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-
Sijan Plaza Restaurant Ltd. O/A Sijan Plaza Restaurant
Licensee
DECISION ON FINDINGS
Panel: Allan Higdon, Board Member Alex McCauley, Board Member
Decision Date: May 27, 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 Sijan Plaza Restaurant Ltd., Licensee ) Robert Rothman, Representative
AUTHORITIES:
1166134 Ontario Inc. (c.o.b. Nashville North) v. Ontario (Alcohol and Gaming Commission), [2006] O.J. No. 2567
1166134 Ontario Inc. (c.o.b. Nashville North) v. Registrar of the Alcohol and Gaming Commission of Ontario et al., unreported decision of Court of Appeal for Ontario, November 29, 2009.
Birchmount Tavern v. Ontario (Liquor License Board), [1998] O.J. No. 1367
Allegations
- A hearing into a Notice of Proposal (“NOP”) number 16926 dated December 17, 2008 to suspend liquor licence number 21050 (the “Licence”) issued to Sijan Plaza Restaurant Ltd. (the “Licensee”) operating as SIJAN PLAZA RESTAURANT, 25 John Street, Unit 4, Mississauga, Ontario, L5A 1Y5 (the “premises” or “establishment”), on the basis of alleged violations of subsections 45(1), 31(1)(c) and 33(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on April 29, 2009 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board finds the Licensee violated subsections 33(1)(c) and 45(1) of the O.Reg. The Board dismisses the allegation of a violation of subsection 31(1) of the O.Reg. Reasons follow.
Preliminary Matters
- On consent of all parties, the Board ORDERED the exclusion of all witnesses.
Registrar’s Evidence
Josee McFadden is an Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector with approximately one year experience.
She is familiar with the licensed premises in question and attended there on July 7, 2008 in company with two other AGCO Inspectors, Stephen Durham and Trevor Joseph.
Upon entering the establishment she and Inspector Joseph attended to a patron seated at a table while Inspector Durham spoke to the person in charge. The patron they spoke to displayed indicia of intoxication. When asked to produce identification it was noted that he displayed slow motor skills. Inspector McFadden was standing three feet away from this patron and noted that his eyes were red and glossy. The patron seemed to have difficulty answering questions put to him, and his speech was slurred.
He stated he had been in the premises for three hours and had consumed three beers. Inspector Joseph asked him to go outside and upon standing, the patron tripped on a chair knocking it over. He staggered while walking and lost his centre of balance on a couple of occasions, almost falling down.
Inspector Joseph advised the person in charge of the premises, a Mr. Alex Zhou, to call this patron a taxi and that request was complied with. This patron was wearing blue jeans, a blue dress shirt, a white tank top under the shirt, a black ball cap and sandals.
The second intoxicated patron observed by Inspector McFadden was a male. He was wearing blue jeans, a white shirt and sunglasses. When she observed this person he was on the sidewalk in front of the premises talking with other patrons. He was unsteady on his feet and he stepped back in order to lean against the wall and he lit a cigarette.
She spoke to this person and he advised her that he was all right. She identified herself as an AGCO Inspector to this patron. Initially he would not tell her anything but she told him he wouldn’t get into trouble and after that he became more cooperative. He advised her he had been there about one and one half hours during which time he had consumed seven beers. He had sunglasses on but there was no sun out. He kept the sunglasses on when he re-entered the premises. He was seen leaving the premises a short time later and was not wearing the sunglasses. At that time Inspector McFadden noted that his eyes were red and glassy. She could not recall if there was any door staff on duty at the time.
The third intoxicated patron observed by Inspector McFadden was a male patron wearing blue pants, had grey hair and a beard and was wearing a blue shirt with “Toronto District School Board”, written on the shirt. This patron was observed sitting on the hood of his car and he was speaking with Inspector Joseph. This person was speaking in a loud voice. When he stood he was unsteady on his feet and was staggering.
Inspector McFadden was three to four feet away from this party and observed him to have red glassy eyes. She heard this person say to Inspector Joseph that he was going to take a cab home and was going back in for one more drink. She was asked by Inspector Joseph to go in and instruct Alex Zhou that this patron was not to have anything more to drink. She did not see the patron re-enter the premises.
Inside the premises Ms. Sandy Zhou was present. Inspector Durham advised that he had found several empty 28-pack cases of beer in the back storage area as well as several full 28-pack cases of beer in the refrigerator. An inventory revealed the following empty 28-pack cases:
11 cases of Budweiser, 9 cases of Labatt’s Blue, 5 cases of Coors, and 11 cases of Molson Canadian.
The following full 28-pack cases were observed in the refrigerator:
3 cases of Budweiser, 7 cases of Coors, 7 cases of Molson Canadian, and 2 cases of Labatt’s Blue.
Inspectors Durham and Joseph demanded that Ms. Zhou produce liquor purchase receipts on behalf of the Licensee for the period of January, 2008 through June, 2008. These receipts were to be submitted by July 17, 2008.
The witness received the receipts (Exhibit 1) from the Licensee which depict the following: purchases on May 14, 2008 of eight cases of 28-packs, two purchases on June 23, 2008 of sixteen 28-pack cases, purchase on June 25, 2008 of seven 28-pack cases, purchase on June 26, 2008 of eight 28-pack cases, two purchases on July 3, 2008 of a total of seven 28-pack cases, purchase on July 7, 2008 of eight 28-pack cases. All receipts were not licensed receipts. All receipts state clearly the words “Home consumer”.
Exhibit 2 was submitted by the witness. It is a summary of the information in Exhibit 1. It shows a total purchase value of $1,991.70 for the off-licence purchases.
Cross-examination centered primarily on whether or not the Inspector had obtained identification from the alleged intoxicated males.
Further cross-examination centered on a complaint registered against the premises in question which may have been the genesis of an inspection on July 7, 2008. Inspector McFadden stated she never interviewed the complainant and only knew that the complainant was WestDale properties, the establishment’s landlord. She stated the complaint had been received by their office June 19, 2008. She stated the complaint alleged unruly behaviour outside the premises along with intoxicated patrons and the consumption of alcoholic beverage outside the establishment. She stated a CD accompanied the complaint but that she never watched it.
Other than the intoxicated patron inside the establishment and the one alleged intoxicated person speaking loudly outside the premises she did not note any other unruly behaviour.
When asked about the second alleged intoxicated person Inspector McFadden had observed outside she stated that she did not ask him when he had his last drink, nor had she previously observed him in the establishment. He did not appear to have any physical or mental disability. She further stated she had not asked this person for identification.
Regarding the third intoxicated male Inspector McFadden stated she did not speak to him directly. She stated he left in a cab but she was not sure who had called the cab.
Inspector McFadden stated that it was a requirement that the licence number of the establishment appear on the receipt.
When asked why three Inspectors attended the establishment on this date, she stated there was no underlying reason.
She stated she could not tell if there were any off-licence purchases made by the establishment between January and May, 2008, because receipts for that period had not been tendered by the Licensee.
Stephen Durham has been employed as an inspector with the AGCO for approximately one year. He is familiar with the establishment in question and attended there in the course of his duties. He was accompanied by Inspectors Joseph and McFadden on July 7, 2008. He attended inside the establishment at 7:05 p.m. He went to the bar area and spoke with a Mr. Zhou who stated he was the person in charge, he also spoke with Sandy Zhou who stated that she was aware of the pictures submitted by their landlord in his complaint to the AGCO about the establishment.
In the establishment he observed Inspector Joseph speaking to a patron. This was the same patron described by Inspector McFadden. Inspector Durham noticed this patron stumble over a chair on his way out of the establishment. Mr. Zhou stated they did not serve this patron, but that his friends bought drinks for him.
He then went outside and he observed a second intoxicated patron from the establishment outside. This was a male person wearing a shirt with “Toronto District School Board” written on it. He had grey hair and a beard. This person was sitting on the hood of his vehicle. The Inspector was approximately one foot away from this party and noted that this male person had glassy bloodshot eyes, and when observed standing and walking he was weaving and staggering. He had his car keys in his hand and it appeared he was originally going to drive, but left in a cab called by Sandy Zhou.
He further observed a third male exit the premises and come outside for a smoke. This was a male person wearing a tight white shirt, blue jeans and sunglasses. Inspector Durham and Inspector McFadden approached this person. He was very unsteady on his feet and had to lean on the wall for support. Inspector Durham was approximately one foot away from this person and noted that this person had a strong odour of alcohol on his breath. Inspector McFadden conversed with this party.
Inspector Durham re-entered the licensed premises and, in company with Sandy Zhou, attended in the kitchen area. In the hallway he observed nine empty 28-packs of Labatt’s Blue, nine empty 28-packs of Budweiser, ten empty 28-packs of Molson Canadian and four empty 28-packs of Coors Lite.
He then attended to a fridge in the kitchen area. There he found several full 28-packs of beer. There were three Budweiser, seven Coors Lite, seven Molson Canadian and two Labbatt’s Blue. He did this count himself. He was advised by Inspector Joseph that there was a further number of empty 28-packs located in the hallway by the washroom. There were two Budweiser, one Molson Canadian and one Coors Lite. He later observed these empty cases himself.
Ms Zhou was asked to produce receipts for the liquor. She could not immediately provide the receipts and was directed to provide receipts for the past six months, and such receipts were to be presented by July 17, 2008.
Inspector Durham then spoke to Sandy Zhou about the formal complaint that had been received regarding disorderly behaviour in front of the establishment. Ms. Zhou advised that she would seek solutions to the problem with her mother, the Licensee of record.
On cross-examination, the witness was asked about the complaint received and how it was received. He stated he never interviewed the complainant but had watched the video that had been submitted. He advised that the video depicted persons in front of the licensed establishment. He stated he did not recall the video that clearly and did not recall it depicting any fighting or unruly behaviour.
Inspector Durham stated he did not attempt to establish their identities.
In answer to a question, Inspector Durham stated he has been back to the establishment in question on one occasion and on that visit noted an infraction of another intoxicated patron.
Inspector Durham stated that Ms. Zhou was advised of the current infractions, but he could not say if he personally advised her or if it was one of the other Inspectors.
Trevor Joseph has been an AGCO Inspector for 15 years. He is familiar with the premises in question.
He attended at the premises in question July 7, 2008 in the company of Inspectors Durham and McFadden.
Upon arrival at the premises he observed a patron he believed to be of Sri Lankan descent. The person was male wearing blue jeans, sandals, white undershirt, a dress shirt tied at the waist, baseball cap and a goatee. He was seated at a table adjacent to the bar. This person stated he had not eaten and had consumed three beers at the time he was observed drinking a bottle of Budweiser beer. This person had slurred speech, glassy bloodshot eyes. He staggered while walking and had very poor walking skills. This person left in a cab which had been provided for him.
He observed a second intoxicated male by the bar. This person was 6’1” tall, had grey hair and a moustache. He had on a blue shirt with “Toronto District School Board” on it; he had blue pants and dark coloured boots. This person had glassy bloodshot eyes, a flushed face and weaved while walking. He left the bar with a set of keys in his hand. The Inspector followed him out and encountered him sitting behind the wheel of his car. The Inspector identified himself to this patron, who identified himself as Rick. He stated he would take a cab home. He got out of his vehicle and headed back towards the bar, when asked where he was going he stated, “For another beer”, as he was not driving.
The Inspector spoke with Sandy Zhou and Mr. Alex Zhou. Ms. Zhou named the third intoxicated male that Inspector McFadden had dealt with. His name was Jimmy.
Inspector Joseph corroborated the evidence of Inspectors McFadden and Durham with regard to the inventory of 28-pack cases both empty and full which were located in the licensed premises. He further noted that product from the empty cases were located in a fridge behind the bar where it was being kept for sale.
On cross-examination, Inspector Joseph stated he did not note any disorderly behaviour when he attended the premises.
Licensee’s Evidence
Sandy Zhou is the daughter of the Licensee of record.
Ms Zhou was at the licensed establishment on the day in question. She did not recall any unruly behaviour.
Ms Zhou stated that the restaurant serves liquor as well as beer.
Ms Zhou stated she suspected that the complaint to the AGCO originated with her landlord. There was an indication that principals of WestDale properties, her landlord, had interests in a Fabric Land store that they were planning on bringing into the mall. The landlord was attempting, according to the witness, to force her out.
Ms Zhou stated they have operated the business since 1999 and have had no problems or complaints.
Ms Zhou stated that the alleged intoxicated person of Sri Lankan origin has a mental problem. He stutters and does not have much command of the English language. She stated they do not serve this person alcohol.
Ms Zhou stated that they have addressed the landlord’s concerns. They pay for mall security and they have recently installed a camera outside the establishment. They have also put up signage to deter loitering.
On cross-examination Ms Zhou stated she had been asked to produce receipts for liquor from January through June, 2008.
She stated her brother was on duty at the licensed premises on the date of the inspection but he was not here today.
Ms Zhou stated she knows all the people alleged to have been intoxicated on that day at the licensed premises. She stated they are all from the neighbourhood.
Ms Zhou stated she was aware of the complaint by the landlord and has viewed some still pictures from the video.
Upon re-examination, Ms Zhou stated on the day of the inspection she produced receipts for the 28-packs of beer and showed them to Inspectors Joseph and Durham.
Minying Pan is a waitress at the licensed premises. She was on duty July 7, 2008 when the liquor inspection was underway. She stated there was no untoward behaviour by any of the patrons that she noticed.
On cross-examination, Ms Pan was not sure of who Jimmy was because there is more than one “Jimmy”. After the subject, Jimmy, was described to her she stated he was in the licensed establishment that day but she wasn’t sure if he was drinking, she had not served him. She stated she knew the patron named Rick and that he was drinking in the establishment that day.
Mr. Nguyen Lea Euy Phuong is a university student. He is also a family friend of the Licensee.
He stated he purchased, on several occasions, 28-pack cases of beer from the local beer store for the restaurant. He did this as a favour on his own initiative. He knew there was a price saving so that is why he did this. The Licensee reimbursed him each time but he stated he made no profit on the transactions.
On cross-examination the witness could not recall specific dates on which he purchased these cases of beer, nor could he recall how many cases he purchased at a time.
The witness stated that at no time did the Licensee say to him that they could not accept these cases of beer.
The witness did not recall making multiple purchases on any one day.
Registrar’s Submissions
Mr. Kulis submits that the 28-pack cases of beer empty and full were clearly under the control of the licence holder.
The Licensee’s last witness is evidence that the beer was bought off-licence. There is a clear violation of subsection 31(1)(c) of the O.Reg, and Mr. Kulis submits that there should be a finding.
Mr. Kulis suggests from the evidence and exhibits presented, that beer was purchased off-licence on other occasions. Evidence of 28-packs of Labatt’s Blue was on the premises, yet that brand did not appear on receipts tendered in Exhibit 1.
Mr. Kulis submitted that if the Board were to make a finding under section 31(1)(c) of the O.Reg he asks that then there be no finding under subsection 33(1) of the O.Reg.
Mr. Kulis submitted that there was clear and cogent evidence that the three patrons in question were intoxicated. The first intoxicated patron was described as having slurred speech, stumbling, unsteady on his feet, glassy eyes and had to be taken home by cab. He was clearly intoxicated in the premises. Mr. Kulis submitted that this person is known to the Licensee yet he was not brought forward as a witness.
The second intoxicated male was seen leaving the establishment by Inspector Durham. He had indicia of intoxication as described by both Inspectors Durham and McFadden. He was further observed to re-enter the licensed establishment. This person was known to the Licensee’s daughter as Jimmy, but he did not appear at the hearing.
The third intoxicated male described as having grey hair and a beard and wearing the Toronto School Board shirt was first observed inside the licensed premises. He displayed indicia of intoxication as he was unsteady, had glassy eyes, and was loud. In addition it appeared this person was going to operate his motor vehicle and was only prevented from doing so when Inspector Joseph intervened with this person directly.
Mr. Kulis submitted that based on the evidence, which was for the most part unrefuted, there should be findings made under subsection 45(1) of the O.Reg.
Mr. Kulis further submitted that the complaint that was registered is really of no consequence. The allegations emanate from the direct observations of the Inspectors, when doing their inspection on the day in question.
Further the Licensee’s own witnesses did not dispute that the three alleged intoxicated males were, in fact, intoxicated.
Mr. Kulis submitted in response to the Licensee’s argument that there was a requirement for the Inspectors to get identification from the alleged intoxicated patrons, that there is no such requirement. He submitted cases to shore up his argument:
Divisional Court, March 17, 1998, between Birchmount Restaurant and the LLBO.
Ontario Divisional Court, Nashville North and Registrar AGCO, June 13, 2006.
Court of Appeal, Nashville North and Registrar AGCO, Nov. 29, 2006.
Licensee’s Submissions
The Licensee’s representative submitted that the Inspectors involved could not conclude that there was disorderly behaviour. Nor, he submitted, were police called.
He describes the evidence of the Inspectors as opinion evidence and such evidence has a low reliability factor.
He submitted that the purchase of the 28-packs of beer was a favour by a friend and that after July 3, 2008 there was no further evidence of purchases of 28-packs of beer.
He submitted that no letter of complaint was ever produced, nor did the Inspectors follow up on the complaint directly with the complainant. The allegation that the Licensee’s landlord was attempting to evict the Licensee was never followed up on.
The Licensee has clearly taken steps to address the landlord’s concerns.
The purchase of the 28-packs of beer was unfortunate but the public was not offended.
Analysis/Reasons/Findings
The Board will deal initially with the allegations under subsection 31(1)(c) of the O.Reg. There was unrefuted evidence that the 28-pack cases of beer, both full and empty, were in possession of the Licensee. The receipts produced in Exhibits 1 and 2 clearly show that said beer was purchased off-licence and the receipts clearly illustrate “Home consumer”. It is clear from the location of the cases of beer, both full and empty, that they constitute part of the inventory that the Licensee used or intended to use for sale and service at the licensed premises. The Licensee is experienced and knew this product was purchased off-licence and such purchases are a violation of the LLA.
The witness produced by the Licensee who stated he purchased the beer was not totally reliable. None of his evidence was ever corroborated by the principals of the Licensee. This person could not recall dates or other details of his alleged purchases for the Licensee. Even if the Board were to believe this person’s evidence, which it does not, it would not absolve the Licensee of their responsibilities under the LLA to purchase liquor under the Licence. Further, the presence of product cases which did not appear on the receipts tendered indicates other purchases off-licence.
The Board FINDS that there was liquor kept for sale by the Licensee not purchased under the Licence, contrary to subsection 31(1)(c) of the O.Reg.
In light of this finding and further to the request of the Registrar’s representative, the Board makes no finding in regards to subsection 33(1) of the O.Reg.
With regards to the allegations under subsection 45(1) of the O.Reg the Board notes that all of the alleged intoxicated males are from the neighbourhood of the licensed premises. All are known by the Zhou family. Sandy Zhou admitted to seeing at least two of these persons since the July, 2008 inspection, yet they were not called to testify on behalf of the Licensee. The only evidence to refute the testimony of the Inspectors as to the intoxication of these three males was that there was no overt unruly behaviour at the restaurant at the time of the inspection.
The first alleged intoxicated male was observed inside the premises. He displayed indicia of intoxication including red glassy eyes, being very unsteady on his feet, stumbling and slurred speech. This evidence was not refuted by the Licensee. The Licensee’s position was that they did not serve him, but friends bought him drinks. It is clear from the evidence of the Inspectors that this person was indeed intoxicated. Given the lengthy period of time he was there, 3 hours, and his clearly intoxicated state, the Board finds that the Licensee knew or ought to have known this patron was drunk.
The Board FINDS that the Licensee breached subsection 45(1) of the O.Reg by permitting drunkenness with regard to the patron.
The second intoxicated male wearing the white shirt and sunglasses was observed leaving the licensed establishment. Outside he had interactions with Inspector McFadden who described him as quite unsteady on his feet, having to lean against the wall for support. He told her he had been at the establishment and had consumed seven beers in one and one half hours. He later returned inside the establishment. Her observations were corroborated by Inspector Durham. There was no evidence that refuted the evidence of intoxication as given by the Inspectors. Given that this patron was served seven beers in an hour and a half, and his clearly intoxicated state, the Board finds that the Licensee knew or ought to have known that this patrons was drunk.
The Board FINDS that the second patron was intoxicated in the establishment and permitted to remain in the establishment while intoxicated contrary to subsection 45(1) of the O.Reg.
The third intoxicated person was observed initially in the licensed premises. He was unsteady on his feet, and exhibited red glassy eyes. He was observed with car keys in his hand. He went outside and got into the driver’s side of his vehicle where, in the view of the Board, he clearly intended to drive. He was stopped by the intervention of Inspector Joseph. This person was described as having grey hair and a beard and a shirt with the words “Toronto District School Board “. Inspector McFadden described this person as staggering when he walked and being very loud.
Based on the evidence of the two Inspectors the Board finds that third person was in fact intoxicated in the licensed premises. He had been in the licensed premises prior to the arrival of the Inspectors. He was known to the management on duty. The Board concludes that he did not suddenly become drunk while inside. Given that he was just outside the licensed premises, the Board concludes that he had just left there. As he was in such a clearly intoxicated state the Board finds that the Licensee knew or ought to have known that this patron was drunk in the licensed premises.
The Board FINDS that the Licensee breached subsection 45(1) of the O.Reg by permitting drunkenness with regard to this patron.
Conclusion
For the reasons given, the Board FINDS the Licensee violated subsections 45(1) and 31(1)(c) of the O.Reg and DISMISSES the allegation of a breach of subsection 33(1) of the O.Reg.
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 27th DAY OF MAY, 2009.
ALLAN HIGDON, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER