Registrar, Alcohol and Gaming Commission of Ontario v. VN Spring Rolls Inc., 2008 CanLII 91744

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-

VN Spring Rolls Inc. O/A Baby Blue (Licensee)

DECISION

Panel: Beryl Ford, Board Member Jacqueline Castel, Board Member

Decision Date: July 2, 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: Richard Kulis, Representative VN Spring Rolls Inc., Licensee: Minh Phi Tram, Representative

Allegations

1A hearing into Notice of Proposal number 15972 dated January 31, 2008, to suspend liquor licence number 811615 issued to VN Spring Rolls Inc. (the "Licensee"), operating as Baby Blue, 189 Augusta Avenue, Toronto, Ontario, M5T 2L4, (the "establishment"), on the basis of alleged violations of section 29, and subsections 25(1), 44(1) and 45(1) of Ontario Regulation 719/90 ("O.Reg"), made pursuant to the Liquor Licence Act (LLA), was held on June 2, 2008, in the City of Toronto.

2By correspondence dated June 3, 2008, to the Manager of Hearings, copied to the Licensee's Representative, the Registrar withdrew the request for a finding under subsection 44(1) of the O.Reg.

Decision

3After carefully reviewing the evidence and submissions, the Board FINDS the Licensee breached section 29 of the O. Reg. The Board DISMISSES the allegations of violations of subsections 25(1) and 45(1) and accepts the Registrar's WITHDRAWAL of the allegation of a violation of subsection 44(1) of the O.Reg. Reasons follow.

Preliminary Matters

4An ORDER to exclude witnesses was made on consent.

Registrar's Evidence

5Amanda Higuera, a Liquor Inspector with the Alcohol and Gaming Commission of Ontario ("AGCO") since May 17, 2004, attended the establishment on September 30, 2007, at 3:04 a.m., with two other AGCO Liquor Inspectors. On entering, she counted 13 patrons seated at four tables and 31 signs of service on the tables, including cans of Budweiser beer, cups of beer and wine, and a pitcher of beer. No efforts were underway, when they entered, to clear these signs of service.

6Inspector Higuera touched three unopened cans of Budweiser beer, and indicated that they felt cold. She did not touch any of the other beverages observed on the tables. On cross-examination, Inspector Higuera said she did not recall touching any of the other signs of service.

7Three male customers at one of the tables asked Inspector Higuera if she wanted a drink. When she declined, they told her to "fuck off" and called her a "bitch". One of the males stated: "It is only the Liquor Board. They can't do shit." Inspector Higuera subsequently joined her colleagues at the rear bar, where Inspector Sandiland was speaking to the owner, Ms Sotheany Ung. While they were informing Ms Ung of the various infractions, the three males continued to swear at the inspectors. The three males continued to make belligerent comments until Inspector Higuera and her colleagues departed at 3:13 a.m.

8In response to a question from Mr. Tram, Ms Higuera stated that she recalls there being a few people outside the bar when they entered, but that she did not make any notes on same.

9Tuesday Sandiland, an AGCO Liquor Inspector for 16 years, stated that prior to entering the establishment on September 30, 2007, she noticed that there was what appeared to be a small festival on Augusta Avenue, and a male and female were arguing in front of the establishment. The female entered the establishment, followed by Inspector Sandiland and her two colleagues. On entering, Inspector Sandiland immediately observed signs of service on the tables and that no efforts were underway to clear the signs of service.

10Inspector Sandiland went to the service bar at the rear of the establishment where she identified herself as an AGCO Liquor Inspector to the male behind the bar and asked to speak to the owner. When the owner, Ms Ung, met with her, Inspector Sandiland told her that she is legally required to have all signs of service cleared by 2:45 a.m. According to Inspector Sandiland, Ms Ung stated: "I know. I know. I'm sorry."

11While she was at the rear service bar, Inspector Sandiland could hear three male patrons at a table at the front of the bar (immediately to the left of the entrance) yelling obscenities at her colleagues, in particular, Inspector Higuera. Inspector Sandiland instructed the owner twice to put a stop to the disorderly conduct of these patrons. According to Inspector Sandiland, Ms Ung went to the table and spoke to the males. Inspector Sandiland could not hear what Ms Ung said to the males, but the disorderly conduct did not stop.

12Inspector Sandiland informed Ms Ung that her colleague, Inspector Higuera, found three unopened cans of beer which were cold to the touch and that the service of liquor must stop at 2:00 a.m.

13In response to a question from Mr. Tram, Inspector Sandiland stated she did not recall whether the music was on or off.

14Stephen Hetherington, an AGCO Liquor Inspector for the last 18 months, attended the establishment with Inspectors Higuera and Sandiland on September 30, 2007. His evidence was the same as Inspector Higuera's and Sandiland's on the signs of service and on the conduct of the three male customers. He did not touch any of the beverages on the tables. On the disorderly conduct, he stated that the three males were loud and became more abusive when they found out the inspectors were not police officers. He recalled the males calling them "fake police."

15In response to a question from Mr. Tram, Inspector Hetherington said he remembers two customers leaving the establishment when they entered. Also in response to a question from Mr. Tram, Inspector Hetherington said he recalled the music being on in the establishment.

Licensee's Evidence

16Sotheany Ung, the owner of the establishment, told the panel that in addition to herself, there was one staff person working on September 30, 2007, Ms Trina Nguyen.

17Ms Nguyen started to clear the signs of service at 2:30 a.m., but the three male customers were yelling, so she went outside to call them a taxi. According to Ms Ung, prior to the arrival of the inspectors, there were people fighting outside. Ms Ung explained that she did not want her customers to leave the establishment because she was afraid for their safety. Ms Ung did not call the police.

18Ms Ung acknowledged that three male customers were verbally abusive, but she said she believed their abuse was directed towards her. She indicated that they were angry because she tried to stop them from leaving, fearing for their safety. She said she heard them say "bitch" but thought they were saying it to her. She felt threatened but wanted to give them a chance to leave without calling the police.

19Trina Nguyen, a server at the establishment, was scheduled to work from 10:00 p.m. to 3:00 a.m. on September 29/30, 2007. When the liquor inspectors arrived there were approximately 13 people in the bar. She indicated that she normally clears the signs of service at 2:30 a.m., but on September 30, 2007, she was distracted by the commotion outside.

20Ms Nguyen said she went outside to call a taxi for some customers at about 2:35 a.m., and observed a commotion, comprised of approximately 10 people. In response to a question, she explained that she felt the customers should leave in a taxi because they had been drinking, but they were not intoxicated. At approximately 2:50 a.m., Ms Nguyen went back inside and advised Ms Ung to keep the customers inside and to call the police as the commotion outside was escalating.

21Ms Nguyen said she was standing beside the three male customers in the establishment when the inspectors were present and heard everything they said. She indicated that they were targeting their abuse and anger towards Ms Ung, not the inspectors. They were angry because Ms Ung would not let them leave. On cross-examination, Ms Nguyen stated that she did not fear for anyone's safety inside the bar because the customers were friends of Ms Ung and would respect what she asked of them.

Registrar's Submissions

22Mr. Kulis submitted that the story about a commotion outside and a need to keep customers inside the establishment for safety reasons was concocted by the Licensee. At most, there was a man and woman engaged in a loud conversation. This is a case of a Licensee getting caught permitting a party with beverage alcohol to continue beyond the prescribed hours.

23Mr. Kulis submitted that the Licensee has admitted to failing to clear the signs of service by 2:45 a.m. The Licensee also admitted that three male customers were yelling and disorderly. The Licensee did not attempt to calm down the customers until she was instructed to (twice) by Inspector Sandiland, but even then she was unable to put a stop to the disorderly conduct. All three inspectors heard that the verbal abuse was directed towards them, not the Licensee.

24The three cans of beer which Inspector Higuera determined to be cold to the touch shortly after 3:04 a.m., must have been served after 2:00 a.m.; it is not possible that they could have remained cold more than one hour later.

Licensee's Submissions

25Mr. Tram stated that the inspectors failed to make concise observations. For example, he pointed to the fact that they did not take notes of the weather conditions, the number of patrons outside, and whether there was music in the establishment.

26Mr. Tram informed the panel that the Licensee is prepared to admit that there were signs of service after 2:45 a.m.

27Mr. Tram submitted that the Registrar did not prove that the beverage alcohol was served after 2:00 a.m. The Inspector would have had to compare the three cans of beer she touched with other signs of service to determine the length of time they were on the floor.

28Mr. Tram submitted that there was no evidence of violent or disorderly conduct contravening subsection 45(1) of the O.Reg. At most, there was a quarrel involving a few patrons and directed towards the owner of the establishment.

Reasons and Findings

29The Board finds the evidence of the three liquor inspectors to be credible. There were no inconsistencies in the evidence of the three inspectors on any matters of relevance to the allegations. The Licensee failed to establish how the weather conditions, activities outside the establishment, or the presence or absence of music in the establishment were relevant to the issues in this case.

30Conversely, the Board finds the evidence of the Licensee to be, at times, self-serving and contradictory. For instance, Ms Ung and Ms Nguyen stated that they did not remove the signs of service by 2:45 a.m., because of an escalating commotion outside, which would put customers' safety in jeopardy, if they were to leave the establishment. The Board finds it remarkable that they did not call the police about the fracas if they were genuinely concerned about customer safety. Equally remarkable, the Licensee never mentioned the commotion or safety concerns to the liquor inspectors on September 30, 2007. Moreover, even if there was an escalating disturbance outside, it in no way explains why the Licensee failed to remove the signs of service, as required by law, while allowing the customers to remain inside. Even if Ms Nguyen needed to go outside at approximately 2:35 a.m., to call a taxi, this did not explain why Ms Ung did not take over clearing the signs of service.

31Another example of the Licensee's contradictory evidence was on the target of the verbally abusive conduct of the three males. Ms Ung and Ms Nguyen stated that Ms Ung was the target of the abuse, not the inspectors. However, Ms Ung was not anywhere near the male patrons when the disorderly conduct began. Rather, she was at the rear service bar speaking with Inspector Sandiland. Further, Ms Nguyen admitted on cross-examination that the patrons were friends of Ms Ung and respected her. There was also no reliable evidence that the customers remained at the establishment against their wishes. On the evidence, the Board finds it much more plausible that the male customers became angry and abusive when, first, Inspector Higuera declined to join their party, and second, the inspectors instructed the owner to comply with the LLA, thereby curtailing their party.

Subsection 25(1)

32For a finding under subsection 25(1) of the O.Reg, there must be proof, on the balance of probabilities, that liquor was sold or served outside the prescribed hours. The inspectors did not witness anyone selling or serving liquor while they were in the establishment. The only evidence put forth of service outside the prescribed hours was Inspector Higuera's testimony that three cans of unopened beer, which she touched, felt cold. The Board does not doubt the veracity of Inspector Higuera's evidence. However, the Board is not satisfied that it qualifies as proof, on the balance of probabilities, that the three cans of unopened beer must have been served after 2:00 a.m. Indeed, it can take significantly longer than 65 to 75 minutes for a can of beer, which has been refrigerated, to cool down or no longer feel cold to the touch. While the Board acknowledges that it is odd that the cans were unopened if they were served at or before 2:00 a.m., the Registrar has not proven, on the balance of probabilities, that they were served after 2:00 a.m. Accordingly, the Board DISMISSES the allegation under subsection 25(1).

Section 29

33Based on the evidence of the Liquor Inspectors and the Licensee's admission, the Board FINDS the Licensee contravened section 29 of the O. Reg, by failing to clear the signs of service in the licensed premises within 45 minutes after the end of the period during which liquor may be sold and served under the license.

Subsection 45(1)

34For a finding under subsection 45(1), there is a two part test. First, it must be established that there was drunkenness, unlawful gambling, or riotous, quarrelsome, violent or disorderly conduct in the licensed establishment or adjacent areas under the Licensee's exclusive control. Second, it must be established that the Licensee permitted one or more types of the aforementioned conduct.

35Ms Ung and Ms Nyugen, in their evidence, did not dispute the inspectors' testimony that the three male customers were loud and verbally abusive. Rather, they disputed the target of the abuse. The Board did not find the Licensee's explanation on this subject to be credible, for reasons outlined in paragraph 31 above. The Board accepts that the three male customers were loud, that their language included obscenities, and that they directed the obscenities and other verbal abuse towards the inspectors, particularly Inspector Higuera. The Board also accepts that the loud, verbally abusive conduct persisted throughout the time in which the inspectors were at the establishment (approximately 9 minutes). However, the question the Board must answer is whether the aforementioned behaviour of the three male customers amounted to "disorderly conduct" or was "quarrelsome", within the meaning of subsection 45(1). Regrettably, neither the Registrar nor the Licensee's representative introduced any case law on the interpretation or definition of "quarrelsome" or "disorderly conduct", for the purpose of subsection 45(1). This would have been helpful since most cases of disorderly conduct would involve violence, a physical altercation or an assault.

Black's Law Dictionary (5th edition) defines "disorderly conduct" as:

"A term of loose and indefinite meaning (except when defined by statutes), but signifying generally any behaviour that is contrary to law, and more particularly such as tends to disturb the public peace or decorum, scandalize the community, or shock the public sense of morality."

Black's Law Dictionary (5th edition) does not define "quarrelsome", but defines "quarrel" as:

"An altercation, an angry dispute, an exchange of recriminations, taunts, threats or accusations between two persons."

Based on the above definitions, as well as the fact that "violent" conduct is listed separately under subsection 45(1), the Board is satisfied that violence or a physical altercation is not always required for a finding of "quarrelsome" or "disorderly conduct" under subsection 45(1). The word "quarrelsome" would also connote verbal conduct. However, not all verbal abuse or verbal disputes would rise to the level of "quarrelsome" or "disorderly conduct" for the purpose of subsection 45(1). Where the conduct does not involve violence, a physical altercation or an assault, the verbal abuse or dispute must be fairly extreme to qualify under subsection 45(1). An example of verbal abuse or a verbal dispute which qualifies under subsection 45(1) is a threat of physical violence – the type of verbal conduct which would also contravene the Criminal Code.

36The Board found the conduct of the three male customers to be offensive and inappropriate, and in no way condones such conduct. However, the Board is not satisfied that the conduct was extreme enough to qualify as "quarrelsome" or "disorderly conduct" within the meaning of subsection 45(1). While the inspectors properly wanted the conduct to stop – and instructed the Licensee (twice) to have the customers stop, the inspectors did not give evidence that they felt threatened by the verbal conduct; nor did they feel that it rose to the level of requiring police intervention, or presumably they would have called the police.

37As the first part of the test for a finding under subsection 45(1) has not been met, it is not necessary for the Board to consider the second part of the test. Accordingly, the Board DISMISSES the allegation under subsection 45(1).

Subsection 44(1)

38The Registrar WITHDREW the request for a finding under subsection 44(1), by correspondence dated June 3, 2008, and the Board agrees to same.

Conclusion

39For these reasons, the Board FINDS the Licensee contravened section 29 of the O.Reg. The Board DISMISSES the allegations under subsections 25(1) and 45(1), and accepts the Registrar's request to WITHDRAW the allegation under subsection 44(1) of the O. Reg.

40The Board invites written submissions on penalty from the respective parties. The Registrar's representative shall serve and file his 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 his 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 2nd DAY OF July, 2008