SW Legal Services Published – Appeal – Alcohol and Gaming Commission
In this case our client had received an Order of Monetary Penalty – an automatic penalty imposed by merely receiving an offence by police for ‘overcrowding’ a night club.
This is a penalty under the Liquor License Act.
Our client was being targeted continually by the police in Toronto for accusations of overcrowding and over serving alcohol to their patrons.
Peter Swales submitted the application to appeal the monetary penalty and the License Appeal Tribunal scheduled a trial to decide the outcome of the offence against our client.
Peter Swales expertly dismantled the 3 police officer witnesses and completely discredited their evidence on cross-examination, demonstrating how their evidence was unreliable at best.
As result, our client’s penalty was set aside:
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
Carl Alexander Rose-Green & Patrick Dolly, operating as Turntable Restaurant & Lounge
Registrar of Alcohol and Gaming
REASONS FOR DECISION AND ORDER
|Jacqueline Castel, Member
|For the Appellant:
|Peter Swales, Paralegal
|For the Respondent:
|Katharine Brickman, Student-at-Law and
Tamara Brooks, Counsel
|Heard in Toronto:
|January, 21, 2015
DECISION AND ORDER
This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of Order of Monetary Penalty # 1079 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 29, 2013 imposed a monetary penalty on Carl Alexander Rose-Green and Patrick Dolley (the “Appellant”), operating as Turntable Restaurant & Lounge (the “establishment” or the “premises”), with respect to contraventions of section 43 of Ontario Regulation 719/90, prescribed under the Liquor Licence Act, R.S.O. 1990, c. L.19 (the “Act”), in the amount of $2,500.
The Chair of the Panel introduced Dr. Eleanor White, a new member of the Tribunal, and informed the parties that she would be auditing the hearing.
Ms Brickman filed Order of Monetary Penalty # 1079, dated August 29, 2013, the Notice of Appeal, dated September 21, 2014, and the Licence Profile for Turntable Restaurant & Lounge, and the Tribunal entered these documents as Exhibits 1, 2, and 3, respectively.
Witnesses were excluded on consent of the parties.
The maximum capacity on the establishment’s liquor licence is 90.
Ms Brickman called two witnesses, Sergeant (“Sgt”) David Van Allen and Constable (“Const.”) Vito Pedano. Both officers were members of Peel Regional Police Service. in 2013 at the time of the incident. Sgt. Van Allen is currently an inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”).
Sgt. Van Allen testified that he passed by the establishment in his police vehicle at approximately 1:44 a.m. on April 14, 2013 and noticed a lot of cars in the parking lot in front of the establishment. If all of the cars in the parking lot belonged to customers of the establishment, he believed that the establishment could be overcrowded. He acknowledged, in examination in chief, that there was a restaurant next door to the establishment which was open at the time.
Sgt. Van Allen contacted Constables Pedano and Richard Zalewsay, to attend the premises with him for the purpose of verifying the patron count relative to the maximum capacity on the establishment’s liquor licence.
The three police officers met at approximately 2 a.m., before attending the premises, Sgt. Van Allen explained his concerns about potential over-crowding given the number of vehicles in the parking lot. They did not count the vehicles in the parking lot. At 2:09 a.m. the officers entered the premises. All officers were in uniform.
There was a security officer at the entrance, later identified as Rodney Gill. Sgt. Van Allen testified that he did not notice whether Security Officer Gill had a mechanical counter, and on cross-examination, stated that he did not recall seeing the counter or having any conversations with the security officer regarding the patron count or the reading on his counter.
Conversely, Const. Pedano testified that he observed Security Officer Gill show Sgt. Van Allen his mechanical counter when they entered the premises. Const. Pedano noticed that the number on the counter was 90. Const. Pedano indicated that he also observed Security Officer Gill and Sgt. Van Allen conversing but he did not hear the content of their conversation.
Sgt. Van Allen and Const. Pedano, who were in close proximity of each other, each conducted an independent manual head count of the individuals in the premises. Const. Zalewsay did not conduct a count. They did not instruct customers to stand still while they conducted their counts.
Sgt. Van Allen described the interior of the premises as being a box, and stated that he started his count from the left of the establishment where the DJ was located and walked through the premises manually counting people. He did not count anyone behind him. He testified that he had no difficulty moving through the crowd. On cross-examination, Sgt Van Allen acknowledged that he had no notes on how he conducted the count, but indicated that he did have an independent recollection.
Sgt. Pedano testified that there was a small vestibule area at the entrance of the premises, a bar area and tables around the edge of what appeared to be a dance floor. He indicated that there were people congregating everywhere, including behind the bar. He also indicated that staff were not easily identifiable. He started his head count at the entrance area and proceeded to the bar area. He testified that he was walking behind Sgt. Van Allen while conducting the count.
Sgt. Van Allen and Const. Pedano both testified that their above average height (6”1 and 6”, respectively) assisted them in performing the manual head count. They also testified that the patrons were mainly stationary. Const. Pedano attributed this to customer interest in the uniformed police presence. Sgt. Van Allen counted 112 people and Const. Pedano counted 114.
After conducting the count, Sgt. Van Allen met with Mr. Rose-Green, the owner of the establishment, in the kitchen area and gave him a summons under the Act for exceeding the maximum capacity on his licence. Sgt. Van Allen stated he did not recall Mr. Rose-Green challenging his count and asking him to perform an exit count (i.e., counting each patron as she or he left the establishment). He also did not recall Mr. Rose-Green offering to turn the music off and the lights on so that he could perform an exit count. He indicated that he would only conduct an exit count in the case of a very large establishment. He gave an establishment with a capacity of 2500 as an example.
Const. Pedano stated that he observed Sgt. Van Allen speaking to Mr. Rose-Green but he did not hear the content of their conversation. He did not speak to any of the staff at the establishment about his count. On cross-examination, Const. Pedano stated that the restaurant next to the establishment would have been closed at 2 a.m. He also indicated that there was a strip club about 500 metres down the road.
Mr. Swales called three witnesses, the owner of the establishment, Mr. Rose-Green, and two employees of the establishment, the Chef, Ms Shirley Hall, and the Security Officer, Mr. Rodney Gill.
Security Officer Gill testified that when the police officers arrived at approximately 2 a.m. In response to a question from them, he identified himself as security. He indicated that the officer, who he described as being Sgt. Van Allen, asked if he had a counter. He responded in the affirmative and showed him his counter, which indicated a count of 90.
The only staff member of the Appellant to conduct a patron count on April 14, 2013 was Security Officer Gill. He used a mechanical counter to conduct the count, and when the officers arrived, his counter read 90. He did not have a second counter to track customers exiting the premises. He acknowledged that his count would have been more precise if he had a second counter to track exiting customers. He also indicated that some customers had left by 2 a.m. when the police officers arrived. As such, the actual patron count inside the premises would have been under 90 patrons. He estimated that approximately 16 customers left the premises after he reached 90 on his counter, but acknowledged on cross-examination that he could not confirm this number.
Security Officer Gill testified that a couple of patrons exited after the police officers entered. He also testified that a couple of other people tried to enter but he declined them entry because of the police presence.
In addition, Security Officer Gill testified that he was asked to go to the kitchen area about 10 minutes after the police officers arrived. He spoke to the officer he described as Sgt. Van Allen. He showed him his security officer licence and told him he thought the police’s count was wrong. He also told him that not all the vehicles in the parking lot belonged to customers of the establishment.
Mr. Swales filed a 1 page document entitled Turntable Restaurant and Lounge Staff Policies and Procedures, which the Tribunal entered as Exhibit 4. Mr. Rose-Green explained the document, in particular paragraphs #4 and 5, which state:
“4. Security staff must ensure that 85 guests and 4 employees to equal 89 are in the count, this in accordance to the liquor bylaw of Turntable Restaurant and Lounge.
- EMPLOYEES WHO DO NOT FOLLOW THE POLICIES ND PROCEDURES, THEIR POSITIONS WILL BE TERMINATED IMMEDIATELY.”
Mr. Rose-Green testified that he told Sgt. Van Allen that he would turn off the music, turn on the lights and instruct customers to exit so that an exit count could be performed. According to Mr. Rose-Green, Sgt. Van Allen told him that this would not be necessary.
Ms Hall testified that although Mr. Gill told her the patron count was 90, her impression was that there were fewer than 90 patrons in the establishment when the police officers were present. She acknowledged that she did not conduct her own count. She also stated that she asked one of the police officers present whether he performed a count, while the officer she described as Sgt. Van Allen was speaking to Mr. Rose-Green. According to Ms Hall, this officer told her he did not perform a count. She stated that the officer had to be the one she saw while waiting to testify (i.e., Const. Pedano), as she remembers the third officer as being Asian.
Section 43 of Ontario Regulation 719/90 provides:
“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.’’
The Registrar is required to prove a contravention of section 43 of O.Reg. 719/90 on a balance of probabilities.
The issue before the Panel was whether the Appellant exceeded the capacity on its liquor license, thereby contravening section 43 of Ontario Regulation 719/90.
APPLICATION OF LAW TO FACTS
In the circumstances of this case, the Tribunal is not satisfied that the Registrar has established, on a balance of probabilities, that the Appellant contravened section 43 of O.Reg. 719/90 for reasons which follow.
There were significant inconsistencies in the evidence of the two police officers who testified on behalf of the Registrar. Sgt. Van Allen testified that he had no recollection of speaking to Security Officer Gill at the door or of being made aware that Security Officer Gill had a counter. On the other hand, Const. Pedano testified that he observed Security Officer Gill show Sgt. Van Allen his mechanical counter, and although Const. Pedano could not hear their conversation, he observed that the reading on the counter was 90. Ms Brickman asked the Tribunal to disregard Security Officer Gill’s evidence concerning the conversation at the door, but her own witness (Sgt. Pedano) testified that the conversation occurred and that he saw the counter.
The Tribunal agrees with Ms Brickman that the issue of the parking lot was a “red herring”, for the purpose of finding a violation of s. 43 of O.Reg. 719/90. However, this issue was raised by the Registrar’s own witness, Sgt. Van Allen, who indicated at the outset of his testimony that the reason he conducted the inspection and patron count on the date in question was because of the number of vehicles in the parking lot. The Tribunal considered the evidence on the parking lot only from the standpoint of assessing the credibility of witnesses.
Sgt. Van Allen testified that the restaurant next door to the establishment was still open at the time, whereas Const. Pedano testified that it would have been closed. Here again their evidence was not entirely consistent.
Sgt. Van Allen did not have notes on how he conducted the manual head count, and his recollections pertaining to other significant events at the premises, in particular being shown Security Officer Gill’s counter and the conversation with Security Officer Gill, were not good.
Const. Pedano testified that there were people congregating everywhere in the premises. This would have made it difficult to conduct a manual headcount with accuracy, notwithstanding that the two officers were relatively tall (6” and 6”1). The officers’ testimony that the patrons were stationary while they were conducting their counts, when no one instructed them to remain stationary, lacked credibility for a night club which was allegedly crowded and busy. Their evidence was also at odds with the evidence of Mr. Rose-Green, who testified that the customers did not change their behaviour when the police entered, and Security Officer Gill, who testified that a few customers left while the police were inside conducting their counts.
Given that the security officer at the entrance had a counter which read 90, as corroborated by Const. Pedano, the police officers could have conducted a more precise count when patrons exited the premises, particularly since it was close to closing time. Ms Brickman challenged the accuracy of Security Officer Gill’s count because he did not have a second counter and was manually tracking customers exiting the premises (which would have actually made the reading of 90 on the counter too high, since his evidence was that at least some customers had left). However, at the same time, she asked the Tribunal to accept the manual head counts conducted by the two police officers.
There was no corroboration for the conversation between Const. Van Allen and Mr. Rose-Green, and their evidence on this conversation conflicted in parts. Regardless of whether or not Mr. Rose-Green offered to turn on the lights, stop the music and facilitate an exit count, the police officers could have conducted a more precise count when customers were leaving given the discrepancy between their counts and the Security Officer’s counter and the inherent difficulties in conducting a manual head count in a purportedly crowded premises.
The Tribunal agrees with Ms Brickman that there have been other cases where the Tribunal has accepted the accuracy of manual head counts without insisting on exit counts or the use of a mechanical counter. However, in the context of this case, given the inconsistencies in the evidence of the two police officers, the fact that their notes lacked important details, Const. Van Allen’s failure to recollect significant details, and the variance between the police officers’ counts and the reading on the counter, the Tribunal is not prepared to accept the manual head count of the police officers, on a balance of probabilities.
In reaching its decision, the Tribunal did not put any weight on the evidence of Ms Hall, who acknowledged that she did not conduct a count and whose evidence was very vague and based on impressions.
Accordingly, for the above reasons, pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to set aside Order of Monetary Penalty #1079, dated, August 29, 2013.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
Released: January 27, 2015