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-
M. Thi Inc. operating as M. Thi Licensee
DECISION
Panel: Allan Higdon, Board Member Eleanor Meslin, Board Member
Decision Date: February 8, 2011 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: Rena Khan, Representative M. Thi Inc., Licensee: Carlo Pierozzi, Representative
Allegations
- A hearing into Notice of Proposal number 18260 dated October 15, 2010 to suspend liquor licence number 202598 (the “licence”) issued to M. Thi Inc. (the “Licensee”) operating as M. THI, 35 King Street East, Unit 14, Mississauga, Ontario, L5A 4E2, (the “establishment” or the “premises”), on the basis of alleged violations of section 29 and subsection 25(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (the “LLA”), was held on January 7, 2011 in the City of Toronto.
Decision
- The Board FINDS the Licensee is in breach of section 29 and subsection 25(1) of Ontario Regulation 719/90 of the LLA.
Preliminary Issues
The panel noted that Mr. Pierozzi is not a licensed agent for appearances before the Alcohol and Gaming Commission of Ontario (“AGCO”). The Licensee waived his right to counsel.
The Licensee of record, Ha Bang Chau Nguyen, stated a transfer of the licence is pending.
Registrar’s Evidence
Amanda Higuera has been an inspector at the AGCO since 2004.
The witness stated she attended the subject premises as part of a joint forces inspection with municipal bylaw officers at 2:50 a.m. on the night of March 28, 2010 in response to a complaint about after hours service and possible service to minors.
The witness entered the premises and noted dim lights and music playing. Two females were present who appeared to be employees. One was standing behind the service bar, the other just outside. They were talking to each other and not cleaning or clearing up.
The Inspector counted 41 patrons present, seated at five large tables. All the patrons were consuming alcoholic beverages. A black clock on the wall read 2:53 a.m.
The signs of service were as follows:
- Table #1 had five patrons. There were seven cans of Budweiser beer on the table. Three were closed and four were open but full. All seven cans were cold to the touch.
- Table #2 had eight patrons. There were three closed cans of Heineken beer and six of the same brand open. In addition there was a 750 ml of Remy Martin cognac on the table, half full.
- Table #3 had a large group of patrons. On the table were four closed cans of Heineken beer and five open of the same. The cans were cold to the touch. In addition, there were two glasses containing an amber liquid, possibly rye and ginger. The liquid smelled of alcohol.
- Table #4 had two glasses and one full 750 ml bottle of Remy Martin cognac.
The witness stated that a server had cleared away table #5 after the group made its entrance. However, she had seen alcohol on that table as well when she first entered the premises.
The witness asked that the lights be turned up.
Inspector Higuera spoke to both servers. They said they were Smart Serve certified and both stated they knew signs of sale and service were required to be cleared by 2:45 a.m.
The witness stated the cans of beer on the tables were freezing cold. She did not see any cans in buckets of ice. No buckets were present.
The witness stated she spoke to one of the servers, Phuong Nguyen, told her of the infractions, and stated a report would be sent to her supervisor.
The witness testified all the patrons were drinking when she first entered the premises at 2:50 a.m. No staff was clearing tables. Clearing started only after the enforcement group entered and began making notes.
On cross-examination the witness stated the beer on the tables was cold, the same temperature as beer stored in the refrigerator.
There was no Reply examination.
In response to the panel, the witness stated the enforcement group consisted of seven people. Police force and municipal bylaw officials were in uniform. The witness was in plain clothes.
Licensee’s Evidence
Ha Bang Chau Nguyen is the Licensee of record for the M. Thi premises.
The witness stated he was not in the premises on the night of March 28, 2010. His girlfriend, Phuong Nguyen, was in charge.
The witness stated servers were clearing up when the Inspector arrived. Allegations that patrons were drinking rye and ginger are incorrect as rye has never been served in his premises. As for the statement that the beer on the tables was cold it is condensation and floor to ceiling glass windows that kept the beer cans cold.
The witness stated his staff did not receive a ticket or any notice of an infraction until he received a Notice of Proposal in October 2010. He had no reason to believe his licence was being considered for a suspension.
The witness submitted an Application for Transfer of Licence on May 3, 2010.
On May 17, 2010 he received permission to contract out.
On May 18, 2010 he sold his business.
The Notice of Proposal was issued on October 15, 2010, five months after he had sold his business. It would be unfair to punish a new owner for the actions of a previous owner.
The witness stated he did not receive the disclosure package and letter of incident sent to him on July 20, 2010. He did receive a copy of the package later, some time in August.
The witness admitted his premises did not clear signs of sale and service by 2:45 a.m. on the night of March 28, 2010.
The witness acknowledged he was told by his manager on March 29 of the visit of the enforcement team the previous night.
The witness also stated he had served a previous ten day suspension and was aware of the disciplinary process.
Registrar’s Submissions
The Licensee has agreed and admitted that he failed to clear signs of sale and service by 2:45 a.m. as required by the Liquor Licence Act.
Inspector Higuera testified she observed five tables with patrons present and open liquor being consumed at 2:53 a.m., according to the clock on the wall of the premises.
The Inspector also testified the beer on the table was cold to the touch. She checked the temperature of cans in the refrigerator and in her estimation the beer cans on the tables were of the same temperature. This indicates the beer cans were served very recently.
The Licensee has not called either of the servers present to testify. Neither has he presented any evidence to refute the allegation that liquor was served after hours.
The Registrar therefore asks that the Board find the Licensee in breach of section 29 of Ontario Regulation 719/90 under the LLA, (failure to clear) and also in breach of subsection 25 (1) of Ontario Regulation 719/90 under the LLA (sale and service outside prescribed hours).
In considering these allegations the issue of an application to transfer a licence is irrelevant.
Licensee’s Submissions
The Licensee stated he never received a ticket or letter detailing any infraction before he began the process of selling his business.
That business has been sold and, in fact, was under new ownership for five months before the Notice of Proposal was issued.
The new owner had nothing to do with the infraction and no purpose would be served by making him serve a suspension.
He asked that the Board please be kind.
Registrar’s Reply Submissions
- On Reply, Registrar's Counsel stated the letter of incident and disclosure was sent to the Licensee prior to the issuance of the Notice of Proposal (“NOP”) on October 15, 2010. The Licensee should have been aware that the process would lead to an NOP.
Analysis and Reasons
The evidence presented by the Inspector was detailed and consistent.
Inspector Higuera testified she was a member of a joint task force that entered the subject premises on the night of March 28, 2010 at 2:50 a.m. Upon entry she observed five tables attended by 41 patrons. There were cans of beer evident and cold to the touch. Liquor was open at each of the tables. Staff was present but made no effort to clear and clean up until the enforcement team entered and began making notes.
No evidence was presented to refute the testimony of the Inspector.
The Licensee agreed and admitted that signs of sale and service were visible after 2:45 a.m. in violation of the LLA.
The Inspector also testified the cans of beer were cold to the touch. She had touched cans of beer in the refrigerator and estimated the cans on the table were the same temperature. This indicated very recent service, most likely outside prescribed hours.
The Licensee presented no witness testimony from the servers present to refute this allegation.
The Licensee stated condensation and proximity to a glass wall were responsible for the cold temperature of beer on the tables. The Board does not find this credible as it is highly improbable that five tables of patrons would cluster near a window in March at a temperature low enough to keep beer cans cold.
Order
Based on the evidence presented above the Board FINDS the Licensee in violation of section 29 and subsection 25(1) of Ontario Regulation 719/90 under the Liquor Licence Act.
The Board is aware that the business has been sold by the Licensee who permitted the infractions and does not wish to unduly punish the new operator for past infractions. However, to prevent abuse of the transfer process, breaches must be acknowledged and recorded in the record of the previous Licensee. A letter of incident was sent to the Licensee prior to the NOP dated October 15, 2010, making the Licensee aware of the situation.
The Board therefore ORDERS that liquor licence number 202598 issued to M. Thi Inc. operating as M. THI, 35 King Street East, Unit 14, Mississauga, Ontario, L5A 4E2 be suspended for THREE (3) consecutive days
The Licensee shall submit proposed suspension dates in writing to the Manager of Hearings, Hearings Department, Alcohol and Gaming Commission of Ontario at the address on the front of this decision within seven (7) days of the date of this decision. The Board will set suspension dates without further notice to the Licensee if proposed dates are not provided within that time. The suspension must be served on days the establishment normally operates. The suspension may not start earlier than twenty (20) days from the date of this decision and must be completed within ninety (90) days of this decision.
DATED AT TORONTO THIS 8th DAY OF February, 2011
ALLAN HIGDON, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER