Registrar, Alcohol and Gaming Commission of Ontario v. 1170651 Ontario Inc. O/A Mingal’s Restaurant & Bar, 2009 CanLII 4462

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-

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

DECISION ON FINDINGS

Panel: Patricia McQuaid, Vice-Chair Joan Lougheed, Board Member

Decision Date: January 15, 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 1170651 Ontario Inc., Licensee: Allen Qiang, on behalf of the Corporation

Allegations

1A hearing into Notice of Proposal number 16345 dated May 29, 2008, to suspend liquor licence number 20344 issued to 1170651 Ontario Inc., (the “Licensee”) operating as MINGAL’S RESTAURANT & BAR, 2386 Kingston Road, Scarborough, Ontario, M1N 1V2, (the “establishment” or the “premises”) on the basis of alleged violations of section 29 and subsection 45(2) of the Liquor Licence Act (“LLA”) and subsection 45(1) and paragraph 50(c) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on September 4 and December 2, 2008, in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board FINDS the Licensee violated section 29 of the LLA and subsection 45(1) and paragraph 50(c) the O.Reg. The Board DISMISSES the allegation of a violation of 45(2) of the LLA. Reasons follow.

Preliminary Matters

3Mr. Qiang, the husband of Ming Sheng, the principal of the corporate licensee, appeared on behalf of the Licensee. He advised the Board that while he was willing to proceed with the hearing on September 4, there was an issue regarding the timely service of summonses to witnesses. As a result, only two of his six witnesses were in attendance.

4Mr. Kulis stated that he was aware of the Licensee’s witness issue and would not oppose an adjournment of the hearing should Mr. Qiang determine that he required evidence from these witnesses to complete his case.

5An ORDER was made, on consent, for the exclusion of witnesses.

Registrar’s Evidence

6Bradley Verspeeten is a police officer with the Toronto Police Service (“TPS”). On January 4, 2008, he received a radio call at 7:54 p.m. about a motor vehicle accident on Sharpe Street, just north of Kingston Road. At this time, he was in his cruiser at the intersection of Kingston Road and Sharpe Street, so arrived on scene moments later.

7On scene, he observed a male, approximately 50 years old. He was staggering and very unsteady on his feet. The male was identified as Robert Girard. His vehicle, a red Saturn, was facing northbound, and showed front-end damage. Another vehicle, facing south had front-end damage on the driver’s side. A black pick-up truck was parked between them. The driver of the truck was a witness to the accident.

8Police Constable (“PC”) Verspeeten noticed that Mr. Girard had a strong odour of alcohol on his breath. His eyes were very bloodshot, his speech was slurred and it appeared that he had urinated in his pants. At times he had to lean against the pick-up truck for balance. He identified himself to Mr. Girard and attempted to arrest him for impaired driving. Mr. Girard resisted arrest and was very aggressive. With the help of another officer, Mr. Girard’s hands were forced behind his back and handcuffed. His language was offensive and escalating in tone. He became more aggressive and abusive as time passed.

9Mr. Girard was taken to 41 Division to provide a breath sample. On the first reading at 9:45 p.m., he “blew” 0.251 and on the second, 24 minutes later, he blew 0.255. He was charged with impaired operation of a motor vehicle. This matter is still before the Courts. Though given a police caution, Mr. Girard did state, to another officer, that he had been drinking at Mingal’s, which is approximately two blocks from where the accident occurred.

10Detective Constable (“DC”) David Ouellette is with the major crime unit at 41 Division of the TPS. On January 4, 2008, he was on patrol in an unmarked vehicle when he heard the radio call regarding a motor vehicle accident, involving an impaired driver. When he arrived on scene, Mr. Girard was in custody. In his assessment, Mr. Girard was clearly intoxicated. His speech was heavily slurred, he “stunk” of alcohol, and was very unsteady on his feet. His partner, DC McCutcheon, also in attendance at the scene, asked Mr. Girard where he had been drinking, to which he responded Mingal’s (though he referred to it by its prior name, London Dock).

11DC Ouellette then went to Mingal’s, with which he was familiar due to LLA investigations that formed part of his responsibilities in the major crimes unit. Prior to entering Mingal’s, he went to the karate studio next door. He asked Ms Wong, the manager, if she had seen anything next door that evening. She responded that she saw the “regular fall down drunk that drives the Saturn.” She observed him stumbling around outside after leaving the bar. She had seen his car out front. She did not see him drive it, though the car was gone from the parking spot.

12DC Ouellette then entered Mingal’s at 8:05 p.m. with DC McCutcheon. There were about 20 patrons present. He identified himself to the bartender, with whom he had dealt in the past. She acknowledged that she knew him. She appeared surprised that Mr. Girard had driven and in DC Ouellette’s view was clearly aware of Mr. Girard’s level of intoxication.

13He asked the bartender to have the owner attend the premises because it was important that they see the video. Ms Sheng, he knew, had installed video surveillance soon after taking over the premises.

14At 8:25 p.m., the Licensee and her husband showed up. He knew Ms Sheng from prior attendances and he met Mr. Qiang before as well. Together, they went to the basement to view the video whereupon Mr. Qiang said he did not bring the key for the office where the video recording equipment was located. DC Ouellette stated that it was clear what he wanted when he asked for their attendance, which Mr. Qiang did not dispute. He did not, however, hear what the bartender relayed to the Licensee or Mr. Qiang when she called them to come to the bar. The door to the office was, however, jimmied open by DC McCutcheon, and they entered the office. Neither Ms Sheng nor Mr. Qiang knew how to operate the computer in order to view the video surveillance. DC Ouellette told them that he would have to seize the computer. Mr. Qiang demanded a warrant to which he responded that under the LLA a warrant was not required. Mr. Qiang then demanded to see his identification. He took out his badge to show it to him; Mr. Qiang attempted to remove his wallet from his hand. DC McCutcheon then warned Ms Sheng that she could be charged with obstructing or failing to facilitate an inspection and that she should get her husband “in line.”

15They seized the computer hard drive, forty-one 50 ml bottles of various brands of alcohol, and sales receipts. He prepared a receipt for the seized items, as he does in the usual course, and gave it to Mr. Qiang who was insistent on getting the receipt and repeated that he wanted to see a warrant.

16DC Ouellette had dealt with Ms Sheng before, and was known to her, confirmed by the fact that he had received a Christmas card from her. He believed he met Mr. Qiang at the establishment in October 2007, introducing himself at that time.

17On previous occasions, he had expressed his concerns about “Kathleen,” the afternoon bartender, specifically that she required greater supervision. Problems under the LLA seemed to arise when she was working. Mingal’s is one of three licensed premises in a 200 metre radius. Mingal’s has had problems with intoxicated patrons and disturbances, usually when Kathleen is bartending. These issues do not arise when the Licensee’s daughter is bartending. Kathleen does continue to work there despite his expressions of concern about her to the Licensee.

18DC Ouellette explained that Mingal’s does cater to locals, has its regular patrons, one of whom is Mr. Girard.

19On cross-examination, DC Ouellette expanded on his interaction with the bartender, Kathleen. Specifically, he recalled that she stated, after being told there was an accident, “Oh my god, he drove…” From this comment, DC Ouellette inferred that Kathleen was fully aware of Mr. Girard’s level of intoxication.

20Regarding the seized computer, DC Ouellette stated that police were unable to access the information as their computer operating system could not transcribe the information stored on the computer. Mr. Qiang did attempt to assist them, but he, too, was unsuccessful in copying the information to a format that the police could view.

21Regarding the allegation of a failure to facilitate the inspection, DC Ouellette reiterated that they had no difficulty entering the basement. However, the Licensee, in his view, did not prevent Mr. Qiang from interfering with their inspection as was her responsibility. Mr. Qiang interfered verbally, and to some extent physically, when he tried to grab the wallet and badge from his hand.

22Robert William Girard was present at Mingal’s on the evening of January 4, 2008. He described himself as an occasional patron at the bar. Before arriving, between 4:00 and 5:00 p.m. he may have had one beer at home. He played pool at Mingal’s and probably had four to six beers and two shots of vodka. In his view, he didn’t drink that much. He had last eaten at lunch. Though he believed he was at Mingal’s two to three hours, he did, in this time, step out for about 15 minutes to do a beer run for a friend. He picked up a six-pack, dropped it off and probably had two shots with his friend before heading back to Mingal’s.

23The bartender, Kathleen, was working that evening and served him. His recollection was that he would have ordered a drink, likely a beer, upon his return to the bar. He would not otherwise hang around if not served. After his return, she asked him to leave because he was getting too rambunctious. He agreed to do so. He then went home, had another beer and a half glass of Sambucca and then left to buy some cigarettes. It was at this point that the motor vehicle accident occurred.

Licensee’s Evidence

24Brian Sheedy, a patron, was at Mingal’s on January 4th when the two police officers entered. He was sitting at a table by the pool tables. He recalled seeing Mr. Girard that evening. He was behaving normally, but when he returned after a short absence, Mr. Girard was belligerent, “growling” at people. He, Mr. Sheedy, told Mr. Girard to get out. He also said something to the bartender and she also asked Mr. Girard to leave. She cut him off, at which point Mr. Girard left. He believes that this happened not long after Mr. Girard’s return to the bar. He had no idea how much Mr. Girard consumed that evening.

25James Shirley was another patron at the establishment on January 4, 2008. He arrived around 6:00 p.m. and stayed until approximately 9:30 p.m. He saw the two police officers arrive, but stated that he heard them say they were liquor inspectors. In his view, they were wrong not to state that they were police officers. He recalled seeing Mr. Girard that evening. He saw him leave, around 7:00 p.m. and return about 20 minutes later. Mr. Girard seemed fine when he left though he paid no attention to how much Mr. Girard had to drink. However, when he returned he was “pretty full;” Mr. Shirley had never seen anyone get in that shape in so short a time. “Kathy” was the only bartender that evening and she told Mr. Girard, upon his return, that she would not serve him.

26Kathleen Allison was the bartender working the evening of January 4, 2008. She was working alone on an 11:30 a.m. to 10:00 p.m. shift. She has worked as a bartender for 12 years and has her SmartServe certification. It was not a busy night, with about 15 patrons present, most of whom were regulars. She recalled DC Ouellette coming in around 8:00 p.m. He asked her if Mr. Girard had been at the bar, to which she responded, yes. When he told her that Mr. Girard had been involved in a motor vehicle accident, she expressed surprise. She did not think he had driven to the bar that evening as she saw him enter through the back patio door, as opposed to the front door. He would usually enter by the front door if driving. When he left, she saw him walking east-bound on Kingston Road. She told the officers that he had about five beers and two to three shots. They asked to see the video. She told them she did not have access to the office so she called the owner to come as the police wanted to speak with her.

27Mr. Girard left for a while around 7:00 p.m. for 15 to 20 minutes. In her view, he seemed to do a “180” when he returned. He was showing signs of intoxication. He was acting aggressively. She pulled the balance of his beer that he had left on the table prior to his first departure. He did ask for another drink, a shot, but she refused service, telling him that he should go home. He agreed to leave. He was present for five to 10 minutes on this second occasion.

28Mr. Girard had been banned from the bar prior to January but Ms Sheng made the decision to allow him back, perhaps one and a half months before January, as long as they kept an eye on him. He does have a tendency to display argumentative and disorderly conduct when he drinks, which is why she has to monitor how much he has consumed.

29Ms Allison stated that Mr. Girard was told, subsequent to January, that they would serve him no more than two drinks when he came to the bar. He does not come into the bar much anymore.

30In reply, Ms Allison was asked if Mr. Girard had been banned after January, to which she responded yes, for about one month.

31D/C Sean McCutcheon of the TPS, 41 Division testified that he was, on January 4, 2008, on general patrol with DC Ouellette when they heard a radio call, at 7:54 p.m., about a motor vehicle accident. At this point, they were about one block from Mingal’s. They were on the scene of the accident at 7:55 p.m. PC Verspeeten and PC Jones were at the scene already and had a male, Robert Girard, under arrest for impaired driving. He described Mr. Girard as having slurred speech, and as “falling down drunk.”

32DC McCutcheon asked Mr. Girard where he had been drinking, to which the response was “at home.” When he then asked “anywhere else?”, Mr. Girard responded, the London Dock, confirmed to be Mingal’s. DC McCutcheon explained that the purpose of his questions was to ascertain where Mr. Girard might have been drinking along the Kingston corridor. He did not ask him when he was at home or how much he had to drink at home. Mr. Girard did not indicate that he had perhaps five beers at Mingal’s and had been there since about 5:00 p.m.

33DC McCutcheon and DC Ouellette then went directly to Mingal’s though DC Ouellette spoke to the manager at the martial arts school located next door to Mingal’s prior to entering the bar. The reason for going into the school was to determine if the manager had seen Mr. Girard come out of the bar and drive away. Most of Mingal’s patrons park in front of the studio which has large windows across the front. They entered the bar at 8:05 p.m. The only employee working at Mingal’s was Kathleen Allison. He questioned her about Mr. Girard. She stated that he had been at the bar, and left about twenty minutes prior. He told her that Mr. Girard had just crashed his car around the corner from the premises, to which she responded, “Oh my god, he drove.”

34Ms Allison told him that Mr. Girard had five beers and three shots of vodka. He paid in cash. He had nothing to eat while at the bar. DC McCutcheon asked Ms Allison to call Ms Sheng, the Licensee, so that they could get the video from the evening, which she did. At 8:25 p.m., Ms Sheng arrived with her husband, Mr. Qiang. He went to the basement with Mr. Qiang to gain entry to the room in which the video is located. He noted that, at the bottom of the stairs, the fire exit sign was not illuminated.

35Mr. Qiang was unable to find the key to the office, even though Ms Sheng was told, over the phone that the reason for their attendance was to allow them access to the video. He did not believe that Ms Sheng was downstairs with them at this point. DC McCutcheon did, however, easily open the door with a credit card. As soon as he entered the room, he saw a box of 50 ml sample bottles of liquor on the floor and another fire exit sign, unlit, at the far side of the office.

36DC McCutcheon stated that once in the office, Mr, Qiang became quite belligerent, disputing his assertions that he was not allowed to have the 50 ml bottles on premises. Mr. Qiang then got between him and the computer, demanding that they produce a warrant, and demanding of DC Ouellette that he hand over his identification. When shown the badge, Mr. Qiang tried to grab it from DC Ouellette. DC McCutcheon seemed surprised at the request for identification as he believed they needed no introduction, being familiar to Ms Sheng and her husband. They knew he and DC Ouellette were police officers as they had been in on numerous times. As Mr. Qiang continued to demand a warrant, he told Ms Sheng to keep her husband in line and that they were obliged under subsection 45(2) of the LLA and under the Criminal Code not to obstruct police.

37They told Mr. Qiang that they would not deal with him further as he was not the licence holder nor an employee. They then asked to inspect food and beverage receipts. These were provided. At 8:37 p.m., they seized the computer, forty-one 50 ml bottles of liquor and the day’s receipts. As they were leaving, Mr. Qiang again demanded a warrant and receipt for the seized property. The receipt was given as is their practice. At this point, he advised Mr. Qiang that charges would be laid and they would return the next day to discuss matters further. He did advise that the licence could be revoked in a case such as this.

38DC McCutcheon described, in his evidence, subsequent interaction between Mr. Qiang and the police, specifically, Mr. Qiang’s array of complaints to his superiors about the police action on the evening of January 4th. The computer was returned to the Licensee on the condition that they receive a viewable recording from Mr. Qiang. They eventually received one or two disks from Mr. Qiang which purported to show the events of January 4th, but they were blank. At this point, DC McCutcheon made the decision to abandon this avenue of evidence.

39Ming Sheng, the licence-holder (since April 2007), testified from a written statement, to which Mr. Kulis did not object. She stated that she prepared the statement though her husband and corrected it for language and meaning.

40Ms Sheng stated that she and her husband were at home when they received a call from Ms Allison that a patron was said to be in a motor vehicle accident and that there were two undercover police officers present who wanted to see them. They left for the bar right away, arriving about five minutes later. When they arrived, her husband approached the two police officers, asking how he could help. She heard them say they were liquor inspectors. He had met DC Ouellette before, perhaps twice though stated that she did not know he was also a liquor inspector. She had not met DC McCutcheon before.

41Her husband went downstairs to the basement with DC McCutcheon followed by DC Ouellette. She joined them several minutes later, at which point they were in the storage room where the computer is kept. The officers were conducting a search. They did not have a warrant. One of the officers said, “We are after your licence.” Her husband then “calmly” asked DC Ouellette for his identification, to make sure he was a liquor inspector. DC Ouellette became irritated at this, expressing some incredulity that they wanted to check his identification. He did however take out his wallet and briefly held it up for her husband. Because of the lighting and his poor eyesight, she doubted he could read it so he reached out to look at it closer. DC Ouellette thought he was grabbing it and asked if he, Mr. Qiang, really wanted to grab a badge from a police officer. They were unable to verify whether the officers were also liquor licence inspectors.

42The officers then told her to get her husband in line or they would arrest and jail him. She felt threatened by this statement, so she told her husband not to insist on the identification. Ms Sheng stated that she was confused by the officers’ identity that night and shocked by their rudeness. DC McCutcheon accused her of lying when she told him that it was legal for her to have purchased the 50 ml bottles and they were bought under licence. At no time did her husband say no to the officers’ search or physically stop it. She feels they were fully cooperative.

43Ms Sheng stated that her husband did report the events to the Staff Sergeant at 41 Division. His concern was that someone may have been impersonating a police officer that night.

44Regarding the fire exit signs, she had noticed earlier that day that one of the lights was not working and was going to change it. The second light, in the storage room, she was not aware of, however she stated that patrons were not allowed in there in any event.

45Allan Qiang acknowledged that neither he nor his wife were present at the bar on January 4th when Mr. Girard was there. He did advise at the hearing, that he had, however, viewed the video recording of the bar for that date, between the hours of 2:00 p.m. and 10:00 p.m. He explained that when he received his computer back from the police on February 1st, it was on the condition that he find a way to make a copy of the surveillance tape for the police, otherwise he would be charged with obstruction of justice. He did transfer the video information to four disks and dropped it off to police. They were not blank.

46When making this copy, he took notes of what transpired. He did not have any disks with him at the hearing.

47The Board ruled that such evidence could not be introduced. On September 4th, three months ahead of the resumption on December 1st, the Board heard evidence from patrons about the evening, and from DC Ouellette about the unavailability of video evidence. Mr. Qiang was present as the Licensee’s representative on that date. No disclosure was made concerning any video information in the intervening period, although Mr. Qiang seemed aware of disclosure obligations as he had provided much information to Mr. Kulis regarding witness testimony. A copy was not now available for Mr. Kulis to review.

48Mr. Qiang, in addition, sought to introduce in his evidence the charts from the SmartServe course material concerning the blood alcohol levels and calculations. He stated that he was not disputing the correctness of the test, but rather what factors might have made Mr. Girard “blow” at such a high level. The Board disallowed this evidence. The blood alcohol level of Mr. Girard is not disputed and while it is an important fact is not determinative of the issue before the Board. As well, the SmartServe course material, useful as it is for servers and licensees, does not qualify someone to give evidence of any assistance to the Board as to other possible reasons for a high blood alcohol level. Any such evidence is pure conjecture in the absence of expertise.

49Mr. Qiang and his wife went to the bar on January 4th after receiving a call from Ms Allison. When he entered, he saw DCs Ouellette and McCutcheon seated at a table. He approached them. He had never met either officer before. He was adamant in his evidence that while his wife may have met DC Ouellette before, and though there may have been correspondence with him prior to January 4, 2008, he had not met him. They said they were liquor licence inspectors. Ms Allison did tell him that police were there, and he did understand them to be undercover cops. He was confused, but did not make an issue of it.

50The officers said they wanted to see the computer. He told them it was in the storage room in the basement. He went with DC McCutcheon to the basement. The door to the storage room was locked. He did not have the key; he said his wife would have it. DC McCutcheon suggested that he was not being cooperative in that he was told to bring a key. At this point, DC McCutcheon took out a credit card and, without asking, used it to gain entry.

51Mr. Qiang described the officers as excited when they saw the computer. He did not stop them. They said, “We are after your licence.” DC McCutcheon had difficulty disconnecting the computer cables. While this was happening, he stated that he wanted them to show a warrant before they removed the computer from the premises.

52DC Ouellette told him they did not need a search warrant because they were liquor inspectors, confusing him further, so he asked DC Ouellette for identification. DC Ouellette took his badge from his back pocket and opened it and put it up to Mr. Qiang’s eyes. He had to take off his glasses to read it so he raised his hand to do so, to which DC Ouellette responded that he was trying to grab the badge. The officers then told his wife to keep him in line; she told him that they were cops and he should not ask anymore to see identification. Because he was threatened with arrest, he stopped. The rest of the search went smoothly. The officers took what they wanted. Back upstairs, a patron asked him if the officers had given him a receipt. They had not so he rushed out to their van and asked for one. A receipt was given to him though he questioned its propriety since it did not have a serial number nor enumerate each of the bottles and receipts seized. Mr. Qiang did acknowledge that he wrote several letters to the officers and their Staff Sergeant subsequently, concerning the return of his items.

Analysis/Reasons/Findings

53The Board will deal with the evidence, and submissions, regarding each of the allegations in turn. The Board would like to commend Mr. Qiang in his presentation of the Licensee’s case. He was well prepared, his questions were thoughtful and he was at all time professional in his demeanour.

Section 29 of the LLA and subsection 45(1) of the O.Reg

54In dealing with the allegations involving Mr. Girard, section 29 of the LLA and subsection 45(1) of O.Reg 719/90, the witnesses present at the bar on January 4, 2008 were quite consistent in their evidence. Mr. Girard himself was quite forthright and plain spoken. He arrived at the bar around 5:00 p.m., having had one beer at home before this. Both he and Ms Allison, the bartender, are in agreement he had about five beers and two shots before first leaving the bar at 7:00 p.m. Mr. Girard left for about 15 minutes to do a beer run for a friend. In that time, he went to the Beer Store, purchased the beer, delivered it to his friend and had perhaps two shots of liquor before returning to Mingal’s. Mr. Girard recollects that he would likely have ordered a beer and if he had been told there would be no service (as Ms Allison contends) he would not have remained. Mr. Girard was present long enough to attract the attention of Mr. Sheedy and Mr. Shirley. He apparently seemed “pretty full” according to Mr. Shirley, one can infer, of drink. He was loud and rambunctious. Ms Allison recalls taking a drink from him, not one, apparently, that had just been served, but one he had left half full before he departed for his beer run.

55Mr. Girard did leave when asked to do so by Ms Allison. He went home, had apparently a quick beer and generous shot of Sambucca, before getting in his car, again, at which point the motor vehicle accident occurs. When police arrive on scene, at 7:55 p.m., Mr. Girard is exhibiting clear signs of intoxication: unsteadiness on his feet, slurred speech, strong smell of alcohol, little control over bodily function and very belligerent behaviour, the latter of which is consistent with the description by Mr. Sheedy, Mr. Shirley and Ms Allison. And this at only 25 minutes after he left Mingal’s. Mr. Girard then blew well over the legal limit.

56This Board decides on the balance of probabilities, and given the consistent evidence about the amount consumed by Mr. Girard in a two to two and a half hour period, and the consistent evidence on timing, the Board can only conclude that Mr. Girard was drunk when he left the premises. To suggest that the symptoms observed at 7:55 p.m. had just manifested themselves would be a stretch of reasoning. While on the evidence, the Board can fairly conclude that Mr. Girard was capable of consuming a significant amount of alcohol, and perhaps for some period of time with little apparent impact, that was not the situation at the time of the accident. Mr. Girard was, however, asked to leave by Ms Allison, an action which is appropriate, but it seems clear that this occurred too late. Mr. Girard continued to be served to a point of five beers and a couple of shots, and the Board believes, based on Mr. Girard’s evidence, that he was served a further beer on his return. The Board heard, too, from DC Ouellette that issues at Mingal’s have centered upon Ms Allison’s apparent inability to decline service to a patron. On these facts, it appears that it was only when other patrons complained, that she cut him off. In the Board’s view its too little, too late. Her expression of surprise that Mr. Girard drove (and the Board declines to comment on the fact that nothing was done, other than to remark on what door he entered by, to ensure he did not drive, after she cut him off) only serves to reinforce that he was drunk when he left the premises.

57The Board therefore, based on the foregoing, FINDS a violation of section 29 of the LLA and subsection 45(1) of the O.Reg. In making that finding, the Board notes that police evidence did suggest that problems with the service of alcohol were not an issue when persons other than Ms Allison were working. However, regardless of her presence, Ms Sheng, as the Licensee, must understand that it is her obligation to ensure responsible service of alcohol at all times.

[Subsection 45(2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html#sec45subsec2_smooth) of the [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)

58The allegation is that Mr. Qiang, by his actions on January 4, 2008, failed to facilitate an inspection. The Board has, in the past, accepted the definition of “facilitate” as “to make easier or less difficult.” Mr. Kulis, on behalf of the Registrar, has not alleged that issues surrounding the failure to provide surveillance video that night or subsequently, form the basis for this allegation.

59What transpired in the basement between Mr. Qiang and the officers seems borne of misunderstanding and, after hearing the evidence of the patrons, Mr. Shirley and Mr. Sheedy, a confusion spurred on by them. The officers responded, it seems with a certain level of irritation, which was understandable, given that it is clear on the evidence that Ms Allison, Ms Sheng and even Mr. Qiang knew full well that they were police officers. However, the fact is that aside from the irritant that Mr. Qiang was and the submissiveness of Ms Sheng, the officers were able to complete their inspection quickly. Mr. Qiang arrived with Ms Sheng at 8:25 p.m., and the officers had completed their inspection, seized property and issued the receipts for those items by 8:37 p.m.

60Further, the Board notes DC Ouellette’s contention that Mr. Qiang attempted to grab his badge, interpreting that as an aggressive action. Mr. Qiang explained, as did Ms Sheng, that he was reaching to take off his glasses and to inspect the badge more closely in order to read it. The Board, having observed Mr. Qiang throughout the hearing remove his glasses to read notes or a document, finds credence in that explanation. When warned by an increasingly irritated police officer to refrain from further questions, Mr. Qiang did so.

61The Board, on these facts, therefore DECLINES to make a finding under subsection 45(2) of the LLA. We reiterate that we understand the officers’ irritation arising from the fact of no readily available key, entry was gained to the office through their own ingenuity and at the insistence of a warrant and proof that they were liquor inspectors. There were clearly earlier misguided queries of Mr. Qiang and Ms Sheng, but that level of irritation does not equate in these circumstances to a failure to facilitate an inspection. We caution Ms Sheng and her husband that cooperation is required of them to either police or an Alcohol and Gaming Commission of Ontario inspector and that they must educate themselves in this regard.

Paragraph 50(c) of the O.Reg

62The facts are clear. On January 4th, the fire exit at the bottom of the basement stair was not working. Ms Sheng was aware of this, either as of that day or earlier, and had every intention of replacing it shortly. Further, the fire exit light in the storage room where the computer was located was also not working. Ms Sheng was unaware of this. Whether patrons are in that area or not, is not the issue. At the relevant time on January 4th, both lights were not illuminated; that is a clear breach of the requirements of the Fire Code as enunciated in the Regulation. The Board therefore FINDS a violation of paragraph 50(c) of the O.Reg.

Conclusion

63For the reasons given, the Board FINDS the Licensee violated section 29 of the LLA and subsection 45(1) and paragraph 50(c) the O.Reg. The Board DISMISSES the allegation of a violation of subsection 45(2) of the LLA.

64The 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 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.