Licence Appeal Tribunal
FILE: 10404/AGRPPA
CASE NAME: 10404 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
St. Catharines Celtic Social Club o/a St. Catharines Celtic Social Club Appellant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Avril A. Farlam, Vice-Chair
APPEARANCES:
For the Appellant: Peter Gill, Agent
For the Respondent: Faye Kidman, Counsel
Heard in St. Catharines: November 23, 2016
REASONS FOR 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 July 21, 2016, imposed a monetary penalty on St. Catharines Celtic Social Club o/a St. Catharines Celtic Social Club (the “Appellant”), with respect to a contravention of section 43 of Ontario Regulation 719/90 under the Liquor Licence Act. If the Tribunal determines, on a balance of probabilities, that the alleged contravention occurred, it must confirm the Order of Monetary Penalty. The Tribunal has no discretion under the Act to alter the amount of the monetary penalty.
For the reasons that follow, the Tribunal confirms the Order of Monetary Penalty.
THE EVIDENCE
Registrar’s Evidence
The licensed capacity of the Appellant’s premises is 160. Two Alcohol and Gaming Commission of Ontario (“AGCO”) Inspectors, Michael Langelaan and Chris Trachsler conducted independent counts using the same mechanical counter at the establishment on St. Patrick’s Day, March 17, 2016 shortly after arriving at 9:05 p.m. Inspector Langelaan, who began his count first, counted 201 people inside the licensed establishment. Inspector Trachsler counted 192. The Registrar used the lower number in the allegation of overcrowding in the Order of Monetary Penalty.
Inspectors Langelaan and Trachsler have been employed as AGCO liquor Inspectors for 19 and 2 years, respectively.
That evening, as Inspectors Langelaan and Trachsler approached the premises to conduct a routine inspection, they noticed a couple of persons standing outside. Persons were entering the establishment through the main entrance.
After entering the establishment through the main entrance the inspectors identified themselves to the two security guards Amanda Kerr and James Gill who were in the vestibule just inside the front door. Inspector Langelaan asked the security guards if they were taking count. The security guards had mechanical counters. Amanda Kerr had a separate counter for the “in count” and the “out count”. Inspector Langelaan was told by the security guards that there were 160 people inside the establishment. Inspector Langelaan recorded this information in his notes and used his notes to refresh his memory at the hearing.
Inspector Langelaan conducted his own count using his own mechanical counter. Before beginning, Inspector Langelaan ensured that the mechanical counter was calibrated to 0. He conducted the count by starting in the hallway near the entrance and counting everyone in front of him until he reached the banquet room and then the main bar area where the band and dance floor are located. Inspector Langelaan described his progression through the establishment by referencing the floor plan of the establishment which was filed by Ms. Kidman and marked by the Tribunal as Exhibit 3.
Inspector Langelaan counted all stationary bodies, bodies on the dance floor and didn’t include bodies moving past him if not sure. He did not count people behind him as he did not want to double count anyone. The result of Inspector Langelaan’s count was 201 people in the indoor licensed area.
Inspector Trachsler conducted his own count using Inspector Langelaan’s mechanical counter. He did not conduct a simultaneous count with Inspector Trachsler because he had tested his own counter earlier in the evening and it was not working properly, so he left it in the car. Before beginning, he ensured that Inspector Trachsler’s mechanical counter was re-set to 0. Inspector Trachsler started in the banquet room and then moved to the room where the band was located and patrons were dancing. This count was conducted in three minutes. The result of Inspector Trachsler’s count was 192 people in the indoor licensed area. He reported this count to Inspector Langelaan.
Inspector Langelaan then asked the security guards to contact someone in charge and ultimately had a conversation with Beth and Rob Beattie who identified themselves as managers. When advised by Inspector Langelaan of the results of the counts that the AGCO Inspectors had conducted and the overcrowding, Beth and Rob Beattie responded that this is why security had been brought in. Inspector Langelaan suggested that no one else be let in until the number of patron was reduced. Both AGCO Inspectors left the premises at 9:32 p.m.
Appellant’s Evidence
The Appellant’s sole witness was Beth Beattie who is the bar manager. She has been the bar manager for the past two years and the assistant bar manager for three years before that. Ms. Beattie has worked in the service industry for 25 years and is Smart Service certified.
Ms. Beattie had hired two security guards from a licensed security company to control the flow of persons coming into the Appellant’s establishment. She had used this same security company at another establishment and was satisfied with their work. Ms. Beattie instructed the security guards that the licensed capacity is 160, and ensured they had two mechanical counters each so they could count persons coming in and going out. She checked on them throughout the evening and every time she spoke with them, Ms. Beattie testified she was advised that the number of persons was under capacity.
Ms. Beattie testified that she spoke with the AGCO Inspectors not long after they arrived at the establishment about 9:00 p.m. She confirmed that the Inspectors said the Appellant was over capacity. She understood the Inspectors to be giving a warning that the Appellant had to get the numbers down and that they would be back later in the evening to check on the capacity of the establishment.
After the AGCO Inspectors left about 9:30 p.m., Ms. Beattie testified that three more counts were done – the two by the security guards and the third count by her spouse Rob Beattie who runs the kitchen. She testified that all counts were between 150 and 158 but did not have the exact numbers of the three counts.
Ms. Beattie also testified that the Appellant has a policy not to let in any more persons when the maximum capacity of 160 is reached and to create a line outside the building. If a person leaves then a new person can be let in.
Ms. Beattie did not personally conduct a count at any time that evening. Rob Beattie did not testify at the hearing. Neither of the two security guards testified at the hearing. The Appellant’s Agent stated that this was because the security guards hired to conduct counts on March 17, 2016 would not respond to the Appellant’s requests to testify. The Appellant did not issue a witness summons to either security guard for the hearing.
THE LAW
Section 43 of R.R.O. 1990, Regulation 719 (“Licences to Sell Liquor”) 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”.
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 Regulation.
The onus lies with the Registrar to prove, on a balance of probabilities, that there has been a contravention of section 43 of the Regulation.
ISSUE
Did the Appellant exceed the maximum capacity of 160 on March 17, 2016?
ANALYSIS
The Tribunal found the AGCO Inspectors to be credible witnesses. Each Inspector testified separately and, due to the order made excluding witnesses, gave their testimony without hearing the evidence given by the other Inspector. Their testimony was consistent about the events that took place the evening of March 17, 2016 at the Appellant’s establishment and particularly about the counts of persons in the establishment that each Inspector had completed and recorded.
There is likely to be a margin of error when conducting a count of largely green clad patrons in a busy establishment on St. Patrick’s Day by walking through the establishment from front to rear and counting people in front. To determine exactly how many persons are in a busy establishment with great accuracy, it would be necessary to close the establishment and count each person as he or she exits. This was not done at the Appellant’s establishment the night of March 17, 2016. However, it is not necessary for the Registrar to prove that there were exactly 192 people in the establishment. Rather, it is sufficient for the Registrar to prove, on a balance of probabilities, that the Appellant exceeded its licensed capacity of 160.
The two AGCO Inspectors conducted independent counts within minutes of each other using the same method and the same mechanical counter. The variance between the two counts was relatively low (9 people). The actual count may well have been somewhat lower or somewhat higher. However, it defies believability that Inspectors Langelaan and Trachsler, two experienced Inspectors, would have over-counted the number of persons in the Appellant’s establishment by 32 and 41, respectively.
None of the Appellant’s staff who were said to have conducted counts on the evening of March 17, 2016, the two security guards and Rob Beattie, testified at the hearing. The Appellant did not obtain a Summons to compel the testimony of any witness at the hearing. The Appellant’s bar manager Beth Beattie, who did testify, did not personally count the number of persons at any time. While well intentioned, her role was limited to hiring the two security guards and directing them to count the number of patrons and keep the capacity at or under the licensed limit of 160. Accordingly, the Tribunal was left with no direct evidence of the Appellant’s count of persons on the night in question. The indirect evidence from the Appellant cannot overcome the evidence of the two AGCO Inspectors both of whom were present and conducted independent counts resulting in counts significantly greater than the licensed capacity of 160.
Ms. Beattie appeared sincere in wanting to comply with the capacity limits set for the establishment and in hiring extra staff for St. Patrick’s Day and in directing the staff to stay below or at the maximum capacity on the liquor licence. However, the issue in this appeal is not whether the Appellant acted with due diligence and took reasonable measures to comply with the maximum capacity on its liquor licence but whether in fact, on the evening of March 17, 2016, the Appellant was over the maximum capacity on its liquor licence. The Tribunal finds, on a balance of probabilities, that at the time the AGCO Inspectors attended and conducted their counts on March 17, 2016, the Appellant exceeded the capacity on its licence. Therefore, the Appellant was in breach of section 43 of O. Reg. 719/90. The Tribunal has no discretion under the Act to alter the amount of the monetary penalty.
ORDER
Pursuant to the authority vested in it under the provisions of the Act and specifically pursuant to s. 14.1(7) of the Act, the Tribunal confirms the Order of Monetary Penalty #1420 in the amount of $1,000.
LICENCE APPEAL TRIBUNAL
Avril A. Farlam, Vice-Chair
Released: December 8, 2016