Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2015-10-28
FILE:
9534/AGRPPA
CASE NAME:
9534 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
2045400 Ontario Limited o/a Dog and Bear
Appellant
-and-
Registrar of Alcohol and Gaming
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Jacqueline Castel, Member
APPEARANCES:
For the Appellant:
Jerry Levitan, Counsel
For the Respondent:
Tamara Brooks, Counsel
Heard in Toronto:
October 20, 2015
DECISION AND ORDER
BACKGROUND
The Appellant is appealing Order of Monetary Penalty #1224, dated April 28, 2015, (the “OMP”), issued by the Registrar of Alcohol and Gaming, under 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 establishment on February 8, 2015, in contravention of section 43 of Ontario Regulation 719/90 under the Liquor Licence Act R.S.O. 1990 c.L.19. If the Tribunal determines, on a balance of probabilities, that the alleged contravention occurred, it must confirm the OMP. The Tribunal has no discretion under the Act to alter the amount of the monetary penalty.
PRELIMINARY MATTERS
The Tribunal ordered that witnesses be excluded on consent.
Ms Brooks filed and the Tribunal entered OMP #1224 as Exhibit #1 and the Licence Profile of the Appellant as Exhibit #2.
EVIDENCE
The licensed capacity of the Appellant’s premises is 240. Two Alcohol and Gaming Commission of Ontario (“AGCO”) inspectors, Jade Leadbetter and Neline Fernando, conducted independent counts using mechanical counters at the establishment on February 8, 2015, shortly before 1 a.m. Inspector Leadbetter, who began her count a few minutes ahead of Inspector Fernando, counted 330 people. Inspector Fernando counted 318 people. The Registrar used the lower number in the allegation of overcrowding in the OMP.
Inspectors Leadbetter and Fernando have been employed as AGCO liquor inspectors for 11 and 8 years, respectively.
As Inspectors Leadbetter and Fernando approached the premises to conduct a routine inspection, they noticed a crowd of people standing outside. Neither inspector counted the number of people outside the premises. Inspector Leadbetter estimated there were 40 to 60 people standing outside, and Inspector Fernando estimated there were about 50 people.
On entering the establishment, the inspectors identified themselves to the Security Officer at the front door, Mr. Thomas Sniedzins. Inspector Leadbetter asked to see his mechanical counters. Mr. Sniedzins had two counters, one for counting patrons entering the establishment, and the other for counting patrons exiting the establishment. Inspector Leadbetter testified that the “in count” on the counter was 450, and the “out count” was 204. As such, according to the Security Officer’s counters, there were 246 people in the premises. Inspector Leadbetter recorded this information in her notes and used her notes to refresh her memory at the hearing. Inspector Fernando did not inspect the Security Officer’s counters.
Mr. Sniedzins testified that when the inspectors arrived at the establishment, there was a line outside the front door of approximately 20 to 30 people because the establishment was at capacity. He testified that there was another 15 people outside smoking. He indicated that when people leave the establishment, he asks them whether they are leaving for the night or just going outside to smoke. If they indicate that they are leaving, he lets the corresponding number of people in the line inside. If they indicate they are smoking, he does not let anyone new inside and does not click them “out” on the “out counter”. He did not recall or make a notation of the readings on his in and out counters when the inspectors arrived and asked to see the counters. However, he was adamant that the premises was not over capacity and indicated that the actual capacity was lower than the reading on the counter because some people were outside smoking and he did not click them out.
After verifying Security Officer Sniedzins’ counters, Inspector Leadbetter conducted her own count. Before beginning, she ensured that her mechanical counter was calibrated to 0. She conducted the count by starting at the entrance and counting everyone in front of her until she reached the rear of the premises. She explained that she did not count anyone behind her so as to minimize the risk of double counting anyone. It took her 8 minutes to conduct the count.
She noticed the front of the establishment was not busy and that customers were congregated towards the rear of the establishment. On cross-examination, she acknowledged that patrons were dancing, but clarified that they were dancing in one spot as there was no room for them to move around. Inspector Leadbetter had to push her way through the customers to reach the rear of the premises. When she reached the rear of the premises and completed her count, the counter read 330.
Inspector Fernando, who at 5”6 is 4 or 5 inches shorter than Inspector Leadbetter, confirmed that her counter was calibrated at 0 before beginning her count and used the same method of counting patrons as used by Inspector Leadbetter. Inspector Fernando testified that she had to manoeuvre her way through the crowd of people in the bar area. When she reached the rear of the establishment and completed her count, her counter read 318.
The inspectors decided it was not safe to walk through the crowd again. As such, they exited through a rear exit, returned to the front of the premises and asked to speak to the manager, Mr. Cameron MacDonell. Security Officer Joseph Jackson, who was also working at the entrance, but not counting patrons, went to get Mr. MacDonnell for the inspectors.
Mr. MacDonell testified that on most nights he tries to keep the capacity of the establishment at a maximum of about 220 people. He indicated that he gives the security officers working at the entrance clear instructions not to exceed the maximum capacity.
Inspector Leadbetter, in the presence of Inspector Fernando, advised Mr. MacDonell of her count. Mr. MacDonell said it was impossible for the premises to be so overcrowded, as that many patrons could not fit in the middle of the establishment where patrons were congregated. He asked to see Security Officer Sniedzins’ counters, which showed an “in count” of 450 people and an “out count” of 235 people, which would mean there were 215 people in the establishment.
Mr. MacDonell testified that he asked Inspector Leadbetter to conduct a second count with him, as he was convinced that her count was wrong. She declined to accompany him on a second count. He proceeded on his own to count the number of people in the establishment using a mechanical counter. He counted 233 people in the premises including staff. He conducted his count approximately 13 minutes after the inspectors did theirs.
Mr. Richard Lambert, one of the principals of the Appellant, testified that he prefers the capacity to be at about 10 or more under capacity to ensure compliance with the capacity limits. He also noted that they do not make more money when the premises is at capacity. He was not at the establishment when the inspectors attended, but earlier in the evening Security Officer Sniedzins told him that six or seven of his friends would not be able to enter as the establishment was at capacity. As such, he left the establishment and went elsewhere with his friends.
THE LAW
Section 43 of O.Reg. 719/90 provides that the licence holder must ensure that the number of persons in the premises to which the licence applies, including employees of the licence holder, does not exceed the capacity of the licensed premises, as set out on the liquor licence.
ISSUE
Did the Appellant exceed the maximum capacity of 240 on February 8, 2015?
ANALYSIS
The Tribunal found the inspectors to be forthright witnesses who gave consistent testimony on their observations on the date in question. Their independent recollections of the events that transpired during their inspection of the establishment of February 8, 2015 were good.
There is likely to be a margin of error when conducting a count in a busy establishment by walking through the establishment from front to rear (counting people in front). To determine exactly how many customers are in a busy establishment with the greatest accuracy, it would be necessary to close the establishment and count each person as he or she exits. However, it is not necessary for the Registrar to prove that there were exactly 318 people in the establishment. Rather, it is sufficient for the Registrar to prove, on a balance of probabilities, that that the Appellant exceeded the capacity on its licence.
The two inspectors conducted independent counts within a couple of minutes of each other using the same method and mechanical counters. The variance between the two counts was relatively low (12 people). The actual count may well have been somewhat lower or somewhat higher. However, it defies believability that Inspectors Leadbetter and Fernando, two experienced inspectors, would have over-counted the number of people in the establishment by 90 and 78 people, respectively.
Only two of the Appellant’s witnesses conducted counts on the night in question: Security Officer Sniedzins and Cameron MacDonell. Security Officer Sniedzins did not recall, or make a notation, of the exact reading on the counters when the inspectors attended. Inspector Leadbetter did ask to see the counters when she entered and made a notation of their readings. Based on this notation, the premises was over capacity by 6 people. The Tribunal found Security Officer Sniedzins explanation, that the reading on the counter exceeded the actual count because some customers were outside smoking and he did not click them out, to be self-serving. Security Officer Sniedzins had testified earlier that he does not let new customers inside when customers are outside smoking so as to stay within the capacity limits.
Mr. MacDonell conducted his count about 13 minutes after the inspectors completed their counts. It is possible that his count was more or less accurate at the time he conducted it. There was no evidence as to how many customers left the premises after the inspectors’ counts. However, even if Mr. MacDonell’s count was more or less accurate at the time, it does not negate the fact that the establishment was overcapacity when the inspectors first entered and conducted their counts.
Mr. Levitan referred the Tribunal to its decision in 9120 v. Registrar of Alcohol and Gaming, 2015 CanLII 9420 (ON LAT), a case where the Tribunal did not accept the accuracy of manual head counts conducted by two police officers. The facts of that case are, however, distinguishable from the present case. In the former case, the officers did not use mechanical counters, their evidence was inconsistent, their notes lacked important details, and one of the officers could not recollect significant details. In the present case, the inspectors used mechanical counters, which they confirmed were calibrated at 0 before they began their counts, their evidence was consistent, and they had good independent recollections of the incident.
Mr. Lambert and Mr. MacDonnell appeared sincere in wanting to comply with the capacity limits set for the establishment, and in directing staff to stay below or within the maximum capacity on the liquor licence. There was no indication that management at this establishment fosters a culture of disregarding regulatory requirements or cutting corners on compliance. Nevertheless, the Tribunal finds, on a balance of probabilities, that when the inspectors attended and conducted their counts on February 8, 2015, the Appellant exceeded the capacity on its licence.
ORDER
Accordingly, pursuant to s. 14.1(7) of the Act, the Tribunal confirms OMP # 1224 in the amount of $1000.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
Released: October 28, 2015