LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: POONAM RESTAURANT
2658 Danforth Ave.
Toronto, Ontario
M4C 1L7
Licensee: Balkanian Restaurant & Tavern Ltd.
Licence Number: 802681
Notice of Proposal: To SUSPEND a licence
September 28, 2006.
The Proposal alleges that:
(a) contrary to subsection 30.1(1) under the Liquor Licence Act (“LLA”), the licence holder failed to display the Fetal Alcohol Spectrum Disorder warning sign while selling or supplying liquor or offering to sell or supply liquor.
(b) contrary to subsection 31(1)(c) of Ontario Regulation 719/90 under the Liquor Licence Act, the licence holder kept for sale liquor not purchased under the licence.
(c) contrary to section 33(1) of Ontario Regulation 719/90 under the Liquor Licence Act the licence holder permitted liquor other than liquor purchased by the licence holder under the licence from a government store to be brought onto the licensed premises or the liquor and food preparation area and storage areas.
(d) contrary to subsection 53 of Ontario Regulation 719/90 under the Liquor Licence Act (the “O. Reg. 719/90”) the licence holder failed to make available lists describing:
(i) the varieties of liquor available for sale;
(ii) the amount of liquor in each type of drink offered for sale;
(iii) the varieties of non-alcoholic beverages available for sale;
(iv) the purchase price of the liquor and non-alcoholic beverages.
Hearing: Alcohol & Gaming Commission of Ontario
90 Sheppard Ave. E., 3rd Floor
Toronto, Ontario
M2N 0A4
January 19, 2007
Presiding
Board Members: Patricia McQuaid, Vice-Chair
Alan Higdon, Member
Counsel for the Registrar: Bryna Kaplan
Attendance: Kuldeep Singh, for the corporate licensee
Sucha Singh Mokha, for the licensee
Ryan Baird, AGCO liquor inspector
A hearing of the Alcohol & Gaming Commission of Ontario was held on January 19, 2007 pursuant to a Notice of Proposal dated September 28, 2006 to suspend a licence issued to Balkanian Restaurant & Tavern Ltd. for premises operating as Poonam Restaurant, 2658 Danforth Ave., Toronto, Ontario, M4C 1L7, licence no. 802681.
As a preliminary matter, Mr. Kuldeep Singh, the principal of the licensee, waived the right to legal counsel and appeared as representative of the licensee corporation.
After careful review of the evidence and submissions from counsel for the Register and Mr. Singh, the Board, for reasons set out below, makes the following findings:
The Board declines to find a violation of subsection 30.1(1) under the LLA.
The Board finds a violation of subsections 31 (1)(c) and 33 (1) of O. Reg. 719/90 in respect of the case of 28 Molson Canadian found in the premises.
The Board finds a violation of section 33 (1) of O. Reg. 719/90 in respect of the case of Labatt Blue on the premises.
The Board declines to make a finding of a violation of section 53 of O. Reg. 719/90.
Registrar’s Evidence
Ryan Baird is a liquor licence inspector with the AGCO and on July 5, 2006, he attended at the licensed premises for a routine inspection to ensure compliance with the LLA. He arrived at 12:15 p.m., entered the bar area and spoke to Gurnm Singh, who he understood was the owner’s wife. While speaking with her, he observed that the Sandy’s Law notice did not appear to be posted. He then asked to see the liquor menu. Mr. Baird advised that the menu must state whether taxes are included in the purchase price of the alcohol. This was not stated on the menu shown to him by Ms. Singh.
Further, he then observed an empty case of 28 Molson Canadian beer. The case was in the back storage room. Molson Canadian beer was for sale in the bar. He saw this beer in the bar’s fridge. Mr. Baird told the Board that he made particular note of the empty case because licensees are not able to purchase a 28 case of beer under their licence. Therefore, the presence of this particular case in the establishment and in the bar fridge, indicated to him that the beer had been purchased off-licence, and the beer offered for sale. At this point, he advised Ms. Singh that all liquor and beer must be purchased on the licence and that the beer from the 28 pack must be removed from the premises. Ms. Singh indicated to him that she would remove the beer.
Before leaving the premises at 12:31 p.m., he advised Ms. Singh that he had determined that there were several infractions: with respect to the information not being printed on the menu, lack of the Sandy’s Law notice and off-licence liquor for sale on the premises. He did tell her how to obtain the Sandy’s Law notice through the AGCO website. At no time did he find language comprehension to be an issue in his discussions with Ms. Singh.
Mr. Baird advised that he has not returned to the establishment since his inspection.
Licensee’s Evidence
Mr. Kuldeep Singh is the principal of the licensee. He advised that he was not in the country on the date of the inspector’s attendance. He and his wife had been in India on a family matter for a month. His wife had just returned the night before the attendance by the Inspector. She was still feeling jet-lagged. The cook, a 65 year old male, had been left in charge.
Mr. Singh stated that 98 % of the establishment’s revenue is from food. He sells very little beer, most of it Indian. Regarding the tax information, they had old and new menus; the new ones state the tax information which the inspector wanted to see. All of his sales receipts show the tax payable. As for the Sandy’s Law notice, Mr. Singh stated that it was posted in the ladies’ washroom. There had been one in the bar area, but it had been taken down when the premises were painted and had not been re-hung. Mr. Singh advised that his wife could not attend the hearing because she was attending at a lawyer’s office regarding legal action in which they are involved.
On cross-examination, Mr. Singh acknowledged that he did not bring copies of the liquor menus to the hearing nor was his painter present to give evidence about removal of the Sandy’s Law notice. He has had new menus since 2001. He did not know anything about the case of Molson Canadian; they do sell it, but rarely. He was aware, however, that there was a full case of Labatt Blue on the premises which the cook bought for his personal use, but left at the premises.
Mr. Singh stated that on the advice of the AGCO, he did post a sign above his buffet table, after this inspection, which lists liquor prices with tax information. He did reiterate that his cash register receipts have always shown the tax payable.
Sucha Singh Mokha was working at the licensed establishment as the cook in July, 2006. He was not present when the inspector attended. Mr. Singh’s wife had called him to tell him he did not have to work as she was home from India. He had worked the previous evening. He had purchased a case of Labatt Blue for himself, but did not want to leave it in his station wagon as it would be visible to passers-by. He brought it into the restaurant and left it there because he was going, after work, to visit his wife, from whom he is separated. His wife will not permit him to have beer at her house.
Decision on Findings
Dealing first with the issue of the case of 28 Molson Canadian observed by Inspector Baird, the licensee led no evidence to contradict this. Mr. Singh did acknowledge that Molson Canadian is sold at the establishment. Based on the evidence, the Board makes findings of a breach of section 31 (1) (c) and section 33 of O. Reg. 719/90.
During the course of the evidence, Mr. Singh disclosed that while he knew nothing about the existence of the case of Molson Canadian, he was aware, and Mr. Mokha confirmed, that a case of Labatt Blue was in the premises. This beer was for Mr. Mokha’s personal use and was not intended for sale. Mr. Baird did not observe this case of beer and allegations in respect of it were not made in the Notice of Proposal. There was, however, a very clear admission in the licensee’s evidence of its presence in the establishment and Ms. Kaplan therefore seeks a finding under section 33 of O. Reg. 719/90, in respect of it. The Board notes the very honest and candid evidence of Mr. Singh and Mr. Mokha, however, the evidence being so clear, the Board must make a finding of a violation of section 33 of O. Reg. 719/90 in respect of the case of Labatt Blue.
Regarding section 30.1 (1) under the LLA, the Sandy’s Law posting, there is an acknowledgement that no notice was up in the bar area. Registrar’s counsel submits that at best, the evidence suggests a notice in the women’s washroom and that fails to satisfy the section in that it was not prominently displayed for everyone, men included, to see. This regulation came into effect in February, 2006, five months before Inspector Baird’s attendance. Given Mr. Singh’s honest, and indeed, at times, inculpatory evidence, the Board is inclined to accept his evidence that the sign was posted in the women’s washroom. The section of the LLA states that the warning sign “that cautions women” must be prominently displayed. The Board cannot conclude that such a sign in a women’s washroom constitutes an infraction of this section. As long as the sign is posted, and prominently, the LLA appears to leave it to the discretion of the licence-holder as to the exact location of the posting. The Board declines to make a finding of a violation of section 30.1(1) of the LLA.
Finally, in respect of the allegation of a breach of section 53 of O. Reg. 719/90, Ms. Kaplan submitted that the only piece of information missing, pursuant to this section, was whether the price of liquor was inclusive of taxes or whether tax was to be added. While Mr. Singh stated that the new menu did contain the information that the AGCO requires, the old menu did not. Further, he subsequently posted a sign wherein prices are indicated, with a statement of whether tax was included. Mr. Singh submits that the customer always knows he or she has to pay tax and the sales receipt would set out the tax payable. The Board notes that there is no issue before it of a failure to pay taxes by the licence-holder.
On reviewing O. Reg. 719/90 and the relevant section, section 53 (d), the Board notes that “purchase price” is not a defined term. Nor is there mention of tax information to be set out in any list pursuant to the section. From Mr. Singh’s evidence, it would appear that AGCO staff gave guidance for tax to be referenced in such a list. This may be a practice. However, the Board can only enforce the Act and its Regulations. It is not a requirement, as the Act and O. Reg. 719/90 reads, for tax information i.e. whether the purchase price includes or does not include tax, to be stated in a list stipulated by section 53 of O. Reg. 719/90. Therefore, the Board declines to make a finding of a violation of section 53 of O. Reg. 719/90.
Having made the above findings, the Board invites written submissions on disposition from the respective parties. Registrar’s counsel shall serve and file their written submissions in seven (7) days from the date of this decision. The Licensee 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 IN TORONTO THIS 16TH DAY OF FEBRUARY, 2007.
PATRICIA MCQUAID, VICE –CHAIR ALLAN HIGDON, BOARD MEMBER
PM/mw