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-
2164874 Ontario Inc., operating as U Lounge
Licensee
DECISION ON FINDINGS
Panel: Kirsti Hunt, Chair, AGCO Allan Higdon, Board Member
Decision Date: January 12, 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
2164874 Ontario Inc., Licensee ) Binbin Ping, On behalf of the ) Licensee
Allegations
- A hearing into Notice of Proposal number 18077 dated May 18, 2010 to suspend liquor licence number 809558 (the “licence”) issued to 2164874 Ontario Inc. (the “Licensee”), operating as U LOUNGE, 7381 Kennedy Road, Unit # 105, Markham, Ontario, L3R 5B5 on the basis of alleged violations of section 29 and subsection 25(1) of Ontario Regulation 719/90 (“O. Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on September 7, 2010 in the City of Toronto.
Preliminary Matters
The Licensee was represented by Binbin Ping, the manager of the premises, who submitted to the Board letters from both owners of the establishment authorizing him to appear on their behalf. The letters of authorization were made Exhibit 1 and Exhibit 2.
Mr. Ping waived the right to be represented by legal counsel.
Decision
- The Board FINDS that there was a violation of section 29 of the O.Reg under the LLA on March 5, 2010.
Registrar’s Evidence
Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector Donald Anderson gave evidence that on March 5, 2010, prior to attending at U Lounge, he drove past the establishment around 3 a.m. and observed cars in the parking lot. He observed two males exit a car and go into the lounge.
The Inspector entered the premises at 3:07 a.m. Inside he observed two groups of people, a couple seated at a table to his right and a large group of people to his left at the North end of the premises.
The Inspector approached the couple and observed on their table a rock glass with a golden liquid that looked and smelled like beer and 2 bottles of Coors Light. One was empty and the other was ¾ full. He took the glass and bottles and put them on the bar counter about 10 to 20 feet away.
He observed the manager and a server clearing drinks from the North end of the premises. When they came back to the bar, the Inspector asked them to put the bottles and glasses they had on the bar but separate from those he had placed there.
The Inspector took a sample, AGCO seal number 446992, from the rock glass and a second sample, AGCO seal number 553350, from a full bottle of Budweiser beer that was from the large group of people. The LCBO Certificate of analysis (Exhibit 3) showed that the first sample tested as having 4 per cent alcohol by volume and the second sample tested as having 4.8 per cent alcohol by volume. He explained that the difference in alcohol content was because one was light beer and the other was regular beer.
The Inspector counted 12 bottles of Budweiser from the large group. Seven were cold to the touch. Seven were empty. Some of the empty bottles were cold to the touch. There was moisture on the outside of some of the bottles. Of the five bottles that were not empty, one was full, one was ¾ full and 3 were ¼ full.
The Inspector asked the manager, Mr. Ping when they were served and first he responded that it was 2:40 a.m. and quickly changed his response to 1:45 a.m. The Inspector did not ask him why he had changed his answer.
The Inspector spoke to the server R.F. who said that the beer was served at 1:40 a.m. He spoke to R.F. at the bar. Mr. Ping was in front of him and R.F. to his right. The Inspector indicated that he asked Mr. Ping about service later and Mr. Ping admitted that the liquor was served after 2 a.m. He spoke to Mr. Ping about the requirement to stop sale at 2 a.m. and clear signs by 2:45 a.m.
The Inspector explained that he was working along Kennedy Road and went to U Lounge because the Licensee had previously had an infraction for failure to clear.
In the establishment there were eight to 10 people including the manager and server. The large group had six to eight people.
Mr. Ping did not have difficulty understanding him or answering his questions. He did not have difficulty understanding Mr. Ping.
The Inspector explained that he touched the bottles at about 3:12 a.m. To determine if alcohol is served after 2 a.m., he touches the bottles to see if they are cold or have moisture on them. In this case, if the bottles were served before 2 a.m., he could not see how they stayed cold for 1 ½ hours. Based on his experience the bottles were served 15 to 20 minutes before he touched them.
On cross-examination, Inspector Anderson said that Mr. Ping was trying to clear bottles when he came in. He agreed that he did not ask Mr. Ping why he had changed his answer about the time of service. He admitted that he was using his ipad during the inspection.
He could not recall if R.F. went back to cleaning after he asked her the one question. When asked if Mr. Ping went to do cleaning while he spoke to R.F., the Inspector indicated that Mr. Ping would have been the last person he spoke to. He recalled that he and Mr. Ping continued their conversation after he spoke to R. F.
Licensee’s Evidence
The evidence of Binbin Ping is that he has been the manager at U Lounge since February 2010. He became manager just before this incident. He had not served alcohol before but had worked in the kitchen as a cook.
He explained that around 2:55 a.m., the waitress R.F. came to him and told him that people were giving her a hard time when she was trying to clear bottles. They refused to give up their alcohol and swore at her. As he was going to the large table, people there lit up a cigarette and he told them that they could not smoke there. Two of them said that they would put out the cigarettes if Mr. Ping gave them five minutes to finish the beers they were holding. Mr. Ping gave them 5 minutes and they put out the cigarettes. They drank their beer and gave Mr. Ping money for the beers and he took it to the till. The waitress continued clearing.
The people in the group paid for the beers but did not give them up. It was hard for him to grab alcohol from the table because the group was large and the waitress was off clearing up. He was concerned about the uncooperative group because it was after 3 a.m. and just he and the waitress were working. They told him that two of their friends were coming in and that they would be back in a second and then they would drink all at once. He told them that he had to clear and then the two people came in and then the Inspector came in.
The Inspector told him to grab all the bottles and put them on the bar. The Inspector asked his name, his position in the bar and about his Smart Serve number. When asked when he did last call, he was nervous and answered that it was 2:45 a.m. but then said 1:40 a.m. He changed his answer because 2:45 a.m. was the time when he should have cleared signs. The Inspector asked how to explain why the bottles were cold if they were served at 1:40 a.m. He could not explain why they were cold because he had not had a chance to talk to the waitress. He was not sure if the waitress had served them after 1:40 a.m. He told the Inspector that he had to talk to the waitress who was cleaning tables. The Inspector said that he would talk to her. The Inspector asked her when she served the beer while he went on doing cleaning. After that, the Inspector told him that he would have to report this to someone and he left.
Mr. Ping agreed that there were bottles of beer on the table after 3 a.m. but they did not serve them after last call. He asked R.F. why the beers were cold and she said that she served them at 1:40 a.m. The patrons asked for an ice bucket at the table. When she went to clear, they would only let her take away the bucket.
He wrote a letter of explanation months ago and faxed it to the AGCO. There was a hand written note on it from R.F. because she could not come to the hearing because it was the first day of school.
The Board accepted the letter dated May 6, 2010 as Exhibit 4 and indicated that it would give appropriate weight to the handwritten part which had not been disclosed prior to the morning of the hearing.
Mr. Ping continued his evidence and explained that at the time he was new to the industry and did not handle the situation well. He has learned a lesson from this. There have been no problems since. He asked for a reduced suspension. He was offered a seven day suspension but that would mean closing for a week which they can’t afford. People would go to other places and perhaps not come back after. Also people would be out of jobs and customers would have to drive farther to get alcohol.
On cross-examination, Mr. Ping explained that he did not ask R.F. about the time of service because the Inspector said that he would talk to her.
He did not see the bucket because when R.F. went to clear bottles, the patrons took the beer from the bucket but did not want to give them up. R.F. then took away the bucket. You could put eight to 10 beers in that bucket.
He agreed that he gave the group five minutes to finish their beers. He knows that he has to keep control and follow the LLA but he and the waitress were the only people working and he did not want serious problems with those customers.
He made a mistake in saying that the beer was served at 2:40 a.m. and changed it to 1:40 a.m. He did not have a chance to explain to the Inspector because he was writing.
Inspector Anderson was recalled to give evidence and he stated that on entering he saw the large group and beer bottles on the table. He did not see a bucket on the table. He only saw the manager and server carrying bottles to the bar.
On cross-examination, Inspector Anderson stated that he was not sure where Mr. Ping and the waitress were when he came in. When he went to take the couple’s bottles and glass to the bar counter, he saw Mr. Ping and the waitress bring bottles to the bar counter.
Submissions
Registrar’s representative asked for a finding under section 29 and subsection 25(1) of the O.Reg based on the clear, concise and credible evidence of the Inspector. After 3:07 a.m., the Inspector observed a couple with two bottles of Coors Light and a glass that were cold to the touch and the bottles had moisture on them. The Inspector took samples from the glass and one bottle. The results of the analysis show that the glass contained 4 per cent alcohol and the beer bottle had 4.8 per cent alcohol.
He also saw bottles in front of the large group of people. After they were cleared, the Inspector touched the bottles. Seven were cold to the touch, seven had moisture on them. Mr. Ping told him that the beer was served after 2 a.m. The first time he said 2:40 a.m. and then he changed it to 1:45 a.m. Given that the bottles were cold to the touch they were served not long before 3 a.m. Therefore, an inference can be made that they were sold after 2 a.m. in violation of subsection 25(1) of the O.Reg.
The bottles and glasses had not been cleared at 3:07 a.m. so a finding can be made of a violation of section 29 of the O.Reg for failure to clear signs of service and consumption.
Mr. Ping submitted that if there were seven cold bottles from the large group and two cold bottles from the other table, that makes nine cold bottles which does not add up to the evidence of seven cold bottles.
Based on his short experience as a manager, he did not handle the situation well. However, they did not serve alcohol after hours. He admitted that they did fail to clear signs. This is the first time that he has made this kind of mistake. That night just he and the waitress were working and the large group was unfriendly and he did not make arguments with them. They were trying to clear but did not want to cause more problems. They always try to sort out problems by themselves rather than calling the police.
Reasons and Analysis
It is admitted that the signs of sale and service were not cleared by 2:45 a.m. Therefore, the Board finds that there is a violation of section 29 of the O.Reg under the LLA.
It is not disputed that the rock glass and beer bottles had alcohol in them.
Regarding the allegation that alcohol was sold and served after 2 a.m., the Board accepts the evidence of Mr. Ping which is credible and remained consistent under cross-examination. It is also consistent on all essential points with the explanation given in his letter of May 6, 2010 to the Commission that is part of the Letter of Incident process.
The Board accepts that given that Mr. Ping was new in his position as manager, it is possible that he was nervous because glasses and bottles had not been cleared when the Inspector came in and therefore he mixed up the time when sale should cease and clearing should happen. Mr. Ping’s evidence that he did not get a chance to explain the mix-up because the Inspector was writing is consistent with the evidence of the Inspector who said that he was writing on his ipad during the inspection.
The Inspector concluded that the alcohol had to have been sold after 2 a.m. because the bottles were cold and had moisture around 3:12 a.m. On this point, the Board accepts the evidence of Mr. Ping that the bottles were cold and had moisture on them because they had been in a bucket of ice on the table of the large group. The ice bucket would also explain why even some empty bottles were cold as was the evidence of the inspector. There is no evidence that that bottles and glass taken from the couple were cold or had moisture on them.
The Inspector testified that he did not see a bucket on the table. The time frame of events in Mr. Ping’s evidence is consistent with the Inspector not seeing a bucket on the table. The waitress had removed it before going to Mr. Ping because the patrons were giving her a hard time when she was trying to clear and would not give up their beer bottles. At that point, Mr. Ping became involved. He gave them five minutes to finish, got payment from them and then assisted in clearing bottles which was the point at which the Inspector saw him and the waitress.
At the time, Mr. Ping told the Inspector that he did not know why the bottles were cold and opined that the waitress may have sold the alcohol after 2 a.m. and indicated that he would have to ask her. The Inspector said he would talk to her so Mr. Ping didn’t get an explanation from the waitress about the bucket of ice until after the Inspector had left. However, the Board notes that the Inspector only asked her about the time of service but not about why the bottles were cold. The Board does not take Mr. Ping’s statement that perhaps the waitress served the alcohol after 2 a.m. as an admission that the alcohol had actually been served after 2 a.m.
The time when the bottles were taken out of the bucket of ice corresponds to the time that the Inspector estimated that the bottles would had been served. The bottles could have been taken out of a cooler and served just before 2:45 a.m. or taken from a bucket of ice at that time. However, having bottles in a bucket of ice explains why even some empty bottles were cold.
Based on the analysis above, the Board dismisses the allegation under subsection 25(1) of the O.Reg.
Conclusion
For the above reasons, the Board DISMISSES the allegation of a violation of subsection 25(1) but does FIND that the Licensee contravened section 29 of the O.Reg.
Having made the one finding above, 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 12th DAY OF January , 2011
KIRSTI HUNT, VICE-CHAIR, AGCO ALLAN HIGDON, BOARD MEMBER