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-
Mavis Gem (Julie) Yorke O/A Four S’s Bar and Grill Licensee
DECISION ON FINDINGS
Panel: Joan Lougheed, Board Member Bruce S. Miller, Board Member
Decision Date: November 24, 2009
Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario 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 ) Joyce Taylor, Representative Mavis Gem (Julie) Yorke, Licensee ) Nishanti de Zoysa, Representative
Allegations
1A hearing into Notice of Proposal number 17309 dated June 17, 2009 to suspend liquor licence number 810575 issued to Mavis Gem (Julie) Yorke (the “Licensee”), operating as FOUR S’S BAR AND GRILL, 685 Kennedy Road, Unit #1, Toronto, Ontario, M1K 2B8, (the “establishment” or the “premises”), on the basis of alleged violations of subsection 25(1) and section 29 of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the Liquor Licence Act (“LLA”) and two alleged violations of subsection 45(1) of the LLA, was held on September 28, 2009 in the City of Toronto.
Decision
2After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 25(1) and section 29 of the O.Reg and the Board DISMISSES the two alleged violations of subsection 45 (1) of the LLA. Reasons for the decision follow.
Preliminary Matters
3Both counsel stated that they needed further disclosure. This was rectified after a short recess.
4The Board ordered witnesses be excluded with the consent of both parties.
Registrar’s Evidence
5Steven Hetherington has been an Alcohol and Gaming Commission of Ontario (“AGCO”) inspector for just under three years.
6He went to the Four S’s Bar and Grill on October 24, 2008 at 3:34 AM with Inspector Strongman. He went to the front door. The lights were on in the establishment and he could see the owner, Ms Mavis Yorke, behind the bar. A male was seated at the bar which is about 15 to 20 feet from the door. The glass on the front door was tinted but he could still see inside.
7Ms Taylor submitted a floor plan of the establishment which was entered as Exhibit #1. It should be noted the floor plan showed a patio which was removed in July 2009.
8There was a mug in front of the male at the bar.
9Inspector Hetherington knocked on the door and stated “Mavis, it’s Steve. Open the door”. He also held his AGCO badge by the door and shone his flashlight on it.
10The male walked towards the door. He got halfway to the door and returned to his seat. Ms Yorke stayed where she was.
11The male placed the mug on the other side of the bar. He assumed the male emptied the contents of the glass.
12He kept knocking on the door while this was going on. He never heard or saw any signs of conversation between Ms Yorke and the male.
13Ms Yorke came to the door, peered through the tint and went and got her keys and opened the door. Her demeanor appeared to be normal and she didn’t appear to be angry or scared.
14He entered the premises and went behind the bar opposite where the male had been sitting. There was a small server sink behind the bar. There was a glass containing white foam in the sink. The glass smelled of beer and was cold to the touch.
15Ms Yorke denied serving the beer.
16He asked Ms Yorke if the security cameras were working and he went to the rear of the establishment with her to inspect them. Ms Yorke stated the cameras were not operational.
17He returned to the bar area with Ms Yorke. Inspector Strongman was talking to the male. Inspector Strongman told him that the male admitted it had been beer in the glass and that Ms Yorke had served it to him from the draught tap 20 to 30 minutes prior to the arrival of the Inspectors.
18He advised Ms Yorke regarding the hours of sales and service. Ms Yorke stated she was aware of them. She denied serving the beer and stated the male was an idiot and retarded. He advised her that a report on the incident would be submitted and he left the premises at 3:42 AM.
19He returned to the premises on July 4, 2009 at 12:17 PM for another inspection. He had no notes of the incident other than an inspection report that reflected the time he was there.
20Ms Yorke appeared angry over recent charges that were laid against her establishment. He asked her what she was going to do about the charges concerning the October 24, 2008 incident. Ms Yorke told him that she would testify about what happened. She would testify she served the male a drink and stated, “Why else would I be in with a good looking man. I was trying to get lucky”. Ms Yorke stated she was going to use this story as a defence at the hearing.
21On cross-examination, he stated the bar was about 15 feet in length. There are coolers and a bar fridge behind the bar. Ms Yorke was behind the bar but was not directly in front of the male.
22The lights were on inside the bar but there were no lights outside. He believes Ms Yorke and the male could have seen his silhouette while he was standing outside but they couldn’t make a positive recognition.
23He didn’t see Ms Yorke and the male talking together when he was outside.
24He didn’t know if the male overheard him when he told Ms Yorke about the rules of service.
25There were no other signs of service in the bar.
26The July 4, 2009 inspection was a routine one. They talked about the other charges that had been laid against the premises that were unrelated to this incident. The other charges were dismissed.
27He didn’t think she was joking when she made the comment about “getting lucky”. He didn’t make notes on the incident as he didn’t think the comment would be admissible.
28Ms de Zoysa submitted a copy of the July 4, 2009 AGCO inspection report which was entered as Exhibit # 2.
29On reply, he stated he used his flashlight to illuminate his AGCO badge while he was standing outside.
30In response to questions from the panel, he stated the mug was glass and that it was dark. It was hard to see but there was something inside the mug but he couldn’t say what.
31The main entrance is on the west side of the building. The rear of the premises is at the east end. The bar is on the north wall. The bar is L shaped and is 13 to 14 feet long.
32The male was still there when he left at 3:42 AM.
33The front of the building is glass, as is the door. It is not heavily tinted but it is difficult to see in if there is no light behind it.
34Adam Strongman has been an AGCO inspector for four years. He attended the Four S’s Bar and Grill on October 24, 2008 at 3:34 AM with Inspector Hetherington.
35The door was locked. He saw a male seated at the bar with a “pint of beer”. He clarified that it was a “glass of something” and he later determined it was beer.
36The inside was dimly lit but he could still see.
37The male was about 25 feet away from the front door. Ms Yorke was behind the bar and was two to three feet from the male.
38Inspector Hetherington knocked on the door and advised they wanted to gain entry. He had his AGCO badge around his neck.
39The male poured the contents of his glass out behind the bar and placed the glass behind the bar out of view.
40Ms Yorke came to the door and unlocked it and let them in. It took about a minute to a minute and a half before the door was unlocked.
41Inspector Hetherington dealt with Ms Yorke.
42He went behind the bar and there was a pint glass beside the sink directly in front of where the male had been seated. The glass was empty, had an odour of beer and was cold to the touch.
43The male identified himself as Douglas Shaver. Mr. Shaver stated he poured the beer into the sink. It was Kool draught beer and it was served to him by Ms Yorke about 20 to 30 minutes before the arrival of the inspectors.
44He asked Mr. Shaver if he worked there and he replied that he helped Ms Yorke out with odd jobs such as plumbing.
45On cross-examination, he stated he thinks the people inside the bar could have seen him when he was standing outside the bar. He believes there were lights outside. The inside of the bar was dimly lit.
46Mr. Shaver looked over when they knocked on the glass. He poured the beer into the sink after they advised who they were and that they wanted to gain entry.
47He didn’t recall any conversation between Mr. Shaver and Ms Yorke after they identified themselves as inspectors.
48The fact that Ms Yorke had to get the keys to the door could account for the delay in having it unlocked.
49Mr. Shaver didn’t say that he was served by Ms Yorke but pointed to her when asked who served him the beer.
50The beer glass in front of Mr. Shaver was half to three quarters full. He saw no other signs of service.
51He didn’t recall where the draught taps were located.
52It was not a condition of the licence to have security tapes.
53On reply, he stated he didn’t recall that Ms Yorke had to retrieve her keys but if she did, that it could account for the delay.
Licensee’s Evidence
54Mavis Yorke is the owner of the Four S’s Bar and Grill.
55She closed at midnight on the night in question. Mr. Shaver is a friend. He helps her clean up and was there for company. They were cleaning up the premises.
56She was in the kitchen when she heard knocking and she yelled out “thief, thief, thief”. She came out of the kitchen and Mr. Shaver told her he thought the AGCO inspectors were at the door. She walked towards the door and motioned to the inspectors that she needed to get her keys.
57She went in the kitchen and couldn’t find her keys right away. She found them in her bag and went and opened the door.
58She didn’t serve Mr. Shaver the beer.
59After the inspectors left Mr. Shaver told her that they asked him about a beer he had at the bar. He told her he had poured himself a beer while she was in the back room.
60She was just joking with the inspector when she made the comments during the July 2009 follow-up inspection.
61On cross-examination, she stated that Mr. Shaver wasn’t working for her and was just helping her clean up. He wasn’t paid for doing so.
62She has never had an inspection at such a late hour. When questioned, she didn’t recall an inspection in June 2008 where the Inspectors arrived at 2:10 AM.
63She knows Inspector Hetherington.
64Her security cameras were not operating that night. She doesn’t keep them operating when it’s not busy.
65She was in the kitchen because she didn’t want Mr. Shaver to see her counting her money. She was in the kitchen by herself for an hour before the inspectors came in.
66The premises has a capacity of 22.
67It had been a quiet night. Mr. Shaver and she talked for a while after the bar closed and before they started cleaning. Mr. Shaver cleaned the bathrooms and the bar floor. She cleaned the kitchen.
68She didn’t hear Inspector Hetherington call out to let them in. She was in the kitchen and she was too far away to hear him.
69She thought it was a thief when she first heard the knocking on the door.
70The inspectors didn’t go right behind the bar. Inspector Hetherington went right to the kitchen and pushed her and swore at her.
71She never complained about the actions of Inspector Hetherington.
72Ms Taylor submitted a statement of the events that was written by Ms Yorke which was entered as Exhibit # 3.
73Ms Yorke admitted the statement made no reference to swearing or pushing on the part of Inspector Hetherington. She stated her son wrote the statement as she is illiterate and she didn’t want to tell her son about the incident.
74She knows she is responsible for what happens in her premises.
75On reply, she stated she doesn’t count money in front of her friends.
76Douglas Shaver stated he remembers the events of the night in question “pretty well”.
77He sometimes does odd jobs at the Four S’s Bar and Grill and helps to clean up.
78The bar closed between 12:00 and 12:30 AM on the night in question. He swept and mopped the floor of the bar.
79He was sitting at the bar while Ms Yorke was in the kitchen. He reached across the bar and took a glass and poured some draught beer into it.
80He then saw some flashlights shining in the window. He walked closer and told Ms Yorke about the flashlights. Ms Yorke went to find her keys and opened the door.
81He poured the beer out before the people at the door came in. At this point he didn’t know who was at the door. He found out it was the inspectors when they came in. He has seen Inspector Hetherington before.
82He talked to the other Inspector. He told him that he got the beer half an hour prior to their arrival and that he had poured it himself.
83The inspectors were polite. They didn’t “hassle him” but he was nervous. He left after they did and Ms Yorke closed the bar.
84On cross-examination, he stated he is a patron of the bar but sometimes does odd jobs and helps to clean up.
85He was by himself in the bar for about 20 minutes.
86Ms Yorke had already cleaned the bar area prior to 3:30 AM.
87You can’t reach over the bar to get a glass. He used a dirty glass that was in the sink for the beer that he poured himself.
88He wasn’t quite sure if it was Inspector Hetherington when he went to the front door.
89Ms Taylor submitted the statement of Mr. Shaver which was dated September 28, 2009. The statement was entered as Exhibit # 4.
90He admitted the statement said that when he walked towards the door by the pool table that he recognized Inspector Hetherington.
91Ms Yorke came out of the kitchen after he had emptied the glass of beer.
92He was not really sure where Ms Yorke got her keys from.
93The Inspectors were pleasant. Inspector Hetherington went in the back with Ms Yorke. There was no pushing.
94He told the other inspector he was served the beer 20 to 30 minutes before they arrived. He can’t remember if he pointed to Ms Yorke as the person who had served him the beer.
95He knew he wasn’t supposed to be drinking at that time of night.
96He is a friend of Ms Yorke and feels bad because she is in trouble because of him.
97He can’t remember if Ms Yorke was with him when the inspectors knocked on the door. He admitted she could have been behind the bar when they started to knock.
98He can’t remember what the inspectors yelled out when they started knocking.
99On reply, he stated Ms Yorke was in the rear when the knocking started.
Registrar’s Submissions
100The Notice of Proposal contains four allegations.
101The allegation under subsection 25(1) of the O.Reg deals with sale and service outside of prescribed hours. It was almost uncontested that the draught was served outside prescribed hours.
102The question is who served it and the more credible explanation is that it was served by the Licensee. Mr. Shaver agreed that the inspector asked him who served the beer but he couldn’t remember if he pointed at Ms Yorke.
103Mr. Shaver’s purpose is to help keep Ms Yorke out of trouble. He had a very convenient memory lapse.
104The Licensee has an obligation under the regulations to ensure that liquor is served under the supervision of an employee authorized by the licence holder for that purpose.
105The next allegation deals with signs of service and it is clear that there were signs of service at 3:34 AM.
106As for the other allegations, Ms Yorke is not a credible witness. She claims her purse was in the kitchen but says in her statement that she walked to the bar to get her keys from her purse. This contradicts her assertion that she was counting money in the rear.
107Ms Yorke claims that Inspector Hetherington pushed her and swore at her. This was not included in her statement. Inspector Hetherington was never cross-examined on this point. Mr. Shaver contradicts the allegation and stated the inspectors were polite and there was no shoving.
108Both inspectors saw Ms Yorke behind the bar. Mr. Shaver admitted he wasn’t sure where she was.
109Ms Yorke is aware she is responsible for what happens in the bar. It is not credible that she left Mr. Shaver alone for an hour in the bar. She was aware he was drinking beer and did nothing to stop it.
110The delay in opening the door was an attempt to obstruct the investigation.
111Ms Yorke did nothing to stop Mr. Shaver from dumping the beer which was evidence.
112The evidence of the inspectors should be preferred and the Board should make a finding on all four allegations.
Licensee’s Submissions
113The Registrar cannot prove alcohol was served to Mr. Shaver and can’t prove that Ms Yorke condoned Mr. Shaver having a beer.
114Any delay in opening the door was due to trying to see who was knocking on the door and then finding the keys to unlock the door. The delay was not unreasonable.
115Mr. Shaver dumped the beer and not Ms Yorke. Ms Yorke was unaware of it.
116The Board should dismiss all of the allegations.
Registrar’s Reply
117A minute and a half is a long delay for such a small establishment.
118The Licensee’s story is not credible.
119The question of who served the beer is irrelevant.
120The Board should make a finding on all the allegations based on a balance of probabilities.
Analysis/Reasons/Findings
121The Board has carefully considered all the evidence and the submissions presented.
122The Board will first deal with the allegation concerning hours of service and the allegation of failing to remove signs of service as both violations are related.
123Subsection 25(1) of Ontario Regulation 719/90 states:
Except for December 31, liquor may be sold and served only between 11 a.m. on any day and 2 a.m. on the following day.
124Section 29 of Ontario Regulation 719/90 states:
The licence holder shall ensure that evidence of liquor that has been served and consumed on the premises is removed within forty-five minutes after the end of the period during which liquor may be sold and served under the licence.
125The evidence of the inspectors was clear and consistent. They were standing outside the Four S’s Bar and Grill on October 24, 2008 at 3:34 AM. They saw Mr. Shaver sitting at the bar with a beer mug in front of him. Inspector Strongman stated the mug was half to three quarters full.
126They both described Ms Yorke as being on the other side of the bar about two to three feet from Mr. Shaver. Inspector Hetherington, consistent with seeing Ms Yorke, yells out, “Mavis, it’s Steve, open the door”.
127Once inside they find an empty mug on the other side of the bar where Mr. Shaver was seated. The mug is described as having white foam, an odour of beer and being cold.
128Inspector Strongman testifies that Mr. Shaver told him the mug contained draught beer and it was served to him by Ms Yorke about 20 to 30 minutes before the arrival of the Inspectors.
129Mr. Shaver admitted he is a friend of Ms Yorke and feels bad because she is in trouble because of him. His testimony was not consistent. On cross-examination he stated he couldn’t remember if Ms Yorke was with him when the inspectors knocked on the door. He admitted she could have been behind the bar when they started to knock. He also stated on cross-examination that he couldn’t remember if he pointed to Ms Yorke as the person who had served him the beer.
130There are inconsistencies as well between the evidence of Ms Yorke and Mr. Shaver. Ms Yorke stated she was alone in the back for an hour while Mr. Shaver said it was only 20 minutes. Ms Yorke stated that Inspector Hetherington swore at her and pushed her. This allegation was not contained in her statement. The Board does not accept her explanation for this significant omission from her statement. The allegation was uncorroborated. In fact the allegation was completely refuted by Mr. Shaver who stated there was no pushing and that the Inspectors were polite. The establishment is very small and is only licensed for 22 people so it seems inconceivable that Mr. Shaver would not have been aware of the pushing and swearing incident if it had occurred. Also, Inspector Hetherington was a witness at the hearing, and there was an opportunity to cross-examine him on that point and it was not done.
131There is no dispute about the time the event occurred. There is no dispute that there were signs of service and that Mr. Shaver had a glass of beer in front of him at the bar when the inspectors arrived. The only question concerns the role of Ms Yorke.
132The Board is satisfied based on the clear and consistent testimony of the inspectors, which the Board prefers to that of the Licensee’s witnesses, that Ms Yorke was behind the bar and had served Mr. Shaver the beer after the prescribed hours of service and that signs of service had not been removed.
133There are two allegations remaining which concern two alleged violations of subsection 45(1) of the LLA which states:
No person shall obstruct a person carrying out an inspection under this Act or withhold, destroy, conceal or refuse to provide any relevant information or thing required for the purpose of the inspection.
134The first allegation concerns whether the Licensee withheld, destroyed, concealed or refused to provide any relevant information or thing required for the purpose of the inspection.
135There is no doubt that evidence in the form of the beer that Mr. Shaver was drinking was poured out. This is undisputed. However Mr. Shaver was not an employee of the Licensee; he was there as a “friend”. There is no evidence that there was any discussion between Mr. Shaver and Ms Yorke after the inspectors started knocking on the door. Mr. Shaver poured out the beer as he knew he should not be drinking at 3:34 AM. The Licensee was not involved in the disposal of the beer. Mr. Shaver did this on his own initiative. There is insufficient evidence to support the allegation.
136The second allegation concerns whether the Licensee obstructed the investigation by not immediately opening the door. The inspectors acknowledged that lighting was an issue and that they may not have been immediately recognized. It is also clear that the door was locked. Ms Yorke testified that she had to go and get her keys. The delay was described as being from a minute to a minute and a half in duration. Inspector Strongman acknowledged the reason for the delay could be a result of the need to get keys.
137Finally, there was no evidence of a motive for any delay on the part of the Licensee. The beer had already been poured down the sink. The door was in fact locked and keys were needed to open it. The explanation appears reasonable. There is insufficient evidence to support the allegation.
Conclusion
138Therefore, for the reasons given, the Board FINDS the Licensee violated subsection 25(1) and section 29 of the O.Reg. The Board DISMISSES the two alleged violations of subsection 45(1) of the LLA.
139The 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.
DATED AT TORONTO THIS 24th DAY OF November, 2009
JOAN LOUGHEED, BOARD MEMBER BRUCE MILLER, BOARD MEMBER