Registrar, Alcohol and Gaming Commission of Ontario v. Hejin Lee O/A Sam's Pub, 2008 CanLII 91898

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

Registrar, Alcohol and Gaming Commission of Ontario Registrar

-and-

Hejin Lee O/A Sam’s Pub Licensee

Panel: Dianne Axmith, Board Member Brian J. Ford, Board Member

Decision Date: October 24, 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 Hejin Lee, Licensee ) Sang Lee, Representative

Allegations

1A hearing into Notice of Proposal number 16300 dated May 21, 2008, to suspend liquor licence number 201902 issued to Hejin Lee (the “Licensee”), operating as SAM’S PUB, 583 Sherbourne Street, Toronto, Ontario, M4X 1K7, (the “establishment”), on the basis of alleged violations of subsections 31(1)(c), 33(1) and 45(1) of Ontario Regulation 719/90 (the O.Reg), made pursuant to the Liquor Licence Act (LLA), was held on August 5, 2008, in the City of Toronto.

Decision

2The Board FINDS the Licensee violated subsections 31(1)(c) and 45(1) of the O.Reg. The Board DISMISSES the allegation of a violation of subsection 33(1) of the O.Reg. Reasons follow.

Preliminary Matters

3Mr. Sang Lee advised the Board that he would be representing his wife, Hejin Lee, who is the owner of Sam’s Pub.

Registrar’s Evidence

4Kevin Cote, a constable with the Toronto Police Service, advised the Board he is an officer with 51 Division and on October 18, 2007, at 9:00 p.m., he attended at Sam’s Pub at 583 Sherbourne Street in Toronto. On entering the establishment he noticed a male at the bar who appeared to be drunk.

5Constable Cote went to the bar, spoke with this person and found that his speech was slurred and he had glassy and lazy looking eyes. Constable Cote noted the male had an open bottle of beer that had been partially consumed. When asked, this male person stated he had had four beers and probably more.

6The male patron acted like he knew the officer. Constable Cote told this person that he would have to leave the establishment. When the male attempted to get up off his chair he was unsteady and had to be assisted. Constable Cote noted that the patron’s balance was off. Constable Cote told the Board he had to assist this male person out of the establishment. This male person was identified as Mr. G. J.

7Constable Cote advised the Board that once outside he was involved in another incident, not related to the bar, which occupied his time. He returned to the bar at 10:15 p.m.

8On re-entering the bar at 10:15 p.m., he was involved in confiscating a quantity of beer from the storage closet in the establishment. The beer in question was in twenty-eight pack cases, which are not allowed to be purchased on a liquor licence.

9Constable Cote obtained a receipt (Exhibit #1) from the manager of the bar, Mr. Amanuel Belai, showing that the beer had been purchased off licence. There were seven cases of twenty-eight pack beer, which were removed from the bar. Some of the cases were partial cases.

10Under cross-examination, Constable Cote repeated his description of the drunken patron; he was unsteady on his feet, his speech was slurred, his eyes were glassy and lazy and he had to be assisted out of the establishment.

11Raj Patel is a constable with the Toronto Police Service. He advised the Board that he attended at Sam’s Pub along with Constable Cote on October 18, 2007. Constable Patel corroborated the evidence of Constable Cote pertaining to the “drunken” patron and the purchase of beer off licence.

12Constable Patel noted the officers seized five cases with 28 bottles in them, one case with 25 bottles and one case with 24 bottles. All of the seized beer was taken and stored at 51 Division.

Licensee’s Evidence

13Amanuel Belai is the manager of the establishment. Mr. Belai stated that Mr. G. J. comes to the bar two to three times a week and that Mr. G. J. had only been there two hours prior to the arrival of the officers.

14He noted that the officers did not wear uniforms on the night in question and that Mr. G. J. made a joke saying, “here are my bodyguards.” Mr. G. J. did not appear to be intoxicated in the opinion of Mr. Belai.

15Mr. Belai stated Mr. G. J. had five beers that night and he did not believe he was really drunk.

16Under cross-examination, Mr. Belai stated he had worked at the establishment for only three days prior to the October 18, 2007, incident and on that night the only other person helping him was his wife.

17Mr. Belai stated he was trying to buy the bar and at the time he did not having any training with respect to working in a liquor licence establishment. He stated he has since had SmartServe training.

18Mr. Belai was asked by the owner to go and purchase beer for the establishment and he bought the 28-pack beer because it was cheaper. He did not realize it could not be purchased on a liquor licence. He admitted purchasing the beer off licence on October 15, 2007.

19Mr. Belai stated at the time he was being trained by Mr. Lee.

Registrar’s Submissions

20Mr. Kulis notes the evidence of purchase of beer off licence is clear. Both officers testified to finding the beer in the establishment and Exhibit #1 confirms the purchase of the beer off licence. He also noted that the manager admitted to buying the beer off licence.

21Mr. Kulis opines the evidence is clear and convincing for the Board to make a finding of a breach of subsection 31(1)(c) of the O.Reg.

22Mr. Kulis advised the Board that the allegation under subsection 33(1) could be dismissed.

23Mr. Kulis also notes the evidence of the officers pertaining to the condition of Mr. G. J. is clear and convincing: he was unsteady on his feet; his speech was slurred; his eyes were glassy and lazy; and he had to be assisted out of the bar.

24Mr. Kulis feels that there is ample evidence for the Board to making a finding of breach of subsection 45 (1) of the O.Reg.

Licensee’s Submissions

25Mr. Lee noted that the beer was purchased because it was the same price as a case of 24 beers. He stated it was his fault that it was purchased because he did not properly explain the need to purchase beer for a licensed premises.

26Mr. Lee did not make any comments with regard to the “drunken” patron.

Analysis/Reasons/Findings

Subsection 31(1)(c)

27The Board finds the evidence of Constable Cote and Constable Patel of the Toronto Police Service clear and convincing. The officers testified to finding beer not allowed to be purchased on a liquor licence in the bar area of the establishment. As a result seven cases of beer were confiscated. Some of the cases were partially empty. The officers also obtained a receipt from the manager showing the beer had been purchased off licence (Exhibit #1).

28The manager, Mr. Belai, admitted to purchasing the beer off licence. Mr. Lee in his submission also admitted to the beer having been purchased off licence.

29The Board finds that there was a breach of subsection 31(1)(c) of the O.Reg.

Subsection 45(1)

30The Board finds that the evidence of Constable Cote and Constable Patel is clear and convincing regarding this allegation. Both officers testified to the fact that the patron exhibited the classic signs of a drunken person. They noted his eyes were glassy and lazy, his speech was slurred, he was unsteady on his feet and had to be assisted by Constable Cote when exiting the establishment.

31Mr. Belai stated that he did not feel the patron was “that drunk.” He also admitted to having served the patron five beers in approximately two hours.

32The Board finds the officers’ testimony to be credible and more reliable. The Board notes that Mr. Belai had worked for only three days prior to the night in question and did not have any training with regard to recognizing an intoxicated patron.

33Therefore, the Board finds, on the balance of probabilities, there was a breach of subsection 45(1) of the O.Reg.

Subsection 33(1)

34The Board accepted the Registrar’s proposal to dismiss the remaining allegation of a violation of subsection 33(1) of the O.Reg.

Order

35Therefore for the reasons given, the Board FINDS the Licensee violated subsections 31(1)(c) and 45(1) of the O.Reg. The Board DISMISSES the allegations of violation of subsection 33(1) of the O.Reg.

36The Board invites written submissions on sanction 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 DAY OF , 2008

_________________________________ _________________________________

DIANNE AXMITH, BOARD MEMBER BRIAN J. FORD, BOARD MEMBER

BJF/ee