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-
Sijan Plaza Restaurant Ltd. operating as Sijan Plaza Restaurant (Licensee)
DECISION ON FINDINGS
Panel: Beryl Ford, Board Member Joan Lougheed, Board Member
Decision Date: August 25, 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 ) Aviva Harari, Representative Sijan Plaza Restaurant Ltd., Licensee ) Robert Rothman, Representative
Allegations
- A hearing into Notice of Proposal (the “NOP”) number 18524, dated February 10, 2011 to suspend liquor licence number 21050 (the “licence”) issued to Sijan Plaza Restaurant Ltd. (the “Licensee”) operating as SIJAN PLAZA RESTAURANT, 25 John Street, Unit #4, Mississauga, Ontario, L5A 1Y5, on the basis of alleged violations of section 29 of the Liquor Licence Act (the “LLA”) and subsection 45(1) Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on May 12, 2011 in the City of Toronto.
Decision
- The Board FINDS that the Licensee contravened subsection 45(1) of the O.Reg and DISMISSES the allegations under section 29 of the LLA.
Preliminary Matters/ Issues
- As a preliminary matter and on consent of all parties, the Board ORDERED the exclusion of witnesses.
Registrar’s Witnesses
Trevor Joseph, an Inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”) arrived at Sijan Plaza Restaurant at 11:15 p.m. accompanied by Detective Sergeant (“DS”) Dave Van Allen, a Peel Regional Police Officer.
Inspector Joseph stated that the licensed premises is located about mid-point in a strip plaza and gave a detailed description of the interior.
On entering the premises the Inspector observed a South Asian male standing at the bar, yelling at the Licensee’s son, Hai Wei Zhou, who is also known as Alex.
The male patron was yelling and swearing at Alex, repeating several times that he was not paying for his dinner. Inspector Trevor Joseph stated that the patron refused to provide him with identification even though the Inspector’s identification was clearly visible and the patron knew he was an Inspector with the AGCO.
Inspector Joseph stated he observed the patron to be in an intoxicated state with slurred speech, speaking extremely loudly, staggering, bloodshot eyes and looking tired. The patron was confrontational to Alex Zhou and to DS Van Allen and himself.
The patron spoke in a threatening manner, swearing and saying “don’t F….. with me. You do not know who you are messing with.” ( Exhibit #1)
In response to questions, the witness stated that the establishment was not busy and he did not do a count. He estimated that there were seven or eight patrons in the premises.
Inspector Joseph went with the patron to the south end of the establishment, while DS VanAllan dealt with another matter. The inspector stated that he wanted to get him away from the bar area. When questioned, the patron told Inspector Joseph that he had been in the restaurant for two hours and had a couple of bottles of Budweiser beer.
The male patron was in the establishment with three other people. In his party, another person was observed to be in an intoxicated stated, not responding to specific questions. Patron #2 was a South Asian male, had slurred speech, staggered and was argumentative and confrontational. He refused to leave the premises when instructed to do so by the police officer and staff at the establishment.
Both patrons indicated that they were going to file a complaint about this incident. DS VanAllen gave them his business card and told Patron #1 to call him. The Inspector was not aware of a complaint being filed.
The patrons left the premises and continued to be disorderly outside and refusing to clear the area. The patrons were yelling toward the establishment and knocking on the door.
If the police department had not been dealing with another serious incident, Inspector Joseph stated that they would have called the police for back-up support and assistance. They did not have a police vehicle and were unable to transport anyone to the police station.
Inspector Joseph stated that he was known to Alex Zhou from previous inspections and noted that the Licensee on record was not on the premises. A staff person, Mr. How Choy Chow, was also on the premises. Before leaving at 11:45 p.m., Alex Zhou was advised of the infractions.
On cross-examination, Inspector Joseph stated that he was working with police and they had attended the establishment to do a spot inspection.
In answer to questions, the witness stated that he did not recall any other store being open in the strip mall and did not note if the sign was lit up for the restaurant.
He confirmed that Patron #1 was not just talking loudly, but was yelling and moving his arms and hands in an animated way. The patron did speak normally when talking with the Inspector before going outside.
Referring to Exhibit #1, the Inspector confirmed being the author of the report.
The Inspector stated that he did not observe beer being consumed and did not know how much each person at the table had consumed. He did not check the bill or cash register receipts. He had no information on how much was purchased or served.
DS David Van Allen, an officer with Peel Regional Police, on September 23, 2010, was working in joint enforcement with AGCO at the time of the incident.
At 11:15 p.m. he entered the premises with Inspector Joseph. There were only a few patrons inside. He observed a slightly built East Indian male at the bar. The male was very animated, and loud. The patron was repeatedly saying to staff that he was not going to pay for his dinner and was loud and abusive.
DS Van Allen stated he was concerned that there might be an altercation with staff. The male patron was flitting his arms about and he was fearful the patron might strike the bartender.
The officer approached the bar, identifying himself, and separated the patron from the staff, asking the patron to quiet down. He directed the patron to sit down with Inspector Joseph.
At the bar, DS Van Allen asked for the license and Smart Serve certificate. The bartender was cooperative.
Male Patron #2 had been sitting at the same table as Patron #1. Patron #2 came to the bar, speaking loudly and the police officer noted the smell of alcohol on his breath. When asked to return to his table, the patron did comply.
DS Van Allen stated that Patron #1 was making threats and talking loudly, saying that he was going to file a a complaint. The witness gave the patron his business card. He was not aware of any complaint being filed.
Several attempts were made to quiet the two patrons and to get them to leave. DS Van Allen took the arm of Patron #2 and escorted him outside.
DS Van Allen indicated that he did not see staff take any action, but felt that the incident was just happening as they entered.
One person at the table appeared sober and this patron was asked to assist with removing his friends from the premises and getting them home safely.
Before the patrons left, Patron #1 paid a bill for $60.50 which included eight beer, listed as being purchased in the following manner: 3 beer + 3 beer +1 beer + 1 beer. There were food purchases on the bill.
The patrons remained at the front window, knocking on the glass. The officer went outside and asked the sober patron to remove the others, giving them five minutes to clear the area. All the patrons did leave.
DS Van Allen stated he did not ask any of the patrons for identification. Identification was received from the bartender and Mr. How Choy Chow, who may have been a staff person.
After receiving Inspector Joseph’s report he filed additional provincial charges against the premises.
On cross-examination, DS Van Allen stated that he did not recall being present on the provincial court matter. He noted that there was not a finding in the matter.
He did not see alcohol being served to the patrons nor did he take note of items on the table with the group of patrons, when attending the premises on September 23, 2010. He did not know how much each of the patrons had consumed.
Licensee’s Witnesses
Wing yan (Sandy) Zhou is a part-time manager and waitress at Sijan Plaza Restaurant. Ms Zhou is Smart Serve certified and usually works two days a week. In addition, to this she works in real estate.
The witness stated that security is hired seven days a week: Sunday to Thursday, 6:00 p.m. to 11:00 p.m. and Friday and Saturday, 3:00 p.m. to 11:00 p.m.
Ms Zhou stated that she was not in the restaurant on September 23rd, but had watched the CD (Exhibit #2) from the surveillance camera and could identify the patrons, knowing their faces, but did not know their names.
Ms Zhou stated that when the camera was installed, it resulted in a few minutes of delay on the time stamp and that the time stamp does not change with daylight savings time. The camera operates 24 hours a day.
Ms. Zhou stated that she saw one male waving his arms on the CD and said that she knows this patron and he always speaks loudly.
She stated that the establishment is a family run business and she works for her parents.
Her father, Mr. Chow, works there seven days a week as the cook. Her mother is there, although she is listed as a Director of the corporation.
Ms Zhou stated that her mother opens the business in the morning and leaves in the evening. Her brother is the bartender. They have been in business for about 12 years.
Ms Ming, a waitress on staff, was there on September 23rd. Normally she leaves around 11:00 p.m. or closing time.
Ms Zhou stated that her brother cooks if Ming is working on the floor.
A security guard is employed through Collective Security and his role is to monitor people smoking outside the premises and to keep people moving along.
The witness stated that the security cameras were installed four or five years ago. The cameras monitor smokers outside, and to be sure people behave inside the establishment. They are able to watch for thieves. There is a screen in the kitchen and it is possible to see if help is needed on the floor. Ms Zhou stated that the time on the video is out about one hour.
Ms Zhou stated that Inspector Joseph comes, quite frequently, into the restaurant to inspect and she considers him a nice person. In response to questions she stated that they have a lot of regular customers and not a lot of new patrons on any given day.
She received a notice of infraction just on this occasion. Both Inspector Joseph and DS Van Allen came in the next day, September 24th, to tell the Licensee that there would be a charge.
She confirmed that the recordings are kept for two weeks and viewed the video to determine what happened that night.
Haiwei (Alex) Zhou was working on September 23rd and is Smart Serve certified. He and Ms M, the waitress, had started work at 12:00 Noon and left around 1:00 a.m. He was not serving alcohol that evening. Security left at 11:00 p.m.
At this time there was just one table of three patrons in the establishment. The fourth member of the party had left.
At 11:15 p.m., one patron came up to ask for more beer and was told they were closed. While they were talking, the police and inspector came in.
Mr. Zhou stated that this patron had been in the premises before and normally talks loud and swears. He stated that this does not bother him. He stated that, before Ms M. left, the patrons at the table had been served around eight beers.
When asked if he recalled the patron swearing about the bill, he stated that he only remembered him talking loudly, as he normally does. He said the patron was going to pay the bill.
The patron talked with the police and the inspector. The witness said he did not say anything else.
He said the patron was not looking for a fight. The group had come in an hour or two earlier. He did not see them come in, since he was in the kitchen. The patron was told they would have to leave, as they were closing. The group left after the police came in.
On cross-examination, the witness stated that Ms. M. told the patrons 15 minutes earlier that they would have to leave. It took about 15 or 20 minutes for them to leave after the police and inspector came in.
Mr. Zhou stated that Ms M. would have served these patrons. He did not see what was served. These patrons had been in the establishment before but he did not know if they knew the closing time, even though it is on the menu. When Ms M. left the establishment, he came out front.
He did not hear the conversation between Patron #1 and the police and inspector. He did not see anything unusual. He stated that he can tell when a patron has had enough to drink.
Mr. Zhou stated that it was not possible for one person to have had all eight beers. He had seen each person holding a beer. He is not sure how many beer each person drank and could not be sure if one person drank all the beer.
Reasons/ Analysis and Decision
The Board has carefully reviewed and considered the evidence, exhibits and written submissions of both parties in this matter.
The Board dismisses the references made by Mr. Rothman in submissions relating to newspaper headlines on another incident which has no relevancy to the matter before the Board. The Board also notes that the allegations contained within the NOP relate to the Licensee, Sijan Plaza Restaurant, and do not relate to any individual employed by the Licensee at the time of the incident.
The Board dismisses any suggestion in submissions, of rough treatment of a patron. No evidence relating to this suggestion was ever presented. The Board accepts the evidence of DS Van Allen, who stated that he had taken Patron #2 by the arm to escort him outside. There was no evidence of rough treatment and no questions were raised relating to DS Van Allen’s testimony during cross-examination.
The Board does not accept the suggestion from Ms. Harari that Mr. Alex Zhou did not take steps to get the patron(s) under control. In evidence, DS Van Allen indicated that when he arrived in the premises, it appeared to him that staff were not taking any action, but then DS Van Allen also stated that he felt that the incident was just happening as they arrived. DS Van Allen gave his evidence in a clear and direct manner and the Board accepts the reasonable and fair perspective presented by DS Van Allen, that the incident was just occurring as they arrived and staff had not had the opportunity to respond.
Mr. Zhou gave evidence that when the patron was talking with the police and the inspector, he did not say anything else. It is the belief of the Board that he chose to not take an active role and did not voluntarily inform the police officer or inspector, at the time, that the patron was a regular and known to speak loudly and that he (Mr. Zhou) did not feel threatened. The Board also notes that Mr Zhou did not, in evidence, give any indication that he had tried to contact the employee, Ms M. or this regular patron, to attend the proceedings to provide further supporting evidence.
The decision remaining before the Board is to determine if there is a finding to be made under section 29 of the LLA or subsection 45)(1) of the O.Reg.
Re: [Section 29](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)
For a finding under section 29 of the LLA, the evidence must demonstrate that liquor was permitted to be sold to a person who was or appeared to be intoxicated.
It is the opinion of the Board that there is a lack of evidence to make a finding under section 29 of the LLA.
In evidence, the Board heard that a cash receipt was produced confirming that both food and alcohol had been purchased for a table of three or four patrons. There was no evidence disputing that there had been a food purchase or disputing the number of people who had been at the table, although only three were present at the time of the inspection.
The bill indicated the purchase of eight beers. The bill indicates they were purchased in lots of “3, plus 3, plus 1 and 1.” These purchases were made over the two hours that the patrons were in attendance at the establishment. No one provided any evidence on who was consuming the alcohol and it is not necessary or possible for the Board to make this determination.
There was no evidence indicating that the patrons were questioned about any drinking that may have occurred before they arrived at the establishment. The Inspector and police officer did not make note of the number of bottles or glasses on the table and did not take the names of the patrons for possible follow up at a later time.
The evidence was further limited with the absence of the waitress, Ms M., who was not present to give direct evidence relating to the service that was provided to the patrons and Mr Alex Zhou indicated in evidence that he was in the kitchen until closing time at 11:00 p.m.
It is the view of this Board that there was not adequate evidence submitted to make a finding and DISMISSES the allegation of a violation of section 29 of the LLA
Re: 45(1) of the O. Reg
Subsection 45(1) of the O. Reg states that the licence holder shall not permit drunkenness, nor permit quarrelsome, violent or disorderly conduct in areas under the exclusive control of the licence holder.
On a balance of probabilities the evidence for drunkenness must, first, demonstrate that there was drunkenness on the premises and second, that the Licensee knew or ought to have known that patrons were drunk, thereby permitting drunkenness.
The Board finds the police and inspector’s evidence to be consistent and accepts their assessment of the patrons and their condition as presented on September 23, 2010.
Both the inspector and the police officers testified that they observed signs of intoxication, including the odour of alcohol on the breath, staggering, slurred speech, bloodshot eyes, and a patron yelling and swearing.
In evidence, the Board heard testimony that one patron had to be escorted outside. Once outside, the patrons continued to yell and pound on the window and door of the establishment. They eventually left with a friend, whom the police officer believed to be sober.
The Licensee did not present any detailed evidence to the contrary, other than to say that the one patron always spoke in a loud voice. He had not shared this information, on September 23, 2010, with either the inspector or the police officer,
Although the witnesses gave their evidence in a reasonable and direct manner, the indicia of intoxication and disorderly behaviour were clearly described by the police officers and recorded in Exhibit #1. The Board accepts their evidence that the patrons were intoxicated, quarrelsome, swearing and acting in a disorderly manner.
The Board notes that the Licensee, whether in another part of the establishment, or being elsewhere, always holds the responsibility to ensure that reasonable efforts are made to deter disorderly conduct and to ensure that drunkenness is not permitted on the premises.
There was no evidence of the condition of the patrons on arrival, and their state of drunkenness may not have been immediately apparent. As well, it is not known, specifically, who drank the beers that were ordered. However, the fact remains that the onus is on the licensee to control the licensed areas and monitor patrons.
The evidence is clear that the establishment was not busy that night, and patrons were showing signs of intoxication. When the inspector and police officer arrived, one patron was at the bar and was quarrelsome, swearing and yelling toward Mr. Zhou, and yelling at the police officer and inspector.
In considering all the evidence, it is the view of the Board that the Licensee did not take the necessary steps to ensure compliance and finds, in the two-part test, that the licensee permitted drunkenness and knew or ought to have known patrons were drunk leading to quarrelsome, disorderly behaviour.
Accordingly the Board FINDS that the Licensee contravened subsection 45(1) of the O.Reg.
Conclusion
The Board FINDS that the Licensee contravened subsection 45(1) of the O.Reg. The Board DISMISSES the allegations under section 29 of the LLA.
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 25th DAY OF August , 2011
BERYL FORD, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER