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-
1533175 Ontario Ltd. O/A The Abbey Pub and Steakhouse Licensee
DECISION ON FINDINGS
Panel: Joan Lougheed, Board Member Eleanor Meslin, Board Member
Decision Date: September 23, 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 ) Phillip Morris, Representative 1533175 Ontario Ltd., Licensee ) Hui Zhang, On his own behalf and on behalf of the Corporate Licensee
Authorities
Rejeanne's Bar & Grill Ltd. (c.o.b. Rejeanne's Bar & Grill) (Re), [2008] O.A.G.C.D. No. 85 Rejeanne’s Bar and Grill Ltd. (c.o.b. Rejeanne’s Bar and Grill) v. Ontario (Alcohol and Gaming Commission, Registrar), [2009] O.J. No. 3176
Allegations
1A hearing into Notice of Proposal number 17153 dated March 30, 2009, to suspend liquor licence number 800210 issued to 1533175 Ontario Ltd. (the “Licensee”), operating as THE ABBEY PUB AND STEAKHOUSE (the “premises” or the “establishment”), 989 College Street, Toronto, Ontario, M6H 1A6, on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (the “LLA”) and section 29 of Ontario Regulation 719/90 (“O.Reg. 719/90”) made pursuant to the LLA, was held on August 12, 2009 in the City of Toronto.
Decision
2After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(2) of the LLA and DISMISSES the alleged violations under section 29 of O.Reg. 719/90 and subsection 45(1) of the LLA. Reasons follow.
Preliminary Matters
3The Board approved the Licensee’s request for Ms Ying Wu to act as interpreter for the Licensee and she was so sworn.
4Hui Zhang is the director, officer and shareholder of the Licensee. He appeared on his own behalf and on behalf of the Corporation and waived the right to legal representation.
5The Board ordered the exclusion of witnesses on consent of both parties.
Registrar’s Evidence
6Devin Sookdeo is an inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”). He attended at the premises on October 11, 2008 at 2:49 a.m. with Inspector Ryan Baird.
7Laura Peters was the person in charge at the establishment that evening. He had seen her working there on previous visits. He did not recall ever dealing with either the Licensee, Mr. Zhang or his wife, Ms Lu.
8The bar is located on College Street, east of Lansdowne Avenue on the south side. It has a patio at the front. There are unobscured windows on both sides of the front door. Inside there are tables and chairs, and a bar at the rear on the south side. The bar is 10 to 15 feet long with a sink behind the bar.
9When the inspectors arrived, they looked through the windows at the door and could see three females and one male at the bar and at an adjoining table and one female behind the bar, later identified as Laura Peters. The bar was dimly lit. Some of the patrons had glasses in front of them. The front door was locked.
10They knocked on the door and pressed their AGCO badges against the windows. They said in loud voices that they were AGCO inspectors. Inspector Sookdeo said he had a flashlight in one hand which he used to illuminate the badges and to see into the premises.
11He indicated that the person behind the bar saw them and then walked from behind the bar to a table where she took two glasses and emptied the contents behind the bar into a sink.
12The inspectors continued to knock very loudly to get the bartender’s attention when they saw her take another two glasses off the bar and pour them out. Continuing to knock, the female finally came and unlocked the door. They I.D’d themselves as inspectors and she said she was Laura Peters, the person in charge. He walked to the bar where he saw a pint glass, one-quarter full of amber liquid, with foam on top and a slight odour, that appeared to be beer. He did not take a sample of the liquid.
13Inspector Sookdeo advised Ms Peters regarding clearing the signs of service by 2:45 a.m. and that she had obstructed an investigation by not answering their knocking and attempting to clear before letting them inside. They also advised her to communicate this to the owner. They left the premises at 2:59 a.m.
14Inspector Sookdeo testified that he had been involved in a previous incident at the premises on January 6, 2008 which was also a failed to clear violation that resulted in a warning letter to Hui Zhang (Exhibit # 1) dated August 25, 2008.
15Ms Peters did not say she didn’t open the door because she was scared or that she had previously kicked out a group of people who were causing trouble. Nor did she say that the inspectors did not show their badges on entry. When Inspector Sookdeo pointed out the liquid in the glass on the bar, she did not say it wasn’t alcohol or that the glasses she poured out contained soft drinks. She made no comment.
16In response to the Licensee’s questions, Inspector Sookdeo said he saw only one front door. He did not recall speaking to any of the people in the bar, except for Ms Peters. The patrons were talking very loudly, making comments in English and he asked Ms Peters to tell them to be quiet. He described the bar as being about four feet high and that he could see Ms Peters’ body from her mid-chest.
17In redirect, Mr. Morris was told that Inspector Sookdeo was 5’10” or 180 centimetres and he could see Ms Peters take the glasses from the bar and appear to be dumping them behind and below the bar top.
18Inspector Sookdeo indicated that the distance from the door to the bar was about 15 feet (five metres) and he could see the patrons and glasses very clearly.
19Ryan Baird is an AGCO inspector. He attended the premises at 2:49 a.m. He had been driving by and thought he saw people still inside and stopped to investigate. He corroborated Inspector Sookdeo’s testimony regarding the attempts to gain entry, showing his badge at the front window and seeing three females and one male at the bar and a table and another female behind the bar.
20He had attended the bar one or two times previously, but did not recall dealing with the female bartender. He said that he did not see her at today’s hearing.
21Inspector Baird indicated that the female had seen them at the door, she looked directly at them, before they began to knock or put their badges against the window. She then walked from behind the bar, took two glasses off a table, went back behind the bar and poured out the contents. He could not identify the contents, but said he did not see any reason for pouring them out if they were not alcohol.
22They continued knocking and displaying their badges and were loudly saying “Liquor Inspectors, open the door.” Meanwhile the female behind the bar took two more glasses from on the bar and poured them out. The female then unlocked the door.
23Inspector Baird observed a one-quarter full glass of amber liquid with foam on the bar that he believed was beer, although he did not smell it.
24When he spoke with the female she identified herself as Laura Peters and told him she had consumed some shots of alcohol during her shift, but she was not intoxicated.
25Inspector Sookdeo advised her of the infractions.
26She did not say she had just kicked out a group of people who were making trouble or that she did not open the door because she was scared. There was no one outside when he arrived. None of the patrons approached him to say that people had been kicked out or that they were scared. They appeared to be friends of Ms Peters. Neither Ms Peters nor the patrons said that the inspectors did not show their badges or that the glasses did not contain alcohol.
27In response to the Licensee’s questions, Inspector Baird said they were knocking for two to three minutes. He said the front door was a standard entrance door. He did not know if there was more than one door, or if there were any posters on the windows or the door, but he could see the bar from the front door. He could hear voices inside, but not what they were saying. He did not ask Ms Peters what she had poured out, but heard his partner do so.
28Responding to the Board’s questions, Inspector Baird said he did not hear Inspector Sookdeo talking to Ms Peters because he was watching the patrons, but did advise them about who he and Inspector Sookdeo were and what they were doing at the bar.
Licensee’s Evidence
29Laura Peters was managing the bar. She has worked there for over three years and has been serving alcohol for almost 15 years.
30Before the inspectors arrived she had refused to serve a customer on the patio because he had been previously barred from the premises.
31She did not know when the inspectors arrived but when she heard a pounding on the door she walked to it and heard them screaming. She did not see their badges until she opened the door. She could not see the front door from the bar because there are two doors separated by a small hall, both with glass. She did not hear them when she was at the bar. It is about 15 feet from the bar to the first door.
32There were two females at the bar, and one male and one female at one table and another female at a second table. At the time, she was cleaning up and did not recall how many glasses there were or what was in them except for the one-quarter full glass on the bar. It contained coke for the female who was not drinking.
33When the inspectors entered, they followed her behind the bar, cornering her. Her friends were asking them to show their badges. The inspectors told her if she didn’t “shut her fucking friends up” they would charge her. They asked her why she did not open the door and she told them she thought it was a trouble making patron coming back. Her friends were waiting for her to finish cleaning so they could leave together.
34Responding to Mr. Morris’ questions regarding her statement (Exhibit # 2), she indicated that she was not sure when she wrote it, but tried to be truthful and complete. She thought it was improper for the inspectors to swear and she tried to e-mail the AGCO to complain but could not reach them. She agreed that there was nothing in the statement about the swearing. The friends who were in the bar were not at today’s hearing.
35She said that the Inspectors identified themselves when they entered, but did not show their badges until she and her friends asked. She did not see the badges on the window before they entered, because she could not have seen them from the bar. She knew it was wrong for her friends to interrupt the inspection, but they reacted when they did not see any badges.
36She admitted that she had consumed one shot of alcohol, bought for her birthday by her friend. She did not tell Inspector Baird she had consumed some shots, only that she had one.
37She had locked the door after she kicked out some people to stop them from re-entering. There were two females and two males. When she heard the pounding on the door she was scared and waited a minute or two before she went to the door and heard the inspectors screaming. She did not see a flashlight or any badges at the door.
38Ms Peters admitted that she did not tell the inspectors she was scared or that the drinks she was pouring out were not alcohol or that the one-quarter full glass contained coke. She was not told what she was being written-up for only for not opening the door.
39Responding to the Board’s questions, Ms Peters stated that she did not know what time she had poured out the drinks or when she first heard the knocking. She indicated that she had kicked out a group of four people at about 2:30 to 2:40 a.m. She was the only server for the bar and patio that night.
40To the Licensee’s questions, Ms Peters said the two front doors are slanted not straight-on to the bar.
41Responding to Mr. Morris, Ms Peters indicated that the distance between the front doors was quite small and you cannot see the entire bar from there and she could not see the front door from behind the service bar. The inspectors could have seen her, but she could not have seen them.
42Na Lu is the wife of Hui Zhang. She presented two photos which were entered as exhibits. Exhibit # 3, looking from the front towards the bar, where the camera was right at the outside door and Exhibit # 4 showing the door frame and part of the bar. A sketch of the interior is on the back of Exhibit # 4 showing that the door is at a slant towards the southeast and the bartender faces north. Ms Lu testified that there would not have been enough space at the door for both inspectors to show their badges. If the lights were on at night, you could see from the bar to the door, but if there were no lights, it would be very difficult to see anyone at the door.
43In response to Mr. Morris, Ls Lu indicated that the photos were taken at about 2:00 a.m. from the outside door. The white poster in Exhibit # 3 at the left is always there. From the sketch on the back, she indicated that you could probably see inside if you put your face up against the window. The sides of the vestibule are frosted glass. You can only see a part of the bar through the doors. You can not see the sink, but could see a person standing there. The person standing at the sink cannot see the outside door.
44After the introduction of Exhibits 3 and 4, the Board permitted Mr. Morris to recall Inspector Sookdeo.
45Devin Sookdeo, when shown Exhibits 3 and 4 said he could see the sink area in the photos. He did not recall that there were two doors. He could see through the windows on both sides of the door and had knocked on the window of the door.
46In response to the Licensee’s questions, Inspector Sookdeo said there were windows on both sides of the door and he could see Ms Peters behind the bar from the door.
Registrar’s Submissions
47The Registrar requested findings under section 29, failed to clear, regarding the one-quarter filled glass and asked the Board to infer that the glasses poured out contained alcohol. Also under subsection 45(1) for obstructing by destroying evidence, i.e. the four glasses poured out and by failing to open the locked door. Alternatively, under subsection 45(2) for failing to facilitate an inspection.
48Regarding section 29, when the inspectors arrived at 2:49 a.m., there was a one-quarter pint of amber liquid, with foam on it, in a glass on the bar, that had a slight aroma of beer. Although Inspector Baird did not smell it, both inspectors gave credible testimony about the foam on top.
49Ms Peters’ evidence that she was not told of the infractions is not credible. Her testimony that the glass contained coke for a friend was not backed up by the friend appearing as a witness or by either inspector.
50Mr. Morris cited the Board’s decision at paragraph 19 and the Divisional Court’s endorsement in Rejeanne’s Bar & Grill at paragraph 15 in asking the Board to draw a negative inference from Ms Peters not commenting to the inspectors about the glasses not containing alcohol or about the coke.
51Regarding subsection 45(1), Inspector Sookdeo said he could see the bar through the windows in the door. Ms Lu’s evidence that you could not clearly see through the windows because the door was on an angle is a red herring and should not be given credence. Inspector Baird said he could see people inside while driving by and he and Inspector Sookdeo could see the glasses on the bar, when looking through the windows. Both inspectors are very experienced and failing to clear is an important part of their jobs, so they would be sure to take all the steps to gain entry, by repeatedly knocking and would have their I.D.s against the window to make certain the Licensee would know who wanted to gain entry.
52The testimony that Ms Peters not only saw them at the door, but continued to pour out the glasses is clear evidence of obstruction and destruction of evidence.
53If the Board accepts Inspector Baird’s evidence that Ms Peters saw them before they knocked and poured out two glasses, it would not be obstruction. However, both inspectors agree that when they knocked, and held up their I.D. to the window, calling out that they were inspectors and to open the door, Ms P poured out another two glasses.
54When Ms Peters finally unlocked the door, the patrons were loudly interrupting them as they tried to talk to Ms Peters.
55Based on this evidence, the Registrar asks for a finding of obstruction.
56In Exhibit # 2, Ms Peters’ statement, she mentions kicking out a group of people and locking the door because she was scared. But there were no patrons outside when the inspectors arrived and she did not mention this to the inspectors. She also testified that the inspectors were swearing at her, but this was not in her statement, nor did she complain about it to the AGCO. This was made up to put the inspectors in a bad light.
57Ms Peters also admitted that the patrons were interfering and that she should have stopped them. If they were asking to see the inspectors’ badges, then why were they not here as her witnesses, since the inspectors denied being told by Ms Peters that she and her friends asked them to show their badges.
58In her testimony, Ms Peters first said she had heard a pounding on the door and went closer to see, but later she said she had waited two to three minutes before going to the door.
59There are huge discrepancies in her evidence. Why not go directly to the door and either open it or call police if you’re concerned. You don’t ignore the pounding and continue to clear, before going to the door. This only makes sense if you know inspectors are at the door and you are trying to clear up the evidence before opening it.
Licensee’s Submissions
60Regarding the one-quarter full glass, the inspectors did not check the contents at the time, but now say it was beer. Since all the glasses in the establishment are beer glasses, the coke would be served in a beer glass.
61It’s the policy of the restaurant to close by 3:00 a.m. and therefore it would be normal for Ms Peters to be cleaning up at 2:49 a.m.
62The reason Ms Peters did not open the door immediately was that she could not see out into the dark to know who was there. The inspector said he heard noise from inside and there is reasonable doubt that Ms Peters could not hear the inspectors over the noise. When she heard the pounding she went to see who was there. From the size of the door the inspectors could not have been standing side by side, they’re too big.
63Neither inspector mentioned the second door. When Inspector Sookdeo was asked he first said he put his badge to the door, but later he said he put it against the window. If he had pounded with force, he would have shattered the window.
64Regarding failure to facilitate, Ms Peters explained why the door was locked and if asked questions by the inspectors it is not believable that she would not reply. She is an experienced server and would not deliberately stop the inspectors from entering. If the inspectors had shown their badges on entering, she and her friends would not have been asking them to do so. Ms Peters was not deliberately obstructing, she was only doing her job.
65The inspectors testified that they saw three females, one male and Ms Peters, but she said there were four females and one male, not including herself. Since they missed one person, it raises the question of how much they could see through the door.
66When Inspector Sookdeo saw Exhibits 3 and 4 he pointed to the ice holder, identifying it as the sink. There was no sink in view in the pictures.
67As owners, they are actively taking measures to stop any future problems. They have changed the closing time to 2:30 a.m.
Registrar’s Reply
68There was no evidence regarding the closing time and the changes to a new time are only relevant regarding sanctions. Normal clearing time is 2:00 a.m. but the evidence shows that Ms Peters looked at the door and started to clear.
69Ms Peters’ evidence was that she was afraid that the people she had kicked out were back. If so, why not tell them to go away rather than just continue to clear.
70The inspectors denied that she asked them to show their badges.
Analysis and Reasons
71The Board has thoroughly reviewed the evidence and submissions.
72Regarding section 29, failed to clear, the only physical evidence, when the inspectors entered, was a glass one-quarter full of amber liquid, with foam on top. Although Inspector Sookdeo said there was a slight beer aroma, they did not confiscate the liquid for testing and Inspector Baird did not smell it. It has not been confirmed that the liquid in the glass was alcohol, or if it was a coke as stated by Ms Peters. The Board does not accept the inspectors’ evidence that the contents of the glass contained alcohol. However the Board accepts the inspectors’ evidence that they saw four glasses poured out by Ms Peters, from the windows.
73According to the Board decision in Rejeanne’s, since Ms Peters did not advise the inspectors that the liquid in the four glasses was alcohol, the Board may infer that it was alcohol. However, given the very narrow timeframe between when the inspectors arrived at 2:49 a.m. and the 2:45 a.m. time when signs of service should be cleared and the fact that the doors were locked and the lights dimmed, it is not unreasonable to conclude that Ms Peters may, indeed, have been pouring alcohol out of the four glasses, believing it was not past 2:45 a.m. In this instance, the Board believes some leeway should be given to the Licensee. The Board does not believe that Ms Peters was concealing or destroying evidence.
74Therefore, the Board DECLINES to make findings under section 29 of O.Reg 719/90 and subsection 45(1) of the LLA.
75Regarding subsection 45(2), Ms Peters’ explanations for not coming to the door as soon as she heard the knocking are not reasonable. Her reason was that she was scared that it might be either a patron she had previously banned and refused to serve or a group of patrons that she had thrown out. The Board notes however that, rather than going to the door to check who was knocking and asking them to leave if it was these patrons she allegedly had ordered leave, or calling the police if she was scared as alleged, she continued to empty glasses of liquid before allowing the inspectors to enter the premises.
76The Board notes that there were a number of statements made by Ms Peters during the hearing which were absent from her previous written statements or which were not corroborated by witnesses at the premises who were present during the inspection. While there is no legal requirement to have corroborating evidence, in the face of contradictory evidence the Licensee offered no explanation for the lack of corroborating evidence which appeared to be attainable.
77By not going to the door and allowing the inspectors immediate access, she was failing to facilitate an inspection.
78Therefore, the Board FINDS a violation of subsection 45(2) under the LLA.
Conclusion
79For the reasons given, the Board FINDS the Licensee violated subsection 45(2) of the LLA and DISMISSES the alleged violations under section 29 of O.Reg. 719/90 and subsection 45(1) of the LLA.
80The 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 23rd DAY OF September, 2009
JOAN LOUGHEED, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER