McDonald testified that the temperature was 3 degrees, "like spring", making the patio attractive. However, while both inspectors did testify that the upper patio was busy, they did not deem it necessary to conduct a patio count. And, Mr. McDonald testified that people were migrating to and from the patio. There was no evidence from either party as to what the count on the patio was at the time the inspectors were there. Mr. McDonald also testified that March 8, 2014 was a "mellow" night and "not that busy"; however, the Tribunal notes that this is somewhat contradictory given 115 is only five below the establishment's self-imposed capacity ceiling of 120.

Mr. Honickman suggested that the Tribunal should also consider what was "not there". Mr. McDonald maintains that he was not told the count results by the inspectors but rather was told by Inspector Sharpe that the establishment looked "heavy" or "full". However, neither inspector could recall this statement. Inspector Sharpe stated he did tell Mr. McDonald his count results but did not show him the counter. Mr. McDonald testified that he got no response when he asked whether he should ask people to leave. However, he also testified that he conducted counts after the inspectors left the premises to make sure everything was okay, although the Tribunal notes that he did not testify what these counts totalled. The Tribunal concludes that he was made aware that capacity was at issue on March 8, 2014 and therefore could have taken steps to address it with the inspectors at that time. As Mr. Kuruc testified, had he been told capacity was an issue, he would have checked the security counters as a cross check. Mr. McDonald did not do so.

The Tribunal finds that the evidence from the two inspectors in regards to their counts was credible and reliable, and it was not contradicted or weakened by the Appellants' testimony. Based on the above analysis, the Tribunal finds that Registrar has proven on a balance of probabilities that the number of persons inside the premises was in fact at least 99, and therefore, the Appellant did breach Section 43 of the O.Reg. on March 8, 2014.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal confirms the monetary penalty of $1,500 imposed under the Order of Monetary Penalty dated June 13, 2014, with respect to the breach of section 43 of the O. Reg. on March 8, 2014.

LICENCE APPEAL TRIBUNAL

Mary Ann Spencer, Member

Released: November 27, 2014