Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-11-21

FILE:

10335/AGRPPA

CASE NAME:

10335 v. Registrar of Alcohol, Gaming and Racing

Appeal from an Order of Monetary Penalty of the Registrar of Alcohol, Gaming and Racing under the Alcohol and Gaming Regulation and Public Protection Act, 1996, R.S.O. 1996, c. C. 26

1677195 Ontario Inc. o/a Che Bar

Appellant

-and-

Registrar of Alcohol, Gaming and Racing

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Jacqueline Castel, Member

APPEARANCES:

For the Appellant:

Lorne Honickman, Counsel

For the Respondent:

Faye Kidman, Counsel

Rob Sidhu, Counsel

Heard in Toronto:

October 27, 2016

DECISION AND ORDER

BACKGROUND

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 May 26, 2016 imposed a monetary penalty on 1677195 Ontario Inc. operating as Che Bar (“the “Establishment”), in the amount of $2,000, based on an alleged contravention of section 43 of R.R.O. 1990, Regulation 719 (the “O.Reg.”) under the Liquor Licence Act (the “LLA”). Specifically, it is alleged that on January 24, 2015, at approximately 12:30 a.m., the Appellant exceeded the capacity on its licence by 10 people. The Appellant disputes this allegation. For the reasons that follow, the Tribunal sets aside the monetary penalty.

FACTS

The Registrar called two witnesses, Inspector Brad Capes and Sergeant Sonya Siebert.

Inspector Capes is currently a racing inspector employed by the Alcohol and Gaming Commission of Ontario (“AGCO”). Prior to becoming a racing inspector he worked for the AGCO as a liquor and gaming inspector for 8 years. Sergeant Siebert is an OPP officer on secondment to the AGCO. She is Inspector Capes’ supervisor.

Inspector Capes and Sergeant Siebert arrived at the Establishment on January 24, 2016 at approximately 12:27 a.m. to conduct a routine liquor inspection. Inspector Capes was familiar with the Establishment. Sergeant Siebert could not recall whether she had ever attended the Establishment before.

Inspector Capes testified that when they arrived at the Establishment he identified himself to the security employee at the patio entrance. He noticed that it was very busy. He indicated that the booths on the north wall normally seat four people and there were six to eight people seated at each booth. He elaborated that girlfriends were sitting on the laps of their boyfriends.

He testified that he reset his mechanical counter to 0 and started to count the patrons, beginning at the front door and walking from the east wall to the north wall to the west wall, then to the bar area, stopping at the south area of the Establishment. He testified that he had his eyes on the front door and the patio door the entire time he was counting patrons and no one entered or exited the Establishment while he was conducting his count. He also stated that he did not count patrons behind him. In addition, he testified that he did not count patrons in the hallway as there were too many to count and it would not be safe to push his way through them. He acknowledged on cross-examination that he did not include anything in his notes about the patrons he did not count. He stated that most patrons were stationary except for patrons on the dance floor. When he completed his count, his mechanical counter read 103.

Inspector Capes stated that the DJ was not playing when he conducted his count and the lights had not been dimmed. According to Inspector Capes, house music was playing.

After conducting the count, he advised the owner of the Establishment, Scott MacDonald, that they were over capacity by 10 people. He kept the number on his counter in case Mr. MacDonald asked to see it, but he did not. He testified that Mr. MacDonald told him, “I realize we are probably over”; however, on cross-examination, he acknowledged that he did not include this information in his notes.

Inspector Capes acknowledged that a count-out is a more precise type of count. For a count-out, all persons in the premises are required to leave via one exit (the other exits are secured), and they are counted as they leave. According to Inspector Capes, there are public safety issues associated with conducting count-outs, as patrons typically do not appreciate being required to leave the Establishment before closing.

Sergeant Siebert testified that her role that night at the Establishment was to ensure inspector safety and to supervise. It was not her role to conduct a count. She stated that she remembers the Establishment being busy, but could not recollect the number of people at the booths. She did not recall whether there were any staff at the doors of the Establishment or the approximate number of patrons in the hallway. She stated that she lost sight of Inspector Capes while he was conducting his count so she went to the entrance area and waited for him. She observed people coming and going while she was waiting. She testified that Inspector Capes told her that his count was 103. She could not hear the conversation between Inspector Capes and Mr. MacDonald.

On cross-examination, Sergeant Siebert stated that a count-out would have taken a lot of time to coordinate as it would require additional manpower.

The Appellant called two witnesses, Scott MacDonald, the owner of the Establishment, and one of his security employees, Austin Woods.

Mr. MacDonald testified that he has owned the Establishment for just over 10 years. He testified that he has security posted at the front entrance of the Establishment and at the patio doors. His security staff have mechanical counters like the one used by Inspector Capes. He testified that the dance floor was busy but the other areas of the Establishment were not particularly busy and the bar was in fact slow. He also stated that there were no patrons in the front booths.

Mr. MacDonald stated that Inspector Capes showed him his counter, but he did not have his glasses and could not read what it said. Inspector Capes told him they were over capacity. He acknowledged that they were busy but did not acknowledge they were over capacity. He stated that the DJ was playing while Inspector Capes was speaking to him and it was difficult to hear; the lights were also dimmed. He stated that the Establishment was short staffed in the bar area, but not with respect to security personnel; there were three security employees on duty that evening. He stated that he did not notice Inspector Capes and Sergeant Siebert when they entered the Establishment.

After his conversation with Inspector Capes, he went to speak to his security employee at the front entrance. This employee told him he was counting patrons as they enter/exit and his counter read 74. Mr. MacDonald stated that he asked another security employee, Austin Woods, to conduct a count using a mechanical counter two or three minutes after Inspector Capes left. Mr. Woods’ count was 73 patrons and five employees. Mr. MacDonald also asked Mr. Woods to borrow his phone so he could video the Establishment, as the battery on Mr. MacDonald’s phone had died. He testified that he took the video three to five minutes after Inspector Capes departed. He acknowledged that his “will say” statement, which stated that his security employee took the video, was wrong; Mr. MacDonald stated that he was definitely the one who took the video.

Austin Woods has been employed at the Establishment as a security officer since June 2015. He is 6”6. On January 24, 2016, he was positioned inside the main entrance door and one of his responsibilities was to keep track of the patron count. He stated that he stayed in this position all night except for when he took breaks. He was not wearing a security uniform. He has never met Inspector Capes before and does not recall seeing him or Sergeant Siebert that evening. He stated that Mr. MacDonald asked him to do a count after Inspector Capes and Sergeant Siebert left and he got a count of 73 patrons plus five staff. He also stated that he let Mr. MacDonald use his cell phone to video the Establishment shortly after the inspectors left.

THE LAW

Subsection 14.1(12) of the Act allows the Registrar to impose monetary penalties set out in the schedule established by the Board of the AGCO. The Schedule of Monetary Penalties: Liquor Licence Act and its Regulations sets a monetary penalty of up to $10,000 for contraventions of section 43 of the O.Reg., which 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.

APPLICATION OF LAW TO FACTS

The Tribunal invited written submissions within set timelines that were agreed to by the parties. Submissions were received and reviewed by the Tribunal.

At the outset, the Tribunal found the video, which was entered by the Appellant and

filed as an exhibit, to be unhelpful and put no weight on it. Mr. Campbell testified that

he recorded the video on Austin Woods’ cell phone minutes after Inspector Capes and Sergeant Siebert departed. However, the video was not dated, of poor quality, and could not be used to determine the patron count of the Establishment.

The Tribunal also put no weight on Inspector Capes’ evidence that there were additional patrons he did not count, as he did not mention this in his notes and the Order of Monetary Penalty only alleges an overage of 10 patrons.

Inspector Capes acknowledged that a count-out is the most precise type of count, and that he did not perform this type of count for various reasons. The type of count he did perform is less accurate. In addition, he only performed one count. Sergeant Siebert gave evidence that it is not her role to conduct a count and that she was there to supervise and ensure inspector safety. However, she also acknowledged that she lost sight of Inspector Capes while he was conducting the count, and as such, did not directly observe him perform all or most of the count. Where there are two independent counts performed at the same time or within a couple of minutes of each other and the variance is low or there is no variance, there are stronger grounds for believing, on a balance of probabilities, that the counts are relatively accurate.

Ms. Kidman, counsel for the Registrar, filed with her written submissions, the Tribunal’s decision in 2045400 Ontario Ltd (o/a Dog and Bear) [2015] OLATD No.205, in support of the proposition that a count conducted by the licensee after the inspectors departed does not impact the inspector’s count unless the number of patrons who enter and exit the premises in the interim is known and accounted for. The Tribunal agrees with Ms. Kidman on this point. Although the Tribunal found Austin Woods to be a credible witness with a good independent recollection of events, his count does not impact Inspector Capes’ count, since it was taken a few minutes after Inspector Capes departed and there was no evidence on how many customers may have entered or exited the Establishment during the time period between which Inspector Capes’ count was completed and Austin Woods’ count commenced.

However, the Tribunal notes that the Dog and Bear case and the present case are otherwise distinguishable. In Dog and Bear, two inspectors conducted independent counts by walking through the establishment from front to rear, counting people in front of them using a mechanical counter. One inspector found that the licensee was over capacity by 90 people, and the other inspector found the licensee was over capacity by 78 people. The Registrar, in that case, out of fairness to the licensee, relied on the lower of the two counts. The Tribunal acknowledged that there is bound to be a margin of error using this method of counting people in a busy establishment, but found that “it defies believability .... that two experienced inspectors would have over-counted the number of people in the establishment by 90 and 78 people, respectively.” In the present case, there was only 1 count on behalf of the Registrar and the overage – 10 people – was comparatively low; in fact, the overage was lower than the difference between the two inspectors’ counts in the Dog and Bear case.

Inspector Capes stated that his height gave him a good vantage point for his count. He did not give evidence on his actual height. Sergeant Siebert testified that Inspector Capes is a “big guy” compared to her. Nevertheless, Inspector Capes was not so tall that he would stand out in a busy Establishment, as Sergeant Siebert also testified that she lost sight of him when he was conducting his count. Austin Woods, on the other hand, gave evidence that he was 6”6.

There were some inconsistencies between the evidence of Inspector Capes and Sergeant Siebert. For instance, Sergeant Siebert testified that she went to the front of the premises while Inspector Capes was performing the count and observed patrons come in and go out. Inspector Capes stated that he was watching the front and patio entrances the entire time he conducted his count and no one entered and exited. Further, if Inspector Capes’ eyes were in fact on the doors at all times while he was conducting the count, the Tribunal questions whether he was carefully observing the patrons he was counting to ensure that he did not miss or double count anyone.

Sergeant Siebert’s recollections of the Establishment and what she observed that evening were very limited. She could not recall whether she had been to the Establishment before, nor could she recall anything about the approximate number of patrons in the booths or in the hallway. She also could not recall whether or not the lights were dimmed and the DJ was playing. In addition, she testified that she could not hear the conversation between Inspector Capes and Mr. MacDonald. As such, Sergeant Siebert was not of assistance in corroborating Inspector Capes’ testimony on any of these matters.

Based on both Inspector Capes and Mr. MacDonald’s description of the conversation between them, the conversation was brief. There were a number of inconsistencies between the evidence of Inspector Capes and Mr. MacDonald on the content of the conversation, and there were no witnesses to the conversation. While Inspector Capes testified that Mr. MacDonald acknowledged that the Establishment was over capacity, he did not make reference to this in his notes and Mr. MacDonald firmly denied acknowledging any such thing. The Tribunal finds an admission of guilt on the part of a licensee to be a very salient piece of information to omit from an inspector’s notes and questions the veracity of Inspector Capes’ evidence on this point.

Inspector Capes also testified that there was background music on at the time of his conversation with Mr. MacDonald, but that the DJ was not playing and the lights were not dimmed; Mr. MacDonald testified that the DJ was playing and the lights were dimmed, adding that he does not use house music at his Establishment. Sergeant Siebert and Austin Woods could not recall whether the DJ was playing.

There was no evidence that Inspector Capes asked, at any time, to see the count taken by the Establishment’s security personnel. Neither Inspector Capes nor Sergeant Siebert specified in their testimony at what time they departed the Establishment, and from description of what they did and observed in the Establishment, it appeared as though they were there for a very short time.

Given that only one count was performed on behalf of the Registrar, and given the concerns identified above respecting Inspector Capes’ evidence, the Tribunal is not satisfied that the Registrar has established, on a balance of probabilities, that the Appellant exceeded the capacity on its licence on the date and time in question.

ORDER

Therefore, pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to set aside the Order of Monetary Penalty # 1404 issued on May 26, 2016.

LICENCE APPEAL TRIBUNAL

J. Castel Vice-Chair/Member

Released: November 21, 2016