Alcohol & Gaming Commission of Ontario
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 July 6, 2006
The Proposal alleges that:
(a) contrary to subsection 55(1) of Ontario Regulation 719/90 under the Liquor Licence Act, the licence holder failed to post the sign provided by the Board informing the public of the suspension of the liquor licence throughout the suspension period.
(b) contrary to subsection 55(2) of Ontario Regulation 719/90 under the Liquor Licence Act (the "O. Reg. 719/90"), the sign indicating the suspension of the liquor licence was not posted in a conspicuous place that was visible from the exterior of the premises to which the suspension applies.
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 Counsel for the Licensee: Donna Pledge
Attendance: Hong Duong, translator Lisa Duong, for the licensee Quang Duong, principal of the corporate licensee Amanda Higuera, AGCO Liquor Inspector
Case Law Presented: McSorley’s Saloon & Grill [2005] OAGCD No. 208
Exhibits: #1 – Placard of suspension
A hearing of the Alcohol & Gaming Commission of Ontario ("AGCO") was convened on March 29, 2007 pursuant to a Notice of Proposal dated July 6, 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, counsel advised that this Notice of Proposal, together with Notice of Proposal #14725 issued on December 11, 2006 had been joined, to be heard together. The parties requested that the two Notices of Proposal now be heard separately, one following the other. The Board so ordered.
Further, Ms. Hong Duong, the daughter of the principal of the corporate licensee was sworn in as translator, for this proceeding. In addition, an order was made, on consent of the parties, for the exclusion of witnesses.
After careful review of the evidence and submissions from counsel, the Board, for reasons set out below, makes the following findings;
The Board finds a breach of subsection 55 (1) of O. Reg. 719/90.
The Board declines to make a finding of a breach of subsection 55 (1) of O. Reg. 719/90.
Registrar’s Evidence
Ms. Amanda Higuera, a liquor licence inspector with the AGCO advised that she attended at the licensed premises on April 25, 2006, for the purpose of ensuring compliance with the Liquor Licence Act ("LLA") and its regulations while the premises were under suspension. In particular, she wanted to ensure that the suspension placard was posted and that no liquor was being served. At this time, the establishment was serving a 60 day suspension, for the period of April 17, 2006 to June 16, 2006.
When she arrived at 10:19 p.m., she noted that the placard was posted on the inside window of the front door. The entrance to the establishment consists of clear glass double doors which lead to a small vestibule area and another set of double doors, through which is the restaurant area. At the time of her attendance, the lights in the restaurant were out, and the doors locked. Ms. Higuera noted that the suspension placard, (Ex. #1), though posted, appeared to have been altered. Specifically, under "Reason" for suspension, the first line read, "Permit Naoootios", instead of "Permit Narcotics".
Ms. Higuera returned to the premises the following day at 5:17 p.m. The establishment was open. She observed that the placard, as noted the previous night, was posted. She spoke to Thi Bai Le who identified herself as the owner’s wife and to Lisa Duong, their daughter. The establishment appeared to be open for business though she did not observe anyone in the restaurant other than the two women. She told them that she was there with a new placard as the first one had been altered and pointed out the changes made to the original placard. It is AGCO policy that the reason(s) for the suspension must be stated on the placard and posted for the public. Because the original placard was altered, it had to be replaced. Both women, when shown the change to the placard, stated that they did not know such a change had been made and suggested that perhaps kids had coloured on it. They indicated that they never observed the placard being removed. She did point out to them that only one word had been altered. Ms. Higuera advised that the placard attaches to a window by an adhesive strip at its top and bottom. The original placard was attached in that manner.
On cross-examination, Ms. Higuera stated that she had no knowledge that the placard was not put up when required and agreed that it was posted in a conspicuous place.
Licensee’s Evidence
Lisa Duong is the daughter of the principal of the corporate licensee and works as the full-time manager of the restaurant. She stated that for the period of the 60 day suspension, the restaurant was open for approximately 30 days. It was really slow during that period, with 3-4 customers each day, so they then closed for the remainder of the period. Either herself, her mother, or her sister Lily, worked at the restaurant.
She did recall the suspension placard being delivered and that the word "narcotics" was stated on the face of the placard. She posted it on the inside of the outer door. When the premises are closed, both sets of double doors are locked.
Ms. Duong thought that Ms. Higuera called and told her that the placard had been defaced and that she would be delivering a replacement. Ms. Duong stated that she had no knowledge of who defaced it. From inside the restaurant, she would be able to see whether the placard was up.
On cross-examination, Ms. Duong indicated that, as well as the front doors, there is a back door and a side door to the premises. She and her mother enter by the back door therefore she would not see the front of the placard upon entering, and would not check it other than to observe, from the inside, that it was up.
Upon questioning from the Board, Ms. Duong advised that the restaurant is located in a commercial area, with factories and stores nearby.
Decision on Findings
The Registrar is seeking findings under both subsection 55(1) and 55(2) of O. Reg. 719/90. On the evidence, it is undisputed that the first suspension placard was altered. From an examination of Exhibit 1, the words "Permit Narcotics" appear darker than the remaining words, as if outlined by a black marker. The word "narcotics" has been altered to spell something nonsensical.
The evidence on behalf of the licensee is that they don’t know who altered the word, they did not see the sign being removed at any time. From the evidence of Ms. Higuera, the placard was visible, with the change in the word, from the exterior of the premises, and when replaced, it appeared that the placard was attached to the window by the original means, the adhesive strips. Further, the Board notes the evidence that the exterior doors are locked when the premises are closed. There would be no access to the vestibule area.
Ms. Kaplan submits that it is unlikely that kids altered the placard. Only one word was altered and the alteration, on examination, was done neatly. The Board agrees with this submission. The change appears to be purposefully done. No other part of the placard was altered or defaced. Further, the evidence is that the establishment was very quiet, with 3-4 customers per day; kids (and the premises are located in a commercial area) would, in all likelihood be observed taking down the sign, altering it and putting it back up.
The evidence, taken as a whole, does not support the explanation proffered by the licensee, but rather strongly suggests to the Board that the placard was, for reasons unknown, altered by the licensee.
The Board must then consider whether this finding of fact supports a finding of a violation of subsection 55 (1) and/or (2) of O. Reg. 719/90.
Ms. Kaplan submits that findings can be made under both subsections. She has cited the decision of this Board in McSorley’s Saloon & Grill [2005] OAGCD No. 208. In that decision, it was undisputed that tape and paper obscured the "permit drunkenness" section on the placard. There, the Board found that there was no evidence that the sign was not posted and did not remain posted throughout the suspension period and therefore made no finding regarding a breach of subsection 55 (1). However, the Board found that the sign, though posted in a conspicuous place, was not, all of it, visible from the exterior. Permit drunkenness was not visible because it was covered up by the licence-holder. On the facts, the Board concluded that whether the sign or a portion thereof is covered by a strip of paper, tape, another sign or any other obstruction, it is not visible from the exterior of the premises. A finding was made of a violation of subsection 55(2) of O. Reg. 719/90.
The facts before this panel are very different, and as such, support a different finding.
On the facts before this panel, the Board having found that an alteration was made to the placard, and in all probability by some representative of the licensee (though the Board points out that it is not suggesting that Ms. Lisa Duong, contrary to her evidence, was the one to make that alteration) finds a violation of subsection 55(1) of O. Reg. 719/90. The sign, as "provided by the Board" was not posted. An altered placard was posted. The public, upon reading the letters "Naoootios" would not be informed, as is the purpose of the placard, of the complete reasons for the sixty day suspension.
The Board, however, declines to make a finding under subsection 55 (2) of O. Reg. 719/90. There is no issue that the sign was posted in a conspicuous place. Ms. Higuera indicated so. The subsection reads: "…posted in a conspicuous place that was visible from the exterior". Unlike the facts in McSorley, the letters were visible, that is, not obstructed from view. While one word was not comprehensible, the whole of the sign was visible.
Having made the above finding, the Board invites written submissions on disposition from the respective parties. Registrar’s counsel shall serve and file his written submissions in seven (7) days from the date of this decision. Licensee’s counsel shall have seven (7) days thereafter to serve and file a written response. Registrar’s counsel shall have an additional three (3) days to serve and file a reply, if any.
DATED AT TORONTO THIS 19TH DAY OF APRIL 2007.
PATRICIA MCQUAID, VICE-CHAIR ALLAN HIGDON, BOARD MEMBER
PM/mw