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-
Pizza Mom Pizza Inc. O/A Pizza Mom Pizza
Licensee
DECISION ON FINDINGS
Panel: Kirsti Hunt, Vice-Chair, AGCO Beryl Ford, Board Member
Decision Date: May 6, 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 ) Daniel Alakas, Representative Pizza Mom Pizza Inc., Licensee ) Richard Elbirt, Representative
Allegations
- A hearing into a Notice of Proposal number 16853 (“NOP”) dated November 21, 2008 to suspend liquor licence number 813075 (the “Licence”) issued to Pizza Mom Pizza Inc. (the “Licensee”) operating as PIZZA MOM PIZZA, 631 Kennedy Road, Scarborough, Ontario, M1K 2B2 (the “premises” or “establishment”) on the basis of alleged violations of subsection 45(1) of the Liquor Licence Act (“LLA”) and section 29 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on March 19, 2009 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board finds the Licensee violated subsection 45(1) of the LLA and section 29 of the O.Reg. Reasons follow.
Preliminary Matters
A motion to exclude witnesses by Counsel for the Licensee was approved on the agreement of all parties.
A motion to amend the NOP was granted on consent.
It was noted that the NOP stated that the incident occurred on June 16th 2008. It was agreed that this was a typographical error in the NOP which should have read June 15th 2008.
Registrar’s Evidence - June l5th 2008 Incident
Devin Sookdeo is an Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector. He advised the Board that he arrived at Pizza Mom Pizza on June 15th 2008 at 2:51 a.m. in the company of AGCO Inspectors Steve Hetherington and Stephen Durham for a routine inspection.
Inspector Sookdeo stated that when they arrived at the establishment they attempted to enter through the front doors facing the parking lot. The front door was locked. Inspector Sookdeo knocked on the doors and looked through the windows. The establishment was dark. Inspector Sookdeo shone a flashlight through the window and could see individuals inside the premises. The Inspectors held their I.D. against the glass windows so that someone could recognize that they were inspectors and let them in.
While knocking at the door and peering through the glass windows with the assistance of a flashlight, he could see four people at the bar. He observed a male, who was in front of the bar, reach over the bar and dump a cup behind the bar. A male person identified as the Licensee opened the doors for the Inspectors and allowed them to enter.
On entering the premises the Inspectors moved to the bar area which was approximately 20 feet from the door. Inspector Sookdeo observed two shot glasses and one Pilsner beer glass on the bar. The glasses were empty but had residue at the bottom that smelled of alcohol. The Pilsner glass smelled strongly of beer.
Inspector Sookdeo stated that he saw a cardboard cup in a pool of liquid on the floor behind the bar. The cup had residue of what appeared to be beer inside the cup. There was foam both in the cup and on the floor. The cup was cold to the touch and smelled strongly of beer.
Inspector Sookdeo overheard Inspector Hetherington speak to the Licensee and tell him that all service of alcohol must cease by 2:00 a.m. and all signs of service must be cleared by 2:45 a.m. to which the Licensee replied that it was just family and friends who were chatting inside the establishment.
The Licensee was advised that a report would be made and submitted to a supervisor of the AGCO for disposition. The Inspectors left the premises at 2:58 a.m.
In cross-examination Inspector Sookdeo stated that he could see clearly through the window into the premises with the flashlight. The patrons were seated at the bar with either their side profile or backs to the door and windows. The person who dumped the cup behind the bar was sitting at the end of the bar. It was Inspector Sookdeo’s recollection that he was the only Inspector using a flashlight.
Stephen Durham is an AGCO inspector. He advised the Board that he arrived at Pizza Mom Pizza on June l5th, 2008 with Inspector Sookdeo and Inspector Hetherington.
Inspector Durham’s evidence corroborated that of Inspector Sookdeo. They arrived at the establishment, found the door locked, knocked on the door and looked through the windows into the dark premises. The door was opened by the Licensee and they entered the premises.
Inspector Sookdeo had gazed through the windows to the premises with a flashlight while waiting for the doors to be opened and told him that he had observed a male push a cup over the bar. On entering, Inspector Durham proceeded to the bar area which he described as L-shaped.
He observed two shot glasses and a Pilsner beer glass on the bar. He picked up the Pilsner glass which had remnants of liquid at the bottom that smelled like beer. He was unsure of what the shot glasses had contained.
He walked around to the back of the bar and saw a plastic cup on the floor behind the bar. The cup was sitting in what appeared to be a dark liquid which he guessed, from his experience, to be Guinness beer. The cup smelled strongly of beer and was cold to the touch.
In cross-examination Inspector Durham stated that he did not see the patron push or throw the cup over the bar, but had received this information from Inspector Sookdeo.
He did not see a garbage can but confirmed that he did see a plastic cup which he believed to be clear plastic, on the floor behind the bar. The cup was away from the patrons who were seated at the bar.
Stephen Hetherington is an AGCO inspector. He told the Board that he arrived at Pizza Mom Pizza at 2:55 a.m. on June 15th 2008 in the company of Inspector Sookdeo and Inspector Durham to carry out a routine inspection.
On arriving they found the front doors locked and the inside of the premises absolutely dark. He could make out that there were people at the bar by peering through the glass windows.
The Inspectors knocked on the doors and held their identification badges up to the windows.
While waiting for the door to be opened Inspector Sookdeo focused a flashlight through the windows and informed the other two Inspectors that he was able to see the people at the bar and just observed a male push a drink off the bar.
The doors were opened shortly after by the Licensee, Mr. Balasubramaniam. On entering, Inspector Hetherington immediately requested that the lights be turn on in the establishment.
He proceeded to the bar area which he described as U-shape. He observed two empty shot glasses and a Pilsner beer glass on the bar in front of the patrons seated there. He picked up the Pilsner glass and noticed residue in the bottom of the glass that smelled like beer.
He then went behind the bar and saw a cup which appeared to be paper – cardboard coffee type with a wax coating lying on the floor. It was lying in a puddle of dark cold liquid. He picked up the cup which was sweating with condensation. Inside the cup were the remnants of beer and thick white foam. He knew it was beer by the distinct smell of Guinness beer, the colour and the foam.
Inspector Hetherington testified that he advised the owner that the service of alcohol must cease at 2:00 a.m. and all signs of service must be cleared by 2:45 a.m.
The Licensee told him that there were no patrons inside the premises drinking; the people there were just friends who were sitting and talking.
Inspector Hetherington asked the Licensee why the cup was still cold. The Licensee responded that the drink was served well before 2:00 a.m. When confronted with the information that a male person was seen by Inspector Sookdeo to have pushed the cup off the bar just before they entered the establishment, the Licensee denied that it happened.
He informed the Licensee of the infractions and that it would be reported to an AGCO supervisor for disposition. They left the premises at 2:58 a.m.
June 27th 2008 Incident
Inspector Hetherington advised the Board that he visited Pizza Mom Pizza for a routine inspection on June 27th 2008 at 3:27 a.m. accompanied by Inspector Baird. They entered the premises through the unlocked front doors. It was dark inside and he asked for the lights to be turned on. Inspector Hetherington stated that there were 4 – 6 people plus the owner around the bar. There were no other staff members present.
On approaching the bar he saw two Styrofoam cups on the bar that were half to three quarters full of an amber liquid. The cups were cold to the touch and smelled like beer.
Inspector Hetherington spoke to the Licensee, Mr. Balasubramaniam about the cups containing what appeared to be beer. The Licensee told him the people present were just friends talking and the staff who had left earlier must have forgotten to remove the cups.
Inspector Hetherington testified that he went behind the bar and observed a partially full bottle of Guinness beer on the bar-back, there was a foam cup on the floor behind the bar that contained the remnants of a dark liquid and foam that smelled like beer. The colour and foam was consistent with Guinness beer.
Inspector Hetherington decided to take samples of the contents of the cups on the bar for analysis. In the presence of the Licensee, Inspector Hetherington placed 4 oz of the liquid into AGCO issued sample bottles, labelled them with the numbers AGC 54464 and AGC 54465 and dated and sealed them.
The Inspector testified that while the above activities were taking place, four uniformed police officers from the Toronto Police Services arrived at the premises. One officer had observed the lights on and noticed activities and called for other officers to join him at the establishment.
The Inspectors provided police with the details of what was taking place at that time. Three of the four police officers present handled the filled sample bottles and indicated they found them cold to the touch.
It was the opinion of the Inspector that the contents of the bottles were so cold that condensation gathered on the outside of the bottles preventing the labels sticking to the bottles. The Inspector eventually secured the labels with elastic bands.
The Licensee was advised that a report would be made to the AGCO and the sample bottles would be sent for analysis.
Inspector Hetherington delivered the sample bottles to the AGCO head office where they were placed in a secure vault; the necessary paperwork was completed. The samples were taken by Liquor Coordinator Clark to the LCBO laboratories in Toronto for analysis.
Exhibit #1 – Property Report including certificates of analysis and results was submitted by counsel for the Registrar.
Exhibit #1 details the following test results:
Sample #54464 contained a beverage with an alcohol content of 5.7%.
Sample #54465 contained a beverage with an alcohol content of 4.8%.
The difference in the alcohol content was explained by different brands of beer which contain different alcohol content.
In cross-examination Inspector Hetherington corroborated the evidence of other witnesses that they had arrived by car at Pizza Mom Pizza for a routine inspection on June 15th 2008.
Responding to a question on a discrepancy in the arrival time he noted and that of his colleagues, Inspector Hetherington responded that he had looked at his watch on arrival. It was quite dark and it is possible he made a mistake and misread his watch.
He did not use a flashlight to look through the windows of the establishment, but it is common for Inspectors to carry a flashlight and shine it on their identification when visiting an establishment.
Inspector Hetherington confirmed that he thought the bar was a U-shape; he had an independent recollection of four individuals in the establishment that evening, two males, one female and the male owner.
He recalled being first behind the bar and seeing the paper coffee type cup, the type that would keep beverages cool or warm, lying in a puddle of dark liquid on the tile floor. He picked up the cup which he found had condensation on the outside and the residue of dark liquid and foam on the inside of the cup.
Inspector Hetherington told the Board that he did not take a sample of the liquid in the cup behind the bar that evening as there was insufficient quantity; it requires 4 oz. of liquid for an analysis by the LCBO.
On June 27th 2008 patrons were sitting at the bar. The two Styrofoam cups from which samples were taken were in front of the patrons and were partially full.
Mr. Ryan Baird is an Inspector with the AGCO. He is familiar with the establishment Pizza Mom Pizza. He arrived with Inspector Hetherington on June 27th at 3:27 a.m.
On arriving he observed two males standing outside the establishment. The Inspectors approached the front doors and found them unlocked. On entering the premises they noted the lights were not on and the place appeared in darkness.
They approached the bar area and observed two males and one female at the L-shaped bar, and a male person the Inspector recognized to be the owner sitting behind the bar. Inspector Baird identified himself to the owner.
There were two Styrofoam cups on the bar. He picked up a cup that contained an amber liquid with foam on the top. The contents smelled strongly of beer and the outside of the cup was cold to the touch. The second cup was three quarters full of the amber liquid with a foam top. This was also cold to the touch and smelled strongly of beer.
Inspector Baird moved behind the bar area and observed a Guinness beer bottle which was open in front of the owner on the bar back. There was a cup on the floor near the owner. The liquid had spilled onto the floor and on closer examination, it appeared to be dark in colour and smelled strongly of beer.
It was while Inspector Baird was examining the bar area that police officers from the Toronto Police Service arrived. They reported that lights were on in the establishment and they had come to investigate. The officers were advised by the Inspector of the activities taking place.
Inspector Baird was talking to the police officers and the owner while Inspector Hetherington took samples from the cups on the bar for analysis.
In cross-examination Inspector Baird stated that he went behind the bar because the Guinness bottle was visible to him from the front of the bar. It was 3:48 a.m. and he was checking for signs of service.
Inspector Baird stated that he did not see anyone drinking from the cups or bottle. He confirmed it was dark when they entered the establishment, and it was after the owner was asked to turn the lights up by Inspector Hetherington that he could clearly see the individuals at the bar and the cups on the bar.
In re-direct Inspector Baird described the L-shape bar as one end of the bar going directly to the wall with the one end open. By using the wall to describe the shape of the bar it could be described as U-shaped.
Counsel for the Licensee informed the Board that he would call no evidence.
Submissions of the Registrar
Counsel for the Registrar asked for findings under section 29 of the O.Reg. The licence holder failed to clear the signs of service and consumption in the licensed premises within 45 minutes after the end of the period during which liquor may be sold and served under the licence.
Counsel for the Registrar also requested findings be made under subsection 45(1) of the LLA for infractions on June 15th 2008 and June 27th 2008.
Contrary to subsection 45(1) of the LLA the licence holder withheld, destroyed, concealed or refused to provide relevant information or things required for the purpose of an inspection under the LLA.
June 15th 2008
Counsel for the Registrar submitted that the evidence from the Inspectors was clear, detailed and consistent.
Inspector Sookdeo testified and Inspectors Durham and Hetherington concurred that they arrived at the establishment to find the doors locked and the premises in darkness. The looked through the glass windows and with the assistance of a flashlight determined that there were people inside the premises. Inspector Sookdeo, with the advantage of using his flashlight saw a male person dump a cup over the bar after the Inspectors had started knocking on the doors.
The owner opened the doors and allowed the Inspectors entry and when questioned said the people at the bar were just friends sitting around talking. He was directed by an Inspector to raise the lights inside the premises.
The Inspectors observed shot glasses and a beer glass on the bar. On closer examination, all smelled of alcohol. The Pilsner glass had residue of beer in the glass. The Inspectors were consistent in saying they did not see garbage cans behind the bar, but observed a cup on the floor that had spilled its contents. A dark liquid surrounded the cup. Foam consistent with Guinness beer was found in the cup and on the floor. The cup was examined and found to smell strongly of beer. The cup was still cold to the touch.
Inspector Sookdeo clearly saw a male dump the cup from where he was sitting at the end of the bar to the location where it was found on the floor behind the bar.
All three Inspectors saw the cup behind the bar on the floor. Although one inspector described the cup as plastic, this is not relevant to the fact it was a cup that obviously contained a liquid that smelled and looked like beer.
One Inspector had a discrepancy in the time they arrived. He stated that he had looked at his watch as they arrived. It was minutes off what the other Inspectors had noted, and he agreed he could have misread his watch.
The bar was described as L-shaped by two Inspectors while one Inspector described it as U-shaped. The Inspector told the Board that he had used the wall as one side of the bar. That would make an L shape bar appear to some as U-shaped.
On the balance of probability the Licensee knew that the signs of sales and service were still evident. He made a clear attempt to conceal the evidence from the Inspectors.
On June 27th 2008 at 3:27 a.m. two Inspectors arrived at the establishment; both Inspectors were clear and consistent in their evidence. The doors were unlocked and the place was in darkness when they entered. They noticed that there were people seated around the bar.
The Licensee was directed by the Inspector to put the lights on in the premises.
Observations were made by both Inspectors of Styrofoam cups on the bar containing a beverage that appeared to be beer. A Guinness bottle three quarters full was visible on the other side of the bar in the bar service area. A cup was laying on the floor near where the Licensee was located and the contents had spilled over the floor. On closer inspection, the Inspector determined that it was a dark liquid that smelled and looked like beer.
It is clear on the balance of probabilities that signs of service were not cleared.
Counsel for the Registrar is asking for findings under subsection 45(1) of the LLA. The Licensee was attempting to conceal and destroy evidence of sales and service.
Counsel for the Licensee, Mr. Richard Elbirt, submitted that the allegations for June 15th 2008, or June 27th 2008 had not been proven and asked the Board to make no findings on either count.
There was no evidence that Mr. Balasubramaniam had attempted to hide, conceal or destroy, or withhold evidence on either June l5th, 2008 or June 27th, 2008.
Mr. Elbirt submitted that the only evidence for June 15th, 2008 is that a person may have thrown or dropped a cup over the counter that an Inspector observed with a flashlight through a window. There was no evidence that the Licensee participated in this act or was aware of it.
There was no evidence to confirm that an Inspector had a flashlight. Nothing in his notes indicated he was holding a flashlight. The evidence was scant and unsatisfactory.
Mr. Elbirt submitted that if a flashlight was shining on the individual who was said to have thrown the cup over the bar, then the other Inspector present would have made the same observation. In the opinion of Mr. Elbirt, the story of the flashlight was ‘hockum’.
Regarding the alleged cup that was ‘flung’, the evidence was questionable. The Inspectors were not in agreement on whether the cup was plastic, cardboard, or a coffee type cup.
Mr. Elbirt submitted that in his opinion the signs of service outlined in the LLA meant present service not past service. A person could say it was a sign of present service if someone saw a person drink from a cup. Nobody saw anyone drinking from a cup.
He believed that the act did not mean that because someone was ‘sloppy’ with clearing away past service that it was a violation.
June 27th 2008, there was a bottle of beer behind the counter. The bottle of beer was not on the counter. It was behind the counter and not for public consumption.
Nobody saw anyone push a cup to the floor on June 27th, 2008.
Mr. Elbert stated that the evidence that the labels would not stick to the sample bottles that were taken for analysis because of condensation from the cold liquid inside the bottles was a ‘stretcher’ to say the least.
Evidence that a puddle of liquid on the floor smelled of beer is questionable because nobody testified that they had got down on the floor and applied his nose to the puddle or put his finger into it to smell it.
The smell could have been the everyday smell of beer in the establishment.
Mr. Elbirt stated that the evidence was not satisfactory from witnesses for the Registrar. He further stated that if the Board did not believe the evidence of one or more of the Inspectors, then the Board should not accept any of the evidence presented by the witnesses.
Mr. Elbirt stated that the evidence of the witnesses was not satisfactory, credible or reliable and asked for no findings on the allegations.
In reply submissions Mr. Alakas submitted that the evidence was consistently presented by all four witnesses.
Flashlights are used frequently by Inspectors and not always referenced in notes. The exact type of cup described by witnesses is irrelevant. They all described a cup that had the residue of alcohol.
The Licensee knew that an infraction was occurring when the Inspectors knocked on the door and participated in the patron getting rid of the evidence by throwing the cup over the bar rather than be found drinking from a cup containing beer.
In conclusion, Mr. Alakas submitted that the regulation is clear, the Licensee has 45 minutes to clear the signs of service and consummation of alcohol. The Licensee was not in compliance.
Analysis
The Board carefully considered the evidence and submissions of all parties.
The Board found the evidence of the Inspectors to be credible and consistent.
June 15th, 2008
The three Inspectors independently testified that they had arrived at the darkened premises and were eventually admitted through the locked doors by the Licensee on June 15th 2008.
They observed patrons seated at the bar area and glasses that smelled of alcohol and contained residue of alcohol in them on the bar in front of the patrons.
One Inspector observed a patron throw a cup over the bar while waiting for the door to be opened by the Licensee. Although the other Inspectors did not make that same observation, they did see a cup on the floor behind the bar where the contents had spilled onto the floor. Each Inspector testified that the spilled content was a dark liquid with foam still in the cup and on the floor. It was their opinion based on their experience that the liquid was Guinness beer.
The Board accepts the evidence that one Inspector had shone a flashlight through the windows of the establishment and observed a person sitting at the bar throw or push a cup over the bar onto the floor behind the bar. That action was corroborated by the fact that the Inspector provided this information to his colleagues. Furthermore, a cup and spilled contents were found on the floor behind the bar by all three Inspectors.
The Licensee denied that anyone had pushed a cup over the bar, notwithstanding that the cup was still on the floor with the remains of a dark liquid with foam on the floor and inside the cup when the Inspectors observed it. The Board, however, prefers the evidence of the Inspector, who has no interest in the outcome of these proceedings and whose evidence was consistent and corroborated.
The three Inspectors testified there were three glasses on the bar when they entered. The shot glasses were empty. The Pilsner beer glass had the residue of liquid in the glass which appeared and smelled strongly of beer.
The Licensee denied that alcohol had been served after 2:00 a.m. and told the Inspectors the people sitting at the bar with the empty glasses in front of them where not patrons but simply friends sitting around chatting. The Board notes that who the people were is not the issue. Signs of service after 2:45 a.m. is the issue, and those signs had not been cleared by 2:45 a.m. as required.
The shape of the bar or the type of cup that contained the beer is not of any significance. One Inspector described the bar as L-shaped another described it as U-shaped. All three Inspectors described people at the bar with shot glasses and a beer glass on the bar. Each Inspector testified he had observed a cup on the floor laying in a pool of what appeared to be cold beer. Whether the cup was plastic or cardboard is also of no great significance. The Board finds that these minor discrepancies in the evidence do not adversely impact the credibility of the Inspectors. It was a cup that had the remains of a liquid that appeared to be Guinness beer by the smell and the appearance of the liquid both inside the cup and on the floor.
The Board finds that a patron did attempt to conceal the signs of service and consumption by throwing the cup of beer behind the bar. The Licensee is ultimately responsible for the actions of staff and patrons in the premises. The Licensee further participated in this concealment by the front door being locked, notwithstanding that there were patrons still on the premises, and alcohol which had not been removed within the required time. The door was opened by the Licensee only after the attempt to dispose of the contents of the cup.
June 27th 2008
Two Inspectors testified they arrived at the establishment at 3:27 a.m. Their evidence was clear and consistent. When they arrived the establishment was in darkness, the doors were unlocked, and people were sitting around the bar.
Styrofoam cups were found on the bar that were over half full of an amber liquid that smelled like beer. The cups were cold to the touch.
A Guinness beer bottle, three quarters full was visible on the service side of the bar. A cup laying on the floor near where the Licensee was located had its contents spilled onto the floor. On closer inspection, it was determined by the Inspectors that the spilled liquid was beer.
Samples of the contents of the cups on the bar were taken by one Inspector for analysis by the LCBO. The test results confirmed that the cups contained alcoholic beverages.
The beer bottle and cups with beer had not been cleared at 3:27 a.m.
The Board does not accept the Counsel for the Licensee’s interpretation that the O.Reg refers to present service and not past service, or that the Act does not mean that because someone is ‘sloppy’ with clearing away past service it is a violation.
The O.Reg does not address present or past service. It only indicates that evidence of liquor that has been served and consumed on the premises is to be removed within forty-five minutes of the end of the serving period during which liquor may be sold and served.
The evidence provided by the Inspectors and the scientific test results of the samples provided by the LCBO show clearly that the Licensee failed to clear the signs of service and consumption of alcohol within the 45 minutes after the end of the period in which alcohol may be sold and served under the Licence.
The Board therefore finds that there has been a breach of section 29 of the O.Reg on both June 15th 2008 and June 27th 2008, and a breach of subsection 45(1) of the LLA for infractions on June 15, 2008.
Conclusion
For the reasons given, the Board FINDS the Licensee violated section 29 of the O.Reg on both June 15th 2008 and June 27th 2008, and subsection 45(1) of the LLA for infractions on June 15, 2008.
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 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 6th DAY OF MAY, 2009
KIRSTI HUNT, VICE-CHAIR, AGCO BERYL FORD, BOARD MEMBER