Registrar, Alcohol and Gaming Commission of Ontario v. 1170651 Ontario Inc. O/A Mingal’s Restaurant & Bar, 2009 CanLII 4461

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-

1170651 Ontario Inc. O/A Mingal’s Restaurant & Bar (Licensee)

DECISION ON FINDINGS

Panel: David C. Gavsie, Chair, AGCO Guy Maurice, Board Member

Decision Date: January 26, 2009 Hearing Location: Toronto, Ontario

Appearances

Registrar, Alcohol and Gaming Commission: Richard Kulis, Representative 1170651 Ontario Inc., Licensee: Allan Qiang, on behalf of the corporate licensee

Allegations

1A hearing was held on December 12, 2008 regarding Notice of Proposal number 16575 dated August 20, 2008 (the “NOP”) to suspend the liquor licence of 1170651 Ontario Inc. operating as MINGAL’S RESTAURANT & BAR (the “Licensee”) at 2386 Kingston Road, Scarborough, Toronto, Ontario, M1N 1V2 (the “Premises”), licence number 20344 (the “Licence”), on the basis of alleged violations of section 29 and subsections 25(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg”) enacted under the Liquor Licence Act ( the “LLA”).

Decision

2The Board FINDS that violations of section 29 and subsections 25(1) and 45(1) of the O.Reg, as alleged by the Registrar in the NOP, did occur.

Preliminary Matters

3The Board ORDERED the exclusion of witnesses, on consent.

4Ms. Ming Sheng, the sole director, officer and shareholder of the Licensee, waived her right to legal representation and told the Board that her husband, Alan Qiang, and administrator of the corporate Licensee, would represent the Licensee at the hearing.

5Mr. Qiang said that he wished to bring evidence before the Board that will dispute liquor was sold after 2:00 a.m. as alleged in the NOP. Pictures were taken of the following, which Mr. Qiang set up on a table in the hearing room, the pictures becoming exhibits:

i. Two full bottles of beer (Exhibit 1); ii. Two ¼ full bottles of beer (Exhibit 2); and iii. A glass of rum and coke with ice cubes filling the glass to the top (Exhibit 3).

The exhibits were set up in the hearing room at 9:49 a.m.

6It was agreed that the Licensee could proceed with a witness first, as that person had to go to work.

Licensee’s Evidence

7James Ambas was called to give evidence. He was in the Premises in the early morning of April 6, 2008 having arrived a few minutes before 1:30 a.m. He ordered and had consumed a beer. Last call was announced. A beer was bought for him. Between then and 2:45 a.m., Mr. Ambas was playing pool with two men he identified as Kevin and Greg. They were talking and joking around.

8Mr. Ambas said he was told he had seven minutes to finish his drink, and then the drinks would have to go. He did not realize at the time that liquor inspectors were in the Premises. Ms. Sheng had made the last call around 1:45 a.m.

9Mr. Ambas said his drink was taken away at 2:45 a.m., about two minutes before the time he was told he had to be finished by.

10Mr. Ambas said the liquor inspectors were a bunch of jokes. He was being funny. He called them “c… (obscenity)”. People were joking around. He said he left Mingal’s a bit after 2:45 a.m.

11In answer to questions on cross-examination, Mr. Ambas said Mingal’s used to be called Tom Houston’s Boots and it was owned by his father.

12Mr. Ambas did not recall a condition of the Licence that neither he nor his father could be in the Premises.

13Mr. Ambas said he was at home watching television before he went out to Mingal’s. He had nothing to drink before going out. He walked over to Mingal’s. Kevin had called him to go around 1:00 a.m. It took him five minutes to walk to the bar. He cleaned himself up before he left home. He arrived about the same time as Kevin, around 1:25 a.m.

14Several people he knew were there including Ms. Sheng. Mr. Ambas ordered a beer and joined others at a pool table.

15Kevin bought Mr. Ambas a second beer. Someone brought it to the pool table. That was Ms. Sheng. Mr. Ambas estimated he started drinking the second beer around 2:15 a.m. Others were drinking too. Paul was drinking a rum and coke.

16Ms. Sheng picked up a couple of empty glasses. She brought four drinks – a Canadian beer for Mr. Ambas, a rum and coke for Paul and two beers Kevin ordered.

17Mr. Ambas said ¾ to 4/5 of the beer had been consumed when the liquor inspectors came in. They did not look like cops. Ms. Sheng told Mr. Ambas they were liquor inspectors. Everyone was joking at the table when Mr. Ambas said the liquor inspectors were “c… (obscenity)”. Mr. Ambas said he realized he should not have said what he did and that it was not a joke.

18The inspectors were at the very front of the Premises. Mr. Ambas was at the pool table in the rear when he yelled out what he did to the inspectors, some 50 to 60 feet away. Mr. Ambas said he walked to the inspectors to apologize to them. Paul had also walked up to the inspectors. After that, Mr. Ambas returned back to the pool table.

19Mr. Ambas said he was wearing a black jacket and pants. Paul was wearing a blue jacket and blue jeans. He has a moustache and light coloured hair. Paul was talkative, but not belligerent or disrespectful. He was in a cheerful mood.

Registrar’s Evidence

20Stephen Durham gave evidence. He has been an AGCO inspector since February, 2008. He was at the Premises on April 6, 2008. He had made notes which, on consent, he was allowed to use to refresh his memory.

21Insp. Durham arrived at the Premises with three colleagues at 2:54 a.m. on Sunday morning, April 6, 2008. He observed four males at the rear of the Premises still consuming. Mr. Durham went over to the bar area. He spoke to Ms. Sheng, asking her to go to the patrons to remove their beverages. She did.

22Ms. Sheng picked up three bottles of Labatt’s beer, one Molson’s and one rum and coke. Two Labatt’s were full and cold to the touch. The third Labatt’s was a quarter full. The mixed drink had ice cubes in it still intact.

23Insp. Durham advised Ms. Sheng that all signs of alcohol service had to be removed by 2:45 a.m.

24While talking to Ms. Sheng, Insp. Durham said one of the males in the rear of the Premises yelled out that “liquor inspectors are c… (obscenity)”. Due to this remark, Insp. Hetherington called Toronto Police Services. A male came up to the inspectors and apologized for what he said.

25Insp. Durham said the male was unsteady on his feet, swaying, and his speech was repetitive and slurred. The male said he was an undercover CSIS agent.

26The males left before police arrived. The inspectors advised Ms. Sheng of the infractions.

27On cross-examination, Insp. Durham was asked by Mr. Qiang to touch the drinks shown in Exhibits 1, 2 and 3. These drinks had been left standing. The time was now 11:40 a.m. at the hearing, some two hours after they were set up by Mr. Qiang.

28Insp. Durham said the full bottles of beer shown on Exhibit 1 were cold to the touch. The glass of rum and coke and still had large ice cubes in it.

29Insp. Durham said he touched the full bottles of beer picked up by Ms. Sheng. She had placed them on the top of the bar. He believed the other inspectors touched the bottles also. He did not touch the bottles that were ¼ full.

30Insp. Durham said he did not hear swearing as he was talking to Ms. Sheng. A man came up and said he was sorry for what he had said. Insp. Durham said he did not see the man walk from the back to the front of the Premises.

31The man left voluntarily. He went out the front door and went across the street.

32In answer to a question from the Board, Insp. Durham said he touched the bottles on the bar counter in the Premises about five minutes after he arrived.

33Stephen Hetherington was called to give evidence. He has been an AGCO Inspector for two years. He is familiar with Mingal’s. He was there on April 6, 2008. Insp. Hetherington made notes which he was allowed to refer, on consent, to refresh his memory.

34Insp. Hetherington entered the Premises at 2:54 a.m. with three colleagues for a spot inspection. There were still patrons present.

35Insp. Hetherington spoke to the owner. There were several signs of service on a table at the rear of the Premises where some patrons were playing pool. When asked why, the owner replied that she thought she had to 3:00 a.m. to clear up signs of service. The owner went to the rear table to gather up the signs of service.

36The owner placed on the bar two full bottles of Labatt Ice, ¼ bottle of Molson’s and also of Labatt Ice. There was also a glass with a dark liquid which Insp. Hetherington said smelled like rum and coke. Ms. Sheng mentioned it was rum and coke.

37Insp. Hetherington touched all the bottles and the glass placed on the bar by Ms. Sheng. They were sweating condensation. There were full ice cubes in the rum and coke. Insp. Hetherington said this was inconsistent with drinks served prior to 2:00 a.m.

38At 11:05 a.m. in the hearing, Insp. Hetherington was asked to touch the two full bottles of beer shown in Exhibit 1. He said the full bottles of beer he touched in Mingal’s were colder in the bar, and they had condensation. Also, he said the glass with the cubes in the hearing room pictures in Exhibit 3 had no condensation, and the ice cubes were not as large as those in the glass at Mingal’s.

39Insp. Hetherington said he touched the bottles at Mingal’s approximately three minutes after he entered the Premises at 2:54 a.m.

40He advised Ms. Sheng about not serving after 2:00 a.m. and that all signs of service must be cleared by 2:45 a.m. While he was talking to her, a patron in the back yelled “liquor inspectors are c… (obscenity)”.

41Insp. Hetherington said males in the rear of the Premises had been staring down the inspectors. He called 41 Division of Toronto Police Services to ask for assistance.

42The male patron who yelled the obscenity came to the front. He was unsteady, stumbling at times. Insp. Hetherington watched him approach for 20 to 30 feet. The male attended and apologized for his comments. The male told Insp. Hetherington that he and his three brothers in the back were undercover CSIS agents. His speech was slurred and he was very repetitive. His eyes were heavy, he looked tired, his gaze was fixed.

43Insp. Hetherington asked Ms. Sheng to have the male leave. The male kept interrupting the conversation. After several requests, the male did leave the Premises.

44Insp. Hetherington said the male was 45 years, about 6 feel tall, had longish salt and pepper hair, and was wearing a blue jacket and blue jeans. He was not the earlier witness, Ambas.

45Insp. Hetherington advised Ms. Sheng of the infractions found, and left the Premises at 3:13 a.m.

46In cross-examination, Insp. Hetherington was asked to touch the two ¼ full bottles shown in Exhibit 2. He did so at 11:14 a.m. He indicated they were not very cold.

47Insp. Hetherington said all the signs were off outside of Mingal’s, and that it was dark inside. He did not walk to the back of the bar. The bar was at normal room temperature.

48The male patron who yelled the obscenity was the same person who walked up to the bar area. Insp. Hetherington saw him when he yelled the obscenity. He apologized for the comment and made the CSIS remark.

49Ms. Sheng told Insp. Hetherington service was completed by 2:00 a.m.

50Insp. Hetherington said after he left the Premises, three of the males approached him, and called the fourth male an idiot, indicating he was drunk.

51Insp. Hetherington said it is usual for condensation to form on a bottle of beer after it is out of a cooler for a few minutes, in about 10 minutes. After 60 minutes, a puddle would form if the bottle was sitting on a table.

52He said there was condensation on the bottles in Mingal’s and they were cold to the touch.

53Carla Noseworthy gave evidence. She has been an AGCO inspector since March 2, 2008. She is familiar with Mingal’s. She was there on April 6, 2008. She had made notes and was allowed to refer to them to refresh her memory.

54Insp. Noseworthy was there at 2:54 a.m. She conducted an after hours inspection with three other inspectors.

55Insp. Noseworthy saw four males consuming alcohol in the rear. She saw a quarter full Canadian beer, a quarter full Ice beer, a full bottle of Labatt Ice, the latter cold to the touch. There was also a rum and coke.

56Ms. Sheng brought the drinks to the main bar.

57Insp. Noseworthy recalled a male in the rear yelling “liquor inspectors are c… (obscenity)”. The male was stocky. He wore a blue sweater and blue jeans. He had a moustache and light coloured hair.

58The male approached the inspectors. He was unsteady on his feet. He swayed while he stood. Insp. Noseworthy saw the male for about 10 – 15 seconds. He said he was an undercover CSIS agent. His speech was loud and slurred. He was unable to keep his eyes open completely. He had the smell of alcohol on his breath.

59Insp. Hetherington spoke to the owner about the male. The owner advised the patron to leave the Premises.

60In answer to questions on cross-examination, Insp. Noseworthy said she was still in training that night. She confirmed she touched only one bottle, namely the full Labatt’s Ice.

61Insp. Noseworthy recalled there were ice cubes in the mixed drink glass, but could not recall how full the glass was. She also said she could see in the Premises.

62Ryan Baird gave evidence. He has been an inspector with the AGCO for 4 ½ years. He was in the Premises on April 6, 2008, took notes, and was allowed to refer to them to refresh his memory.

63Insp. Baird said he arrived at the Premises at 2:54 a.m. with three other AGCO inspectors. There were four patrons in the establishment as was the owner, Ming Sheng. The male patrons were still consuming at the rear.

64Ms. Sheng went to the rear table and brought all signs of service to the service bar at the front. There were two full Labatt Ice, both cold to the touch. There was also one Molson Canadian which was a quarter full, and also one Labatt Ice also a quarter full. As well there was a mixed drink. Ms. Sheng said it was rum and coke.

65While the inspectors were talking to Ms. Sheng, a male patron yelled “liquor inspectors are c… (obscenity)”. A few moments passed and a male approached the inspectors at the front.

66The male wore a blue jacket, blue jeans, had light colour hair and a moustache. His speech was slurred, he had red glassy eyes which were half shut at times. He was unsteady on his feet. He was swaying while he spoke with the inspectors. He said he was an undercover CSIS agent, as were his three friends.

67The male was asked to leave, but he continued speaking towards the inspectors as he was leaving. It was not James Ambas.

68Insp. Baird said the inspectors departed at 3:13 a.m.

69In answer to questions on cross-examination, Insp. Baird said it was Insp. Hetherington who pointed out the signs of service. Ms. Sheng went to get them. The lights were on inside the Premises. It was not very bright. Insp. Baird did not go to the rear of the bar.

70Insp. Baird said he only touched the two full bottles of Labatt Ice, and then dealt with the male who was yelling. The male did not apologize. He just referred to CSIS.

71The male did apologize outside. The intoxicated male walked outside, followed by the other three. They apologized saying that their friend was drunk and being an idiot.

Licensee’s Evidence

72Ming Sheng gave evidence. She was working as a bartender in the early morning of April 6, 2008. She had started at 6:00 p.m. the night before. She said it was not a busy night.

73Ms. Sheng said that around 1:00 a.m., Paul came in. He showed no signs of intoxication. Ms. Sheng served him a bottle of Canadian beer. He sat at the bar counter. He repeats himself and talks fast. He is not a frequent patron of the bar, nor is he a heavy drinker.

74Ms. Sheng said around 1:30 a.m. the telephone rang. It was Kevin who asked if the bar was still open. Kevin said he would come over with a friend.

75Ms. Sheng stated that Gregory, James and Kevin came in. It was late. None showed any signs of intoxication. Each bought a bottle of beer. They proceeded to the rear to play pool. They were about 60 feet away from the bar counter.

76A few minutes later Paul bought another beer and walked back to the rear.

77At 1:45 a.m., Ms. Sheng said she announced last call. Kevin came to the counter and said they needed three Labatt Ice, one Canadian and a rum and coke with lots of ice. Ms. Sheng said she took over the drinks before 2:00 a.m. The group had not finished drinks they had purchased earlier. She left the fresh drinks on the table. She recalled shutting off the heater on the way back to the bar counter.

78Ms. Sheng said she then turned off all of the front signs, printed the sales, counted the cash, turned off the power to the cash register, turned off the TV set, and cleared the counter. She sat down behind the counter.

79The group of males was having fun at the pool table. At 2:50 a.m., Ms. Sheng said she switched off the light at the bar counter and the lights in the front and middle section of the Premises. She went to the rear of the Premises to turn off the washroom light. She told the men they had seven minutes left and should finish their drinks.

80Ms. Sheng said she went back to the counter with empty bottles. She turned off the big screen TV, and at the point, the liquor inspectors came in.

81Ms. Sheng stated she knew Insp. Hetherington. He asked her why were people drinking. Ms. Sheng replied that it was not yet 3:00 a.m. Insp. Hetherington then told her that signs of service must be cleared at 2:45 a.m.

82At that point, Ms. Sheng went to the male patrons and took away their drinks. Insp. Hetherington asked Ms. Sheng to place the drinks on the bar counter which she did. They consisted of two full bottles of beer, a half-full glass and two almost empty beer bottles.

83A patron yelled from the back. Ms. Sheng said she turned to see who had yelled but could not see the male who had yelled. She did not understand the words. She was stopped by Insp. Hetherington from proceeding to the rear of the Premises.

84Insp. Hetherington made a phone call. He then touched all of the bottles which he said were cold and had been served recently. Ms. Sheng told him that they had been served before 2:00 a.m., and if he did not believe her, then Insp. Hetherington should go ask the patrons at the back of the bar.

85At that point, Ms. Sheng said that Paul walked up to the front of the bar to talk to Insp. Hetherington. Ms. Sheng could not understand what Paul said because he speaks fast, rapidly. He also appeared to shift his body weight from leg to leg. Insp. Hetherington told Ms. Sheng to ask Paul to leave the Premises, which he did. The other three male patrons left on their own shortly afterwards.

86Ms. Sheng said Insp. Hetherington informed her about the infractions, asked her to have her husband, Mr. Qiang, call him the next day. Insp. Hetherington then left.

87Ms. Sheng said she did not know service signs had to be removed by 2:45 a.m. The previous owner had told her this had to happen by 3:00 a.m. Ms. Sheng said she purchased the business in April 2007. She has a smart serve certificate. She had one week of training on the job. She received the Licence in January, 2008.

88Ms. Sheng said that Paul’s fast way of talking sounds like he is slurring his words. He never drinks too much. There is no difference with before he drinks or after.

89When he left, Paul walked across the street. There was nothing unusual in the way he walked.

90That night, Paul had purchased two beers, a friend had bought him one.

91Ms. Sheng said that she stood beside the liquor inspector when he talked to Paul. She did not notice that Paul had heavy eyes.

92Ms. Sheng stated that before April 6, 2008, she had asked questions about the LLA. She instructed her husband to write letters. Copies of the letters were introduced as Exhibits 4 and 5, Exhibit 4 being dated February 20, 2008.

93Ms. Sheng said she had previously been charged with keeping illegal products on the Premises.

94In answer to questions on cross-examination, Ms. Sheng was asked about a condition on the Licence not permitting James Ambas to be in the Premises. Ms. Sheng stated that she did not know Mr. Ambas was not allowed in the bar.

95Ms. Sheng said that she took the smart serve course in April 2007. She did not recall the 2:45 a.m. clearance requirement.

96Ms. Sheng said there is a video system in the Premises. It was working the night in question but there was no tape brought to the hearing.

97Ms. Sheng stated that Exhibit 5, a letter to the AGCO, was written because the police had told her she had illegal liquor in the bar. She wanted answers to be clarified.

98In re-direct, Ms. Sheng said she works in the Premises every night as a bartender. She has learned to tell if a customer is drunk. She knows not to serve young customers. She does not know much about the rules. She knows how to work the bar.

99Allan Qiang gave evidence. He is the husband of the principal Licensee. He prepares paperwork for the Licensee’s company.

100Mr. Qiang said he was not present in the Premises early in the morning of April 6, 2008. He did review a tape made on equipment in the Premises, but was not required to make a copy for this hearing.

101He noted the following from his review of the video system:

(a) 1:05 a.m. – Paul came in, sat at the counter and bought a beer; (b) 1:21 a.m. – Ms. Sheng picked up the phone; (c) 1:33 a.m. – Kevin and two others walked in. They bought three bottles of beer and walked to the pool table at the back, about 60 feet away; (d) 1:35 a.m. – Paul left the counter and joined the three men at the back; (e) 1:45 a.m. – Ms. Sheng said something to the men at the back. Kevin approached the bar counter and said something to Ms. Sheng; (f) 1:55 a.m. – Ms. Sheng took a bottle out of the fridge, prepared a mixed drink, placed both on a tray and carried it to the back; (g) 1:58 a.m. – Ms. Sheng returned to the bar, switched off the neon signs and started closing down; (h) 2:50 a.m. – Ms. Sheng walked to the rear. The lights in the washrooms went out. She walked over to the males and said something to them. She then returned to the front bar area and put empty bottles into a box. She then turned off the big screen TV; (i) 2:54 a.m. – four people came into the Premises and had a conversation with Ms. Sheng; (j) 2:56 a.m. – Ms. Sheng walked to the four males at the rear. She returned to the front carrying a tray with bottles on it, all of which were put on the bar counter. An inspector touched all of the bottles; (k) 2:58 a.m. – Ms. Sheng and the four inspectors turned their heads towards the four males at the rear; (l) 3:03 a.m. – a male patron walked to the front approaching the inspectors; (m) 3:04 a.m. – Ms. Sheng said something to the male, Paul. Paul walked out the front door. Ms. Sheng kept talking to the inspector; (n) 3:06 a.m. - the other three male patrons walked to the front and exchanged words. They left; (o) 3:13 a.m. – the inspectors walked out of Mingal’s.

102On the afternoon of April 6, Mr. Qiang said he had a telephone conversation with Insp. Hetherington who said “your wife lied to me” about the time of the liquor service. Mr. Qiang said he would find out.

103Ms. Sheng told Mr. Qiang that Kevin had called. Insp. Hetherington said he had talked to Kevin who said he had not called the bar early in the morning of April 6. Mr. Qiang said he checked the display on the telephone and it showed a call from a (416) 389-…. at 1:21 a.m. on April 6. Mr. Qiang called that number and Kevin answered.

Registrar’s Submissions

104Mr. Kulis said that Ms. Sheng, the principal of the Licensee, admitted that the signs of service were not cleared on time. She said she thought this had to be done by 3:00 a.m. She cut it tight. This was a violation of section 29 of the O.Reg.

105Regarding the drunken patron, Mr. Kulis said the evidence of the four inspectors was consistent. They observed signs of intoxication – he swayed, he had an unsteady gait, he made a statement that he was a CSIS agent, he had a fixed gaze and glazed eyes.

106Based on the Licensee’s evidence, she was not expected to make a determination. There are so many issues with her knowledge. She could not judge.

107Mr. Kulis asked the Board to make a finding under subsection 45(1) of the O.Reg.

108Regarding service of alcohol after hours, the evidence of the inspectors leads to the conclusion that liquor was served after 2:00 a.m. The Licensee through Mr. Qiang said there was a video, but it or a tape was not produced.

109There was a huge gap in time in Mr. Qiang’s evidence between 1:58 a.m. and 2:50 a.m., a critical time. There is no description at all as to what took place. 52 minutes were missed.

110In addition, no receipts were produced regarding sales that night which undermines the Licensee’s case.

111Regarding the Licensee’s experiment at the hearing as shown by Exhibit 1, 2 and 3, there are too many variables as to make much use of it. Any conclusions must be questioned. It can’t be relied on.

112The witnesses who touched the bottles that early morning at the bar in the Premises all said the bottles were cold to the touch leading to the conclusion that subsection 25(1) of the O.Reg had been violated.

Licensee’s Submissions

113Mr. Qiang began his submissions dealing first with service outside of prescribed hours. The inspectors don’t have enough evidence to support this. At the hearing an hour after the exhibits were set up, Insp. Durham said the bottles were still cold to the touch.

114The bottles were served before 2:00 a.m. on the night in question. The tape showed this.

115Insp. Hetherington’s evidence is not credible. In his notes, Insp. Hetherington said all bottles were cold to the touch. In his evidence at the hearing, he said only the full bottles were cold.

116Mr. Qiang said there was also an inconsistency between the number of bottles. Insp. Noseworthy said there were four bottles and the others said there were five bottles.

117Insp. Hetherington said on the issue of condensation, it forms in 10 minutes. Today at the hearing, there was no condensation.

118Regarding permitting drunkenness, the four inspectors based their alleged violation on one customer yelling an obscenity. The same person approached them. They assumed he must be drunk to be yelling. However, the inspectors looked at the wrong person because James Ambas said he did the yelling, and apologized to Ms. Sheng the following day.

119The distance from where the inspectors stood to where the four patrons were, was 50 to 60 feet. The bar was dark. How could the inspectors see who had yelled?

120Regarding Paul, Ms. Sheng knew him as a regular. She found him hard to understand at all times. He spoke fast and was repetitive. His speaking fast sounded like he slurred his words.

121Regarding Paul’s swaying, not all of the inspectors saw Paul walking out of Mingal’s. Insp. Baird said he walked across the street. Not one of the inspectors in their notes said anything about the smell of alcohol on the breath of the alleged intoxicated person.

122Mr. Qiang said that the eye problem seen by the inspectors could have been caused by contact lenses.

123It was not Paul who yelled the obscenity about liquor inspectors. He did not fall down when he walked up to the inspectors. He also walked out of the bar on his own. Therefore there was no drunkenness under subsection 45(1) of the O.Reg.

124As to failing to clear, Ms. Sheng acknowledged she did not remove signs of service by 2:45 a.m. From her one week of training, she though this had to be done by 3:00 a.m. There was no intention to breach the rule purposely. After stopping to serve at 2:00 a.m., she started to close down. She knew she could not serve after 2:00 a.m.

125Ms. Sheng was busy closing after 1:58 a.m. Then she read magazines. At 2:50 a.m. she told the four patrons they had seven minutes left to finish their drinks and they had to leave by 3:00 a.m. Ms. Sheng has not failed to clear by 2:45 a.m. since this incident.

126Another inconsistency pointed out by Mr. Qiang was that three inspectors said they heard Paul apologize for the remark about liquor inspectors, whereas Insp. Baird said he heard “I’m sorry”.

127In reply, Mr. Kulis pointed out that Mr. Ambas is not the drunken person nor was he the person who said the thing about liquor inspectors. Two inspectors saw the person who yelled and both said it was not Mr. Ambas.

Decision and Reasons

128With regard to the alleged violation of section 29 of the O.Reg, namely that the Licensee failed to clear the signs of service and consumption in the Premises by 2:45 a.m., the evidence of the four AGCO inspectors was clear, concise and credible. They entered the Premises at 2:54 a.m. on April 6, 2008 and signs of service were apparent in the hands of and on a table near four male patrons at the back of the Premises.

129Ms. Sheng went to the back after the AGCO inspectors entered the Premises, gathered up the signs of service, and brought all to the bar counter.

130Ms. Sheng testified she thought she had until 3:00 a.m. to clear the signs of service.

131Mr. Qiang in his submissions admitted the signs of service were not cleared by 2:45 a.m. as required by law, but stated there was no intention to breach the law intentionally.

132As a result of the evidence and the admission, the Board FINDS that the Licensee did breach section 29 of the O.Reg as alleged.

133The next allegation is that, contrary to subsection 25(1) of the O.Reg, liquor was sold and served in the Premises outside of prescribed hours, namely after 2:00 a.m.

134The four inspectors entered the Premises at 2:54 a.m. Alcohol cannot be served after 2:00 a.m. The inspectors talked to Ms. Sheng about signs of service. She went to pick them up at the rear of the Premises and brought the bottles and a glass to the front of the Premises and placed them on the counter.

135It would have taken Ms. Sheng a couple of minutes after the AGCO inspectors entered for her to put the bottles and glass on the bar counter. Had these drinks been served just before 2:00 a.m., they would have been sitting in the Premises for about one hour.

136Insp. Durham testified the two full Labatt’s beer bottles were cold to the touch and that the ice cubes in the mixed drink glass were intact.

137Insp. Hetherington testified that he observed that there were full ice cubes in the mixed drink Ms. Sheng picked up after the inspectors arrived, and which she had placed on the bar counter. He also stated that the two full bottles of beer he touched in the bar were colder to the touch than the bottles Mr. Qiang had set up at the hearing shown in pictures as Exhibit 1.

138Insp. Hetherington also testified that condensation forms on bottles of beer a few minutes after it is taken out of a cooler. He estimated this to be about 10 minutes. After 60 minutes, a puddle would form around a bottle sitting on a table. He stated that the bottles he touched at Mingal’s had condensation on them and were cold to the touch.

139Insp. Noseworthy testified she touched one bottle on the counter top. That was a full bottle of Labatt Ice beer and it was cold to the touch.

140Ms. Sheng in her evidence testified that the drinks had been served before 2:00 a.m.

141Mr. Qiang, although not present in the Premises in the early morning hours of April 6, 2008, said he had viewed a tape. The tape or a copy was not introduced into evidence. However, according to Mr. Qiang, the last drinks served by Ms. Sheng were at 1:55 a.m., and between 1:58 a.m. and 2:54 a.m. when the AGCO inspectors walked in, there was nothing of interest on the tape.

142Also, at the beginning of the hearing on December 12, 2008, Mr. Qiang set up various bottles of beer on a table and a mixed drink. These were photographed, and the pictures made exhibits.

143At various times during the hearing, Mr. Qiang asked several of the AGCO inspectors to touch or look at the bottles of beer and the mixed drink. His questions related to whether or not the inspectors, at the time they were asked, thought the bottles at the hearing were as cold to the touch as the bottles they touched on the bar counter in the Premises on April 6, 2008.

144The Board does not give any weight to Mr. Qiang’s questions to the inspectors about the relative temperature feel of the beer bottles at the hearing compared to those on April 6, 2008, nor to the size of the ice cubes in the mixed drink. There are too many possible variations – time out of a cooler, room temperature, being held by a human, etc., to make this argument into one that persuades the Board.

145Further, the fact that the tape referred to by Mr. Qiang in his evidence was not submitted as evidence by the Licensee, leaves the Board with the question why it was not. Surely if the tape showed nothing being served between 1:58 a.m. and 2:54 a.m., it would have been valuable evidence for the Licensee to be produced.

146On the other hand, the evidence of four AGCO inspectors was objective, consistent and credible. At approximately 3:00 a.m. when each touched at least one full bottle of beer placed on the bar counter by Ms. Sheng, that bottle was cold to the touch. The evidence of the inspectors on this point is to be preferred over that of Ms. Sheng and Mr. Qiang.

147Based on the foregoing, the Board FINDS on a balance of probability that there was a violation of subsection 25(1) of the O.Reg.

148The final allegation is that, contrary to subsection 45(1) of the O.Reg, the Licensee permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises.

149There was contradictory evidence about which of the four patrons at the rear of the Premises shouted out the obscenity about liquor inspectors. Mr. Ambas testified he did and that he apologized to the inspectors. Mr. Ambas testified he was wearing a black jacket and pants, and that another member of the group, Paul, was wearing a blue jacket and blue jeans.

150At least two of the AGCO inspectors identified the male who uttered the obscenity as wearing the blue jacket and blue jeans. Also, Ms. Sheng identified this person as Paul. As a result, the Board has placed little weight on the testimony of Mr. Ambas.

151The AGCO inspectors were consistent and credible in describing signs of intoxication being very evident in the male who issued the obscenity and who then approached them at the front of the Premises. The male was unsteady on his feet, stumbling, his speech was slurred, he was repetitive, he had heavy eyes, and a fixed gaze. He also told the inspectors that he, and other members of his group, were CSIS agents.

152The male approached the AGCO inspectors around 3:00 a.m. The male was in the bar for at least one hour because that is when according to her evidence, Ms. Sheng served the group the last four drinks.

153Ms. Sheng said that she basically sat behind the bar counter for a long time before the AGCO inspectors entered at 2:54 a.m. She had the opportunity to observe the male patron. In fact she approached them and told them they had seven minutes left to finish their drinks.

154Ms. Sheng did nothing about the male until he approached the inspectors. It was the inspectors who asked Ms. Sheng to have the male leave the Premises due to his intoxication.

155Based on the evidence of the AGCO inspectors, the Board FINDS that the male who approached and talked to the inspectors was, on the balance of probabilities, intoxicated and was permitted by Ms. Sheng to be and remain on the Premises.

156Therefore, the Board FINDS that there was a violation of subsection 45(1) of the O.Reg as alleged in the NOP.

157The 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’s representative shall have seven (7) days to serve and file his written response. Registrar’s Representative may serve and file any reply within two (2) 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 26th DAY OF JANUARY, 2009.