Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2016-04-04
FILE:
9752/AGRPPA
CASE NAME:
9752 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
1817897 Ontario Inc. o/a Beta
Appellant
-and-
Registrar of Alcohol and Gaming
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Mary Ann Spencer, Member
APPEARANCES:
For the Appellant:
Randall Barrs, Counsel
For the Respondent:
Aviva Harari, Counsel
Heard in Toronto:
March 24, 2016
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 August 17, 2016, imposed a monetary penalty of $1,500 on 1817897 Ontario Inc. o/a Beta (“Beta”) with respect to a contravention of section 43 of Ontario Regulation 719/90 (the “O. Reg.”).
BACKGROUND
Beta has two licensed areas; a main floor with a licensed capacity of 580 and an upstairs balcony area with a capacity of 60, which is used as a VIP area for those who purchase bottle service. VIP patrons are issued wrist bands and staircase access to the balcony area is controlled by security. There are washrooms in both licensed areas. A second staircase leads to the upstairs washrooms which are separated from the VIP area by a door. Beta also has an outdoor smoking area and a lobby area with amenities such as ATM machines. The Order of Monetary Penalty alleges that there were 643 persons in the main floor licensed area on April 25, 2015.
REGISTRAR’S EVIDENCE
The evidence of the Registrar comprised the testimony of Alcohol and Gaming Commission (“AGCO”) inspector John Meissner and Waterloo Regional Police Constables Kelly Lukasic and Damon Debrusque.
Inspector John Meissner has been an inspector with the AGCO for eight years. Accompanied by Waterloo Regional Police Constables Kelly Lukasic and Damon Debrusque, Inspector Meissner conducted an inspection of Beta on April 25, 2015.
Inspector Meissner testified that when he arrived at Beta at 1:37 a.m., he initially spoke to security guard K.P. who, using counters, was tracking the numbers of patrons entering and leaving Beta. She had begun her count at midnight, having taken over from Inderjit Dhaliwal. K.P. advised Inspector Meissner that 808 people had entered and 278 had left, leaving 530 in the establishment.
When he entered the establishment, Inspector Meissner observed that it appeared to be crowded. He walked from the front to the back of the main floor, testifying that it was difficult to move through the crowd because people were shoulder to shoulder although he was able to navigate through them. He then went upstairs to the balcony area. From that vantage point, he observed that the establishment appeared more crowded than it had been on any of his previous inspections. After speaking to the police officers, the decision was made to conduct a capacity count. This was done by counting people as they left the establishment, that is, a “count out”.
While Inspector Meissner was on the balcony, which he estimated was between 1:50 and 2:00 a.m., he counted 4 patrons, 2 staff and 6 persons in the washroom for a total count of 12. He then went to the front main doors, where he counted 15 people exiting, a number which he provided to Officer Debrusque who then began the count out at that location. Officer Meissner and Constable Lukasic went to the side and rear exits of the building to count any persons entering or exiting from those areas. None did.
At 2:55 a.m., Officer Meissner was advised that all patrons had left the building. Constable Debrusque advised him that the count totalled 655, a number which included staff and the DJ crew who were still in the building. This total was reduced to 643 after deducting the 12 persons previously counted on the balcony. Inspector Meissner then spoke to Beta’s owner Ashley Ertel who advised him that her staff had also conducted two counts totalling 605 and 619 respectively.
Asked on cross-examination if he was aware that a ticketed event was taking place that night, Inspector Meissner stated he was not. If he had known, he might have asked how many tickets had been sold. He agreed that persons can move between Beta’s two licensed areas noting that access to the balcony area would be at the discretion of security. He also acknowledged that he did not know how many people were on the balcony at the time the count out was done.
Constable Kelly Lukasic is assigned to the CORE or Community Oriented Response team of Waterloo Regional Police. The team is comprised of a sergeant and four constables and one their responsibilities is liquor licence enforcement.
Constable Lukasic testified that she arrived at Beta with Constable Debrusque at 1:35 a.m. on April 25, 2015. She has been to Beta previously. She walked through the dance floor from the front to the back noting that it was very crowded and difficult to get through. She estimated that her walk through took no more than “a couple of minutes”. She then went to the balcony and counted four patrons in that area. Looking down on the main licensed area, she observed that it was very crowded, that people were shoulder to shoulder and stated there were “definitely more people there than other times I attended”. She could not remember if people were going up to the balcony as she left it. After leaving, she went to the back of the building to cover exit doors during the count out and stayed there until told that all patrons had left the building.
Constable Debrusque is also assigned to the CORE unit of Waterloo Regional Police. He estimated he had been to Beta at least 100 times. He testified that he arrived at Beta at 1:39 a.m. on April 25, 2015. He spoke to front door security guard K.P. who gave him her count numbers of 808 in and 278 out. He also noticed that approximately 10 people were in the outdoor smoking area.
Constable Debrusque described Beta as being “quite tightly packed” when he went in. He also conducted a walkthrough of the main area and then, with Inspector Meissner and Constable Lukasic, went to the balcony area where he counted a total of 12 people. He then left the balcony and called his sergeant and received permission to do the count out. Using a mechanical counter, he started the count out at 1:52 a.m. and completed it at 2:55 a.m.
Constable Debrusque explained that all exits must be covered in a count out. Inspector Meissner and Constable Lukasic were assigned to the side and back exits and he was positioned at the front exit in a manner that allowed him to see all doors. At 2:03 a.m., two Beta staff also went to the front exit area and began to conduct counts and he gave them the totals had at that time. Other staff came out to take over the count from them and Constable Debrusque testified that they were distracted, sometimes talking to people, stating that he wrote “not continuous coverage” in his notes. He saw four people from Beta conducting the count.
Constable Debrusque testified that he counted 668 persons leaving. After adjusting this total for 13 persons who entered and the 12 persons he had observed on the balcony, his count totalled 643 for the downstairs licensed area. He noted that there was a chance his count may have missed people because the exodus from the establishment increases towards the end of the night and it becomes challenging to count everyone.
On cross-examination, Constable Debrusque indicated that he was not aware that a ticketed event was taking place at Beta on April 24/25, 2015. Had he known, he probably would have asked how many tickets were sold although he also stated that the fact it was a ticketed event was not relevant to his count. He also did not ask how many VIP tickets for bottle service were sold.
Constable Debrusque testified he conducted his count of the persons on the balcony sometime before 1:50 a.m. He acknowledged that there is movement within the establishment, for example, to the outdoor smoking area, and that he would not have known if persons had left the balcony area to go either to this area or to a downstairs washroom.
APPELLANT’S EVIDENCE
Ashley Ertel is the owner of Beta which received its liquor licence in late December, 2011. Her concept was to add an electronic dance music venue to the Waterloo area. Her clientele are primarily students aged 19 to 23 but she noted that an older demographic is attracted if the talent she hires has been established for a period of time.
Beta sells tickets for events when there is a well known DJ performing and markets the events on social media. In addition, tickets are also sold at the door. On April 24/25, 2015, the DJ was Gareth Emery, who is popular and whom Beta has used with success in the past. Ms Ertel testified that 533 tickets were pre-sold for this event at prices ranging from $20 for early-bird purchasers to $35 for last call; 112 tickets were sold at the door. Some people do not require tickets; for example, the DJ will have a certain number of complimentary passes.
Bottle service is pre-booked. The upstairs area, which is strictly a VIP area for bottle service, has four tables which can accommodate up to 52 people. On April 25, 2015 the bottle service area was sold out.
Asked on cross examination to confirm that the combined total of pre-sold and door tickets was 645, Ms Ertel confirmed it was, but noted that because tickets are sold well in advance, Beta’s experience is that there is approximately a ten per cent “no show” rate . She also explained that buying a ticket does not guarantee the ticket holder automatic entry because the club controls capacity. Ticket holders are advised to come early to ensure they get in. Tickets are electronically scanned at the establishment’s entry. On April 24/25, 2015, 507 pre-sold tickets were scanned. Asked if it was possible that some were not scanned, she stated that it was not because people must go through security.
On April 25, 2015, when Inspector Meissner told Ms Ertel that Beta was over capacity, she did not believe it was possible. Therefore, she asked her operations manager, Ryan Henderson, to organize staff to conduct their own counts while she handled the establishment’s closing.
Ryan Henderson is Beta’s general manager of operations and marketing.
Mr. Henderson testified that Gareth Emery is one of the top ten DJs in the world. For his performance on April 25, 2015, 533 tickets were presold, of which 507 were claimed. Mr. Henderson noted that Beta has approximately a 5 per cent “no show” rate. A further 112 tickets were sold at the door. The number of tickets offered for sale at the door is based on the numbers pre-sold. Some of these tickets may be VIP tickets if space is available. Mr. Emery had 7 in his party. There were 25 staff working on April 24/25, 2015. Staff were not allowed to have complimentary guests that night. The total number of persons who entered was therefore approximately 650. It was “impossible” for Beta to have been over capacity because pre-sold tickets are scanned and stubs are torn off door tickets, which are numbered, before anyone can enter. The establishment also has a “no in or out” policy. If people exit the premises, they must line up again and go through security to re-enter.
Mr. Henderson explained that Beta has two VIP areas, one on the balcony and one in the main floor area. The balcony has a small open area that could be used as a dance floor but patrons who want to dance generally book the main floor. On April 24/25, 2015, the upstairs bottle service VIP area was sold out. These VIP patrons are required to purchase tickets and are included in the ticket numbers. He noted that they are able to move throughout the establishment, stating they “can freely roam the venue”.
Mr. Henderson assigned three people to conduct counts while the inspector and police conducted theirs. Two were positioned at the front exits and one at the back. They only had one clicker because at that time people were only exiting. Staff started after Constable Debrusque, but Mr. Henderson made sure they started at the same number Constable Debrusque had when they began. To ensure staff members were counting accurately, Mr. Henderson monitored their totals and noted that their numbers were close to Constable Debrusque’s until the music stopped at 2:15 a.m. and there was a “bottleneck rush” of people leaving. When this happened, Constable Debrusque seemed to be overwhelmed and Mr. Henderson heard him say, “they just f…ked us”.
Mr. Henderson also testified that there are two sets of doors at the front of Beta. Constable Debrusque was standing near one set but it is difficult to see both sets of doors from the position he was in. Mr. Henderson had one staff member beside the constable and another nearer to the second set of doors. The Beta staff counts
totalled 605 and 619. Mr. Henderson stated that Constable Debrusque’s numbers are “impossible” because Beta is careful. He also noted that some people left before the count started and that people do come and go throughout the evening.
Mr. Henderson did not go to the balcony VIP area to count the people there. He also noted that people are always moving, whether to the ATM machines in the lobby, the washrooms, or the outdoor smoking area, which he described as busy. A security guard prevents people from going to the upstairs area but the balcony VIPs can go anywhere in the establishment.
On cross examination, Mr. Henderson confirmed that 48 tickets were sold for the VIP area. He could not recall who the assigned security staff was at the VIP access staircase but testified that he himself went up a number of times although not after the police started their count out. He agreed he could not say that the police count of 12 in the upstairs area was not accurate.
Inderjit Dhaliwal is Beta’s former manager of security. He testified that on April 24/25, 2015, he had approximately 13 staff working. At approximately 10 p.m., Mr. Dhaliwal himself was posted at the entrance checking IDs and counting patrons. At the time he passed the mechanical counters to K.P., the count was 610. Sometime between 1:00 and 1:20 a.m., Mr. Dhaliwal spoke to Constable Debrusque. However, he was not present when Constable Debrusque started his count out, but joined him after he started and obtained his number. Ryan Henderson was also counting. Mr. Dhaliwal testified that he used two counters and did not pass them to anyone else. While he was counting, there were approximately 20 to 30 people in the smoking area which, on busy nights, is kept open to 2:15 a.m. He noted that he did the count every night and had been doing it for three years.
Mr. Dhaliwal could not recall exactly when he finished the count but estimated it was close to 3 a.m. His total was 619. The other staff count was 605. Constable Debrusque’s was 668. Mr. Dhaliwal did not go to the VIP area so he does not know how many people were there during the count out. Asked if he knew how many people left from the upstairs VIP area, Mr. Dhaliwal stated he did not. He then noted that generally people “who book upstairs stay upstairs.”.
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.
SUBMISSIONS
Registrar’s Submissions
Ms Harari submitted that the Registrar has established that Beta was over capacity in the main floor area on April 25, 2015. She noted that that both Officer Meissner and Constable Lukasic testified that they had never seen the club busier. Officer Debrusque’s count of 643 may in fact be understated given there was, as Mr. Henderson testified, some obstruction of his view. The total of the scanned pre-sold tickets, door tickets, staff and DJ party is not out of line with Constable Debrusque’s total. She further noted that even if the Beta staff counts of 605 and 619 were used, deducting the 12 persons on the balcony would still put the establishment over its main floor capacity of 580. Further, the security staff member who was located at the access stairs to the balcony, who might be in a position to verify the numbers in the VIP area, did not testify.
Appellant’s Submissions
Mr. Barrs submitted that the Registrar has failed to establish that Beta was over capacity. The two counts performed by staff were relatively consistent. There is only one count performed by the police/inspector team and Constable Debrusque may have been overwhelmed when he did it. There is no basis to assume that the 12 persons counted on the balcony remained consistent throughout the count process; it is a “fluid” situation. Patrons with VIP tickets are free to go to the lobby, smoking area or downstairs washrooms. Beta is run professionally with attention to detail; there are records of the number of tickets sold and scanned and the upstairs VIP area was sold out.
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 Appellant has two licensed areas, the smaller of which, the upstairs balcony VIP area, has a licensed capacity of 60. The licensed capacity of the main floor is 580. Patrons of both licensed areas must use the same doors to enter and exit the establishment. Therefore the counts conducted by Constable Debrusque and Beta staff include patrons who may have been in either of the two licensed areas.
The Registrar relies on the “count out” total of 643 obtained on April 25, 2015 by Constable Debrusque which he calculated by deducting a balcony count of 12 and an entry count of 13 from the 668 total recorded on his mechanical counter. Officer Meissner estimated he was on the balcony sometime between 1:50 and 2:00 a.m. and Officer Debrusque testified he was on the balcony before 1:50 a.m. In either case, the evidence indicates the count of 12 persons on the balcony was conducted well before the exit door “count out” was completed at 2:55 a.m.
Beta’s balcony VIP patrons are not restricted to the balcony area; Mr. Henderson testified they “can freely roam the venue”. VIP patrons can move to the outdoor smoking area, the downstairs washrooms, or the lobby without impacting capacity in the main floor area. The Tribunal notes, however, that if these patrons enter the licensed main floor area they must be counted in that area’s capacity. The Tribunal heard how the Appellant controls access to the VIP area by using security staff to check wristbands; there was no indication of how or if the Appellant monitors their movements to ensure capacity is not exceeded in the main floor licensed area.
Constable Lukasic testified that she saw no patrons entering the VIP area as she was leaving it after the count of 12 was made by the inspection/police team. However, the Tribunal cannot conclude that patrons did not return to the balcony from other areas after the team left. The Tribunal does conclude that the Registrar cannot rely on subtracting the balcony count from the total patron count to calculate the number of people who were in the main licensed area. To use the “count out” result to properly determine that number, the Registrar would require not only the balcony count but contemporaneous counts of the number of people in the lobby, the smoking area, and the downstairs washrooms, any or all of whom might have been balcony VIP patrons.
There is a significant difference between the total of 643 calculated by Constable Debrusque and the two totals obtained by Beta’s staff which are relatively consistent at 605 and 619. The Tribunal notes that Constable Debrusque testified that the staff members were distracted during the count and that counters changed hands. However, Mr. Dhaliwal, who had the higher of the two counts, testified that he did not pass his counter to anyone else and had been conducting counts for three years. Mr. Henderson testified that the counts, which he was monitoring, were fairly consistent until the volume of patrons exiting dramatically increased. He stated that Constable Debrusque then appeared to be overwhelmed. Constable Debrusque acknowledged that it was then difficult to count but stated that, if anything, his count might be low. Ms Harari argued that the fact that Constable Debrusque’s view was partially obstructed reinforces the probability that his count is understated. The Tribunal notes, however, that Mr. Henderson testified that one of the staff was positioned beside Constable Debrusque and this staff member’s count would therefore be subject to the same potential qualifications.
There was a ticketed event at Beta on April 24/25, 2015. Ms Ertel and Mr. Henderson both testified that the balcony area, reserved for VIP bottle service patrons, was sold out. Mr. Henderson testified 48 tickets were sold. The evidence is that to enter Beta, either a pre-sold ticket must be scanned or a stub must be torn off a ticket sold at the door. The Appellant’s evidence is that 507 tickets were scanned and 112 door tickets were sold for a total of 619. There were no complimentary staff guest lists that evening. With the addition of 25 staff and the DJ’s party of 7, the total number of persons who entered Beta was 651. By Constable Debrusque’s count, 643 people were in the main area and 12 were in the VIP area, a total of 655. Ms Harari argued that the consistency between these numbers validates Constable Debrusque’s count.
To accept Ms Harari’s argument means that no one could have left the establishment after entering it. However, Mr. Henderson testified that people come and go at different times. Mr. Emery’s performance was scheduled between 12:15 and 2:15 and therefore was almost over when Constable Debrusque began the count out at 1:52 a.m. Officer Meissner testified that he counted 15 people leaving in the short period before Constable Debrusque started his count. The Tribunal finds it improbable that others had not left the establishment before the count out began. Based on the improbability of all persons who entered Beta still being in the establishment and the fact that the two staff counts are relatively consistent, the Tribunal finds the staff counts to be the more reasonable.
Based on the fact that the Registrar is relying on only one count which the evidence indicates is significantly higher than the two independent counts conducted by Beta’s staff, and the fact that the calculation of the main floor capacity is flawed because numbers were not obtained and deducted for all of the areas where VIP patrons could have been located, the Tribunal finds, on balance of probabilities, that the Registrar has not established that Beta was over its licensed capacity of 580 in the main floor area on April 25, 2015.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal orders that the monetary penalty of $1,500 imposed under the Order of Monetary Penalty dated August 17, 2016, with respect to a breach of section 43 of O. Reg. 719 be set aside.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Released: April 4, 2016