Registrar, Alcohol and Gaming Commission Ontario v. Rol Jui Seafood Restaurant Ltd., 2007 CanLII 37833

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The : Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

B E T W E E N:

Registrar, Alcohol and Gaming Commission Ontario Registrar

-and-

Rol Jui Seafood Restaurant Ltd. O/A Rol Jui Seafood Restaurant Licensee

DECISION

Panel: Brian J. Ford, Board Member Guy Maurice, Board Member

Decision Date: July 26, 2007 Hearing Location: Toronto, Ontario

Appearances

Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative Rol Jui Seafood Restaurant Ltd., Licensee ) Vanessa Leung, on behalf of the Corporation

Allegations

1. A hearing into a Notice of Proposal dated March 14, 2007 to revoke liquor license number 28548 issued to Rol Jui Seafood Restaurant Ltd and operating as ROL JUI SEAFOOD RESTAURANT, 472 Dundas Street West, Toronto, Ontario M5T 1G9 on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (“LLA”) and subsections 25(1) and 45(1) and section 29 of Ontario Revised Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on June 18, 2007 in the City of Toronto.

Decision

2. At the conclusion of the hearing the Board issued an oral order to REVOKE the liquor licence of Rol Jui Seafood Restaurant with written reasons to follow. (see Rol Jui Seafood Restaurant, 2007 CanLII 27003 (ON A.G.C.) These are the Board’s reasons.

Preliminary Matters

3. Ms. Vanessa Leung, wife of Wing Kin Fung the sole shareholder of the corporate licensee, appeared on behalf of her husband and the Corporation. She waived the Licensee’s right to be represented by a barrister and solicitor.

Registrar’s Evidence

4. Devin Sookdeo is a Liquor Inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”). Inspector Sookdeo advised the Board that, on December 16, 2006, he along with Liquor Inspector Ryan Baird and D/Cst. Mike Bicosola of the Toronto Police Service attended the Rol Jui Seafood Restaurant in an undercover capacity.

5. On entering the establishment at 2:55 a.m. they were seated at the rear of the restaurant. Once they were seated a female server took their order. Inspector Sookdeo asked the server for cold tea. He noted that the server was the same person that had seated them. Inspector Sookdeo noted for the Board that cold tea is the street term that is used when ordering beer after hours.

6. The server went to the kitchen, which was visible from where they were sitting, opened two bottles of Coors Light, poured them into a tea pot and brought the tea pot to their table. Some of the beer was poured into cups that were on the table by the Inspectors.

7. Shortly after the beer was served Liquor Inspector Leadbetter and police officers in plain clothes came into the establishment and to the Inspectors’ table. Inspector Leadbetter took a sample of the contents of the tea pot on the table and she and the other officers checked the other tables. The tea pot and cups were removed from the table at this time. Inspector Sookdeo noted that Inspector Leadbetter spoke to the server however he did not hear what was said. Shortly after this Leadbetter and the officers left.

8. After Inspector Leadbetter left the same server asked us if we wanted to order and we again ordered cold tea. The server looked outside to see if it was clear. She then served us cold tea again. The Inspector observed her opening two Coors Light that she had taken from the fridge and pour them into another tea pot brought it and tea cups to the table. He stated that we then poured some of the beer into tea cups on the table.

9. On this occasion Inspector Foster, Hetherington and Leadbetter came into the establishment and took samples and removed the alcohol from the table. It was noted at this time a male person, who was sitting at another table, fell off his chair. The Inspector noted that his eyes were glassy and he appeared to be intoxicated. The undercover Inspectors and officer left the establishment at 3:38 a.m.

10. On cross examination, Inspector Sookdeo was asked how many patrons were in the establishment that night and he responded that he did not know. When asked how he ordered he said “I asked for cold tea and the server said ok”. He also stated that he did not know her name.

11. Inspector Ryan Baird of the AGCO also testified that he attended the Rol Jui Seafood Restaurant with Inspector Sookdeo and Cst. Bicosolio of the Toronto Police Service in an undercover capacity. His evidence was consistent with Inspector Sookdeo’s. Inspector Baird noted, on redirect, there was no hesitation on the part of the server. On taking the order she went directly to the fridge, got the beer and poured it into the tea pot. In response to a question from the Board Inspector Baird advised he tasted the substance in the tea pot and it tasted like beer.

12. Inspector Jade Leadbetter of the AGCO informed the Board that she attended the Rol Jui Seafood Restaurant on December 16, 2006. She entered the premises at 3:10 a.m along with D/Sgt. Henkel of the Toronto Police Service. At the time there was also an undercover team inside the establishment. The undercover inspectors notified Inspector Leadbetter and D/Sgt. Henkel via text message they had been served alcohol.

13. When they entered a female staff member approached and she was shown identification. At this point this female began yelling in an Asian language and blocked Inspector Leadbetter’s path. While this female was yelling servers were running around removing tea pots from the tables. The Inspector told the woman that she was obstructing her inspection and that she should move and she did.

14. Inspector Leadbetter proceeded to the table where the undercover Inspectors were located and observed several cups on the table with an amber substance with white foam. She noted that the substance looked like beer. The tea pot was cold to the touch indicating that it had just been served. Inspector Leadbetter took a sample of the substance from the teapot putting it in a sample bottle number 445000 and, later, sending the sample to the lab for testing.

15. Inspector Leadbetter was shown Certificate of Analysis (Exhibit #l) and noted that AGCO seal #44500 was analyzed as having 3.9 % ethanol by volume.

16. After taking the sample Inspector Leadbetter spoke to Kelly Wu, the woman who approached and blocked her, and advised her of the infractions of after hours service, fail to remove evidence of service and of obstruction of an inspection.

17. Ms. Wu told Inspector Leadbetter that the table with the undercover Inspectors at it entered the establishment at 1:45 a.m. Inspector Leadbetter advised the Board that she knew that Ms. Wu was lying and was failing to facilitate an inspection by lying. Prior to leaving she advised Ms. Wu of the proper times for service and clearing evidence of service. She left at 3:14 a.m.

18. The undercover Inspectors remained in the establishment. She went to do another Inspection at an establishment close by the Rol Jui. While doing this inspection she received another text message from the undercover Inspectors that they had been served again.

19. She went back to the Rol Jui and entered at 3:25am. On this occasion she was accompanied by Liquor Inspectors Foster and Hetherington. Ms. Wu recognized her and began yelling in an Asian language again. Inspector Leadbetter went directly to the undercover Inspector’s table. She noted that there were tea cups with an amber substance similar to beer in them on the table. Inspector Foster took a sample from the teapot.

20. Inspector Leadbetter observed a male patron seated near the undercover Inspector’s table fall off his chair. He appeared to be intoxicated. She again spoke to Ms. Wu who stated that she did not know where the beer came from, perhaps the table at the rear may have given them some as they were leaving. Ms. Wu was advised of the infraction of failing to facilitate an inspection by lying and of failing to remove evidence of service. She also advised of the infraction of an intoxicated person.

21. Inspector Brad Foster advised the Board that he attended the Rol Jui Seafood Restaurant on December 16, 2006 at 3:25am along with Inspectors Hetherington and Leadbetter. They entered the establishment to conduct an inspection, however, immediately prior to entering they were advised by undercover Inspectors inside the establishment that they just been served beer.

22. Inspector Foster stated that he went to the undercover Inspectors’ table and took a sample of the substance in the tea pot and put in a sample bottle seal #4530 and, later, sent it to the lab for analysis. Inspector Foster was shown a certificate of analysis (Exhibit #1) and noted that the sample bottle AGCO seal number 4530 was shown to contain 3.8 % ethanol by volume. He exited the premises at 3:33 a.m.

23. On cross-examination, he stated that he was not undercover. He confirmed there were three tea cups with beer in them on the table.

24. D/Sgt. Stephen Henkel of the Toronto Police Service, 52 Division attended the Rol Jui Seafood Restaurant in company with AGCO Inspectors on December 16, 2006. He had requested the assistance of the AGCO to conduct compliance inspections in the area known as “China Town”.

25. Prior to entering the Rol Jui, Inspector Leadbetter received a text message that the undercover operatives had just been served alcohol. They entered at 3:10 a.m., in plain clothes, and identified themselves to a female employee, subsequently identified as Kelly Wu She blocked their path and spoke to other employees, in Chinese, who began to clear tables.

26. D/Sgt. Henkel pushed by the female, went to a table at the back and took a ceramic tea pot off a table. A female employee tried to take it from him. He managed to get the tea pot and noted that it felt cold to the touch and contained an amber liquid substance that smelled and looked like beer. He went to another table in the back with eight people at it and the tea pot on this table had the same kind of liquid in it. He noted that Inspector Leadbetter took a sample of the liquid at the undercover table. He also noticed a pail with numerous bottles of beer on ice in the pail. He told Kelly Wu to remove the beer and put it back in the fridge. D/Sgt. Henkel left at 3:14 a.m.

27. In cross-examination he noted that it was an older Chinese lady who tried to take the teapot away from him.

Licensee’s Evidence

28. Wai Ha (Vanessa) Leung advised the Board that there are problems with waiters and waitresses and that many have no experience. Some do not want to serve customers but are scared to lose the customer so they serve them. She admitted there was a problem of after hours service and stated that they would not do it again. In order to stop the problem she would close the establishment at 2:00 a.m. Monday to Thursday. Ms. Leung asked for a chance to keep the licence and they would not violate the law again. She stated that 80 % of their business is food and alcohol is only 20 %.

29. On cross-examination, Ms. Leung said servers normally do not want to serve however the undercover people pushed for service. She was not there that night and she fired Kelly Wu after she told her what happened. Ms. Wu she could not remember when Ms Wu was fired. Asked about her employee records, she stated that they did not have any on Ms. Wu as she was only there ten days. Asked if the fridge where the beer is kept was locked she stated that it was and that Kelly Wu locked it.

30. Ms. Leung was shown Exhibit 2, Rol Jui Seafood Restaurant (unreported March 20, 2003) in which the Board ordered a 21 day suspension. Ms. Leung admitted this was correct. Ms. Leung was then shown Exhibit 3, Rol Jui Seafood Restaurant ( unreported decision February 1, 2005) in which the Board ordered a 60 day suspension. Ms. Leung admitted to this as well.

31. Ms. Leung was then shown Exhibit 4, Rol Jui Seafood Restaurant dated September 11, 2006, (cited at [2006] O.A.G.C.D. No. 368 (Q.L.). She was directed to page 5 where the Board found service of alcohol, or “cold tea”, after hours. On that occasion her explanation was she had a problem of not serving people who asked for alcohol after hours because, if she did not serve them, they would leave and not return. In Exhibit 5, Rol Jui Seafood Restaurant dated October 19, 2006 (cited at [2006] O.A.G.C.D. No. 461 (Q.L.), the Board considered the appropriate sanction. It noted Ms. Leung showed remorse and would institute steps to lock the beer fridge at or before 2:00 a.m. and ensure nobody except the licence holder could unlock it. The Board determined it would give the Licensee one more chance to operate in compliance with the Act and Regulations and ordered a 65 day suspension.

Registrar’s Submissions

32. Registrar’s representative noted that there is considerable evidence to make a finding of breach of subsection 25(1) of O.Reg under the LLA, in that liquor was sold and served in the licensed premises outside of prescribed hours. It was noted that “cold tea”, the street name for beer being served after hours, was served to undercover Inspectors. The Manger, Kelly Wu, served them.

33. After the Police arrive, inspect, make their findings, speak to Ms. Wu about after hours sales and leave, she serves alcohol to the undercover officers again. This, in Mr. Morris’s opinion, is an open and blatant violation of subsection 25(1).

34. There is also evidence to make a finding under section 29 of O.Reg under the LLA, in that the licence holder failed to clear signs of service and consumption in the licensed premises with forty-five (45) minutes after the end of the period during which liquor may be sold and served under the licence. Mr. Morris noted that D/Sgt. Henkel removed a tea pot off a back table and another table and that both tea pots contained beer. The tea pots were cold to the touch and two samples taken from other teapots tested and were shown to have 3.8% and 3.9% ethanol (alcohol).

35. There is also evidence to make a finding under subsection 45(1) of Ontario Regulation 719/90 under the LLA in that the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises in the areas under the control of the licence holder. Mr. Morris noted the testimony of the Liquor Inspectors in relation to the condition of the drunken patron.

36. Mr. Morris further submits there is clear evidence of intent to obstruct a liquor inspection contrary to subsection 45(1) of the LLA. He noted that the elderly lady at the back of the establishment tried to get away with a tea pot full of beer. He also noted that Ms Wu blocked the path of the Inspector and Police Officer and yelled warnings to clear tables to other employees.

37. Mr. Morris advised the Board that he withdrew the alleged breach of subsection 45(2) of the LLA.

Licensee’s Submissions

38. The Licensee stated that there was no excuse for what happened and that she fired the people responsible. She asked to be given one more chance and stated she will not let it happen again.

Reply

39. Registrar’s representative, noted the Licensee was already given one last chance and had served the last 65 day suspension from January 30 to March 9, 2007.

FINDINGS

Service of Liquor Outside of Prescribed Hours

40. Undercover Liquor Inspectors entered Rol Jui Seafood Restaurant after hours at 2:55 a.m., were seated at a table and asked for “cold tea”, the street name for beer. The “cold tea” was served a tea pot. The Police and Inspectors who entered the restaurant testified the substance in tea pots at other tables was amber in colour with a white froth, looked and smelled like beer. One of the undercover Inspectors tasted the liquid in the tea pot served them and confirmed it tasted like beer. The liquid in the tea pot served to the undercover officers was analyzed and found to contain 3.8 % ethanol which is the amount of ethanol consistent to the alcohol content of beer. Further, after the first inspection, the undercover officers asked for and were served “cold tea” again. This was also tested and shown to contain 3.9 % ethanol. The wife of the Licensee admitted that there had been service of beer as well.

41. Therefore, the on a balance of probabilities, the Board FINDS alcohol was sold and served in the licensed premises outside of prescribed hours on two occasions on December 16, 2006 contrary to subsection 25(1) of Ontario Regulation 719/90 under the LLA.

Failure to Clear Signs of Service and Consumption

42. Liquor Inspectors and a police officer testified that beer in tea pots were on the tables inside the Rol Jui Seafood Restaurant at 3:10 a.m. and again at 3:25 a.m. on December 16, 2006. Beer in tea cups were also on the tables of the establishment. The liquid in the teapots was proven to have an ethanol level of 3.8 and 3.9 % consistent with beer. The police officer also testified a pail containing beer on ice was visible in the establishment. The wife of the Licensee admitted to this infraction and to service of the beer.

43. On a balance of probabilities, the Board FINDS the Licensee failed to clear the signs of service and consumption in the licensed premises within forty-five minutes after the end of the period during which liquor may be sold and served under the licence on two occasions on December 16, 2006 contrary to section 29 of Ontario Regulation 719/90 under the LLA.

Permitted Drunkenness

45. Liquor Inspectors testified a patron exhibited signs of intoxication; the person in question fell out of his chair to the floor and his eyes were glassy and red. The Board accepts this testimony as credible.

46. On a balance of probabilities the Board FINDS this person was intoxicated and the Licence holder permitted drunkenness contrary to subsection 45 (1) of Ontario Regulation 719 under the LLA.

Fail to Facilitate Inspection

47. The evidence was clear that the Manager attempted to conceal evidence of the service of beer after hours by blocking the path of the Liquor Inspector and police officer who were trying to gain access to the interior of the establishment and yelling a warning to other employees to clear evidence of service. When the D/Sgt. Henkel picked a tea pot containing beer of a table an employee tried to take it from him. Other employees were seen to clear tables of tea pots suspected of containing beer as well. The blocking and yelling to employees happened on two occasions on December 16, 2006.

48. On a balance of probabilities the Board FINDS the licensee withheld, concealed or refused to provide relevant information or things required for the purpose of an inspection under the LLA contrary to subsection 45(1) of the LLA.

49. Registrar’s Representative withdrew the allegation of breach of subsection 45(2) of the LLA.

Submissions on Sanction

50. The Board heard oral submissions on sanction.

51. Mr. Morris asked that the licence be revoked noting the past discipline history and recent 65 day suspension for similar offences just completed in March of this year. He also noted that the offences before this Board occurred between the guilty findings of the last offence and the serving of 65 day suspension.

52. The Licensee’s representative asked the Board to give the Licensee one last chance to prove they can abide by the LLA and Regulations.

Conclusion

53. The Board, having considered the submissions of both parties, agrees with the Registrar that there has been ample opportunity for the Licensee to run the business in accordance with the law. The Licensee has been dealt with fairly in the past and given every opportunity to conform to the Act and Regulations. It has repeatedly and flagrantly failed to do so. This Licensee is clearly unmanageable and incorrigible. In the Board’s opinion the Licence must be revoked.

54. Therefore, the Board confirms its oral Order of June 18th, 2007 that the Liquor Licence of Rol Jui Seafood Restaurant Ltd., Licence No. 28548, be REVOKED immediately.

DATED AT TORONTO THIS 26th DAY OF JULY , 2007.

BRIAN J. FORD, BOARD MEMBER GUY MAURICE, BOARD MEMBER

BJF/sm