Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-09-21

FILE:

9496/LLA

CASE NAME:

9496 v. Registrar of Alcohol and Gaming

Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 - to Suspend a Licence

El Convento Rico Restaurante Inc.,

Operating as El Convento Rico Club

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Kenneth W. Koprowski, Vice-Chair

APPEARANCES:

For the Appellant:

J. Randall Barrs, Counsel

For the Respondent:

Rena Khan, Counsel

Heard in Toronto:

June 23 & August 28, 2015

DECISION AND ORDER

BACKGROUND

The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, dated March 23, 2015, which proposed to suspend a licence for 45 days. El Convento Rico Restaurante Inc., operating as El Convento Rico Club (the "Appellant") appealed this Notice of Proposal to the Licence Appeal Tribunal.

The Notice of Proposal alleged two incidents of overcrowding at the Appellant’s licensed premises, one on October 19, 2014, and the other on November 9, 2014.

On October 19, two inspectors from the Alcohol and Gaming Commission attended at the Appellant’s premises which is licensed for 362 persons. After performing a count of patrons who were present, using a manual counter or “clicker,” one inspector had a count of 522 persons, being 160 persons in excess of capacity. The other, also using a manual counter, had a count of 497 persons, being 135 persons over capacity. The Registrar used the lower count in issuing its Proposal. The Appellant’s employee who was security at the entrance to the premises on that occasion was unable to provide a count of his own.

On November 9, two inspectors attended at the Appellant’s premises and performed another count of persons in the premises. One inspector had a count of 398 persons, being 36 persons over capacity. The other inspector had a count of 410 persons, being 48 persons over capacity. This time, the Appellant’s employee who was security at the entrance provided his own count that showed that there were 332 persons present, being 30 persons under capacity. The Registrar used the lower difference of 36 persons in issuing its Proposal.

The Appellant argued that the method that the inspectors used to perform their counts by way of manual counter as they were walking around the licensed room was unreliable and totally inadequate in a crowded room where the lighting was poor and where people were moving around and not standing in one place. The Appellant’s system of having persons counted at the door as they entered and exited was more reliable.

The hearing was held on June 23, 2015. The matter was then adjourned to August 28, 2015, in order that the parties’ representatives could make closing submissions to the Tribunal.

FACTS

INSPECTION ON OCTOBER 19, 2014

EVIDENCE ON BEHALF OF THE REGISTRAR

Evidence of Brad Capes

Inspector Capes had been, as at the date of this hearing, an inspector with the Alcohol and Gaming Commission (the “Commission”) for seven years. He was the local inspector for the area in which the Appellant’s bar is located.

On October 19, 2014, he attended at the Appellant’s bar along with Inspector Ryan Baird. They entered the premises at 1:08 a.m. and left at 1:21 a.m. Inspector Capes performed his inspection as a routine inspection and because of a past history of overcrowding at the Appellant’s bar.

He noticed that there were about 8 or 10 people lined up at the entrance, waiting to enter the premises. There was a security guard out front, Albert Serville, who was head of security . There was also a person named Julia Carey who was taking the cover charges at a desk that was at the top of the stairs that led down to the licensed basement area. Julia Carey was identified later during this hearing as the acting manager of the bar, but Inspector Capes did not know that at the time of his inspection.

Inspector Capes asked Mr. Serville for the “in count” (the most current count of persons in the bar). Mr. Serville did not have such a count nor did he have a counter. Instead, he pointed to another security officer at the bottom of the stairs, identified at this hearing as Jay Leva, although Mr. Serville did not refer to him by name. When Inspector Capes asked Mr. Leva for the in count, Mr. Leva pointed back to Mr. Serville for the number. Mr. Leva could not give a number, nor did he have a counter. Mr. Leva also gave the name of a person named “Christian” who might have that information. Christian was not present at the entrance when Inspector Capes arrived.

Inspector Capes set his counter at “0” and then started his count. There were questions raised about the testing of his counter. Suffice to say that Inspector Capes adequately explained how he tested the counter to ensure that the numbers rotated sequentially with each click of the counter. Although counsel for the Appellant suggested in his questioning that the testing might not have been proper, there was no evidence presented to the Tribunal to indicate that the counter was not functioning properly or that Inspector Capes’ testing was done improperly.

When he began his count, Inspector Capes started at the entrance to the licensed premises in the basement and moved in a clockwise direction parallel to the walls. There was an exit door on one side of the room but it was closed and no patrons were using it. He stated that the lighting was sufficient to allow him to see normally. There were neon lights and lights in the ceiling.

He could see the bar staff at the opposite side of the room even though counsel for the Appellant suggested in his questioning that the size of the room was about 6000 square feet. There was no evidence led to confirm that figure. The Appellant filed, as Exhibit #4, a hand-drawn diagram of the lay-out of the floor area in the licensed premises. However, the Tribunal notes that no dimensions for the length and width of the premises were shown on the diagram, nor was there any scale noted on it. The diagram in no way confirmed the floor area was 6000 square feet as suggested by counsel for the Appellant.

Inspector Capes clicked his counter once for each patron that he saw. There were four pillars in the middle of the room, so he used them as reference points in counting the patrons in each section marked off by the pillars.

He counted both staff and patrons. There was one group of 12 women at what he described as a bachelorette gathering (identified by the shirts they were wearing) and that was the only group of patrons that he saw to be moving around.

He counted the people in front of him and who then passed him, but he did not count any people behind him so as to avoid counting them twice. There were people on the dance floor of the premises. Some patrons were moving around but there was no mass “transition” entering or walking off the dance floor. The time it took him to do the count was about 8 minutes. He did not do any count of persons in the washrooms, inasmuch as the washrooms were not licensed areas.

The result of his count was that he counted 522 persons. The licensed capacity of the premises is 362, as verified by the liquor licence profile filed as Exhibit #3.

He did not perform a second count because, while he was still there, he noticed that security persons were moving out people who then exited the premises. He noticed that the crowd had thinned out.

He then talked to his fellow inspector, Ryan Baird, who had also done a count. Inspector Baird’s count was 497.

Inspector Capes then asked Mr. Serville if the owner or the manager were in. Mr. Serville told him that the owner was not in. Inspector Capes told Mr. Serville about the overcrowding and again asked him for his count. Mr. Serville responded that he did not have a count or a counter. He informed Mr. Serville of the counts that he and Inspector Baird had obtained and warned him to abide by the capacity limits of the licence. He did not talk to anyone else at the establishment that night. Nor did anyone from the bar approach him that night. Inspector Capes gave Mr. Serville his business card and asked him to have the owner contact him if she had any questions.

On cross-examination, Inspector Capes acknowledged that his office was in the same building as the Registrar and Registrar’s counsel. He knew Ms. Khan, who was the Registrar’s counsel at this hearing, and had testified often as her witness.

He also acknowledged that, outside the Appellant’s premises, there was a smoking area where patrons of the Appellant’s bar could smoke and then return inside. Although he recognized Julia Carey that night, he did not know that she was the acting manager for that evening. He never talked to her about her counts which he agreed should coincide with the number of cover charges that she received.

Although Mr. Leva suggested that someone named Christian might have a count, Inspector Capes did not speak to anyone named Christian that night. No one by that name was at the front door keeping a count. Nor did anyone from the establishment approach Inspector Capes to talk to him.

Inspector Capes strongly disagreed with the suggestion of counsel for the Appellant that, because of the flashing strobe lights, he could not recognize any patrons there, so that he may have counted them more than once. He also strenuously disagreed with the suggestion that people were socializing and “transitioning all over the place,” to use the words of counsel for the Appellant. He confirmed that it was only the persons in the bachelorette party that he saw moving. In any event, the people on the dance floor were not moving all over the place or leaving the dance floor or coming onto it, and certainly not to the extent of a transition of 160 persons over the licensed capacity as his count of 522 indicated. There were about 100 people on the dance floor, but they were not leaving or coming onto the dance floor, but were moving within an area of about one foot or one and a half feet to either side. There was no “mass movement” of people, to use his terminology. He also saw that no patrons were using the exit door at side of the room..

He also disagreed with the suggestion that, by moving while he did his count, the count would be more unreliable.

He did not watch the people entering and exiting the washroom, nor did he watch the smokers who may have left the premises to smoke outside.

He stated that he did not require a “count out.” That is a method by which all doors but one are closed and patrons are required to exit premises through only that one door, thereby allowing for an accurate count. Inspector Capes stated that only the police could order a count out, not him. Also, with 522 patrons, there would also be a safety issue in having that may people exit all at once onto a busy street. He also had other establishments to inspect that night.

Evidence of Ryan Baird

At the time of this hearing, Inspector Baird had been an inspector with the Commission for over 11 years.

On October 19, 2014, he accompanied Inspector Capes and attended at the Appellants’ premises with him. It was the first time that inspector Baird had been at that bar.

When he arrived at the bar, he noticed people entering and exiting. He saw a line-up of about 10 or 12 people. He saw the security person, Albert Serville. He confirmed that Inspector Capes asked Mr. Serville for a count but was told that he did not have one nor did he have a counter. He pointed to the security person at the bottom of the steps for the count.

Inspector Baird went downstairs to the basement licensed area. He saw that the area was very crowded. Patrons were standing shoulder to shoulder. It was congested throughout. He did not speak to the security person at the bottom of the steps but, instead, proceeded with his count. He used the same clockwise movement that Inspector Capes used in taking his count. Inspector Baird kept the pillars that were in the middle of the floor to his right. He counted the persons who were in front of him, clicking his counter once for each person. He finished at the point where he had begun his count.

He stated that the patrons were not moving around. They were close together. It was difficult to manoeuvre to take his count. If they moved at all, they moved in front of him. Not many would have changed position during his count. He did not count those in front of him who walked past him. Nor did he count those behind him that walked past.

His final count was 497, which was 135 persons over capacity. He stated that 135 people could not have moved from one side of the room to the other because people were already shoulder to shoulder. There was not a lot of movement. On the dance floor, people were dancing where they stood.

His count lasted about 7 to 10 minutes.

When they returned upstairs to the front door, Inspector Baird advised Mr. Serville of the safety concerns of overcrowding, especially if there should be a fire or other emergency. He said that Mr. Serville agreed about the fire concern. Inspector Baird did not talk to anyone else there that night. He never spoke to a person named Christian. He was never told that the patrons were being held at the front door because capacity in the licensed area had been reached.

He also confirmed that overcrowding was one of the top five infractions that inspectors look for because of safety concerns.

On cross-examination, Inspector Baird acknowledged that his office was in the same building as the Registrar and Registrar’s counsel.

He stated that he did not know that there were shows at the establishment and that they ended at 1:00 a.m. (The Tribunal notes that there was no further corroborative evidence presented to it on the matter of shows at the premises).

Inspector Baird also did not notice a smoking area outside the premises. Before attending at the Appellant’s premises, he had been at five other establishments that night. He confirmed that he had cleared his counter after each of the other counts.

He confirmed that there were about 100 people on the dance floor and that they were dancing on the spot. They were not, however, “moving all over the place” as counsel for the Appellant suggested. Since the dance floor was very crowded, he denied that, after each song lasting about three minutes, the patrons would leave the dance area.

He also stated that there was no lighting issue that would have interfered with his count.

Counsel for the Appellant suggested that the area of the premises was 6,000 square feet. Therefore, Inspector Baird could not recognize anyone that he counted, so he may have counted patrons more than once. Inspector Baird disagreed with that suggestion. He stated that it was far too busy for the 135 persons over capacity to move. He did not agree that it was a difficult place to do a count. He did acknowledge, however, that, since it was his first time at theses premises, he did not know what the premises would look like with 362 people present, as the licence allowed.

EVIDENCE ON BEHALF OF THE APPELLANT

Evidence of Christian Aviles

Mr. Aviles, the nephew of the owner of the Appellant’s bar, has worked 15 years part-time at the establishment. He was working on October 19, 2014, when Inspector Capes and Inspector Baird arrived. His aunt, the owner, was not there that night.

Mr. Aviles was the floor manager at the time and had many different duties to perform. He stated that the Appellant’s bar uses a clicker to keep count of the “ins and outs,” as he phrased it.

That night, he was using a clicker at the front door to count the persons entering the premises. He stated that the club was at capacity when the inspectors arrived. When they arrived, Mr. Aviles was downstairs in the licensed area, walking around the club. He had the counter with him. He stated that, when he leaves the front door with the clicker, the front door security could let in more persons, if capacity had not been reached. That night, when he left the front door, he told the front door staff to hold the line. No one can come in when he is absent, except, according to his testimony, if capacity had not yet been reached.

He stated that no one talked to him about the count that the inspectors made that night. He did not believe their count could be accurate because it was dark inside, with low ceilings and people were dancing and moving. He stated that he could not see how the inspector’s count of 497 persons could be accurate. But, he then stated that he believed that the inspectors did not use a mechanical counter but, instead, used only their fingers to count the persons who were present. He thought that they just pointed and counted.

He stated that no one talked to him to see the counter. If he had been asked, he would have shown it.

He also stated that he did not compare the cover charges received that night with the count taken using the clicker.

On cross-examination, he confirmed that, in addition to his other duties that night, he had to take the count after 10:00 p.m. It was a busy Saturday night.

He did not know until the end of the night that the inspectors had been in. Mr. Serville told him that there were no issues. He did not know until about 3:30 that morning, after all customers had left, that there was an issue with the count.

Evidence of Julia Carey

Ms. Carey had been, at the time of this hearing, the full-time manager at the Appellant’s bar for almost three years.

On October 19, 2014, she was taking cover charge at the door. The charge was $15.00. After paying that amount, the customers went downstairs to the licensed area.

She correlates receipts with the number of customers. On that night, she was in balance; that is, receipts equalled the count.

She confirmed that Christian Aviles was the floor manager that night, but the inspectors did not talk to him. The inspectors did not talk to her either.

She believed that the count of 497 persons taken by the inspectors was not accurate. She maintained that the bar was within capacity. She offered no contradictory evidence to discredit that count.

On cross-examination, she acknowledged that she was not the person who took the count. Nor has she ever disclosed records of her balance sheet to the Registrar, or to this Tribunal. She also agreed that the balance sheet confirmed how many persons entered the premises, and not how many left.

Evidence of Olson Serville

Olson Serville is also known as Albert Serville, the security person that Inspector Capes spoke to at this inspection.

He is part-time head of security at the premises.

He was at the front door of the bar when the inspectors arrived. He did not have a counter. Since he was working the front door, he could not leave it. When they asked to see the manager, he referred them to Christian, who had the counter and who Mr. Serville said was the manager. The owner was not there. Christian had gone downstairs about five minutes before the inspectors arrived. Christian had the clicker and did not leave it with Mr. Serville.

He stated that, if the person who has the counter has to leave the front door, Mr. Serville holds the door by not letting in new customers.

On cross-examination, Mr. Serville confirmed that he had made no notes about the incident on October 19, and was testifying from memory. He stated that the inspectors did not ask him for a count and that he did not have a counter. He referred them to Christian because he was downstairs. He also stated that he was holding the door because the bar was at capacity but he never told the inspectors that.

Mr. Serville agreed that, after the inspectors made their count, they told him that the bar was over capacity and asked to see the manager. But, he also stated that the inspectors did not tell him what the count was. They only asked him if the owner was in. He denied both that he was given a business card of Inspector Capes and was told to have the owner call if she had questions.

INSPECTION ON NOVEMBER 9, 2014

Evidence of Brad Capes

Inspector Capes was, as with the inspection on October 19, 2014, the inspector who attended at the Appellant’s premises on November 9, 2014. He re-attended because of two past incidents of overcrowding at the premises. This time, he was accompanied by Inspector Raman Sharma and by a co-op student.

He arrived at 1:40 a.m. He saw a small line-up of about 5 to 8 people, the door was open, and there was one security person at the entrance, identified as Jay Leva. He did not pay much attention to the smoking area.

He asked Mr. Leva for his in and out count. Mr. Leva produced two mechanical counters taped together. One was used to count those who entered (the in count). The other counted those who exited (the out count). The in count was 649. The out count was 317. This left a difference of 332 persons compared to a capacity limit of 362 for those premises.

Because of the two previous overcrowding infractions at these premises, and notwithstanding the difference of 332 persons shown by Mr. Leva, Inspector Capes went downstairs, set his counter at “0” and began his count, using the same clockwise movement as he had done on October 19. No one was at the bottom of the stairs taking a count although there was a person at the coat check. When he reached the bar area, part way through the count, his count was 286 persons. After he completed his count, the number was 398 persons. That number was 36 persons over capacity. His count took about 5 to 8 minutes, perhaps less. The majority of the persons were on the dance floor or at the bar area. He did not count the persons who were walking around or serving.

Inspector Sharma’s count was 410 persons.

Inspector Capes stated that the people dancing on the dance floor were dancing in circles. There was no transition back and forth. Although there is an emergency door at one wall, it was not being used.

He stated that he did not see any patrons in costume. He had never been there when the establishment put on a show. He saw no one removing their costumes. He saw no one removing their clothes which might have caused some confusion during his count.

After he received Inspector Sharma’s count, Inspector Capes talked to Mr. Serville and asked to talk to the owner or the manager. He then entered the office of Julia Carey with Inspector Sharma and talked to her about the overcrowding. Since his last visit on October 19, 2014, he had been made aware of the fact that Ms. Carey was the manager at the premises. There was no cash in her office, nor was anyone taking any cover charge that night while the inspectors were there.

He stated his concern about overcrowding to Ms. Carey , since this occasion was the third instance. He suggested that she institute a “rover” who would take a count every hour or one and a half hours to ensure the numbers coincided with the front door counter. That was the method he suggested when not many people were in transition in the premises.

On cross-examination, Inspector Capes acknowledged that, visually, he could not tell the difference between 362 people and 398. He stated that it was not true that people were moving all over the place. He also vehemently disagreed when counsel for the Appellant suggested that his method of counting made no sense. He also denied that it was too dark in the room so that persons may have been counted more than once.

He also confirmed that no one was using the side exit door but that the patrons were using only the front door. Counsel suggested that the employee standing at the front door would, therefore, have been able to keep a more accurate count.

Evidence of Raman Sharma

Inspector Sharma had been, as at the time of this hearing, an inspector with the Commission for approximately three and a half years.

He attended with Inspector Capes and a co-op student to do a routine compliance inspection of the premises. They arrived at 1:40 a.m. He had been at these premises about one year before.

On arriving, he saw one security staff at the front door and a line-up of about 2 to 3 patrons. He stated that the mechanical counter was not at the door but was with someone inside the premises.

He went down the stairs and noticed that the premises were busy with patrons. There were about 10 around the coat check area. In his opinion, it was a busy place. Patrons were standing, dancing and talking. The lighting was “fair” according to him. There were flashing lights, but there were no problems with doing his count, which took about 8 to 10 minutes.

One security staff person was wearing a winter jacket and was going to the front door. He showed Inspector Sharma two counters. One recorded 649 persons in and the other recorded 318 out, for a difference of 331 patrons, in a room where the capacity was licensed for 362.

He saw that the dance floor was busy. Persons were grouped together and it was difficult for some to move through the crowd. The area was “not very open” to quote his testimony.

When doing his count, he did not count anyone who was moving, so as to avoid double counting. He found it difficult to move through the crowd. He did not observe that there was a show going on at that time. He did not see patrons removing their costumes or taking their clothes off.

His count was 410, including staff members. The first time he heard the count taken by Inspector Capes was after their inspection when they were both in their vehicle, making their notes. He stated that he shared his count with Inspector Capes either in Julia Carey’s office or in the inspectors’ vehicle.

After his count, he met with Inspector Capes and, together, they met with Julia Carey, the manager. It was Inspector Capes who did the talking about the overcrowding.

On cross-examination, he acknowledged that it would be difficult to visually tell if there were 362, 398 or 410 persons in the licensed premises. He disagreed with the suggestion that he had other places to go to, so was very busy that night. Counsel for the Appellant suggested that the area was 6,000 square feet and that some areas would be darker and some lighter. Inspector Sharma responded to that suggestion by stating that the strobe light was only one of the lights in the room. He also disagreed that the patrons were going in and out, stating that they were stationary for the majority of the count. He confirmed that he had no difficulty with the count, but did have some difficulty moving through the crowd.

Evidence of Julia Carey

On November 9, Ms. Carey was in her office watching the cameras. She also walked around the floor and “felt” (to quote her testimony) that the bar was within capacity. The inspectors came to her office. She did not believe that their count was accurate because she was balanced as between the count and her cover charges. Also, she stated that walking around to take a count was not an accurate way to take a count at the Appellant’s premises because the licensed area is dark and there are people moving around because they are dancing.

Evidence of Jason Leva

As at the time of this hearing, Mr. Leva had been working part-time at the bar of the Appellant’s establishment for about one year. He also works as a construction labourer.

On November 9, he was doing the count at the front door of the bar. He had two counters taped together. One counted those persons entering the premises. The other counted the persons who exited. His count was 649 in and 317 out, leaving a difference of 332 for a bar with a licensed capacity of 362. He stated that he counted everyone and believed his count to be accurate.

As for one inspector’s count of 398 persons, Mr. Leva believed that walking around the premises is not an accurate way to take a count because, inside, people are moving around a lot.

On cross-examination, he stated that he made no notes about the events on November 9, 2014. He stated that he was at the front of the establishment all night taking a count. He started at 8:30 p.m. The doors opened at 9:00 p.m. He checked both counters and found them both to be operating properly.

When asked if he sets his counter at “0”, he stated that it depended on how many staff persons were working that night. He did not know how many staff persons were on duty at the time of the inspection. Nor did he know how many performers were present.

In response to questioning from the Tribunal, Mr. Leva acknowledged that, when the inspectors were taking their count in the licensed area that night, and since he was at the top of the stairs, he could not see whether the people were moving around so as to interfere with an accurate count.

In response to questioning from counsel for the Appellant, Mr. Leva stated that, on a Saturday night (the business day on which this inspection occurred), the atmosphere is that people are drinking, “bouncing around” (to quote his testimony), talking to friends, and moving around quickly. He could not “imagine” getting an accurate count inside. He maintained that doing the in-out count is more accurate.

THE LAW

Section 43 of Regulation 719 R.R.O. 1990 under the Act states as follows :

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.

ANALYSIS

Inspection on October 19, 2014

On October 19, Mr. Serville, head of security at the Appellant’s premise, could not provide a count when the inspectors arrived. He also had no counter. He referred the inspectors to another person at the bottom of the stairs leading to the licensed area for a count, but, when the inspectors asked that person for a count, he referred them back to Mr. Serville. Neither employee at the entrance to the premises had a count or counter.

There was no count that the Appellant’s employees presented to the inspectors while they were at the premises. The only counts in evidence before the Tribunal were those done by the inspectors. One inspector counted 522 persons, the other counted 497. The licensed capacity was 362 persons.

Counsel for the Appellant argued strenuously that the method that the inspectors used (clicking on a manual counter for each person they saw) was unreliable. Yet, his own witnesses offered no supposedly reliable method that they used on October 19th.

Counsel further argued that the room was 6,000 square feet in area (for which there was no credible evidence), the room was dark and crowded and the patrons were moving around, not standing in one place. Notwithstanding those submissions, Mr. Serville, the head of security standing at the top of the stairs, was not downstairs at the time of the inspection, so that he could not give evidence of the crowd’s actions or the lighting at the time of the inspectors’ counts. Christian Aviles was the floor manager but he had many different duties to perform. Although he stated that he was using a clicker at the front door that night, he left the entrance to go downstairs, without leaving the clicker with the security person at the entrance. At no time did Mr. Aviles give evidence as to the count that he had on his counter nor did he give any plausible explanation as to why he did not leave the counter with Mr. Serville. He stated that no one spoke to him about the count that the inspectors made. On the other hand, there is no credible evidence that anyone specifically referred the inspectors to him. Counsel for the Appellant argued that the inspectors had a duty to seek him out, but offered no authority in support of that submission. In any event, when the inspectors spoke to Mr. Serville again and told him about their count, he still did not refer the inspectors to Mr. Aviles, when he had the chance to do so. The Tribunal does not accept Mr. Serville’s evidence that the inspectors did not speak to him about the count. Such evidence flies in the face of the evidence of both inspectors to the contrary, who made notes about the matter. The Tribunal prefers the corroborated evidence of the inspectors over that of Mr. Serville, who was testifying only from memory about an event that occurred 8 months before this hearing.

Mr. Aviles testified that he did not believe that the inspectors’ counts could be accurate because the room was dark and people were moving and dancing. However, he then revealed that he did not know that the inspectors used manual counters or clickers. He believed that they used only their fingers. That is hardly evidence to discredit the inspectors’ counts.

Mr. Aviles also did not compare the number of cover charges with the count he claims he obtained using the clicker. Ms. Carey took the cover charge, but did not use a counter nor did she testify as to the number of cover charges. Accordingly, she could give no evidence to confirm that Mr. Aviles was taking an accurate count. She herself did not take a count. Although Mr. Serville told the inspectors that the owner was not in, no one referred them to Ms. Carey, who was the acting manager, although the inspectors did not know that at the time.

What the Tribunal is left with is this: two inspectors had counts that far exceeded the permissible number of persons in the licensed premises. The Appellant presented no evidence to contradict those numbers. There was only evidence from Mr. Serville, who did not have a counter, Mr. Aviles, who did not know that the inspectors used a counter and did not give evidence about any count that he obtained, and Ms. Carey, who had no exposure to, or information about, any count taken by any employee of the Appellant.

The Tribunal, therefore, accepts the uncontradicted evidence of the two inspectors concerning the counts that they obtained.

Counsel for the Appellant vigorously argued that the inspectors’ counts could not be reliable. However, he presented no credible evidence to support that argument and did not discredit their evidence on cross-examination.

He further argued that the inspectors could not be impartial because they work in the same office as the Registrar and Registrar’s counsel and are expected to return to the office after their inspections and lay charges. He urged the Tribunal, in the absence of any supporting evidence, to make such a finding. He, however, presented no cogent evidence to support that argument. At best, he asked this Tribunal to make an assumption, in the absence of evidence, that the inspectors were not impartial. The Tribunal considers that simply making a bald statement accusing the inspectors of bias, in the absence of corroborating and substantiating evidence, does not make it so. The Tribunal cannot come to that conclusion based only on suggestion and suspicion raised by counsel, in the absence of any supporting evidence.

In the face of no substantiating evidence, the Tribunal considers such a suggestion to be an unwarranted attack on the integrity of the inspectors without foundation. In the absence of proof, and inasmuch as the inspectors were not discredited on cross-examination, the Tribunal rejects that argument.

Counsel for the Registrar also argued that the testimony of the Appellant’s witnesses was biased because their jobs depended on the Appellant’s business remaining open. That allegation, too, is unwarranted because there is no evidence before this Tribunal to support it. The Tribunal rejects that argument, as well.

The Tribunal concludes, on a review of the evidence, that the Appellant’s employees had no credible count of the number of persons who were in the premises at the time of the inspection. The Tribunal also notes that the evidence was that, after the inspectors made their counts, the crowd thinned out when the employees ushered customers out. A second count could not, therefore, be made.

Counsel for the Appellant also argued that there are two shows a night and that people changed their clothes, thereby casting doubt on the numbers that the inspectors recorded. It is noteworthy that the Appellant’s own witnesses said nothing about such shows in their testimony. The reference to shows was raised only by way of cross-examination questions, with no subsequent confirming evidence, and also in the Appellant’s final submissions. That hardly is evidence of any shows.

The Tribunal acknowledges that the two inspectors had different counts. However, the salient paint is that both counts were well in excess of the permissible number of persons.

Considering the evidence in its entirety, the Tribunal concludes that, on the facts, the Registrar has proved his case, on a balance of probabilities, that the number of people present on October 19, 2014, in the Appellant’s premises, at the time of the inspection, exceeded the permissible capacity of persons contrary to section 43 of Regulation 719 R.R.O. 1990 under the Act.

Inspection on November 9, 2014

On November 9, two inspectors arrived at the Appellant’s premises at 1:40 a.m. One of them was inspector Capes, who also attended on October 19, 2014.

On this occasion, one of the Appellant’s employees, Jason Leva, was taking a count at the entrance to the premises. He had two counters taped together. One was used to count those persons entering the premises. The other was used to count those who exited. His count of 649 persons entering and 317 exiting left a difference of 332 persons, being 30 persons below the Appellant’s licensed capacity.

In contrast, each count of the two inspectors, also using counters, revealed that the capacity had been exceeded. One count was 410 (being 48 persons over capacity) and the other count was 398 (being 36 persons over capacity).Counsel for the Appellant pointed out the discrepancy in the count of the two inspectors. The Tribunal finds that the difference can be explained, at least in part, by the fact that Inspector Capes (who counted 398 persons) did not count staff, whereas Inspector Sharma (who counted 410 people) did include staff in his count.

The inspectors stated that the customers were “spot dancing” and that there were no major transitions of persons while they were taking their counts. In response, the Appellant’s witness, Jason Leva, stated that he was at the top of the stairs and acknowledged, in response to questioning from the Tribunal, that he could not see whether the people were moving around so as to interfere with an accurate count by the inspectors. He also stated to counsel for the Appellant, by way of reply, that he could not “imagine” (to quote his testimony) getting an accurate count inside.

Further, the Appellant’s witness, Julia Carey, stated that she “felt” (to quote her testimony) that the bar was within capacity. She stated that she was inside her office, watching the cameras before she walked out onto the floor.

The Tribunal more readily accepts the actual counts taken by the inspectors over the imagination and feelings of the Appellant’s witnesses and Ms. Carey’s lack of records to support her testimony. Ms. Carey stated that her cover charge records would reveal how many persons entered, but not how many left. She produced no records as to how many persons were present at the time of the inspectors’ counts.

Counsel for the Appellant submitted that the use of two counters by the Appellant’s witness, Jason Leva, (one to count those entering and one to count those leaving) resulted in a more accurate count than the counts taken by the inspectors. He further argued, with respect to the inspectors’ counts, that their method was “junk science.” He argued that each of their counts was only as good as the counter and the person doing the counting.

That argument is a two-edged sword, for the same could be said of the Appellant’s witness, Mr. Lava, and the accuracy of his count and of his counters.

The evidence that tips the balance in favour of the Registrar is that there were two inspectors who took a count, independently of each other, and both counted a number that was in excess of the Appellant’s licensed capacity. Their evidence about there being an excess of persons was consistent with each other. Their evidence was not discredited.

Counsel for the Appellant argued that calculating an excess of only 36 persons shows a lack of impartiality on the part of the inspectors.

The Tribunal rejects that argument. The number is what it is. The inspectors can only report what their findings are. Their findings were unassailed in this proceeding. There is no evidentiary basis for alleging a lack of impartiality based only on the number of persons counted.

On a consideration of all the evidence presented to this Tribunal and for all the foregoing reasons, the Tribunal concludes that the Registrar has proved his case on a balance of probabilities that the number of people present in the Appellant’s premises on November 9, 2014, at the time of the inspection, exceeded the permissible capacity of persons contrary to section 43 of Regulation 719 R.R.O. 1990 under the Act.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal finds that the Appellant was in breach of s. 43 of Regulation 719 R.R.O. 1990 on October 19 and November 9, 2014.

In regard to sanction, the Registrar’s representative shall serve and file written submissions within seven (7) days of the date of release of this decision and the Appellant’s representative shall have seven (7) days after receiving those submissions to serve and file a written response. The Registrar’s representative may serve and file a reply within three (3) days of the receipt of the Appellant’s response. All submissions are also to be filed with the Tribunal. Submissions shall be no more than three pages in length, typewritten, double spaced, minimum 12 font. Copies of any authorities that the parties rely on can accompany the submissions.

LICENCE APPEAL TRIBUNAL

Kenneth W. Koprowski, Vice-Chair

Released: September 21, 2015```