Registrar, Alcohol and Gaming Commission of Ontario v. Ping Xing O/A The Grasshopper, 2009 CanLII 20251

ALCOHOL AND GAMING COMMISSION OF ONTARIO

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

BETWEEN:

Registrar, Alcohol and Gaming Commission of Ontario Registrar

-and-

Ping Xing O/A The Grasshopper Licensee

DECISION on findings

Panel: Kirsti Hunt, Vice-Chair, AGCO Brian J. Ford, Board Member

Decision Date: February 10, 2009 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 Ping Xing, Licensee ) Jerry Levitan, Representative

Allegations

1A hearing into Notice of Proposal number 15492 dated August 2, 2007 and a Notice of Proposal number 15956 dated January 25, 2008 to suspend licence number 806815 issued to Ping Xing (the “Licensee”) operating as THE GRASSHOPPER, 460 Parliament Street (Basement), Toronto, Ontario, M5A 3A2 (the “establishment” or the “premises”), on the basis of alleged violations of subsections 34(1) and 45(1) and section 43 of the Ontario Regulation 719/90 (O. Reg.) made pursuant to the Liquor Licence Act, was held on December 8, 2008, in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board FINDS the Licensee violated section 43 and subsection 34(1) of the O.Reg. Reasons follow.

Preliminary Matters

3The Board accepted the withdrawal of the allegations under 45(1) of the O.Reg. for April 9 and September 27, 2007.

Registrar’s Evidence

4Inspector Adam Strongman of the AGCO attended at The Grasshopper on April 21, 2007 at 12:58 a.m. He explained that to enter the establishment, you have to go down a set of stairs to a small landing where there is a patio from which you enter the establishment (Ex. 1 and 2). On arriving, he counted 21 patrons on the patio licensed for 9 people.

5He also observed a male leave the patio and go to the sidewalk with a pint glass of beer. Later on cross-examination, he indicated that he did not know where the male got the beer. The gold coloured liquid in the glass was consistent with beer. He did not smell it.

6The Inspector entered the establishment and spoke to the Licensee about his observations. She said that the band had just finished playing and the people were leaving and in order to exit, they had to go through the patio to get to the sidewalk. The Inspector told her that people seemed to be staying on the patio. After about 3 minutes of conversation, the Inspector went outside and counted 11 persons on the patio.

7He also observed a female leave the patio and go to the sidewalk with a pint glass with a little beer in it. He followed her and caught up to her at the intersection of Parliament and Aberdeen where she joined 2 males who also had pint glasses of beer. He asked them about the beers and they said that they had just walked off with the beer unbeknownst to the owner. The female admitted that her glass contained beer.

8On cross-examination, the Inspector explained that he counted only the people sitting or standing on the patio. Some of the people standing were talking to people on the patio. He agreed that in the time he was inside, the number on the patio had reduced from 21 to 11 and that it was possible that the people standing were just exiting the premises. Staff had not been moving people along.

9On September 27, 2007, Inspector Strongman arrived at the premises at 11:50 p.m. and counted 14 patrons on the patio. The Licensee acknowledged the count of the patio but made no comment regarding that. The Board notes that the Inspector and the Licensee discussed patrons regarding whom allegations were withdrawn.

Licensee’s Evidence

10Ms. Ping Xing (Gina), the Licensee, testified that she has operated The Grasshopper, which is on Parliament close to Carlton, for 3 ½ years. The area has a mix of rich people and poor people. Some of the people from Regent Park have an alcohol and drug problem. She often sees them drunk on the street with bottles and glasses. She does not serve these people. She has had to call police three times because they have broken her window. Her clientele are hard working people.

11To go in and out of the establishment, you have to go through the patio which has a capacity of nine people. She keeps only seven or eight chairs on the patio, never nine. She has two people working on regular nights and they check the patio every 10 minutes. If she is working alone, she checks the patio.

12Ms. Xing agreed that on April 21, 2007 the patio was overcrowded if you counted the people leaving from inside. That night she had a male server inside so she was the one who checked the patio every 10 minutes. She served seven people on the patio.

13The Inspector came in and said that there were 21 people on the patio. She told him that they would have to be shoulder to shoulder because the patio is so small. She explained to him that the band had finished at 1:00 a.m. and the people were leaving. She told him that she had served seven people on the patio. They went outside and the other people were all gone and there were seven people on the patio with drinks. He agreed that seven people had drinks and told her she was fine that night. The Inspector did not say anything to her about a female leaving the patio with a drink.

14Ms. Xing was present on September 27, 2007 and spoke to Inspector Strongman about the people regarding whom allegations were withdrawn. He did not speak to her about being over capacity. She thought eight people had drinks on the patio that night.

15On cross-examination, Ms. Xing agreed to put up a sign stating that “Only 9 people are allowed on the patio.”

16Miss Alice Feng was working on September 27, 2007. She was bartending and in control of the crowd. She explained that the policy for the patio is that you have to check it every 10 minutes and have to maintain a maximum of eight people on it. She does that. Also if someone walks out, she checks the patio. She can do that through the windows in the door. The regulars all know that their capacity is nine persons.

Registrar’s Submissions

17Registrar’s Representative submitted that the evidence shows that on April 21, 2007, two patrons removed liquor from the patio on a balance of probabilities.

Overcapacity

18On April 21, 2007 the Inspector observed 21 people on the patio. They could have been transitory. He did not count the people leaving or on the stairs. The number dropped to 11 persons within a minute or so but the Licensee should have taken more precautions.

19On September 27, 2007 the Inspector counted 14 people on the patio. The number of people over the capacity is small but nonetheless they constitute a violation on a sunken patio that is enclosed. If it is overcrowded, people will have difficulty getting out from inside the premises to the stairs. It is a matter of public safety.

Licensee’s Submissions

20The Licensee’s representative submitted that based on the Inspector’s evidence for April 21, 2007, the Board cannot conclude, on a balance of probabilities, that the Inspector made an accurate count of 21 persons. The configuration of the patio is a difficulty for the Licensee but the AGCO licensed it and to get in and out of the establishment people have to walk through that patio. Within 2 or 3 minutes the count was down to 11 persons. His evidence is consistent with that of the Licensee who said that people were leaving.

21Regarding the overcrowding on September 27, 2007, the Inspector didn’t know the number of people sitting or standing on the patio or the number of empty chairs. The violation by the best standard is miniscule among offences given the due diligence of the Licensee.

22The Board cannot conclude, on a balance of probabilities, that the Licensee permitted patrons to remove alcohol from the licensed premises on April 21, 2007. The Inspector observed a male remove a pint of beer from the patio but we don’t know if he walked in with it off the street, if he took it off the table or purchased it from the establishment. The Inspector observed a brown liquid but he did not smell it. The female took the beer away surreptitiously. The standard for the Licensee is high but not perfect. The Licensee is a hardworking person dealing with a problematic area and doing a good job.

23The Registrar has not made a case on any of the allegations.

Analysis and Reasons

24The Board reviewed the evidence and the submissions of parties.

25The Board accepts the evidence of the Inspector that there were 21 persons on the patio on April 21, 2007. He counted only the people seated and standing. A few minutes later the number was down to 11 persons and the drop in number is consistent with the Licensee’s evidence that people were leaving.

26The Licensee’s Representative argued that the Inspector’s numbers could not be relied upon because the Inspector could not tell the number of people sitting, being served or standing on the patio. The Inspector was clear in his evidence that he only counted people seated or standing. It is not necessary for him to be able to break down that number as to specific location or activity.

27The Board notes that the Licensee did not dispute the Inspector’s count but explained that people were leaving after the band finished inside and stated that she had only served seven people on the patio. The capacity of a patio is not calculated on the basis of the number of persons served but on the basis of the number of people physically present and that number includes not only patrons but also staff.

28The problem that exists in this case is the anomaly that people have to cross the licensed patio in order to enter and exit the establishment. The Board is of the view that where it is clear that people are moving in a direct path from the door of the establishment to the stairs leading to the street, and vice versa, although technically on the licensed patio, ideally they should not be included in the count thereby creating a violation of the patio capacity. From the Inspector’s evidence, it appears that people who were leaving stopped to talk to those seated on the patio, thus technically creating an overcrowded situation.

29On September 27, 2007, the Inspector counted 14 people sitting or standing on the patio. Ms. Xing thought she had served eight people on the patio. Here again the count should not be the number of people served but the number physically on the patio.

Decision - Overcrowding

30There is clear evidence that the patio was overcrowded on April 21, 2007 and September 27, 2007 in violation of section 43 of the O.Reg.

Removal of Liquor

31The Board accepts the evidence of Inspector Strongman regarding the removal of a pint of beer from the licensed patio by two patrons. The Inspector was in close proximity to the male because of the small size of the patio. The Board accepts, on a balance of probabilities, that the gold coloured liquid in the glass, which the Inspector observed to be consistent with beer, was in fact beer. It does not matter if the beer was brought onto the patio by the patron, taken by him from a table or served to him. He removed it from a licensed area. In any event the Board finds on a balance of probabilities that the beer did originate from the premises, as the patron was observed leaving the patio.

32In the case of the female, the Inspector observed her remove the pint glass of beer. He followed her and she admitted that the glass contained beer. It does not matter that she removed it surreptitiously. The Licensee permitted a situation in which she was able to leave the patio with the beer. Again, it does not matter how or where she got the beer, although the Board finds on a balance of probabilities that the beer did originate from the premises, as she too was observed leaving the patio with beer.

Decision - Removal of Liquor

33Therefore, the Board FINDS that the Licensee violated subsection 34(1) of the O.Reg. on April 21, 2007

34Having made the findings above, the 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 shall have seven (7) days to serve and file her 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 10th DAY OF FEBRUARY, 2009.