Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 15081/AGCOA

Appeal from an Order of Monetary Penalty under the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 1

Between:

Izakaya on Elgin Inc. o/a Waverly (The) Appellant

and

Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 Respondent

DECISION

VICE-CHAIR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: J. Randall Barrs, Counsel

For the Respondent: Ashley An, Counsel

HEARD: December 6, 2023

REASONS FOR DECISION AND ORDER

background

1Izakaya on Elgin Inc. o/a Waverly (The), the appellant, is the holder of Liquor Sales Licence No. LSL90586 (“Licence”) under the Liquor Licence and Control Act, 2019 (“LLCA”) for 339 Elgin Street, Ottawa (the “Premises”). The sole officer, director and shareholder of the corporate licensee is Abbas Mahmoud.

2On July 12, 2023, the Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 (“Registrar”) issued an Order of Monetary Penalty No. 2098162 in the amount of $1,000.00 (“OMP”) to the appellant in respect of the following contravention: On March 18, 2023, the appellant failed to ensure that the number of persons on the premises to which the licence applies, does not exceed the capacity of the licensed premises as stated on the licence.

3Specifically, the OMP states that, on March 18, 2023, there were approximately 205 persons in an area licensed for 112 persons.

4The appellant appeals the OMP. The Notice of Appeal indicates that Mr. Mahmoud maintains his position that they were not overcrowded on the night in question.

ISSUE

5The issue to be determined is whether the appellant has contravened the Act and/or regulations or a condition of the Licence by failing to ensure that the number of persons on the Premises to which the licence applies, including employees of the licensee, does not exceed the capacity of the licensed premises as stated on the Licence.

result

6For the reasons set out below, I confirm the OMP of $1,000.00.

ANALYSIS

7Section 14 of the Alcohol and Gaming Commission of Ontario Act, 2019 (“AGCO Act”) deals with OMPs. Sections 14(2) and (5) authorize the Alcohol and Gaming Commission of Ontario (“AGCO”) to establish a schedule of monetary penalties that may be imposed for contraventions of any of the industries overseen by AGCO, including alcohol, and requires the publication of such schedule. The Registrar may impose an OMP pursuant to section 14(5), and the subject of that OMP may appeal it to this Tribunal under section 14(7) while section 14(10) states, upon holding a hearing, the Tribunal may either confirm the OMP or set it aside—there is no legislated authority to vary the amount of an OMP.

8Section 24(1) of the LLCA authorizes the Registrar to establish standards for the conduct of licensees and the operation of licensed premises, including the number of persons who may be on the licensed premises. The Registrar shall publish any such standard.

9Standard 6.1 of the Registrar’s Interim Standards and Requirements for Liquor made under the Act (“Standards”) provides that the licensee shall ensure that the number of persons on the premises to which the licence applies does not exceed the capacity of the licensed premises as stated on the licence.

10The onus lies with the Registrar to prove, on a balance of probabilities, that there has been a contravention of Standard 6.1.

There Were More than 112 Persons on the Indoors of the Premises

11After considering the totality of the evidence, including the testimony of the appellant’s witnesses Abbas Mahmoud and Gray Johnson, and considering the submissions put forward by both parties, I find that the Registrar has met the burden of proof to establish that the appellant contravened Standard 6.1 on March 18, 2023 in that it did not ensure that the number of people indoors on its Premises did not exceed its licensed indoor capacity for 112 persons. The following are my reasons.

12It is not in dispute that the appellant’s Licence for the Premises has an indoor capacity limited to 112 persons and an outdoor capacity limited to 47 persons.

13I find that the count of persons indoors on the Premises between 12:54 a.m. and 1:18 a.m. on March 18, 2023 was 205 based on the documents filed by the Registrar and the testimony of Inspector Josee Albert, whose evidence I accept.

14Inspector Albert, an experienced AGCO inspector, testified that on March 18, 2023 at 12:54 a.m. she conducted an inspection of the indoors of the Premises and made notes of her inspection right after. Inspector Albert had inspected the Premises on previous occasions and is familiar with the layout which she described as a bar and seating separated by three aisles. Outside is a patio surrounded by railing so the only way to get to the patio is from the inside of the Premises.

15When Inspector Albert arrived at the Premises, she saw a long line up of persons outside, two bouncers controlling the line, and she saw through the front window that the Premises was pretty full. Inspector Albert asked the bouncers how many persons were inside the Premises because they were using counters and was told 137. Based on the bouncers’ answer, the number of persons inside exceeded the indoor capacity of 112.

16Inspector Albert tested her mechanical counter twice by counting it up to ten twice, re-setting the counter and began her count when she entered the Premises. Inspector Albert started on the left side, made a circle clockwise, and counted in front of her to avoid double counting. She testified that during her count it was bright enough to see everyone inside but the middle aisle was not clear enough for her to walk through because people were shoulder to shoulder and some people were sitting on top of the banquet seating, so she counted the people in the middle aisle from observations. Inspector Albert counted 205 people in the indoor space which is 93 persons over the indoor limit on the Licence. Inspector Albert did not inspect the patio.

17After counting, Inspector Albert spoke to the manager Gray Johnson, advised him of her indoor count, and told him that because of the indoor over capacity, she would have to make a report to her supervisor. Inspector Albert finished her inspection at 1:18 a.m. and left the Premises.

18Inspector Albert testified that overcrowding is a public safety issue because the number of persons allowed by the Licence is determined by the fire department, based on the number of people it determines can safely leave the Premises if need be. Inspector Albert testified that the indoor capacity of 112 and the outdoor capacity of 47 stated on the Licence cannot be combined.

19I find Inspector Albert’s notes that she made following the inspection, and the Inspection Report dated March 22, 2023 both confirm her count of 205 persons in the indoor area of the Premises on March 18, 2023 between 12:54 a.m. and 1:18 a.m. on March 18, 2023.

20The Registrar advised the appellant by letter dated May 17, 2023 that on March 18, 2023 there were approximately 205 persons in an area licensed for 112 persons. This letter confirms that Mr. Johnson was advised of this on March 18, 2023.

21Although Abbas Mahmoud testified that he was on the Premises on March 18, 2023 before and after Inspector Albert’s inspection, he testified that he was not present during the inspection or at any time between 12:54 a.m. and 1:18 a.m. on March 18, 2023. As a result, I give his testimony about the number of persons in the indoors of the Premises during the time of Inspector Albert’s inspection no weight.

22Much of the balance of Mr. Mahmoud’s testimony expressed his views as to why Inspector Albert’s count of 205 persons must be in error. For example, Mr. Mahmoud’s testified that it is physically impossible for the Premises to hold 205 persons and Mr. Johnson testified to the same effect. These statements are not supported by any objective evidence even though Mr. Mahmoud testified that an engineer or architect would agree with him.

23Mr. Mahmoud also testified that the Premises did not appear to be overcrowded in his view. This testimony is vague, non-specific and self-serving and does not outweigh Inspector Albert’s more specific, detailed count which was obtained with the help of a mechanical counter and noted and reported on shortly after the inspection. Mr. Mahmoud also testified that it was raining during the time of the inspection and people from the patio, itself licensed for another 47 persons, were likely brought inside the Premises, which he believes is allowed.

24Given Mr. Mahmoud’s own admission that he was not present on the Premises during the time of Inspector Albert’s inspection, when I consider his evidence against Inspector Albert’s, I do not find his to be reliable and give it no weight.

25Further, although Mr. Mahmoud testified that the inspector’s boss has told him to let patrons into the indoor area of the Premises to pay for their drinks and finish their experience if it is raining, he could not name any employee of the respondent who has given him this advice and had no documentation to this effect.

26Based on the experience and knowledge of Inspector Albert, I prefer the evidence of Inspector Albert who testified that the indoor capacity of 112 and the outdoor capacity of 47 stated on the Licence cannot be combined. Further, even if Mr. Mahmoud was correct in his belief, which he is not, the combined capacities of 112 persons indoors and 47 persons outdoors totals 159 persons, which is still significantly less than the 205 persons counted by Inspector Albert.

27Although Gray Johnson testified that he was at the Premises when Inspector Albert conducted her inspection and he spoke with her and expressed disagreement about the number of persons she counted, Mr. Johnson denied that Inspector Albert conducted a count of the number of persons indoors or made any attempt to do so because he did not see her using her counter. I give this testimony no weight. Whether or not Mr. Johnson saw Inspector Albert using her counter or conducting a count of persons on the indoor Premises is not persuasive evidence that she did not do so. I prefer the testimony, notes and Inspection report of Inspector Albert which clearly establish that she conducted the count and advised Mr. Johnson of the count of 205 once she had completed it. Inspector Albert even noted that when she spoke to Mr. Gray and told him the result of the count, he “was surprised” and she said he would work on having “93 patrons leave” the Premises.

28Although Mr. Johnson testified that, based on what security at the Premises told him about the time of the inspection, he believed the Premises had a combined indoor and outdoor number of persons present of approximately 150 persons, I find that Inspector Albert’s count of 205 on the indoor part of the Premises to be more likely to be correct based on the Inspector’s experience, counting mechanism employed and records made, than Mr. Johnson’s belief based on what others are said to have told him.

29Given that the only evidence before me from a person who counted the number of persons in the indoor portion of the Premises between 12:54 a.m. and 1:18 a.m. on March 18, 2023 is that of Inspector Albert, I find the inspector’s evidence establishes that there were more than 112 persons on the indoor portion of the Premises at the time of the inspection. Inspector Albert gave clear and concise evidence, was not seriously shaken in cross examination and her testimony is supported by her detailed notes of her inspection and the Inspection Report made a few days later. Inspector Albert also has no interest in the outcome, unlike Messrs. Mahmoud and Gray. I accept Inspector Albert’s testimony that she counted more than 112 persons in the indoor portion of the Premises on March 18, 2023 during her inspection which violates the limitation on the appellant’s Licence of 112 persons indoors.

30The appellant submitted that Inspector Albert’s evidence is so suspect that it should be rejected in its entirety. Further, the appellant submits that Inspector Albert’s count is unreliable because she counted by herself, wrote in her notes that the bouncer said there were 137 persons indoors when Mr. Johnson said he was told it was approximately 150, said she tested her mechanical counter when there is no way to test a mechanical counter, mechanical counters are not an impressive mechanism, the count of 205 is impossible based on the evidence of Messrs. Mahmoud and Johnson, and she doesn’t recall the weather or persons on the patio or whether persons were coming in from the patio.

31The appellant also submitted that Inspector Albert’s evidence should be rejected because she testified about things not in her notes, most importantly, the fact that persons were “shoulder to shoulder” indoors during her inspection, she didn’t note that she couldn’t walk through the middle aisle to count, that she was counting in front of her to avoid double counting, and that persons were sitting on the banquets.

32I do not agree with these submissions by the appellant.

33It was clear from Inspector Albert’s testimony that she usually works alone. Inspector Albert testified that she recorded in her notes “137”, being the number of persons indoors she asked for from the bouncers. However, Inspector Albert did not rely on this information but conducted her own count. I accept the testimony of Inspector Albert that she tested her mechanical counter twice in the method she described and that the test showed the counter was working. There is no evidence before me that a mechanical counter cannot be tested, that it was not working during the inspection, or that it is not an appropriate mechanism for counting. A mechanical counter does not need to be an “impressive” mechanism in order for it to be reliable for its intended purpose.

34There is no evidence before me that establishes the count of 205 in the indoor space is “impossible” other than the testimony of Messrs. Mahmoud and Johnson which I found unpersuasive for the reasons set out above. The weather or number persons on the patio or whether persons were coming in from the patio is largely not relevant to Inspector Albert’s inspection of the indoor part of the Premises. Inspector Albert acknowledged that there was movement in and out of the indoor part of the Premises during her inspection and her count was conducted under those conditions.

35While the phase “shoulder to shoulder” does not appear in Inspector Albert’s notes, this phrase is recorded in the Inspection Report dated March 22, 2023 and Inspector Albert testified that she remembered this. While her notes do not record that she couldn’t walk through the middle aisle to count, that she was counting in front of her to avoid double counting, and that persons were sitting on the banquets, the March 22, 2023 Inspection Report describes in detail how the count was conducted and that “she really had to squeeze through to make it around”. I also accept Inspector Albert’s testimony that she remembered these details when giving her testimony.

36The respondent must establish only that more than 112 persons were in the indoors of the Premises at the time of the inspection, not the exact number. I agree with the Registrar’s submission that if I find that the appellant exceeded the indoor capacity on its Licence by any amount, l must confirm the OMP.

Conclusion

37As a result, considering the totality of the evidence and submissions made, I find that the Registrar has proven on a balance of probabilities that, contrary to Standard 6.1 of the Standards, the appellant failed to ensure that the number of persons on the Premises to which the licence applies, including employees of the licensee, does not exceed the capacity of the licensed premises as stated on the licence, specifically 112 indoors.

ORDER

38Pursuant to s. 14 (10) of the Alcohol and Gaming Commission of Ontario Act, 2019, I confirm the OMP of $1,000.00.

LICENCE APPEAL TRIBUNAL

Avril A. Farlam, Vice-Chair