Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9142/AGRPPA
CASE NAME: 9142 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
1887401 Ontario Inc. o/a Grand Entertainment (The) Appellant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Elizabeth Sproule, Vice-Chair
APPEARANCES:
For the Appellant: Maher Khalil, Agent
For the Respondent: Joyce Taylor, Counsel
Heard in Sudbury: January 15, 2015
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 September 11, 2014, imposed a monetary penalty in the amount of $2,500 on 1887401 Ontario Inc. o/a Grand Entertainment (The) with respect to contravention of section 43 of Ontario Regulation 719/90 (the “O. Reg.”).
REGISTRAR’S EVIDENCE
The evidence of the Registrar comprised documentation and the testimony of Alcohol and Gaming Commission (“AGCO”) Inspector Darrell Sargent.
Inspector Sargent has been an inspector with the AGCO for 5 years. He attended the Appellant’s premises on July 12, 2014, arriving at approximately 1 a.m. He observed there was a line up to get in the premises. He spoke to security staff and asked if it was ‘busy’ and they said yes. Upon entering the premises, he immediately noticed a lot of people in the main floor bar area; it appeared to him that the number of people exceeded capacity. He proceeded to the second floor west balcony area. Once on this elevated area, he checked his mechanical counter and then conducted a head count from the dance floor area to the back of the bar. He testified that he did not include in his count anyone moving around rapidly, including anyone moving to and from the dance floor.
The first count by Inspector Sargent was 213. He testified he reset his counter, checked that it was working and did a second count. The result was 211. The licenced capacity for the area counted was 176. The premises has a number of different licenced areas, the only problematic area the night of July 12, 2014, was the main floor area with a capacity of 176.
After completing his two counts, Inspector Sargent made his way to the main floor area and located Dan Abdel-Nour, a principal of the Appellant, and advised him that the area was over capacity. They spoke of ways to get more patrons to go to the 2nd floor area which was under capacity at the time. Inspector Sargent believed there were about 12 patrons in an area licenced for 43.
Inspector Sargent spoke to one of the security staff and asked for their count and was advised it was 255 for the entire premises. He left the Appellant’s premises at 1:36 a.m.
In cross-examination, Inspector Sargent confirmed that he did not take a count of the number of patrons in the smoking area (which is outside) or using the bathroom facilities. He confirmed he did not show his counter to any employee of the Appellant when he reset it in between counts. He confirmed he took the first count at 1:06 a.m. and it took about 5 minutes and that he took the second count at 1:09 a.m., and it took about 3 minutes. He did not recall how many patrons were using the AMT. He acknowledged that from where he took his count of the main floor there were certain areas that were difficult to see, but if he couldn’t see a patron then they would not have been included in his count. He did not actually count the number of patrons where it was clearly under capacity, as on the second floor, although he estimated there was about 12 people there. Inspector Sargent confirmed that no one was with him when he conducted his count. He wrote his report after exiting the premises and returning to his vehicle. He did not count any persons exiting while in his vehicle.
APPELLANT’S EVIDENCE
The Appellant’s evidence consisted of the testimony of Maher Khalil, a principal of the Appellant. Mr. Khalil testified that the manner in which the count was taken by Inspector Sargent left room for inaccuracies and speculation. He pointed to the fact that with people moving around it was difficult to get an accurate count. He did not feel an accurate count could be done unless the person doing the count moved around the room or asked everyone to stand still. He also testified that the lighting in the premises made it difficult to see accurately. He believed that counting at the door as people exited would provide a more accurate account.
Mr. Khalil pointed out that adding the number of 211 to the number of people the inspector estimated seeing on the second floor was a number well under the 255 count told to Inspector Sargent by the Appellant’s staff, again demonstrating the possible inaccuracy in the counting. He pointed out that the upper bar had discounted prices to attract patrons but that they were allowed to go down stairs and use the ATM and bathrooms. Inspector Sargent did not ask patrons where they were stationed nor did he know if people were moving through the main floor, from upstairs, to use the smoking area.
In cross-examination Mr. Khalil confirmed that he was not present at the Appellant’s premises on July 12, 2014.
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.
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 Tribunal finds that the evidence of Inspector Sargent in regards to his counts of the number of persons on the premises on July 12, 2014, was credible and reliable, and was not contradicted or weakened by Mr. Khalil’s evidence.
Mr. Khalil had no direct personal knowledge of what actually happened on July 12, 2014, and the principal who was on the premises that night and the security staff that were in attendance were not called as witnesses. Mr. Khalil’s evidence pointed out the challenges to achieving an accurate head count, however, the Tribunal was not persuaded that those factors impacted on the accuracy of the count of the main floor done by Inspector Sargent.
The head count of the patrons in the premises provided to Inspector Sargent upon his arrival by the Appellant’s own security staff, which evidence was not challenged, was 255. The fact that the specific location of each of these patrons was not determined by the Inspector at the time of his count does not, in the Tribunal’s opinion, render the Inspector’s count of the main level dance, bar and lounge area unreliable. The evidence was that Inspector Sargent excluded individuals moving about rapidly and to and from the dance floor. Also excluded were patrons who went unnoticed due to poor lighting and persons in the bathroom. These factors, moving individuals, lighting, bathrooms, were viewed by Mr. Khalil as supporting his position that the approach to counting used by the inspector could lead to inaccuracies. It appeared to the Tribunal that these factors, given the exclusions described above, were not prejudicial to the Appellant. Lastly, there was no evidence before the Tribunal of any observations or steps taken by the Appellant to count or monitor the number of the patrons on the main level area on July 12, 2014, to contradict the findings of Inspector Sargent, nor was there any suggestion that the inspector had counted the wrong area.
Based on the above analysis, the Tribunal finds that Registrar has proven on a balance of probabilities that the number of persons on the main level area with a capacity of 176, was in fact 211, and therefore, the Appellant did breach Section 43 of the O.Reg. on July 12, 2014.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal confirms the monetary penalty of $2,500 imposed under the Order of Monetary Penalty dated September 11, 2014, with respect to the breach of section 43 of the O. Reg. on July 12, 2014.
LICENCE APPEAL TRIBUNAL
________________________
Elizabeth Sproule, Vice-Chair
Released: January 29, 2015