LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: DUC HUNG VIETNAMESE RESTAURANT 425 Signet Drive North York, Ontario M9L 1V5
Licensee: 1627227 Ontario Limited Licence Number: 90981
Notice of Proposal: To REVOKE a licence Dated December 11, 2006
The Registrar, having reason to believe that the licence holder has contravened a condition of the licence proposes pursuant to subsection 15(1) of the Liquor Licence Act ("LLA") to revoke the liquor licence of the licence holder.
Hearing: Alcohol & Gaming Commission of Ontario 90 Sheppard Ave. E., 3rd Floor Toronto, Ontario M2N 0A4 March 29, 2007
Presiding
Board Members: Patricia McQuaid, Vice-Chair Allan Higdon, Board Member
Counsel for the Registrar: Bryna Kaplan
Attendance: Lisa Duong, translator Quang Duong, principal of the corporate licensee Amanda Higuera, AGCO Liquor Inspector
A hearing of the Alcohol & Gaming Commission of Ontario ("AGCO") was convened on March 29, 2007 pursuant to a Notice of Proposal dated December 11, 2006 to revoke a licence issued to 1627227 Ontario Limited for premises operating as Duc Hung Vietnamese Restaurant, 425 Signet Drive, North York, Ontario, M9L 1V5, licence number 90981.
As a preliminary matter, Mr. Quang Duong, the principal of the corporate licensee was advised of his right to legal counsel and waived that right, electing to appear on his own behalf, at the hearing. Ms. Lisa Duong was sworn in as translator for Mr. Duong. Further, an order for the exclusion of witnesses was requested by counsel for the Registrar. The order was granted.
After careful review of the evidence and submissions from counsel for the Registrar and from Mr. Duong on behalf of the licensee, the Board, for reasons set out below, makes the following finding:
- The Board finds that there has been a breach of the condition on the liquor licence that states:
"The licensee shall ensure that Hong van Duong and Ann Duong shall not be involved in the operation and management of the business, including as an officer, director, shareholder, manager or employee and shall not be permitted in the premises."
Registrar's Evidence
Sheri Williamson is a police constable with the Toronto Police Services. In June 2006, she was working as a detective constable with the plain clothes unit which is a division of the major crime unit. She was familiar with this establishment. At the time, her work involved, among other things, investigating liquor licence matters.
She and her partner, Paul Matte, attended on June 23, 2006 to do a liquor licence inspection. She knew that a number of conditions had been placed on the licence as a result of the Board decision of April 4, 2006. She attended that previous hearing and had been involved in the investigation which gave rise to it.
When P.C. Williamson attended on June 23, 2006, around 9 p.m., she was approached by a female who, without hesitation, identified herself as the person in charge, Hong Duong. P.C. Williamson recognized her as one of the women who had been prohibited from being on the premises pursuant to the Board decision.
P.C. Williamson advised that on the day in November 2004 that 31 Division had located large amounts of marijuana on the premises, one of the issues in the previous hearing, both Hong and her sister Ann were working. It was that fact that led to them being barred from the premises and the condition being placed on the licence.
P.C. Williamson advised Ms. Duong that according to the conditions placed on the licence, she was not to be in the premises, nor involved in any way with the establishment. Ms. Duong indicated that she thought it was OK for her to be there, to which P.C Williamson responded that she would check with the AGCO, but if she was correct that Ms. Duong was not permitted in the premises, the licensee could be charged with a violation under the LLA.
Upon questioning from the Board, P.C. Williamson stated that she had re-attended at least once subsequent to June 23, 2006. She did not see Hong Duong there again.
Licensee's Evidence
Quang Duong, the principal of the corporate licensee, indicated that he works at Chrysler, approximately 80 hours per week. Hong Duong, his daughter, was the manager of the establishment.
Mr. Duong explained that at the hearing on March 27, 2006, his daughter Hong was not allowed in the hearing room. He did have his lawyer, Donna Pledge, and an interpreter, present. After the hearing, Ms. Pledge explained the result to the interpreter who in turn told him what had occurred. He understood that his daughters Ann and Hong would be allowed into the premises after the sixty day suspension period. He acknowledged that the conditions placed on the licence were read to him, and that no time period was stipulated, but he believed that after 60 days, they would be permitted back in the premises. He explained that as the criminal case was dismissed against Hong and Ann, he thought that there would be no reason to prohibit them. However, once the officer indicated that Hong could not be present, he did not call her into work again.
When cross-examined, Mr. Duong stated that he did not believe that his new licence, received on renewal, sets out the conditions imposed. When questioned about the conditions that are on the licence, Mr. Duong stated that he knows doors have to be unlocked for fire safety purposes, illegal drugs and smoking are not allowed on the premises and that the doors must be locked at 2:30 a.m.
Ms. Hong Duong confirmed that she was not present in the hearing room on March 27, 2006, nor during any discussions between Ms. Pledge and Registrar's counsel. An interpreter was present for her father. It was on the way home in the car, after the hearing, that she asked her father what condition was placed on the licence. He responded that she was allowed on the premises only after the sixty day suspension period was finished. She did not see the documents, the agreement or the Board decision, until after P.C Williamson's attendance in June 2006. At that point, she spoke to Donna Pledge about the conditions on the licence. She confirmed that she and her sisters read English.
Ms. Duong stated that on June 23, 2006, which was after the suspension had ceased, her sister called her to come in to help because her sister had a personal emergency. Her sisters Lisa and Lily had been managing the establishment. She had just been there for a short time when the police arrived. This was the first time she attended at the establishment since the hearing. When the police officer told her that she was not permitted, by the conditions, to be on the premises, she left almost immediately thereafter. Had she known, she would not have attended as she would not do anything to jeopardize her parents' business.
Decision on Findings
Ms. Kaplan submits that there is no question that Ms. Duong was on the premises on June 23, 2006 in breach of a condition on the licence. The Board agrees with that submission.
The licensee submits that he did not know that the condition existed beyond the suspension period which expired on June 17, 2006 and apologized if a breach is found. Some blame seems to be placed on the interpreter at that hearing for the misunderstanding. Be that as it may, the choice of interpreter, the Board can only assume, was Mr. Duong's. Further, the licence with all conditions attached was provided to the licensee. While Mr. Duong indicated that he is not present at the establishment, he does delegate responsibility for its operation to his wife and daughters. His daughters speak and read English and ought to have been aware of the conditions on the licence. The condition prohibiting Ann and Hong from the premises was not time limited.
Whether a mistaken assumption or not, ignorance of the conditions on the liquor licence does not excuse the breach of condition. It is incumbent upon a licensee, or those to whom he delegates responsibility for the operation of the licensed premises, to be aware of the conditions on the licence and the obligations under the Liquor Licence Act and its regulations.
The Board therefore finds a breach of the condition on the liquor licence, specifically the condition that Hong van Duong shall not be permitted on the premises.
Decision on Sanction
At the conclusion of submissions on the issue of whether a breach of a licence condition had occurred, the Board requested that the parties provide submissions on sanction, in the event that a finding was made.
Ms. Kaplan reiterated that the Registrar was seeking a revocation of the licence for breach of the condition. A sixty day suspension, which is very serious, has been served. In addition, important conditions were placed on the licence. It should be of grave concern, she submits, that persons in management at a licensed premises do not know what conditions attach to the licence. This, she submits, is a serious public interest concern.
Mr. Duong clearly regrets his mistake; his concern is that he is able to keep the business for his family.
While perhaps coincidental that on the first occasion she was at the establishment since the suspension was served, police attended for an inspection, Ms. Hong did not attempt to conceal her identity and seemed genuinely surprised that she was not permitted to be there. She left almost immediately, sought clarification from Ms. Pledge and having received that and reviewed the decision, has not attended since. These facts do support a mistaken belief, which in the Board's assessment, mitigates against a revocation of the licence.
Even if the Board accepts the evidence of an honest mistake by Mr. Duong, whose understanding of English is minimal and who is minimally acquainted it seems, with the daily operation of the business and accepts the evidence of Ms. Hong Duong that she never spoke directly to Ms. Pledge at the March 27, 2006 hearing and relied on her father for her understanding of the condition, the situation raises concerns. The Board is troubled that there was no evidence to suggest that anyone in charge was fully apprised of the conditions on the licence.
The lack of informed management is of concern. The Board deems a thirty day suspension to be an appropriate penalty as a matter of specific and general deterrence, to ensure that this licensee gives the required attention to both conditions on the licence, conditions which are agreed to and form part of a Board decision, and to its obligations under the LLA.
Further, the Board notes it heard no evidence from either the Registrar's witness or from the licensee's that a meeting took place, as required by condition #6 in the Board's decision of April 4, 2006. While that may have occurred and simply no evidence was led regarding it, the Board requires that such a meeting be held within 30 days of the date of this order.
THEREFORE, the Board hereby ORDERS that the liquor licence issued to 1627227 Ontario Limited for premises operating as Duc Hung Vietnamese Restaurant, 425 Signet Drive, North York, Ontario, M9L 1V5, licence number 90981 be SUSPENDED for THIRTY (30) consecutive days.
The suspension dates are to be submitted in writing to the Manager of Hearings section of the Alcohol & Gaming Commission of Ontario, 90 Sheppard Avenue East, Suite 200, Toronto, Ontario, M2N 0A4, facsimile 416-326-5566 within seven (7) days of today's date, failing which the Board shall set the dates for suspension without further notice to the licence holder. The suspension shall not commence for at least 20 days after the date of this decision, shall be completed within 90 days of the date of this decision, and shall be completed on days that the establishment is normally operating.
AND FURTHER, the Board ORDERS that the following further condition be added to the existing conditions on the licence:
- Quang Duong, Dau Thi Le, Lily Duong and Lisa Duong shall schedule a meeting with the local AGCO inspector and police, such meeting to take place within 30 days of this order, to discuss the licensee's obligations pursuant to its licence and under the Liquor Licence Act and its regulations.
DATED AT TORONTO THIS 19TH DAY OF APRIL 2007.
PATRICIA MCQUAID, VICE-CHAIR ALLAN HIGDON, BOARD MEMBER
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