Registrar, Alcohol and Gaming Commission of Ontario v. 6664849 Canada Ltd., 2010 CanLII 25938

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-

6664849 Canada Ltd. operating as 2000 Plus One Donuts & Deli

Licensee

DECISION ON FINDINGS

Panel: Patricia McQuaid, Vice-Chair, AGCO

Joan Lougheed, Board Member

Decision Date: April 29, 2010

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

6664849 Canada Ltd., Licensee ) Jianping Zhou, On his own behalf

) and on behalf of the Corporate

) Licensee

Allegations

1. A hearing into Notice of Proposal number 17525 dated September 9, 2009 to suspend liquor licence number 802546 (the “licence”), issued to 6664849 Canada Ltd. (the “Licensee”), operating as 2000 PLUS ONE DONUTS & DELI, 1150 Ellesmere Road, Toronto, Ontario, M1P 2X4, (the “establishment”), on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (the “LLA”) and section 25 and subsections 34(1) and 44(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on February 22, 2010 in the City of Toronto.

Decision

2. After considering all the evidence and submissions, the Board FINDS the Licensee violated section 25 and subsections 34(1) of the O.Reg, and DISMISSES the allegations of violations of subsections 45(1) and 45(2) of the LLA and subsection 44(1) of the O.Reg. Reasons follow.

Preliminary Matters

3. The Licensee waived his right to legal representation stating he was prepared to proceed with the hearing.

4. The Licensee advised that he would not be calling any witnesses to give evidence. He did wish to submit an affidavit from a staff person present on the date in issue. The Board ruled that without the person available for cross-examination, it would not accept the affidavit into evidence.

5. The Licensee confirmed that he was not on the premises the date of the allegations.

Registrar’s Evidence

6. Stephen Hetherington has been an AGCO inspector for more than three years. He arrived alone at the establishment on May 30, 2009 at 7:26 a.m. Seeing a number of people inside, he went to investigate.

7. He observed one female and three male patrons at the counter. Staff person, Mr. C., was behind the counter.

8. Mr. Hetherington went behind the counter, identifying himself and telling Mr. C. that he was checking to make sure Mr. C. was not serving before hours again. He stated that Mr. C. appeared nervous, trying to lure him away from the patrons.

9. Three patrons exited by the side door carrying Styrofoam cups without lids. The male remained at the counter. Mr. Hetherington looked in the male’s cup and saw an amber substance with white foam on top. The smell was consistent with that of beer.

10. Mr. Hetherington asked Mr. C. what was in the cup and he said he did not know. The witness took the cup and placed it on the counter behind the bar before advising Mr. C. that he was going outside and telling him not to touch the cup.

11. He exited the premises by the side door and observed two of the patrons who had exited, seated at a table outside. There is no liquor licence for the outside area.

12. After identifying himself, Mr. Hetherington asked to see what was in the cups. The male patron immediately dropped the cup to the ground. He observed a white, foamy substance on the ground. He asked the person to pick up the cup and then, by sight and smell, identified the contents as beer.

13. Mr. Hetherington removed the half full cup of beer from the female. She asked for it back, telling him she had just got there from the shelter and paid three dollars for it.

14. Mr. Hetherington stated he re-entered the premises and went behind the bar. The cup he placed there was gone. Mr. C. stated he did not know what happened to the cup.

15. Exhibit #1 was entered, providing an analysis of the contents of the cup taken from the female who was outside. The result indicated 6% alcohol by volume. The witness stated that Mr. C. was with him when he took the sample. While he was writing up the label for the sample, Mr. C. went into the kitchen.

16. At this point, the female came back inside, upset and begging for her beer. She seemed determined to get her beer back, indicating to him that she would come behind the bar to get it. Mr. Hetherington responded that it was illegal for the bar to serve alcohol before 11:00 a.m. and for her to enter behind the bar. The female was very upset. Due to her emotional state he attended the kitchen door and told Mr. C. to control his patron. Mr. C. told him that he was busy cooking. When Mr. Hetherington turned around, the female was drinking what was left of the beer.

17. Mr C. was advised of the infractions. Mr. C. replied to Mr. Hetherington that he did not serve the patrons beer and that he or the previous staff person only served patrons water in the cups. When Mr. Hetherington asked him why the female would have said she just bought the beer, he had no reply. Mr. Hetherington left the premises at 7:43 a.m.

18. On cross-examination, Mr. Hetherington explained that he felt Mr. C. tried to lure him away by wanting him to go to the kitchen to see his Smart Serve Certificate. When asked to identify the cup he saw, Mr. Hetherington indicated a red and white large size cup.

19. In response to questions from the Board, the witness stated that he was outside at the picnic tables approximately one to two minutes. He asked the female patron if he could see inside the cup. The female patron seemed about to cry, asking for her beer back.

20. He stated that there was no reason for Mr. C. to fear him since he had been there before and Mr. C. did not take the Smart Serve certificate off the wall to show him, although that had been the usual process. This time Mr. C. wanted him to come to the kitchen. Mr. Hetherington stated that he did not see Mr. C. serve the patrons and had not taken down contact information from the patrons.

Licensee’s Evidence

21. The Licensee did not call any witnesses.

Registrar’s Submissions

22. Ms Taylor stated that all allegations have been proven. Evidence was heard that liquor was served before 11:00 a.m.

23. She stated that there has been a breach of both sale and service prior to 11:00 a.m. The evidence of the liquor sold was established by the female patron telling the Inspector that she purchased it for three dollars.

24. Regarding subsection 34(1), two patrons were permitted to walk outside to an unlicensed area holding cups of beer. Mr. C. was the only one who had access to the cup of beer that the Inspector had put behind the bar. He either destroyed it or concealed it. Mr. C. refused to provide any information about what happened to the cup of beer and attempted to lure the Inspector away, not making his job easier.

25. Further, Mr. C. did not come out of the kitchen to deal with the female patron when she went behind the bar.

Licensee’s Submissions

26. Mr. Jianping Zhou, the Licensee, stated that a Styrofoam cup would never be used for beer because it would foam up too much. A paper cup would have been used.

27. Although the Inspector said Mr. C. was nervous, he was busy preparing breakfast and was alone on the premises at the time.

28. Two of the patrons were known to be homeless and have never paid for anything, even though they may spend two or three hours in the establishment.

29. Mr. Zhou referred to Exhibit #1 stating the strongest beer on the premises is 5.6% alcohol and the prices are $2.80 or $3.50 for beer. He stated this means the female was lying and the report is not 100% correct, proving the beer was not from his establishment. The beer was not seen being served.

30. He stated that Mr. C.’s job at that time of day is to serve breakfast, not serve liquor. When the inspector was there, Mr. C. left the floor to him; it was not his job to help the inspector gather evidence.

31. The patrons live just across the street in a shelter and do not have any other address. They may have brought the beer. They are regulars, but two of them have never come back. He stated that he runs a 24-hour business next to a gas station.

Registrar’s Reply

32. Ms Taylor stated that the Licensee does have a right to check the contents of cups. The Inspector, when on site, does not take over and control what is happening on the premises. The Licensee has an obligation to cooperate. He is not absolved of his obligations under the LLA because an inspector is present.

Analysis/ Reasons/ Findings

33. The Board has carefully reviewed and considered the evidence, exhibits and oral submissions of both parties in this matter.

34. The testimony of the Inspector was clear and concise and he took the added step of having the contents of one of the cups analyzed, with the result presented in Exhibit #1.

[Subsections 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html) and [45(2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html) of the [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)

35. For a finding under subsection 45(1), the Board must make a determination that the licensee obstructed a person carrying out the inspection or withheld, destroyed, concealed or refused to provide any relevant information or thing required for the purposes of the inspection. This allegation, together with that of subsection 45(2), are very serious allegations against a licensee. The Board heard that Mr. Hetherington entered the establishment because there were people outside. In context, this was a 24 hour establishment attached to a gas station. The fact that there were people inside at 7:26 a.m. would not therefore be immediate cause for concern. From his evidence, the Inspector indicated that Mr. C. was nervous when he came behind the bar but there was no evidence that he was denied entrance and indicated that, in fact, Mr. C. invited him to come to the kitchen to see his Smart Serve certificate.

36. The statement by Mr. Hetherington that Mr. C. was luring him is a highly subjective statement, suggesting an intentional action by Mr. C., but with no objective evidence before the Board, The Board does not have sufficient evidence to a make a determination if this was, in fact, an obstructive action.

37. The Board also notes that there was not adequate evidence submitted relating to the missing cup. It is not known if the patron who remained inside had taken the cup or if it had been disposed of by Mr. C. The cup was not found in the garbage nor was anyone observed disposing or destroying it. Therefore the Board DISMISSES the allegation of a violation of subsection 45(1) of the LLA.

38. Mr. Hetherington stated that he had placed a cup behind the bar when he went outside to talk with patrons who had exited. When he returned, the cup ‘had disappeared’.

39. The Board notes that there was no evidence about whether the patron at the bar had taken the cup or even if the patron was present when he came back inside after one or two minutes. As well, there was no evidence that the Inspector had checked to see if Mr. C., the sole staff present, had disposed of it in the garbage. The cup left inside, with Mr. Hetherington’s admonition not to touch it, is no where to be seen. Mr. C. said he did not know where it was. As noted above, this may be so, but on the evidence, it does not appear that Mr. C. was making this inspection easy for Mr. Hetherington, offering little information to him. This troubles the Board, especially give Mr. Zhou’s comment that it was not his or his employees’ job to help the inspector. However, it is indeed a licensee’s obligation to cooperate with the inspector during the course of an inspection, whether or not that might result in a potential infraction noted by the inspector. The Board therefore does FIND on the facts before it, a violation of subsection 45(2) of the LLA.

Subsection 44(1) of the O.Reg

40. Under subsection 44(1) of the O.Reg, the licence holder shall ensure that no person enters behind the bar at the premises to which the licence applies during the hours that liquor is sold or served, with certain exceptions.

41. Mr. Hetherington gave evidence that a female patron had followed him inside and behind the bar after he took her cup of beer. He stated that she was upset and begging, determined to get the cup back. The Board notes that the circumstances may have precipitated the female being behind the bar as she followed the Inspector. At that moment, the only employee present in the establishment, Mr. C., is in the kitchen. There was nothing to suggest that he was aware that this person intended to enter behind the bar. The facts do not support a finding that Mr. C. failed to ensure a patron did not enter behind the bar.

42. Further, the Board notes that this is a 24-hour business and the business was open outside the time for the sale or service of liquor. As the regulation applies during the permissible hours of sale or service of liquor for the establishment, the Board DISMISSES the allegations that the Licensee breached subsection 44(1) of the O.Reg.

Section 25 and subsection 34(1) of the O.Reg

43. Under section 25 of the O.Reg, the Board must determine if the Licensee sold and served outside the prescribed hours. Under subsection 34(1) of the O.Reg, the Board must determine if the Licensee permitted removal of liquor from the premises.

44. The evidence of the Inspector was clear that at least three cups contained a liquid that looked and smelled like beer. This was further confirmed when the liquid from one cup was tested (Exhibit #1).

45. The Inspector also stated that the female patron said she wanted the cup back because she had paid for it. Although the amount stated was a variance from the normal price, it is quite reasonable to expect that the female, being upset, may have rounded out the price to three dollars. The Board is prepared to conclude that the patron did in fact purchase the beer.

46. Although the results reported 6% alcohol and the Licensee stated that he served only beer with a maximum alcohol content of 5.6%, the Board accepts the objective evidence that the sample was properly taken and tested as alcohol.

47. Although the Licensee stated that he does not serve beer in Styrofoam cups, the Board notes that if service occurred outside permissible hours of service for this establishment, the container may not necessarily be the one used during normal hours of liquor service.

48. If the beer had been brought onto the premises as suggested by Mr. Zhou in submissions, the Board notes that it is still the responsibility of the Licensee to monitor and prevent such an occurrence.

49. In consideration of the evidence, the Board, on a balance of probabilities, has determined that it is reasonable to conclude that the cups contained beer that was sold and served from the premises in violation of section 25 of the O.Reg.

50. With regard to subsection 34(1) of the O.Reg, the evidence was clear and undisputed that patrons were seen leaving the premises going to an unlicensed area with cups. The Inspector followed and further identified the contents of those cups and took a test sample, confirming the presence of beer.

51. The Board, therefore, based on the foregoing, FINDS violations of section 25 and subsection 34(1) of the O.Reg.

Conclusion

52. For the reasons given, the Board FINDS the Licensee violated subsection 45(2) of the LLA and section 25 and subsections 34(1) of the O.Reg, and DISMISSES the allegations of violations of subsection 45(1) of the LLA and subsection 44(1) of the O.Reg.

53. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file a written response. The Registrar’s representative may serve and file a reply within three (3) days of the 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 29th DAY OF April , 2010

PATRICIA MCQUAID, VICE-CHAIR JOAN LOUGHEED, BOARD MEMBER