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-
Jianda International Inc. O/A Queen’s Legs (The) Licensee
DECISION ON FINDINGS
Panel: Jacqueline Castel, Board Member Guy Maurice, Board Member
Decision Date: May 19, 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 Jianda International Inc., Licensee: Zhijian Dou, on behalf of the corporate licensee
Allegations
1A hearing into Notice of Proposal (“NOP”) number 16731, dated October 20, 2008, to suspend liquor licence number 202042 (the “Licence”), issued to Jianda International Inc. (the “Licensee”) operating as THE QUEEN’S LEGS, 286 Eglinton Avenue West, Toronto, M4R 1B2 (the “establishment” or the “premises”), on the basis of an alleged violation of subsection 30(4) of the Liquor Licence Act (“LLA”) was held on May 4, 2009 in the City of Toronto.
Decision
2After considering all the evidence and submissions the The Board FINDS the Licensee contravened subsection 30(4) of the LLA. Reasons follow.
Preliminary Matters
3Mr. Ziatun Zhang was sworn in as interpreter for Mr. Zhijian Dou, the principal of the Licensee.
4Mr. Dou waived the right to be represented by legal counsel on behalf of the corporate Licensee.
5The Board ordered that witnesses, with the exception of Ms Dan “Cindy” Dou, be excluded on consent. The Board agreed to exempt Ms Dou from the exclusion, so that she could assist her father in presenting his case.
Registrar’s Evidence
6Sergeant Craig Somers of the Toronto Police Services attended the establishment with Officer van Hoogenhuize on April 26, 2008 at approximately 12:40 a.m. to conduct a LLA inspection. They were in plain clothes. Sergeant Somers had prior knowledge of concerns about youths consuming beverage alcohol in the establishment. When they arrived, he noticed five or six males, between seventeen and twenty years of age, smoking in front of the establishment.
7At the rear pool area of the establishment Sergeant Somers observed a male sitting on a couch who appeared to be about seventeen years of age. As he approached the male, he observed him take several drinks from a bottle of Molson’s Canadian beer. In response to Sergeant Somers’ question, the male told him he was eighteen years of age and produced an Ontario driver’s licence which revealed his name was “JS” and his date of birth was June 21, 1989. Officer van Hoogenhuize escorted JS to a table where he questioned him further.
8Sergeant Somers approached a second male who he believed had a pint of beer in his hand. However, as he came closer, the beer was no longer in his hand and he did not see him drink from the glass. He verified the identification of this male and determined he was also eighteen years of age. He checked the identification of three other young looking males at the rear of the bar, who had a jug of beer at their table. All of them produced identification which made them nineteen or over.
9Sergeant Somers spoke to the principal, Zhijian Dou, as well as the server and daughter of the principal, Dan “Cindy” Dou. He told them that he observed JS, who he determined to be eighteen years of age, consuming beer. Sergeant Somers charged the corporate Licensee, as well as Ms Dou, under the LLA for serving beverage alcohol to an underage patron. Ms Dou told him she checked JS’s identification and the identification he produced was not the same as the identification he showed the police. The identification he showed her had a date of birth which would have made the owner of the identification nineteen years of age.
10Sergeant Somers subsequently searched JS, with his consent, to see if he had any other identification on his person showing a date of birth of nineteen years of age. The only identification on his person was the Ontario driver’s licence he had produced earlier for the police.
11JS was charged under the LLA with underage consumption of beverage alcohol and given a Provincial Offences ticket. He eventually pled guilty to the offence and got a reduced fine.
12Zhijian Dou, on behalf of the corporate Licensee, and Cindy Dou both pled guilty to serving beverage alcohol to a minor and, as a result, the charges were dropped.
13On cross-examination, Sergeant Somers said he searched JS by checking his pockets and wallet and by patting him down.
14Officer Michael van Hoogenhuize attended the establishment on April 26, 2008 with Sergeant Somers to conduct a routine LLA inspection. They observed five or six males, who looked to be between seventeen and twenty years of age, standing outside the establishment.
15Shortly after entering, he observed a male sitting on the couch near the pool table who appeared to be about seventeen years of age. He was drinking from a bottle of Molson’s Canadian beer. Officer van Hoogenhuize saw him take several drinks from the bottle. He identified himself as a police officer to the male. The male disclosed that he was only eighteen years of age and produced an Ontario driver’s license belonging to “JS”, with a date of birth of June 21, 1989. He charged JS with underage consumption of beverage alcohol, in contravention of subsection 30(8) of the LLA. JS pled guilty in provincial court to this offense and the judge reduced the fine.
16He checked the identification of another male who he determined to be eighteen years of age as well. However, he did not lay charges against this male, since he did not observe him consuming beverage alcohol.
17Ms Dou told them she checked the identification of the two males, and they both produced identification with a date of birth which would make them nineteen years of age.
18Officer van Hoogenhuize said when he questioned JS about whether he showed the server another piece of identification with a date of birth that would make him nineteen years of age, he denied it and said he showed her the same identification. JS also let them search him. Officer van Hoogenhuize testified that he observed JS continuously from the time he initially supplied identification to the time he was searched. Therefore, JS would not have had an opportunity to dispose of the alleged piece of identification without him taking notice.
19On cross-examination, Officer van Hoogenhuize stated that he was the one who checked JS’s identification.
Licensee’s Evidence
20Paul Miller, a regular customer of the establishment, testified that he saw Ms Dou carding customers on the date of the incident, but he did not observe her carding JS.
21Mr. Miller testified that kids from the neighbourhood regularly show up en masse at the establishment and the family is very diligent about checking their identification and making them leave if they are under nineteen or do not have identification.
22On the date of the incident the police were in the establishment for about forty-five minutes. There were times when the police were not focusing their attention on JS. He observed JS walking around the establishment while the police were present.
23On cross-examination, Mr. Miller stated he did not observe the police officers approach JS or speak to him. Nor did he observe the police officers search JS.
24Mr. Miller did not notice JS before the police arrived. Someone told him, when the police were there, that JS was the guy who the police were investigating.
25Kevin Wright is also a regular customer of the establishment who was there on the date and time of the police inspection. He saw the police ask to see JS’s identification, but he did not see them search him.
26The officers spent most of their time speaking to Ms Dou. JS was not being continuously observed by the police while they were in the establishment. He recalls that the police had their back to JS when they were talking to Ms Dou. The police were in the establishment for about fifteen minutes.
27Mr. Wright has seen Ms Dou turn people away when they are under nineteen or do not have identification.
28On cross-examination, Mr. Wright said he was about eight feet away when the police were speaking to JS.
29He did not see or hear what happened after JS produced his identification. He did not see the police officers search JS.
30Baiheng Xu is a friend of Ms Dou and was at the establishment on the date and time of the incident.
31He observed the police allow JS to go outside for a smoke while they were speaking to Ms Dou. JS came back inside a few minutes later.
32On cross-examination, he indicated that when he saw the police speaking to JS, he moved to a table about six feet from them. He could hear the conversation between JS and the police as well as between Ms Dou and the police. He does not recall exactly what was said. He remembers Ms Dou told the police she checked JS’s identification and he produced a different piece of identification for the police.
33Dan (“Cindy”) Dou made a statement under oath. She testified that JS did not produce the same identification for her as he produced for the police. The identification he produced for her showed a date of birth which would have made him nineteen years of age.
34JS asked the police if he could go outside for a cigarette. The police only searched him after he came back inside. He could have disposed of the other identification while he was outside. The police did not do a physical search of his body. If JS was under age and consuming alcohol in a licensed establishment, it is more than likely he had identification on his person showing a date of birth of nineteen or over.
35On cross-examination, Ms Dou admitted to pleading guilty in provincial court for serving beverage alcohol to an underage customer.
36When she raised the issue with the police about the identification, JS was sitting on the couch about twelve to fifteen feet away. He would not have been able to hear their conversation.
Registrar’s Submissions
37The following information is not disputed:
- JS was under nineteen years of age at the time of the incident;
- JS consumed Molson’s Canadian beer in the establishment when he was under nineteen years of age;
- The corporate Licensee and Ms Dou were charged for serving beverage alcohol to a minor and pled guilty to same; and
- JS was charged with underage consumption of beverage alcohol in the establishment and pled guilty to same.
38The Licensee’s defense was that the identification that JS showed the police was not the same identification that he showed Ms Dou. JS was with Officer van Hoogenhuize throughout the investigation, and Officer van Hoogenhuize testified that JS was under his continuous observation from the time he approached him until he searched him. JS denied that he had another piece of identification. There was no reason for him to lie about the identification, given that he already admitted to being underage. The police also searched JS and did not find another piece of identification.
39The evidence that JS was allowed to leave for a smoke was not credible. Two experienced police officers would not allow someone they were still investigating, with the intention of ticketing, to leave for something as unimportant as going for a smoke.
40Mr. Miller did not see the police questioning or searching JS. It is possible that Mr. Miller observed JS walking around after the police gave him the ticket. Mr. Wright also did not observe the police search JS. Mr. Xu’s evidence was not credible. He was very confused regarding what happened and had a poor recollection. He had to pause for a long period of time to answer simple questions. His memory was selective. His evidence about the police allowing JS to go outside for a smoke was far-fetched and unbelievable.
41Based on the testimony of the police, who were more credible than the Licensee’s witnesses, and the fact that it is undisputed that JS consumed beverage alcohol in the premises, there is sufficient evidence for a finding under subsection 30(4) of the LLA.
Licensee’s Submissions
42Both police officers testified that they checked JS’s identification.
43Ms Dou checked JS’s identification earlier in the evening and he showed a piece of identification with a date of birth which would make him nineteen years of age. He did not show the same identification to the police. This is not surprising as the consequences of showing false identification to the police versus a bartender are very different.
44The police allowed JS to go out for a smoke before they searched him. There was no evidence that JS was under police observation throughout the investigation.
45Ms Dou is an experienced and responsible bartender.
Analysis/Reasons/Findings
46For a finding under subsection 30(4) of the LLA there is a two part test. First, it must be established that a person who appears to be under nineteen years of age had or consumed liquor in the licensed premises. Second, it must be established that the Licensee or an employee or agent of the Licensee permitted same.
47For the purpose of the first part of the test under subsection 30(4) it is undisputed that JS consumed beverage alcohol in the licensed premises on April 26, 2008 when he was eighteen years of age. The police officers observed him doing so; JS pled guilty in provincial court to underage consumption in the establishment; and the corporate Licensee and Ms Dou also pled guilty in provincial court to serving an underage customer (i.e., JS). It is also undisputed that JS appeared under nineteen years of age. The two police officers testified that he appeared about seventeen years of age. Ms Dou must have believed he appeared or may have been under nineteen years of age since she testified to checking his identification. As such, the first part of the test under subsection 30(4) is met with respect to JS.
48For the purpose of the second part of the test under subsection 30(4), it must be established that the Licensee, or an employee or agent of the Licensee, permitted JS to have or consume liquor in the licensed establishment. To permit, the Licensee or its employees or agents, must have known, or should reasonably have known in the circumstances, that JS appeared under nineteen and allowed him to have or consume liquor all the same.
49The Licensee submitted that she did not knowingly permit someone who appears under nineteen to hold or consume liquor because she carded JS and he showed identification with a date of birth which would make him nineteen years of age. As such, she believed he was nineteen years of age before serving him the Molson’s Canadian beer. The Board did not find the Licensee’s submission on this point to be credible. At the outset, there were no witnesses to Ms Dou checking JS’s identification at all, and the identification she allegedly observed was never located, notwithstanding that the police searched JS. Ms Dou did not provide any particulars about the identification she is alleged to have observed, except that it was a driver’s license and the date of birth would make the owner nineteen. For instance, she did not state whether the photo on the identification resembled JS, nor did she state the name on the identification, the month of birth, or any other significant information, such as the address.
50The Board accepted as credible Officer van Hoogenhuize’s evidence that he observed JS continuously from the time he initially approached him to the time of the search. Officer van Hoogenhuize’s evidence was thorough and consistent with Sergeant Somers’ evidence. The Licensee’s witnesses had only a vague recollection of some of the events and did not observe all of the police officers’ interactions with JS. As Mr. Kulis noted, it is possible that Mr. Miller, who acknowledged he did not see the police speaking to JS or searching him, saw JS walking around after the police had completed their investigation and ticketed him.
51The Board agrees with Mr. Kulis’ submission that it is not believable that two experienced police officers would have allowed someone they were investigating to leave the premises, particularly when information crucial to the investigation still needed to be confirmed (i.e., whether JS had another piece of identification on his person, with a date of birth which would make the owner nineteen years of age). The Board found the Licensee’s evidence, that the police allowed JS to go out for a smoke before searching him, but after Ms Dou disclosed she had carded him, to be self-serving and lacking credibility. Although the evidence was corroborated by Mr. Xu, of all the Licensee’s witnesses, his recollections were the most vague and limited, and he acknowledged being a friend of Ms Dou. As such, the Board did not place any weight on his evidence.
52For the above reasons, the Board believes, on a balance of probabilities, that JS did not have or show to Ms Dou another piece of identification with a date of birth which would make the owner of the identification nineteen years of age. The Board finds that the Licensee knew or ought to have known, if it had been acting diligently and responsibly, that the Licensee appeared under nineteen and allowed him to have and consume beverage alcohol all the same. Therefore, the second part of the test under subsection 30(4) is met with respect to the Licensee.
53Finally, it bears mentioning that even if the Board had accepted that Ms Dou checked JS’s identification and he produced a driver’s licence with a date of birth which would make the owner of the identification nineteen, this in and of itself, is not necessarily a sufficient defense to permitting a person who appears under nineteen to hold or consume liquor. Additional evidence would have had to be tendered to establish that the Licensee acted reasonably in accepting the alleged identification as authentic and belonging to JS. The Licensee’s duty to ensure that persons who appear under nineteen do not hold or consume liquor goes beyond asking for identification and reading the date of birth on the identification. The Licensee must also inspect the identification to confirm that it is authentic and that the photo on the identification closely resembles the person who is presenting the identification. The Licensee did not introduce any evidence of having performed such due diligence.
Conclusion
54For the reasons given, The Board FINDS that the Licensee contravened subsection 30(4) of the LLA.
55The 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 19th DAY OF MAY, 2009
JACQUELINE CASTEL, BOARD MEMBER GUY MAURICE, BOARD MEMBER