El Convento Rico Restaurante Inc. v. Registrar of Alcohol and Gaming, 2015 CanLII 38753

Licence Tribunal / Tribunal d'appel en matière de permis

DATE: 2015-06-24

FILE: 9160/AGRPPA

CASE NAME: 9160 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

El Convento Rico Restaurante Inc. o\a El Convento Rico Club Appellant

-and-

Registrar of Alcohol and Gaming Respondent

AMENDED REASONS FOR DECISION AND ORDER

ADJUDICATOR: D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Appellant: Randall J. Barrs, Counsel

For the Respondent: Rena Khan, Counsel

Heard in Toronto: June 16, 2015

REASONS FOR DECISION AND ORDER

1The Appellant, El Convento Rico, appeals the Order of Monetary Penalty # 1087 in the amount of $10,000.00 issued pursuant to the provisions of the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26 (the “Act”). The single allegation against the Appellant is that it permitted overcrowding in its premises on the morning of April 13, 2014, in breach of s. 43 of Ontario Regulation 719/90 under the Liquor Licence Act. S.14.1(7) of the Act directs the Tribunal to determine if, on a balance of probabilities, the alleged infractions occurred. If the Tribunal finds that they did, it has no discretion to alter the amount of the monetary penalty.

2The licensed capacity of the Appellant’s premises is 362. Two Alcohol and Gaming Commission of Ontario (AGCO) inspectors attended at approximately 1:50 a.m. on April 13, 2104 and conducted two separate head counts. The first inspector counted 568 patrons in the premises and the second counted 561. The Registrar has used the lower number in the allegation. For reasons more fully set out below, the Tribunal finds that the Registrar has proven the allegation of overcrowding on a balance of probabilities.

3Two AGCO inspectors, Brad Capes and Devin Sookdeo, inspected the Appellant’s premises just before 2:00 a.m. on the morning of April 13, 2014. As they approached they noted that there was a queue of ten to fifteen people outside waiting to get in. There were also a number of people in a smoking area. Although this area was on a public street, it had been cordoned off. They approached the security people on the door and identified themselves to gain entrance.

4The licensed area is in the basement and Inspector Capes walked down the stairs into the basement and observed the bar area. He described the scene initially as “fairly busy.” He took out his mechanical counter, set it to zero and walked around the room counting people who were in front of him and to the left and right. He did not count people who came from behind him as it is likely that he had already counted them. Inspector Capes circled the room in a clockwise direction. He counted 568 people in the premises including patrons and staff. In cross-examination, he conceded the possibility of some double counting of people who had moved from one side of the room to the other while he was circulating but stated that there was no significant movement and that the dancers on the dance floor were having difficulty finding room to move. His estimate of the number of people he might have counted twice was five to ten people.

5Inspector Sookdeo walked down to the basement and spoke with the security person at the lower level. He asked him how many people had come in that evening and was told 700. He asked how many had left. The security person said he did not know and told Inspector Sookdeo to speak to security at the street level entrance as he would have the count. Inspector Sookdeo returned to street level and spoke with Rayner [phonetic] Perez, the security person on duty. He asked Mr. Perez how many people were in the premises and Mr. Perez answered “572.” He then asked Mr. Perez if he knew the capacity of the premises and Mr. Perez answered “600.”

6On his return to the basement level, Inspector Sookdeo conducted a head count in a manner very similar to the method used by Inspector Capes. He circulated the room in a clockwise direction. He stated that he used the pillars down the centre of the room to section it off to assist in his count. He counted people ahead of him and to his side and ignored people who passed him from the rear. His count was 561. He met up with Inspector Capes at the main entrance and they asked to speak to the manager on duty or the owner.

7The two inspectors were taken into the office and met with the owner, Maritza Yumbla, her manager, Julia Anne Stanley Carey and the head of security, Olson Serville, known as Albert. While there is some dispute about the exact content of the various conversations that took place in the office, it is clear that the two inspectors discussed the over-capacity and that Mr. Serville disagreed with their count. He made his position clear to Inspector Capes. When he was given the 561 number he answered “No way.” He did not provide any independent numbers or produce his own in and out counts for the night in question.

8In his evidence, Mr. Serville testified that he kept a count of all persons entering and paying the $15.00 cover charge and all persons exiting the premises. According to him, he had counted 571 people entering and 223 leaving for a total count at the time of the inspection of 348. Ms Carey testified that she reconciled the cash collected for payment of the cover charge with Mr. Serville’s count and that there was no discrepancy. She prepared a cash reconciliation sheet and gave it to Ms Yumbla while the inspectors were in the office. As was the case with Mr. Serville’s head count, this information was not provided to the inspectors, nor was it produced in evidence. Anecdotally, counsel for the Appellant advised that this document had been lost in a flood, although there was no independent evidence of this fact.

9Ms Yumbla had no independent evidence of the numbers in the club. Her testimony in that regard was based on her belief that the club was not overcrowded because it did not appear to be so in her walks through the premises earlier in the evening and in the views she had on her computer screen from camera monitors. She advised the Tribunal that all of her security staff were aware that the capacity was 362 and attempted to explain Mr. Perez’s answer that the capacity was six hundred. According to Ms Yumbla, Mr. Perez is from Cuba and has poor English skills. It is a feature of the Cuban dialect of Spanish that Cubans have difficulty pronouncing the “th” sound and pronounce it as “s.” Thus, Mr. Perez’s answer to Inspector Sookdeo regarding the capacity of the premises was not “six hundred” but “three hundred” pronounced “see hundred.” Inspector Sookdeo, for his part, acknowledged that Mr. Perez had an accent but that he had no trouble understanding him when he said six hundred.

10The Appellant made much of the methodology used by the Inspectors and urged the Tribunal to determine that the only accurate count on the night in question would have been for patrons to be counted as they left. There were two ways of achieving this end: having the police attend and close the premises and count patrons as they exited or waiting outside and counting patrons as they exited over the next several hours. Since the inspectors failed to do so, the Appellant asks the Tribunal to find that the premises were actually under capacity by approximately 14 people rather than over capacity by 199, a discrepancy in the inspectors’ count of 213. This submission strains credulity in that it suggests that the inspectors counted approximately two thirds of the patrons in the bar twice.

11There is a convergence in the numbers that supports the inspectors’ counts that there were approximately 561 people on the premises at the time of the inspection. Starting with the Appellant’s own count of 571 persons who entered, this number meshes closely with the number of 572 persons in the premises given by Mr. Perez to Inspector Sookdeo. It also meshes closely with the two separate counts by Inspectors Capes and Sookdeo of 568 and 561 respectively. The number is not inconsistent with the evidence of Ms Carey about the cover charge cash matching Mr. Serville’s count of persons entering. The evidence calls into question Mr. Serville’s assertion that 223 people had left the club. He failed to assert that specific number on the night in question when the inspectors were present in circumstances in which it was not unreasonable to expect him to do so. The Tribunal gives no weight to Mr. Serville’s evidence on the number of patrons present at the time.

12The Tribunal also rejects the assertion that Mr. Perez was answering three hundred to Inspector Sookdeo regarding the capacity of the premises. This suggestion might have carried more weight if it was alleged that Mr. Perez answer was 362 or a number close to that that sounded like 662, but the fact is that the answer he is alleged to have given is incorrect by a wide margin. It is even inconsistent with the Appellant’s assertion that Mr. Perez permitted 348 people to enter a club when he thought the capacity was 300. The Tribunal accepts Inspector Sookdeo’s evidence that Mr. Perez stated his count of patrons present on the premises. As the security person at the street level entrance, it is reasonable to conclude that he would keep a running count of entering and exiting patrons to determine when he could let some of the waiting patrons enter. Indeed, Mr. Serville conceded in cross-examination that Mr. Perez was monitoring ins and outs.

13At the outset of the hearing, the Tribunal asked the Parties if it was necessary for the Registrar to prove there were approximately 561 people on the premises or was it sufficient that the Registrar prove that there was overcrowding. Both Parties agreed that it was sufficient to prove overcrowding although the Appellant argued that minor overcrowding might be insufficient to support a $10,000.00 monetary penalty. The Tribunal is satisfied on all of the evidence that there was serious overcrowding of the Appellant’s premises in and around 1:50 a.m. on the morning of April 13, 2014.

ORDER

14Pursuant to the authority vested in it by the provisions of s. 14.1(7) of the Act, the Tribunal confirms Order for Monetary Penalty # 1087 in the amount of $10,000.00.