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-
Shangrila Club Service Ltd. O/A Club Shangrila Services
Licensee
DECISION
Panel: Dianne Axmith, Board Member
Decision Date: November 21, 2007
Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario
90 Sheppard Avenue East, Suite 300
Toronto ON M2N 0A4
Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876
Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Dan Alakas, Representative
Shangrila Club Service Ltd., Licensee ) Caesar Wong, Representative
Allegations
- A hearing into a Notice of Proposal number 15428 dated July 10, 2007 to suspend liquor licence number 40396 issued to Shangrila Club Services Ltd. operating as CLUB SHANGRILA SERVICES, 50 Esna Park Drive, Markham, Ontario, L3R 1E1, on the basis of alleged violations of subsection 31(1)(c) and section 33(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on November 2, 2007 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated section 33(1) of the O.Reg. The Board DISMISSES the alleged violation of subsection 31(1)(c) of the O.Reg. Reasons follow.
Registrar’s Evidence
Mr. Don Anderson, an Alcohol and Gaming Commission of Ontario (“AGCO”) inspector testified that at approximately 10:47 p.m. on the night of February 2, 2007, he entered the establishment Club Shangrila and asked to speak to the person in charge. Ms. Mareen Shiu introduced herself as the Manager and provided a tour of the facility. When she unlocked one of the storage rooms, he noted 4 unopened cases of 28 Molson Canadian on a shelf and 1 unopened case of 28 Coors Light in another location in the same storage room.
Knowing that these cases cannot be purchased on licence, he enquired about their presence. Ms. Shiu explained they belonged to a customer and were left over from a wedding held on December 6, 2006 for which a Special Occasion Permit had been obtained. Ms. Shiu produced a copy of the SOP (Exhibit #1) and explained that Quina Chen, the permit holder, had been unable to remove the beer at the conclusion of the event and she had agreed to keep it for her until she could.
Subsequent to his inspection, Mr. Anderson contacted the permit holder Ms. Chen who confirmed that the Molson Canadian cases indeed belonged to her and she had been unable to remove them because of personal circumstances but did understand it was her responsibility to do so.
Mr. Anderson telephoned Ms. Shiu, described his conversation with Ms. Chen and advised that she stated the case of 28 Coors did not belong to her. It was his testimony that Ms. Shiu informed him the Coors case was not unopened and was only used to store other (mixed brand) establishment bottles.
On cross examination, Mr. Anderson agreed that only the purchaser of product relating to a Special Occasion Permit can return it for a refund. On the night of his inspection, the establishment was indeed very busy and Ms. Shiu was very cooperative providing a comprehensive tour of the facility and all storage rooms.
Mr. Anderson could not remember whether other cases were piled on top of the Coors case but if he thought it had been opened, he is sure he would have inspected the contents and recorded that in his notes.
Mr. Anderson agreed that the establishment has many banquet and storage rooms and it was unlikely Ms. Shiu would have provided access to everything so readily if she felt there was anything to hide.
Licensee’s Evidence
Ms. Mareen Shiu is Smart Serve trained and has been employed at this establishment since 1998. She remembers Mr. Anderson’s visit on February 2, 2007. It was a very busy evening with a special party and when he first approached her, he asked to see the licence, explaining that he could not find the information on his computer. She did so and again at his request took him to the bar area where he asked a lot of questions of the bartender and then asked to be shown the banquet and storage rooms.
Ms. Shiu unlocked all the storage doors for inspection and escorted him through every room in the establishment except the kitchen. When Mr. Anderson questioned the presence of the Molson Canadian 28 cases, she explained that they belonged to a Special Occasion Permit customer who had been unable to remove the product at the conclusion of her event. All establishment beer is kept in that storage room and these cases were segregated because they were not to be touched by staff. She provided information about the SOP as requested.
Ms. Shiu stated that after the February 2 inspection, she received a telephone call from Mr. Anderson describing his conversation with Ms. Chen who acknowledged ownership of the Molson product. It was Ms. Shiu’s testimony that this was the first time Mr. Anderson raised the issue of a Coors 28 box and she went to the storage room to check on it. She reported back to him that there was a Coors 28 box but it was being used as a storage container for mixed brands of establishment beer.
On cross examination, Ms. Shiu described the fact that soon after the December 9, 2006 event she went on vacation (December 14 to January 17) and did not contact the permit holder again to remind her to remove the beer. The Shangrila does serve Coors light at the establishment and other people besides herself are responsible for the purchase and storage of product.
On redirect, Ms. Shiu acknowledged that their business caters to many special events. (On a question from the Board, Ms. Shiu stated that approximately 75 weddings are accommodated annually and about 80% involve SOP’s secured by clients.) She always explains that leftover product must be removed by the permit holder but sometimes she will make an exception because people don’t always drive their car home or don’t have enough room and prefer to pick it up the next day. She knows that is wrong.
Submissions
Mr. Alakas submits there is clear and credible evidence for findings of a breach of subsection 31(1)(c) and section 33(1) of O.Reg.
The Molson Canadian 28 packs were purchased under permit and should have been removed from the premises by midnight on December 6, 2006 when that permit expired. Ms. Shiu acknowledged that she knows it is wrong to allow clients to leave product at the establishment and in this case, despite extraordinary circumstances, two months is a very long time.
Because she was away, and because other people purchase and store product in the establishment, he suggests it is possible that the Coors Light was unopened on February 2 as noted by the Inspector and by the time Ms. Shiu checked after her telephone conversation with him, it only contained mixed product. It may not have even been the same case.
Inspector Anderson deals with 28 packs in licensed premises often and his evidence about his observations is credible and should be accepted.
On behalf of the licence holder, Mr. Wong submits that no evidence was provided about the sale of any product purchased off license. Ms. Shiu was candid and open both during the inspection on February 2 and in her testimony at this hearing. Her information about the presence of the Molson Canadian 28 packs was never disputed and in fact confirmed by a third party. She never saw an unopened Coors Light case at the time of the inspection.
Mr. Alakas reminds the Board that no evidence of the sale of these off license products is required to make findings of a breach. It is highly unlikely that the inspector would have been mistaken about the Coors Light being unopened and it is entirely possible that between the time of inspection and Ms. Shiu checking again, beer could have been sold from it thereby changing the content of the box.
Reasons
I have reviewed the evidence in this case and FIND there has been a breach of section 33(1) of the O.Reg. There was undisputed evidence from both witnesses that 4 unopened cases of Molson Canadian 28 bottles were stored at the establishment long after it should have been removed by the Special Occasion Permit holder.
The presence of this product so long after the event also confirms that it was not there because of any intent on the part of the licence holder to sell or serve it. It was segregated from other inventory and I found Ms. Shiu a very credible witness when she stated that staff had been given orders not to touch it. Clearly they had not. The permit holder confirmed that the product belonged to her and acknowledged that she should have removed it.
As for the disputed Coors Light 28 case that Inspector Anderson claims he saw, there was no evidence that he specifically asked Ms. Shiu about this item at the time of inspection which, by his own testimony, was not stored with the Molson Canadian product. If it was on a different shelf, why did he not question the reason for its presence in the storage room away from the other cases of 28? He also could not state unequivocally that no other cases were stored on top of it. I have accepted Ms. Shiu’s explanation that the case was used as a storage container for mixed brands as reasonable and truthful.
For these reasons, I DISMISS the alleged breach of subsection (31)(1)(c) of the O.Reg.
Conclusion
- The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file a written response. Registrar’s Representative may serve and file any reply within three (3) days of receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission at the address on the front page of this decision in accordance with the Board’s Rules of Practice.
DATED AT TORONTO THIS 21^st^ DAY OF NOVEMBER, 2007
DIANNE AXMITH, BOARD MEMBER
DA/sm