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 of Ontario
Registrar
-and-
Viet Truong O/A Gia-Han Quan Karaoke Bar
Licensee
DECISION on findings
Panel: Jacqueline Castel, Board Member S. Grace Kerr, Board Member
Decision Date: August 29, 2008
Hearing Location: Hamilton, 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 ) Brad Alton, Representative
Viet Truong, Licensee ) Anthony Tran, Representative
Allegations
- A hearing into a Notice of Proposal number 16123 dated March 17, 2008, to suspend and add a condition to liquor licence number 805193 (the “Licence”) issued to Viet Truong operating as GIA-HAN QUAN KARAOKE BAR, 430 York Boulevard, Unit 6, Hamilton, Ontario, L8R 3K8, (the “premises” or the “establishment”), on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (“LLA”) and section 29 and subsection 25(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the LLA, was held on July 2, 2008, in the City of Hamilton.
Decision
- After carefully considering the evidence and submissions, the Board FINDS the Licensee contravened subsections 45(1) and (2) of the LLA and section 29 of the O. Reg. The Board DISMISSES the allegation of contravention under subsection 25(1). Reasons follow.
Preliminary Matters
- An order to exclude witnesses was made on consent.
Registrar’s Evidence
Detective Sergeant (“D/Sgt”) Richard Davidson, a police officer for 18 years and currently seconded to the Alcohol and Gaming Commission of Ontario (“AGCO”), arrived at the establishment, accompanied by Liquor Inspectors Foster and Passmore, at 2:58 a.m. on November 24, 2007. The establishment is located in a small plaza. There is a front and back entrance. To enter from the front entrance, it is necessary to walk down seven or eight stairs. When they arrived at the establishment, the blinds were shut and the front door was locked. After Inspector Passmore knocked at the window, D/Sgt Davidson heard a male inside the establishment yell, “They’re here. They’re here.” It took approximately 45 seconds to a minute for someone to come to the door. While they were waiting, he heard chairs being moved around.
When they entered, he observed approximately 15 patrons seated at two tables. As he approached the table, he noticed a puddle of amber liquid on the floor. The puddle was about two feet in size, representing the contents of a partial pitcher of beer. He got on his knees and smelled the liquid. The smell was of beer. He also observed a clear plastic pitcher on the floor right by the spill. The puddle of liquid was at the mouth of the pitcher. There was white froth and a small amount of amber liquid in the pitcher. He did not take a sample of the liquid.
D/Sgt Davidson then joined Inspectors Foster and Passmore, who were speaking to the owner, Mr. Viet Truong, in the kitchen. English was not Mr. Truong’s first language, but he did not appear to have a comprehension problem. He heard Mr. Truong say that he was serving customers after hours because business is bad. On cross-examination, he said the owner did not refute serving alcohol after hours.
D/Sgt Davidson explained that he had two main concerns with the Licensee. First, in keeping the door locked and the blinds shut, the Licensee was intentionally obstructing justice by impeding the police and liquor inspectors from observing what was going on in the establishment. As a result, evidence has been lost. The D/Sgt said he believes the conduct was intentional because Mr. Truong has been told in the past to keep the doors unlocked when there are customers in the premises. Second, in an effort to destroy evidence of signs of service not being cleared by 2:45 a.m., beer was intentionally poured on the floor before they entered.
D/Sgt Davidson left the establishment at 3:08 a.m. with Liquor Inspectors Foster and Passmore.
On cross-examination, D/Sgt Davidson acknowledged that most of the patrons in the bar were Asian, but insisted that the male yelled, “They’re here, they’re here,” in English. D/Sgt Davidson also acknowledged that the bar was dimly lit, but he insisted there was enough light for him to see. He said that the black low lights and regular lights were turned on. He also acknowledged that the floor was a dark colour.
Inspector Brad Foster, an AGCO Liquor Inspector for four and a half years, attended the establishment on November 10 and 24, 2007. On November 10, 2007, he attended with Liquor Inspector Passmore at approximately 3:00 a.m. The front door was locked, but the shutters were open and the lights were on. Prior to entering, he observed from the front window that there were approximately 12 to 15 patrons inside. He also observed a clear pitcher, filled with gold amber fluid and some foam at the top, on one of the tables and two pint glasses with the same colour fluid in them. He knocked on the window. After he knocked but before the door was opened, he observed a patron at the table grab the pitcher with gold amber fluid and disappear. He believes the male was a patron. Another male opened the door about 10 seconds after he knocked.
On entering, Inspector Foster proceeded to the back of the establishment where he observed several empty pitchers in the service bar sink. He touched the pitchers. They were cold to the touch. There was foam in them and they smelled of beer. He did not touch the two pint glasses or observe them more closely. On cross-examination, he acknowledged that he did not witness patrons pouring beer or amber liquid into the sink.
When Inspector Foster confronted the owner about the beer which was removed from the table before they entered, Mr. Truong stated he did nothing wrong. He denied that beer had been served after 2:00 a.m. and that the signs of service had not been removed. Inspectors Foster and Passmore left the establishment at approximately 3:03 a.m. As they were walking up the stairs outside the front entrance, Mr. Truong yelled, “Fuck you. Business bad.”
On November 24, 2007, Inspector Foster attended the establishment at approximately 2:55 a.m. with D/Sgt Davidson and Inspector Passmore. Like D/Sgt Davidson, he testified that when they arrived, the front door was locked and the blinds were shut. Before the door was opened, he also heard a male yell, “They’re here, they’re here.” Through a gap in the blinds, he could see people scurrying around the table and putting things under a table. There were approximately eight to 10 people in the establishment, all of whom were Asian. It took approximately 30 seconds for someone to open the door.
Upon entering, he proceeded to the table where he had observed the suspicious activities from a crack in the blinds. He observed a pool of liquid on the floor and a tumbler, right side up, on the floor. The tumbler contained beer and was cold to the touch. He also observed a clear glass full of beer, which was cold to the touch and had fresh foam around the rim. Finally, he observed an empty pitcher on the chair which was cold to the touch and had a strong smell of beer. He asked the patrons at the table who served them the beer, but no one answered. On cross-examination, he acknowledged that it is possible they did not understand what he was saying.
Inspector Foster confronted Mr. Truong about patrons pouring beer on the floor, patrons hiding other signs of service under the table, beverage alcohol being served after 2:00 a.m., and failing to remove the signs of service by 2:45 a.m. Mr. Truong did not deny the infractions on this occasion and said he would try harder. He also acknowledged that the door was locked, which makes it difficult for the police and liquor inspectors to conduct a proper inspection. Two female servers also acknowledged in English that they would try harder. Mr. Truong never suggested that the contents of the pitcher, tumbler and glass were anything but beer.
There was music on in the establishment when they entered. Inspector Foster did not recall whether it was still on when they left. The establishment was moderately lit. He could not recall the colour of the floor. He departed at 3:05 a.m.
Inspector Foster stated that Mr. Truong’s English was broken but he understood what was being communicated to him.
On cross-examination, he acknowledged that he did not see anyone empty the pitcher of amber liquid onto the floor. When asked why he did not take a sample of the liquid, he indicated that it was not necessary as he was certain it was beer.
On cross-examination, Inspector Foster denied that the liquid he identified as beer on November 10 and 24 could have been iced tea. When asked on re-examination to explain what he understood by the term “cold tea”, Inspector Foster said it is beer served in white tea cups after 2:00 a.m. He indicated that he had encountered the practice of establishments serving beer in tea cups after 2:00 a.m., so as to conceal the beer, during his career as a Liquor Inspector with the AGCO.
Inspector Joseph Passmore, an AGCO Liquor Inspector for six years, attended the establishment on November 10 and 24, 2007, December 22, 2007, and January 4, 2008. On November 10, 2007, he arrived at 3:00 a.m. with Inspector Foster. The blinds were open but the door was locked. He had asked Mr. Truong, on a previous occasion, to keep the blinds open and the door unlocked when customers are present. From the window, he observed a female remove two pitchers, with amber liquid and a little foam on the top, from a table. The table was approximately 10 to 15 feet from the window at the entrance. It took approximately 30 to 45 seconds for someone to open the door. Upon entering, he went to the rear service bar where he observed an empty pitcher of beer at the sink. He could tell the pitcher had contained beer from the smell. There was also a bit of foam around the rim.
Inspector Passmore confronted Mr. Truong about concealing the signs of service. Mr. Truong said, “Swear to God, hand to God, I didn’t do anything wrong.” When they left at approximately 3:03 a.m., Mr. Truong followed them outside and yelled, “You’re killing business. You buy. I sell. Fuck you.”
When asked on cross-examination whether it is typical for an inspection to last only three minutes, Inspector Passmore said that Hamilton police warned him to use caution in this establishment. As such, he does not linger.
On November 24, 2007, he arrived at the establishment with D/Sgt Davidson and Inspector Foster at 2:55 a.m. The blinds were closed and the door was locked. He could see through a gap in the blinds that people were inside. As he was walking down the stairs, he heard a male yell, “They’re here, they’re here.” He recalls the door being opened fairly quickly after he knocked; he made no reference to a delay in his notes. Upon entering, he observed a pitcher of beer turned over on a chair and beer on the floor. D/Sgt Davidson told him he observed another pitcher which smelled of beer, and Inspector Foster advised him he observed a tumbler of beer on the floor near a patron. Inspector Foster told him both the pitcher and tumbler were cold to the touch. When he spoke to Mr. Truong about what he and his colleagues observed, Mr. Truong said he would do what he could to make sure it does not happen again.
Inspector Passmore testified that in his experience as a liquor inspector it is common for karaoke establishments to have patrons pour beer on the floor to conceal evidence of service.
When asked how he understood the term “cold tea”, he answered it is steeped tea with ice added to it. He testified that cold tea does not resemble beer. He denied that the liquid he observed could have been cold tea.
On December 22, 2007, he attended the establishment by himself at 2:58 a.m. As he approached the front door, he heard someone yelling, “Beer, beer, beer”, as well as something else in an Asian dialect. The door was locked. He did not recall whether the blinds were opened or shut, but acknowledged that since there was no reference to them being shut in his notes, in all likelihood they were open. When Mr. Truong opened the door, he could see that there were 35 to 40 patrons in the establishment. He observed patrons pouring amber liquid on the floor and in a bowl. He also observed one glass with amber liquid on a table. He did not enter because he was on his own and the Hamilton police had warned him to use caution at the establishment. He told Mr. Truong he would be submitting a report and departed at 3:01 a.m.
On January 4, 2007, he attended the establishment by himself at 2:59 a.m. The door was locked. He does not recall whether the blinds were closed, but acknowledged that because he did not make a note of it, they were probably open. He observed five people, including Mr. Truong and his wife, sitting at a table. He observed a pitcher half full of amber liquid on the table. Once inside, he touched the pitcher and smelled its content. The pitcher was cold to the touch and smelled of beer. He also observed three tumblers with amber liquid and ice in them. They were also cold to the touch and smelled of beer. Mr. Truong admitted that the pitcher and tumblers contained beer. He told Inspector Passmore that the people at the table were his friends and family. All other tables in the establishment had been cleared. Inspector Passmore departed at 3:03 a.m.
Licensee’s Evidence
Mr. Viet Truong has owned the establishment for nineteen months. When he took over ownership, the establishment’s liquor licence was suspended for two weeks because of infractions committed by the previous owner. English is not his first language, but he acknowledged that he understood most of what the inspectors said to him.
He normally locks the front door and turns off the business sign at 2:00 a.m. so customers will not come in. He is afraid of being robbed after 2:00 a.m. He said that the blinds were left open on November 10, 2007, because Inspector Passmore had asked him to do so. On November 24, 2007, the blinds were shut at the request of customers, who were complaining of the car lights from the street shining into their eyes.
Mr. Truong testified that the amber liquid the inspectors observed on November 10 and 24 and on December 22 was cold tea, not beer. The beer is removed by 2:45 a.m. Cold tea is poured into the pitchers, which contained beer, without the pitchers being rinsed. As such, the liquid would look and smell like beer. He told the inspectors to taste the liquid but they refused. The tea is given to customers free of charge. Initially Mr. Truong said the tea was green tea. However, when questioned about whether green tea would look amber on cross-examination, he changed his answer to “China tea”.
He did not tell customers to remove pitchers to the bar before the inspectors entered or to hide tumblers, glasses or pitchers.
Mr. Truong admitted that the pitcher and tumblers Inspector Passmore observed on the table at approximately 3:00 a.m. on January 4, 2008, contained beer. However, he said he was not selling this beer. The people at the table were his family and friends, and he was offering it to them free of charge. Mr. Truong said if he had known it was illegal to have alcohol at a private party in the establishment after 2:45 a.m. he would not have done it.
Mr. Truong testified that on November 10, 24 and on December 22, 2007, when the inspectors visited the establishment, the lights were dim and the white lights were turned off. The music was also on. On cross-examination, Mr. Truong said you could see close by and up to about 10 to 15 feet away with the dim lights. The establishment has a ceramic tile floor.
Mr. Truong admitted to saying, on November 10, 2007, “Swear to God, hand to God, didn’t do anything wrong. You buy. I sell.” He made the reference to selling because business has slowed down. He said he only told Inspector Passmore to “fuck off” after Inspector Passmore called him a “fucking liar”. Mr. Truong admitted to saying he would try harder on November 24th, but he clarified that he meant “for the business”. He was not acknowledging that he had done anything wrong or against the law. He denied saying, “beer, beer, beer” on December 22, 2007. He also testified that Inspector Passmore wished him a Merry Christmas and said “no report” on December 22nd. On cross-examination, Mr. Truong acknowledged that he did not reference Inspector Passmore saying “Merry Christmas” and “no report” in his Will Say statement. Mr. Truong also acknowledged that he did not reference Inspector Passmore swearing at him in his Will Say statement. He explained that he did not want to put a profanity in a written statement.
Ms Quinh (Kelly) Vu is a waitress at the establishment. She works four days a week, from 9:00 p.m. until whenever the customers leave. She was working at the establishment on November 4 and 24, December 22, 2007, and January 4, 2008. She explained that her duties include removing the signs of service by 2:45 a.m. At 2:45 a.m., she asks customers if they want hot or cold tea. If they want cold tea, she puts it in the pitchers which contained beer. She does not rinse the pitchers before adding the cold tea. When asked on cross-examination why she does not rinse the pitchers before pouring tea in them, she said “because the customers don’t complain.” She did not know what type of tea is served. She said the tea is yellow and odourless. She acknowledged that the tea does not foam.
Ms Vu said she did not witness customers dumping liquid on the floor on any of the dates in question. She also denied telling customers to pour their beer on the floor. When asked to explain the liquid on the floor, she said that a lot of cups and glasses get broken during the evening because the customers can be rowdy after they’ve been drinking alcohol. She sweeps the broken glass but does not mop up the liquid while the customers are still there, as it would be unprofessional.
Ms Vu said she did not hear the conversation between the inspectors and Mr. Truong on November 4, 2007; nor did she hear a man yelling “They are here, they are here,” on November 24, 2007. Ms Vu denied telling Inspector Passmore she would try harder on November 24, 2007. She did not recall Mr. Truong saying “beer, beer, beer,” on December 22, 2007. Ms Vu testified that Mr. Truong told her on December 22nd that Inspector Passmore had wished him a Merry Christmas and said he would not be filing a report. On cross-examination, Ms Vu acknowledged that she did not reference this in her Will Say statement, but explained that this is because they were not her words.
Ms Vu admitted that beer was being consumed after 2:45 a.m. on January 4, 2007, but said that it was a private party consisting of family and friends of the owner.
Ms Vu said that at 2:45 a.m. the karaoke and white lights are usually turned off and only the black low lights are on.
At the request of the Licensee, and on consent of the Registrar, the Board agreed to accept written submissions.
Registrar’s Submissions
On November 10, 2007, when the inspectors knocked on the door, a female picked up two beer pitchers and ran to the back behind the service bar, and a patron also picked up two beer pitchers and brought them to the bar area. Once inside, the inspectors went to the bar area where they observed the beer pitchers and picked up a now empty pitcher which was cold to the touch, had beer froth and smelled of beer. By picking up the beer pitchers and dumping them behind the sink immediately prior to the entrance of the inspectors, the Licensee obstructed an investigation, contravening subsection 45(1) of the LLA. The quick removal of the pitchers before the inspectors entered also demonstrates that the signs of service had not been cleared by 2:45 a.m., a violation of section 29 of the O. Reg. An inference can be made that since the beer pitcher was cold to the touch, it was served after 2:00 p.m., in violation of subsection 25(1) of the O. Reg. The Licensee’s explanation that the pitchers contained Chinese tea or cold tea does not have a ring of truth to it. If this were true, there would be no reason for two people to grab the beer pitchers and rush to the service bar, since serving tea at any time of the day is not against the law.
On November 24, 2007, D/Sgt Davidson and the inspectors heard someone yell “They’re here, they’re here,” as they arrived. When they entered, D/Sgt Davidson noticed a beer pitcher turned upside down on the floor next to a tumbler of beer that was full next to a patron. Both the pitcher and tumbler were cold to the touch. D/Sgt Davidson smelled the puddle where the pitcher was lying and it smelled like beer and had foam in it. The aforementioned represent clear breaches of subsection 25(1) and section 29 of the O.Reg. When the owner was told about the beer in the pitchers, he did not dispute its contents. It was only later that the Licensee would come up with the story of Chinese or cold tea being in the beer pitchers. Ms Vu stated that the reason the floor was soaked with beer is that patrons frequently break glasses or throw their drinks on the floor. Purposely throwing drinks on the floor as inspectors enter is clearly a breach of subsection 45(1) of the LLA.
On December 22, 2007, Inspector Passmore heard someone yell “beer, beer, beer,” before he entered, a clear case of obstructing an inspection, in violation of subsection 45(1), by warning patrons about the pending inspection. Inspector Passmore observed one patron pouring amber liquid on the floor and another patron pouring amber liquid into a bowl. Yet another patron had a tumbler of amber liquid in front of him. The aforementioned is sufficient evidence of a violation of section 29 of the O. Reg.
On January 4, 2008, Inspector Passmore observed several patrons seated at a table with a beer pitcher half full of amber liquid and ice. There were also beer tumblers around the table. The Licensee admitted that beer was in the pitcher on this occasion, but advised that it was only “friends” that were there that night. Three out of five people were apparently consuming beer. This represents a clear violation of subsection 25(1) and section 29 of the O.Reg.
The Licensee’s assertion that the amber liquid was cold tea, not beer, does not have a ring of truth to it. November, December and January do not produce the kind of weather that is normally associated with iced tea or cold tea. It is not believable that a bar owner would give free tea to patrons, especially when business is bad. Finally, why would the patrons all of a sudden dump their free Chinese tea on the ground and under the tables as the inspectors walked in? Why would they grab beer pitchers, allegedly full of tea, and hurry to the liquor service bar to dump the contents of the pitchers before the inspectors entered? The only plausible explanation is that the beverage was not “Chinese tea” or “cold tea”, but beer – just as it looked and smelled. The action of the Licensee and/or its patrons, of dumping the contents of the beer pitchers on the floor, constitutes a violation of subsection 45(1) of the LLA. While the liquor inspectors are not required to take samples, they obviously cannot be obtained if the Licensee and/or its patrons are obstructing the investigation by dumping the contents of glasses and beer pitchers on the floor immediately before the inspectors enter the premises.
In this case, the Board must ultimately make a decision based on credibility. When deciding an issue of credibility, the Board should give more weight to law enforcement officials who are dedicated to upholding the law and protecting the public interest and who have nothing to gain or lose by the outcome of the hearing. The Board also must make a decision as to whether it condones or condemns the practice of this Licensee having his patrons dump their drinks on the floor when liquor inspectors arrive. This practice makes it exceedingly difficult for the inspectors to obtain a sample of the beverage that was observed if they deem such a sample to be necessary and is a clear obstruction of a liquor licence inspection.
Licensee’s Submissions
The November 10, 2007, inspection lasted only three minutes, from 3:00 a.m. to 3.03 a.m. The Licensee submits that the inspectors could not have possibly made all the observations they made in only three minutes. The Licensee testified and the server, Ms Kelly Vu, corroborated that the amber liquid was cold Chinese tea, not beer. Cold Chinese tea is customarily served in Vietnamese karaoke bars to patrons after hours. The inspectors’ observations were made from outside the bar. The bar was dimly lit with black glow lights. The patrons who picked up two pitchers from the table were merely being helpful to the staff. Registrar’s counsel failed to adduce evidence as to when the empty pitchers, which were allegedly cold to the touch, frothy and smelled of beer, were placed in the sink. The empty pitchers may have been placed in the sink to be washed before 3:00 a.m. The bar is permitted to have beer on the table until 2:45 a.m., so obviously the pitchers would still be cold to the touch at 3:00 a.m. when the inspectors arrived.
The November 24, 2007 inspection lasted only ten minutes, from 2:55 a.m. to 3:05 a.m. The Licensee categorically denied that someone yelled “they are here” or something similar. The inspectors and police conceded in cross-examination that most of the bar patrons and staff are Vietnamese and that English was probably not their mother tongue. The owner testified that his mother tongue was Vietnamese and that all conversations in the bar were in Vietnamese, not English. To imply someone would yell “they are here” in English is ludicrous. The inspectors were simply guessing what was being said since they admitted they did not speak Vietnamese.
Regarding the allegation that inspectors observed a pitcher of beer turned upside down on one of the chairs and beer on the floor, Ms Vu testified that she was in the process of cleaning up when the inspectors arrived on November 24, 2007. D/Sgt Davidson conceded that the bar floor was dark. No sample was ever collected from the floor. Given that the bar was dimly lit, it would not have been possible to determine whether the liquid was beer without taking a sample. Even if it was beer on the floor, no evidence was adduced respecting when it was spilled on the floor.
Regarding the allegation that the owner was selling alcohol outside the prescribed hours, the inspectors simply made visual observations. They did not take samples, even though Mr. Truong invited them to. The pitchers/tumblers contained cold Chinese tea and ice; therefore they would be cold to the touch.
The December 22, 2007, inspection lasted three minutes (from 2:58 a.m. to 3:01 a.m.) and Inspector Passmore made all of the observations from outside the establishment. The establishment was dimly lit and there was a crowd of approximately thirty-five people. The Licensee submits that it was pure speculation and conjecture that the owner yelled the words “beer, beer, beer,” before the door was opened. Mr. Truong testified that he, the wait staff and the bar patrons hardly speak any English and would normally converse in Vietnamese. Mr. Truong did not obstruct the police or inspectors in any way. With respect to the allegation that beer or amber liquid was still on the tables, the Licensee maintains it was Chinese tea which would have been amber in colour.
The January 4, 2008, inspection lasted four minutes (from 2:59 a.m. to 3:30 a.m.) The bar was locked when the inspectors came. They had to knock to gain entry. All evidence of service had been cleaned up, except for beer on one table, which was a private gathering of Mr. Truong’s friends and family. The alcohol was not being sold to his friends at the private gathering. Mr. Truong admitted he did not know that he could not serve alcohol at a private gathering after 2:45 a.m. If he knew it was against the law, he would not have had a private celebration at his place of business at this hour.
Mr. Tran concurs that the Board must make a decision based on credibility, but disputes Mr. Alton’s argument that the Board should place more weight on the evidence of the police and liquor inspectors. Mr. Alton’s argument flies in the face of the presumption of innocence. To accept Mr. Alton’s argument is the equivalent of saying that Mr. Truong and his server should be afforded less protection under the law than law enforcement officials. Mr. Truong has provided a plausible explanation for each of the alleged violations. Perhaps the police and inspectors did not keep as open a mind as they could have because of their experience with the previous owner of the establishment. If the inspectors really wanted to have conclusive proof, they should have collected samples of the liquid in question for lab analysis.
Mr. Truong repeatedly invited the inspectors to taste the amber liquid to determine whether or not it was beer. The inspectors refused to taste the liquid. If the inspectors wanted conclusive proof, they should have collected samples of the liquid in question for lab analysis.
Inspector Foster’s testimony on his understanding of the meaning of “cold tea” is anecdotal hearsay evidence with no probative value regarding the matter in question. Just because he may have witnessed other bars putting beer in tea cups does not mean it was happening at this particular Vietnamese karaoke bar.
Reply
The inspectors are highly trained and experienced, and there was no evidence presented to suggest they could not properly conduct the inspections or make all of the observations within the time frame of each of the inspections.
The inspectors made no note of Mr. Truong asking them to taste the amber liquid. In any case, it would be inappropriate for them to do so and could also be dangerous.
There is no evidence that the inspectors did not speak Vietnamese or that the patrons did not speak English.
Reasons and Analysis
Credibility
The testimony of D/Sgt Davidson and Inspectors Foster and Passmore was consistent and credible. They were careful not to exaggerate or testify to things they could not remember or did not record in their notes. For instance, they all acknowledged that the door was opened quickly on each occasion. Inspector Passmore was careful to say that on November 24, 2007, because he made no reference in his notes to there being a delay, it would be fair to conclude the door was opened quickly and without delay. Inspector Passmore was also careful to say he did not recall the blinds being shut on December 22, 2007 or January 4, 2008, and given that he did not make a note that they were shut, it would be fair to assume they were opened.
The panel did not accept Mr. Tran’s argument that the inspections were too short for the inspectors and police to make the observations they testified to. The panel is satisfied that their observations were feasible within the time frame of each of the inspections, and also notes that on November 10, 2007, there were two inspectors conducting the inspection and on November 24, 2007, there were two inspectors and a police officer conducting the inspection and that, in the course of these inspections, each inspector was able to focus on different areas of the establishment.
The panel also did not accept Mr. Tran’s argument that the evidence of D/Sgt Davidson and the inspectors was not credible because they failed to take actual samples of the beer. The police officer and inspectors smelled the amber liquid on November 10 and November 24, 2007. Based on the smell and colour of the liquid, as well as the actions of staff and customers in relation to the liquid (i.e., pouring it on the floor or otherwise attempting to conceal it just prior to the door being unlocked and the inspectors entering), the panel infers, on a balance of probabilities, the content of the liquid. Moreover, as Mr. Alton noted in his submissions, it would have been difficult for the inspectors to obtain a sample, given that the patrons poured their drinks on the floor or removed and emptied pitchers of beer in the service bar before they entered.
The panel found the evidence of Mr. Truong and Ms Vu to be, at times, self-serving and far-fetched. For instance, their assertion that the amber liquid on the floor, in the tumblers, and in the pitchers was “cold tea” was not credible. They failed to explain why staff and customers would be pouring cold tea on the floor and removing or concealing pitchers and tumblers of cold tea immediately before the inspectors entered on three separate occasions. The panel did not give any weight to Inspector Foster’s testimony that he had encountered elsewhere the practice of establishments serving beer in tea cups after 2:00 a.m. to conceal the contents. The panel agreed with Mr. Tran that Inspector Foster’s experience elsewhere has no bearing on what actually happened in this case. For the same reason, the panel gave no weight to Inspector Passmore’s testimony that it is common for karaoke establishments to have customers pour beer on the floor to conceal the evidence of service.
Mr. Truong and Ms Vu’s testimony that they poured cold tea into the pitchers without rinsing them also lacked credibility. If they had emptied the beer from the pitchers (even if they did not rinse them), there would not be froth or foam in the pitchers. As Ms Vu acknowledged, cold tea does not foam or froth.
Ms Vu’s explanation for the amber liquid on the floor – that customers break a lot of glasses, and she typically sweeps up the broken glass while the customers are present, but not the liquid – was far-fetched. Surely one would remove the liquid while sweeping up the glass, rather than leaving liquid on the floor for customers to slip on. Moreover, Ms Vu did not testify that she witnessed glass being broken or that she removed glass from the floor without mopping up the liquid on November 24 or December 22, the two dates there was amber liquid on the floor; rather, she was simply speculating on the reason there was beer on the floor based on what she had witnessed in the past at the premises. Her speculations ignored the fact that on November 24, there was an empty pitcher on the floor by the amber liquid, and on December 22, Inspector Passmore actually witnessed amber liquid being poured on the floor.
There were also inconsistencies between the Licensee’s testimony at the hearing and their prior Will Say statements. For instance, Mr. Truong testified that on November 10, 2007, Inspector Passmore swore at him, but on cross-examination he acknowledged that he did not mention this in his Will Say statement. He stated that he did not want to put a profanity in a written statement, yet he did not have a problem articulating a profanity at the actual hearing. Furthermore, if he really had an issue with putting a profanity in a written statement, he could have written that the inspector swore at him without specifying the profanity. Mr. Truong also testified that Inspector Passmore wished him a Merry Christmas and said “no report” on December 22, 2007, but on cross-examination he acknowledged that he did not reference Inspector Passmore making these statements in his Will Say statement. Ms Vu testified that Mr. Truong told her on December 22, 2007, that Inspector Passmore had wished him a Merry Christmas and said he would not be filing a report, but she acknowledged on cross-examination that she did not mention this in her Will Say statement either. The panel did not accept the explanations for the omissions from the Will Say statements of Mr. Truong and Ms Vu as they are unreasonable and self-serving.
Finally, the panel did not accept Mr. Alton’s argument that the police and liquor inspectors were more credible because they are members of law enforcement and do not have a self-interest in the outcome of the case. Licensees and their staff almost always have a self-interest in the outcome of the case, but this does not mean that their evidence is never as credible as the evidence of law enforcement. The panel looked at the nature of the evidence of all of the witnesses to reach the above conclusions on credibility. The job titles of the witnesses did not influence the panel’s findings on credibility.
Subsection 45(1) of the LLA
Subsection 45(1) provides that “No person shall obstruct a person carrying out an inspection under this Act or withhold, destroy, conceal or refuse to provide any relevant information or thing required for the purpose of the inspection.” The Registrar is alleging that on November 10, November 24 and December 22, 2007, the Licensee contravened subsection 45(1).
Although the Licensee had been asked by Inspector Passmore on a prior occasion to leave the front door unlocked and the blinds open while there are customers in the establishment, on November 10, November 24 and December 22, 2007, the door was locked, and on November 24, 2007, the blinds were also shut, even though customers were present. The Licensee testified he locked the door for safety reasons, but he did not give evidence that he discussed his safety concerns with Inspector Passmore when he asked him to keep it unlocked or with the liquor inspectors or D/Sgt Davidson on any of the dates at issue in this case. The door being locked and the blinds shut (November 24), in and of themselves, would not likely be sufficient for a finding under subsection 45(1), particularly given that the door was quickly unlocked at the request of the inspectors on each of the dates in question. However, together with the other events which transpired, the door being locked does contribute to a finding of obstruction on November 10, November 24 and on December 22, 2007.
On November 24, 2007, D/Sgt Davidson and the two liquor inspectors heard a male yelling, “They’re here, they’re here”, before the door was unlocked, and on December 22, 2007, Inspector Passmore heard Mr. Truong yell “beer, beer, beer” before the door was unlocked. Although Mr. Truong and Ms Vu denied that anyone yelled such warnings, and it was acknowledged that most of the customers were Asian, for reasons noted above, the panel found the testimony of the police and liquor inspectors to be more credible. The panel also notes that Mr. Truong was able to communicate in English at the hearing without the assistance of a translator, and Ms Vu spoke excellent English. The observations of D/Sgt Davidson and the liquor inspector, after they heard someone yell, “They’re here, they’re here,” and “beer, beer, beer”, allow the panel to infer, on a balance of probabilities, that the patrons and/or Licensee were warning other patrons, staff and/or the Licensee of an imminent inspection, so that they could remove the signs of service.
Of most significance to the finding of obstruction, is what D/Sgt Davidson and Inspectors Foster and Passmore observed take place inside the establishment:
a. On November 10, 2007, Inspector Foster and Inspector Passmore witnessed pitchers, containing amber liquid and some foam, being quickly removed to the service bar area immediately before they entered, and subsequently observed three empty pitchers in the service bar which smelled of beer and were cold to the touch.
b. On November 24, 2007, Inspector Foster or Inspector Passmore witnessed a pool of amber liquid on the floor which smelled of beer, a pitcher on the floor by the puddle with a small amount of amber liquid and white froth, a tumbler right side up on the floor which contained amber liquid, and another pitcher turned over on a chair with a strong smell of beer and cold to the touch.
c. On December 22, 2007, Inspector Passmore witnessed amber liquid being poured onto the floor and into a bowl.
Mr. Tran argued in his submissions that it would have been difficult for the police and inspectors to make many of these observations, given that the premises were dimly lit. However, Mr. Truong acknowledged on cross-examination that even with the dim lights, it would be possible to see 10 to 15 feet away.
Mr. Tran noted in his submissions that on November 10, 2007, the inspectors did not witness anyone empty the pitchers which were cold to the touch and smelled of beer, arguing that they could have been placed in the sink before 3:00 a.m. However, the inspectors saw them take pitchers with amber liquid and some foam to the service bar area, and when the inspectors arrived at the service bar a minute or so later, they did not see any pitchers containing amber liquid and foam; rather, they only observed empty pitchers which smelled of beer and were cold to the touch. Therefore, the panel can infer that, on a balance of probabilities, the now empty pitchers were the same ones the inspectors witnessed being quickly removed before they entered.
Mr. Tran also noted in his submissions that no evidence was adduced as to when the liquid, which D/Sgt Davidson determined smelled of beer (November 24, 2007), was spilled. Given that D/Sgt Davidson and the inspectors heard someone yelling “They’re here, they’re here,” before the door was unlocked and opened, and given that Inspector Foster saw through a crack in the blinds that people were scurrying around the table and putting things under the table, the panel can infer that, on a balance of probabilities, the amber liquid was spilled just before they entered, in an effort to conceal signs of service after 2:45 a.m. Further, there was a pitcher on the floor by the liquid which smelled of beer and contained a small amount of amber liquid and froth, a tumbler right side up on the floor which contained amber liquid and was cold to the touch, and another pitcher turned over on a chair with a strong smell of beer. While Mr. Tran noted in his submissions that D/Sgt Davidson and the inspectors were witnessing staff clean up when they entered on November 24, 2007, tumblers are not typically placed right side up on the floor and pitchers are not typically turned over on a chair during regular clean up. Customers were clearly trying to conceal the contents of the tumbler and pitcher.
As noted above, the panel did not find the Licensee’s explanation, that the liquid on the floor, in the tumblers, or in the pitchers was “cold tea” to be credible. It is not illegal to have tea on the floor of the establishment after 2:45 a.m., so there is no reason why staff and customers would be attempting to conceal evidence of cold tea.
On a balance of probabilities, the panel can infer that the owner and patrons (i.e., at a minimum, those patrons who yelled “They’re here, they’re here,” and who were pouring beer on the floor, removing pitchers containing beer to the service bar or otherwise concealing the signs of beverage alcohol service,) knew the beer on the tables was relevant to an inspection by police and/or liquor inspectors, and were trying to conceal the evidence of service after 2:45 a.m., when they realized that the liquor inspectors or police were coming in.
For the above reasons, the Board FINDS the Licensee contravened subsection 45(1) of the LLA by obstructing an inspection and destroying and concealing evidence on November 10, November 24 and December 22, 2007.
Subsection 45(2) of the LLA
Subsection 45(2) provides that it is a condition of each licence that the Licensee “facilitate an inspection relevant to the licence.” The Oxford dictionary defines facilitate as “to make easy or less difficult or more easily achieved.”
In some cases, evidence that gives rise to a finding that a Licensee has breached subsection 45(1) is appropriate and sufficient to also support a finding that subsection 45(2) has been breached. This is what the Board concludes in this matter. Here, those behaviours and actions of Mr. Truong, his staff, and his patrons whereby they deliberately attempted to conceal or destroy things relevant to the inspection (described more particularly in paragraphs 70 and 72-75 of the Board’s analysis, above) represent a failure by the Licensee to facilitate the inspections on November 10, November 24, and December 22, 2007. Therefore, the Board FINDS that the Licensee has also contravened subsection 45(2).
Subsection 25(1) of the O.Reg
Subsection 25(1) provides that liquor may be sold and served only between 11:00 a.m. and 2:00 a.m. on the following day, except on December 31st. The Registrar is alleging that the Licensee contravened subsection 25(1) on November 10 and 24, 2007, and on January 4, 2008. The Registrar’s witnesses did not observe the Licensee or its employees serving or selling beverage alcohol after 2:00 a.m. on any of the three dates in question.
Inspector Foster testified that an empty pitcher (with a small amount of amber liquid and froth and a strong smell of beer) in the service bar was cold to the touch on November 10, 2007, shortly after 3:00 a.m. Mr. Alton argued in his submissions that an inference could be drawn about the time of service, given that the empty pitcher was cold to the touch. The panel is not prepared to make such an inference. The fact alone that an empty pitcher was cold to the touch is evidence that it was just emptied, but it is not sufficient evidence for the Board to determine, on the balance of probabilities, that it was served after 2:00 a.m.
Inspector Foster also testified that a tumbler of beer, a glass of beer and an empty pitcher (which had a strong smell of beer) were cold to the touch at approximately 2:55 a.m. or shortly thereafter on November 24, 2007. The glass had fresh foam around the rim. As noted above, a pitcher, tumbler or glass of beer which has been refrigerated could be cold to the touch 55 to 60 minutes after having been served. The presence of foam is evidence that the substance was not tea but is insufficient evidence of the time of service.
On January 4, 2008, the Licensee admitted to beer being consumed after 2:45 a.m., believing it was permissible since it was just family and friends and the beverage alcohol was not being sold. The Licensee did not admit to the beer being served after 2:00 a.m. The fact that a pitcher and three tumblers, which the Licensee admitted contained beer, were cold to the touch is insufficient evidence of service after 2:00 a.m.
Accordingly, the Board DISMISSES the allegation of contravention under subsection 25(1) of the O.Reg.
It bears mentioning, however, that the Licensee was mistaken in his belief that it was permissible to consume beverage alcohol at a private party in the licensed premises after 2:45 a.m., where family and friends are not paying for the alcohol. If Mr. Truong was, in fact, serving complimentary beer to family and friends on January 4, 2008, he would be in contravention of paragraph 20(2)(a) of the O.Reg. Since a contravention of paragraph 20(2)(a) of the O.Reg was not alleged in the Notice of Proposal, the panel will not make a finding under this paragraph. Suffice to say that the Licensee’s actions on January 4, 2008, and Mr. Truong’s testimony that he believed his actions to be within the law, at a very minimum, demonstrate that the Licensee is not as familiar as he should be with the requirements of the LLA and regulations.
Section 29 of the O. Reg
Section 29 of the O.Reg provides that the evidence of liquor that has been served and consumed on the premises must be removed within 45 minutes after the end of the period during which liquor may be sold or served or by 2:45 a.m. The Registrar is alleging that the Licensee contravened section 29 on November 10, November 24, and December 22, 2007, and on January 4, 2008.
Based on the following evidence of the liquor inspectors and D/Sgt Davidson, the panel is satisfied that there were signs of service after 2:45 a.m. on November 10, November 24 and December 22, 2007:
a. On November 10, 2007, at approximately 3:00 a.m. Inspector Foster observed two pint glasses filled with amber liquid and a pitcher with the same colour liquid and foam on a table. Before they entered, the male customer quickly removed the pitcher to the service bar area. At the same time, Inspector Passmore also observed a female remove two pitchers of amber liquid with a little foam on top to the service bar. Inspector Foster touched the now empty pitchers at the service bar, and they were cold to the touch, smelled of beer and had foam in them.
b. On November 24, 2007, shortly after 2:55 a.m., D/Sgt Davidson, Inspector Foster or Inspector Passmore observed: a tumbler right side up on the floor with amber liquid (cold to the touch); amber liquid which smelled of beer on the floor; a pitcher on the floor by the liquid with a small amount of amber liquid and froth and which smelled of beer; and a pitcher turn upside down on a chair with a strong smell of beer and cold to the touch; and a clear glass filled with amber liquid and fresh foam around the rim (cold to the touch).
c. On December 22, 2007, at approximately 2:58 a.m., Inspector Passmore witnessed amber liquid being poured on the floor and into a bowl and one glass with amber liquid on a table.
d. As noted above, the panel did not find the Licensee’s evidence that the amber liquid was “cold tea” to be credible. No explanation, let alone a plausible one, was advanced by the Licensee to explain why patrons would pour cold tea on the floor or otherwise conceal pitchers and tumblers containing cold tea on each of these three occasions. The only reasonable explanation was that they were trying to conceal the signs of service after 2:45 a.m.
e. On January 4, 2008, at approximately 2:59 a.m., Inspector Passmore observed a pitcher half filled with amber liquid and three tumblers with ambler liquid on a table where five individuals, including the Licensee, were seated. Just as was the case on the other occasions, the amber liquid smelled of beer. On this occasion, the Licensee admitted to the amber liquid being beer.
- Accordingly, the Board FINDS the Licensee contravened section 29 of the O.Reg on November 10, November 24, and December 22, 2007, and on January 4, 2008.
Conclusion
- The Board FINDS the Licensee contravened:
a. subsection 45(1) of the LLA on November 10, November 24 and December 22, 2007;
b. subsection 45(2) of the LLA on November 10, November 24 and December 22, 2007; and
c. section 29 of the O.Reg on November 10, November 24, and December 22, 2007, and on January 4, 2008.
The Board DISMISSES the allegation of contravention under subsection 25(1) of the O.Reg.
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 the 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 29th DAY OF August , 2008
JACQUELINE CASTEL, BOARD MEMBER S. GRACE KERR, BOARD MEMBER
JC/ee