Registrar, Alcohol and Gaming Commission of Ontario v. 1707417 Ontario Inc., 2008 CanLII 91733

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-

1707417 Ontario Inc. operating as Pho So 6

Licensee

DECISION on findings

Panel: Guy Maurice, Board Member

Eleanor Meslin, Board Member

Decision Date: November 27, 2008

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 ) Daniel Alakas, Representative

1707417 Ontario Inc., Licensee ) Tran Nguyen

) Thuy Thank Thi Nguyen

Exhibits

1A Copy of The Beer Store receipt dated September 14, 2007

1B Copy of The Beer Store receipt dated September 14, 2007 at 21:23:13

2 Letter to Karim Karsan at the Alcohol and Gaming Commission of Ontario (“AGCO”) from Thuy Nguyen, dated March 4, 2008

3 Letter “To Whom it May Concern” from Kim Tram, dated February 28, 2008

Allegations

1. A hearing into Notice of Proposal number 16232 (the “NOP”) dated April 28, 2008, to suspend liquor licence number 807609 issued to 1707417 Ontario Inc., (the “Licensee”) operating as PHO SO 6, 1795 St. Clair Avenue West, Unit 2, Toronto Ontario, M6N 1J7, (the “establishment” or the “premises”), on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (the “LLA”) and subsections 31(1)(c), 33(1) and 54(1)(a) of Ontario Regulation 719/90 (“OR 719/90”) made pursuant to the LLA, was held on October 21, 2008, in the City of Toronto.

Decision

2. After careful consideration of all the evidence and the submissions the Board FINDS the Licensee violated subsections 45(1) and 45(2) of the LLA and subsections 31(1)(c), 33(1) and 54(1)(a) of OR 719/90. Reasons to follow.

Preliminary Matters

3. The Licensee’s Representative, Mr. Tran Nguyen, asked to be removed from the record as acting for the Licensee because of disagreements on how to proceed. The Licensee wished to proceed on her own behalf and waived her right to counsel. The Board agreed to Mr. Nguyen’s removal from the proceedings.

Registrar’s Evidence

4. BENJAMIN BEARD, a police constable with Toronto Police Services attended at the establishment on September 14, 2007 at 8:50 p.m. with Constables Merritt and Davey to do a liquor licence check.

5. On entering he observed two females, who told him they were the Licensee and her relative. When he asked for their SmartServe cards the Licensee produced her card.

6. He observed 29 Labatt Ice cans, 23 Heineken cans, 15 Molson Canadian cans, 24 Budweiser cans and a 12 pack of Molson Dry with six bottles still in the pack. He asked the Licensee for receipts for the purchases. She said there were no receipts on the premises, because they were with her accountant. Officer Beard asked when she could supply them, she said her husband would bring them to the premises the next day. The officer asked her if 24 hours was enough time and she responded, “yes.”

7. He returned the next day, (September 15) at 9:52 p.m. with the other officers and the Licensee provided them with a receipt for the purchases (Exhibit 1A). The receipt appeared immaculate with no wrinkles on it. Although the date, September 14, 2007 was clearly legible, the time (2…23) appeared to have numbers missing. Officer Beard gave the receipt to Officer Davey. She was told to attend at The Beer Store and get a reprint of the receipt, which she did (Exhibit 1B). The logo on each receipt (Exhibits 1A and 1B) is different. The time on The Beer Store receipt was clearly shown as 21:23:13. The officers had arrived on September 14 at 8:50 p.m. (20:50:00) the items on the duplicate receipt (Exhibit 1B) indicated they were purchased at 9:23 p.m., after the officers had left the premises.

8. The Molson Dry listed on the receipt was not for the Molson Dry found on the premises. No receipt for that item has been received.

9. On September 15, 2007, Officer Beard served the Licensee with a summons for obstruction and failure to facilitate an inspection. He did not speak to the Licensee about the fake receipt.

10. CHRISTOPHER MERRITT, a constable with Toronto Police Services arrived, with Officers Davey and Beard, in uniform, on September 14, 2007, at 8:50 p.m. for an inspection.

11. The officer examined the storage area and found a 12 pack of Molson Dry, with several bottles in it and a large number of cans of beer. He commented to Constable Beard that it was strange to see only one pack of Molson Dry when all the other beer brands had multiple cans. He thought the pack may have been purchased off licence. He heard Constable Beard ask the Licensee for her receipt and heard her reply that it was not available, but would be the next day.

12. Constable Merritt returned on September 15 at 9:52 p.m. with the same officers. He spoke to the Licensee about the receipt and she provided them with a Beer Store receipt (Exhibit 1A) listing a 24 pack of Molson Dry with a date of purchase of September 14, 2007. The time stamp on it was blurred and looked either altered or smudged out. It read 2…23. He gave the receipt to Officer Davey to check at The Beer Store and get a copy. He asked the Licensee if the receipt she had given him was the original and she said, “yes.” He told her he did not believe her since it was too perfect and had no creases or folds on it.

13. Later, Constable Davey showed him the receipt she had obtained at The Beer Store (Exhibit 1B). It had a clear time marking of 21:23:13, which was 13 minutes after the officers left the premises. He did not speak to the Licensee about the reprint.

14. AMY DAVEY is a constable with the Toronto Police Services who attended the premises with the other officers on September 15, 2007, at 9:52 p.m. as a follow up to the September 14, 2007, investigation. She had been told by Officer Beard on September 14, 2007 to get a duplicate receipt from The Beer Store, since the receipt they got on September 14 had a blurred time on it.

15. Constable Davey obtained the Beer Store receipt (Exhibit 1B) showing the time as 21:23:13 and advised Officer Beard of her findings.

Licensee’s Evidence

16. MICHAEL C. MARCHIS was there on September 14, 2007 having a beer. He works at the establishment Tuesdays and Fridays removing garbage. He saw the police officers looking at the beer in the storage area. He heard them ask the Licensee for receipts and she told them to come back the next day.

17. THUY NGUYEN is the Licensee. On September 14 the officers checked the storage area at around 8:00 p.m., saw a 12 pack of Molson Dry and asked her for a receipt. She told them she does not buy the beer, her husband buys it. Sometimes when she buys a 24 pack they give her two 12 packs.

18. When the officer asked her for the receipt she told him she gave it to her accountant. She said she would have it on Monday since her accountant is closed Saturdays and Sundays. But the police told her they wanted if for the next day and if she did not have the receipts the next day they would ticket her. So she went to the Beer Store, after they left, made another purchase and got a receipt to give them the next day.

19. The police returned the next day and told her the receipt she gave them was not right and she told them what she had done and she was charged and went to Court. The Court closed the case and she felt everything was fine until she received the NOP.

20. Responding to questions by Mr. Alakas, Ms Nguyen said she did not change the original receipt.

21. Mr. Alakas produced a letter from Ms Nguyen to the AGCO dated March 4, 2008, (Exhibit 2) which indicated that, “Mr. Cook went out and purchased another case of beer…” not her. The letter also stated, “…he (Cook) provided the officer with the receipt that was tampering with.” Ms Nguyen replied that no one tampered with the receipt. An attachment to the letter was the original receipt dated July 14, 2007. Ms Nguyen stated she had given the receipt to the accountant the day before the officers arrived.

22. Ms Nguyen testified that she gave her accountant her receipts every three months. Mr. Alakas then produced a letter from the accountant (Exhibit 3) dated February 28, 2008 which stated he received the receipts each month.

Registrar’s Submissions

23. The Registrar asks that the Board find violations of subsections 45(1) and 45(2) of the LLA and subsections 31(1)(c), 33(1) and 54(1)(a) of OR 719/90.

24. Regarding subsection 45(1) and 45(2) – when Officers Beard and Merritt attended the premises they saw a 12 pack of Molson Dry and asked the Licensee for a receipt. She told them it is with her accountant and that her husband will bring it in the next day. When Constable Beard asked if 24 hours was enough time, she said it was. On the following day the officers returned and the Licensee gave them a receipt (Exhibit 1A). They noted that it had no creases or folds and that the time on it was unclear. The officers then asked Officer Davey to get a reprint from The Beer Store (Exhibit 1B). This receipt had the time clearly printed showing the purchase was made 13 minutes after the officers had left the bar and did not apply to the 12 pack in the licensed premises.

25. In the Licensee’s letter (Exhibit 2) she admitted that the receipt did not apply to the beer in question and that the receipt was tampered with. It indicates that the cook bought the beer and provided the receipt.

26. The Licensee’s evidence was that she went with the cook and that no one tampered with the receipt. The Registrar submits there is a credibility issue with the Licensee’s evidence. She did it because she needed a receipt for the next day. Her version makes no sense since she could have produced it on Monday. There was no reason that the officers would not wait until Monday.

27. The Licensee said that all receipts were given to the accountant the day before the officers arrived, but her accountant said he received them monthly.

28. The receipt was for a 24 pack, therefore, it does not apply to the 12 pack on the premises.

29. Regarding obstruction, withholding and concealing relevant information, the Licensee admitted to these charges. She lied, tampered with and held the receipt out to be genuine.

30. Obstructions, such as lying and falsifying evidence, lead to the charge of failure to facilitate.

31. Regarding subsection 54(1)(a) the Licensee has still not produced a receipt for the 12 pack. The evidence indicates there is none. Therefore, on a balance of probabilities, it was purchased off licence and the Licensee failed to retain records and permitted and sold off licence liquor on the premises.

Licensee’s Submissions

32. The Licensee submitted that she thought that when there was no Court finding, everything was okay. She does not understand why she has to have a Board hearing. This was the first time this has happened. It was a mistake and will not happen again.

Reply

33. There was no evidence regarding the Court proceedings and whether the charges were dismissed. Even so, they would be irrelevant in this hearing.

Analysis and Reasons

34. Officers Beard and Merritt, after asking the Licensee for a receipt for the 12 pack of Molson’s Dry and being told it was at the accountant’s, both testified that when Ms Nguyen told them she would have it by the next day, Officer Beard asked her if that was enough time and she said it was. They were willing to wait until Monday which reinforces the Registrar’s position that they were willing to give her additional time and that there was no official receipt for the 12 pack.

35. When the officers received the receipt (Exhibit 1A) the next day their suspicions were aroused by the fact that it looked too perfect – no creases or folds and, more importantly, that the time shown on it was unclear. When they examined the copy that Constable Davey got from the Beer Store, (Exhibit 1B) they noted that the time was clearly visible as 21:23:13, which indicated that the purchase was made after the officers had left the premises on September 14, 2007.

36. The Board accepts the evidence of the officers that the receipt they received from Ms Nguyen was not the original and that the purchase on that receipt was made after they left the premises.

37. The Board is concerned about the credibility of Ms Nguyen’s testimony. When asked on September 14 (Friday) to produce a receipt for the 12 pack, she claimed it was with her accountant and she would have it the next day, Saturday. When the receipt she produced was shown to be a fake, she used the excuse that her accountant was not available on Saturday or Sunday. Her next excuse was that she gave her accountant receipts every three months. This was proven false through Exhibit 3, her accountant’s letter, that stated he received receipts monthly. She then testified that she had bought the beer after the officers had left and that the receipt had not been altered. However, in her own signed correspondence to the Board (Exhibit 2) she stated that her cook had made the purchase and the receipt had been tampered with. In addition, the receipt attached to her letter to the AGCO (Exhibit 2) was dated July 14, 2007, and was for a 24 pack, not for a 12 pack.

38. The Board finds that Ms. Nguyen was not a credible witness. She misled the police and attempted to deceive the Board.

39. Ms Nguyen lied, tampered with and held the receipt out to be genuine. By doing so she obstructed and failed to facilitate the police in carrying out their inspection, contrary to subsections 45(1) and 45(2) of the LLA.

40. Since no Beer Store receipt was ever produced for the 12 pack in question, the Board FINDS that the Licensee failed to retain the records of this purchase, contrary to subsection 54(1)(a) of OR 719/90.

41. In addition, the Board finds that the Licensee kept liquor for sale not purchased under licence in violation of subsection 31(1)(c) and 33(1) of OR 719/90.

Conclusion

42. Therefore, for the reasons given, the Board FINDS the Licensee violated subsections 45(1) and 45(2) of the LLA and subsections 31(1)(c), 33(1) and 54(1)(a) of OR 719/90.

43. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his written submissions within ten (10) days of the date of this decision. The Licensee’s representative shall have ten (10) days to serve and file his written response. Registrar’s Representative may serve and file any reply within five (5) 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 27^th^ DAY OF November , 2008

GUY MAURICE, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER