ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF THE: Liquor Licence Act, R.S.O. 1990, and C. L.19, as amended
B E T W E N:
Registrar, Alcohol and Gaming Commission of Ontario Registrar
-and-
Arena Entertainment Inc. operating as Circa Licensee
DECISION ON FINDINGS
Panel: David C. Gavsie, Chair, AGCO Beryl Ford, Board Member
Decision Date: November 26, 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 ) Phillip Morris, Representative Arena Entertainment Inc., Licensee ) Peter Dotsikas, Representative
Allegations
- A hearing into a Notice of Proposal number 16834 dated November 18, 2008 to suspend liquor licence number 807407 (the “Licence”) issued to Arena Entertainment Inc. operating as CIRCA, 126 John Street, Toronto, Ontario, M5V 2E3 (the “establishment” or the “premises”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (the “LLA”) was held on April 24, May 7, July 21 and July 28, 2009 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board finds the Licensee violated subsection 45(1) of the O.Reg.
Preliminary Matters
The Board ORDERED, on consent of the parties, the exclusion of all witnesses.
The following were entered into evidence:
Exhibit l - Picture of cut lip of Sergei Frankel Exhibit 2 - Another picture – different angle of injury Exhibit 3 - DVD transcript – Sergei Frenkel Exhibit 4 - Occurence Report – P.C. Kijewski Exhibit 5 - Statement- Wesley Leah Exhibit 6 - Incident report – Circa document Exhibit 7 - Statement – Enoch Wamalwa Exhibit 8 - Incident Report - Edward Estupinan Exhibit 9 - Statement – Edward Estupinan Exhibit 10 - Incident Report – Circa Exhibit 11 - DVD Police video – Sergei Frenkel interview
Registrar’s Evidence
Mr. Sergei Frenkel is a 23 year old student at Ryerson University in Toronto.
Mr. Frenkel testified that he visited Circa for the first time on the evening of Saturday, March 8, 2008 and the early morning of Sunday, March 9, 2008. He arrived approximately just prior to midnight.
It was a friend’s birthday and a group of friends, approximately 10 or 15 people, had arranged to meet at the Delta Chelsea Hotel and then proceed to Circa to celebrate the birthday.
He and a friend hired a cab to travel to the hotel. They had taken a bottle of vodka with them for their own consumption. They spent about an hour at the hotel and consumed one or two alcoholic beverages of vodka and cranberry juice. It was their intention to return to the hotel later in the evening.
Mr. Frenkel testified that he and his friend left the hotel in a cab to proceed to Circa as planned.
On arrival they went to the VIP entrance at the back of the premises. There was a short line up, but they were denied admission at that entrance.
They decided to stand in line at the front main entrance and were admitted after about 20 minutes in line.
The establishment is large with many different rooms. It was not particularly busy that evening, therefore, some of the rooms were closed.
Mr. Frenkel and his friend entered the main room on the ground level. Their friends had started to gather in this location. Mr. Frenkel purchased a Budweiser beer from the bar and he and some friends went up the stairs to the second floor.
While standing near the dance floor he noticed that a scuffle had broken out on the floor between two individuals. There appeared to be some pushing going on between a male and a female. The female was a friend of Mr. Frenkel. He and his friends stepped into the melee in an attempt to break it up.
Almost immediately, a ‘bunch’ of bouncers appeared and started to break up the crowd involved. The bouncers separated the group into two. He did not see where the one group of patrons were taken, but he and his two friends were grabbed by the bouncers and led off the dance floor. They were taken to another area on the same floor; it was quite isolated, near a stairwell.
Mr. Frenkel had no issue with how the bouncers handled the situation by removing the group from the dance floor. He attempted to tell the person holding him that he was not involved in starting the dispute. He thought he was being treated unfairly in being removed and argued with the bouncer about being ejected. Mr. Frenkel stated he was not involved in the pushing, nor was he punched in the mouth or hurt in any manner before the bouncers arrived.
Mr. Frenkel was pleading his case to a bouncer so they would not be thrown out. This bouncer was a black male, approximately 5’9” tall. The bouncer turned to speak to another black male who Mr. Frenkel thought might be a manager. He was told by this person to “get rid of them”. Up to this point, the bouncers had not done anything improper.
His friend, Wesley Leah, was removed from the dance floor with Mr. Frenkel and taken to the holding area at the top of the stairs. Both Shane Vassallo and Wesley Leah were taken down the stairs ahead of Mr. Frenkel.
Mr. Frenkel described the stairs as tiered and went down in stages before reaching the ground floor.
Before descending the stairs, the bouncer holding Mr. Frenkel handed him over to another bouncer described as a white male, approximately 6’4” to 6’5” tall, muscular, about 250 lbs and had facial hair. He had a shaved head or very short cropped hair.
The second bouncer appeared irritated that Mr. Frenkel was arguing about being removed. Mr. Frenkel was moving slowly down the stairs. Somewhere between the first and second flight of stairs the bouncer grabbed him by the neck with both hands and spun him around causing him to have difficulty breathing. A struggle occurred when he tried to pull the bouncer’s hands from his throat.
Two other bouncers came rushing up to them, one being an Asian male; he could not describe the second person. They grabbed Mr. Frenkel by the arms. He had his back to the wall; it was while he was being held by the other two bouncers that the person who had grabbed his throat punched him three or four times in the face. Mr. Frenkel could not defend himself because his arms were being held.
Mr. Frenkel attempted to defend himself by twisting around and bending over. He saw blood coming from his mouth which flowed onto his clothing and the floor. He buckled onto the floor and covered his face before the punches stopped.
When he was able to get back onto his feet, the two bouncers who had held his arms continued to push him down the stairs to the exit. The Asian bouncer forcefully pushed him out the door into the street.
The Asian bouncer stood outside the premises observing him when a person in a paramedic uniform spoke to Mr. Frenkel. He did not know if this person was employed by Circa or was a passerby. He looked at his lip and provided some napkins to stop the bleeding. He suggested to Mr. Frenkel that he would require medical treatment and stitches to close the wound.
The bouncer who had assaulted him did not go down the stairs with them and Mr. Frenkel did not see him again.
Mr. Frenkel testified that it was cold and snowing at the time. He asked a security person at the door of the establishment if he could stand in the stairwell while he called for an ambulance. He was refused.
He told the security person he was going to call the police. He heard a male near the door talking on a walkie-talkie saying “get him out of there, he’s calling the cops”.
Mr. Frenkel called 9-1-1. He called the emergency number twice before the police and ambulance arrived 20 minutes later at the front door of the establishment. It was roughly 1:00 a.m. Mr. Frenkel walked from the back door around and outside of the building to the front door. He was not allowed to walk inside the premises.
Mr. Frenkel testified that initially he spoke to a female police officer and photos of his injuries were taken by Constable Rourke using her cell phone (Exhibits 1, 2 and 4). A statement was given to the officer.
It was reported that Mr. Frenkel suffered a severe cut to his lip that required a total of six stitches to close the wound. He had swelling around his eye and forehead; bruises were visible on his neck. The photos showed these injuries.
Detective Henkel who had responded to the call entered the club with Mr. Frenkel. He spoke to the Manager and asked that all security staff be brought to the front lobby of the premises in an attempt to identify the person responsible for the assault.
Five or six bouncers responded to the request. However, the white bouncer who had been involved with the incident did not appear in the line up.
Detective Henkel escorted Mr. Frenkel for a walk through the club with the intent of identifying the bouncer who had punched him in the face. He advised the front staff of his intention. One bouncer escorted them through the entire building but they did not see the person identified as the assailant.
On completion of the walk through, Mr. Frenkel exited the premises and went to the hospital with paramedics. Wesley Leah accompanied him.
In cross-examination, Mr. Frenkel stated that he had never been arrested in his life and lived at home with his parents.
He confirmed his evidence-in-chief with regard to the events of the evening leading up to the incident at Circa and the ensuing information regarding the events that followed.
He did not drive that evening but had used cabs. He agreed that he had one or two drinks which he had mixed by himself prior to arriving at Circa. He was confident in his determination that he arrived at Circa around midnight after spending approximately one hour at the hotel.
Police arrived at Circa in response to his call at approximately 1:15 a.m.
Counsel for the Licensee suggested that some of the information, particularly time frames, that Mr. Frenkel had provided at the Hearing were inconsistent with his previous statements. Mr. Frenkel said he had given a statement to police on March 10 or 11, 2008. It was captured on a DVD.
Mr. Frenkel stated that information provided at the hearing had refreshed his memory. He had estimated some of the times that he had provided and admitted that he could have been mistaken in his earlier estimation. He said he could have arrived at Circa between 11:00 p.m. and midnight. The calls to police were around 12:55 to 1:00 a.m. He stated he waited for 20 minutes outside the back of the premises for police to arrive. He knew the police arrived at the front door at 1:15 p.m.
Mr. Frenkel disagreed with the suggestion that there was a fight on the dance floor. He said it was a pushing match or a tussle between individuals. He recalls he was pushed by a male and pushed back. His only involvement was to block the other group. A male had pushed a female which started the pushing. Mr. Frenkel said he would not characterize the event as a fight even though he may have used that description in his statement to police. No one got hit, just pushed.
The bouncers were there almost immediately and took control of the situation.
Mr. Frenkel stated that he was wearing a leather jacket that evening; there was a rip in the shoulder, a split in the seam of his shirt and blood on his jeans after the incident.
He agreed that he had not started a civil suit against Circa but had contacted them in March 2008 and asked for compensation of $1,500 to cover costs. He agreed with Counsel that he included $600.00 for missing work, but that he was not employed at the time of the incident as he had claimed to management.
In re-direct, Mr. Frenkel stated that he was tired when he did the interview (Exhibit 3) with Officer Henkel the next day. He had taken a pain-killer for his injury and had little sleep due to being at the hospital until 7:00 a.m. which could account for discrepancies in his statement.
Shane Vassallo is a 24 year old electrician, who is a friend of both Mr. Frenkel and Wesley Leah.
Mr. Vassallo had been to Circa on other occasions prior to the evening of March 8th, 2008. On that particular evening he was part of a group of people celebrating the birthday of a friend.
Mr. Vassallo confirmed the evidence of Mr. Frenkel that the friends had arranged to meet at the Delta Chelsea Hotel prior to attending Circa.
Mr. Vassallo consumed two beers at the hotel prior to leaving in a cab for Circa, nothing before that. He arrived at the nightclub around 11:00 p.m. Mr. Frenkel took a separate cab
He recalled having a beer on the ground floor of the establishment and proceeded to an upper floor where he met up with Mr. Frenkel. Mr. Vassallo testified that Mr. Frenkel was not intoxicated and appeared normal.
Mr. Vassallo recalled seeing a scuffle on the dance floor. It appeared to him that there was a pushing match going on between Mr. Frenkel and another male. They had evidently backed into each other accidentally.
Other patrons became involved in the pushing. He and his friend Wesley Leah intervened in the scuffle. No punches were thrown and Mr. Frenkel was not injured.
A total of three bouncers arrived in seconds and said ‘enough’. Mr. Frenkel, Mr. Leah and the witness, were grabbed by the bouncers and led off the floor to a back stairwell.
They all stood on the top of the stairs for a few minutes talking to the bouncers, the conversation was calm at that time.
The bouncers were described as one white male, approximately 6’3”, with a shaved head, another white male approx 6’0” with brown hair, and another bouncer described as an Asian male.
One bouncer escorted Mr. Vassallo down the stairs first. He lost sight of his two friends on the stairs behind him.
When Mr. Vassallo arrived on the second floor platform, before the last flight of stairs to the ground floor, he heard Mr. Frenkel screaming. He and the bouncer escorting him looked around and saw Mr. Frenkel covered in blood. Mr. Frenkel looked bad, blood was over his mouth and down his chin, and he was with the white male bouncer with the shaved head. They were on a platform between the flights of stairs.
Mr. Vassallo testified that two of the bouncers ‘kicked them out the back door’. The bouncer who he had seen with the shaved head on the stairs with Mr. Frenkel was not there at that time. Mr. Vassallo did not see him again.
Mr. Vassallo was aware that Mr. Frenkel once outside had called the police from his cell phone. The police arrived.
In cross-examination Mr. Vassallo re-iterated his evidence-in-chief regarding arriving and departing from the Delta Chelsea Hotel earlier in the evening of March 8th, 2008, and events leading up to the incident on the dance floor at Circa including the pushing and shoving that took place.
Mr. Vassallo had two beers before the disturbance on the dance floor which occurred about an hour or more after they had arrived at Circa. He could not recall if he had finished both beers. He estimated the incident occurred between 12:15 to 12:30 a.m.
He said that he had consumed about five beers in a time frame of approximately two and half hours.
Mr. Vassallo stated that when the police arrived he was escorted by two female police officers to a nearby Shwarma store where he provided a statement.
Mr. Vassallo estimated it took about five minutes from the time they were escorted to the stairs until he heard Mr. Frenkel screaming.
Mr. Vassallo stated that he returned to the Delta Chelsea at about 2:00 a.m.
Detective Constable (“D/C”) Allistar James is a police officer with the Toronto Police Services assigned to 52 Division. He is with the vice section of the major crimes unit. He has been a police officer for eight and one-half years.
The witness was allowed to refer to his notes to refresh his memory, on consent.
He stated that he received a radio call from a paid duty police officer working at Circa on the night of March 9th, 2008 at 1:17 a.m. who reported that a male patron had been escorted from the club by security staff. The patron had been punched in the face without provocation and injured.
The officer arrived within minutes of receiving the call with Police Officers Henkel and Aiello. All were in plain clothes. He met the victim, identified as Sergei Frenkel at the front of the establishment. He observed that he had a split lip and was bleeding from the mouth.
Mr. Frenkel spoke to Detective Henkel and explained that he was being escorted from the club by a bouncer when the bouncer unexpectedly punched him in the face.
Mr. Frenkel described the bouncer as a tall white male, approximately 6’4” with a shaved head. A Manager of Circa, called Orin Bristol, met with the police officers who told him why they were present.
Mr. Bristol was identified by the witness as being a black male person, 6’3” with a goatee beard.
The officers requested an employee list from the Manager. A description of the bouncer accused by Sergei Frenkel of assaulting him was provided. A request was made that all bouncers fitting the description assemble in the front lobby of the premises for an identity check by Mr. Frenkel.
The witness testified that approximately three male, white bouncers, all 6 feet tall and over 200 lbs were brought to the front. The person described by Mr. Frenkel as the bouncer involved in the incident was not present in the line-up.
The employee list was not provided for almost an hour after the request was made. The Manager told the police officers he could account for everyone working that night.
D/C James stated to the Board that he realized that an employee list of names could be manipulated as it was a spread sheet generated on a computer. He recounted that about a month later he was at Circa and received another inventory list. The list was on a spreadsheet.
D/C James and Police Constable (“P/C”) Aiello took the victim and his friends for a walk through the club. They did not locate the bouncer who had hit Mr. Frenkel. D/C James stated that he did not believe the bouncer responsible was still in the club when the inspection was taking place.
In cross-examination, D/C James stated that usually a manager has a staff list on a clip board. He agreed he had no proof that the list was changed before it was given to him, just his own belief that the list was sanitized.
D/C James stated he had waited approximately 20 minutes for the bouncers to be brought down after the request was made. The Manager had placed a radio call to staff and they should have been able to respond more quickly.
D/C James stated that he had occasion to investigate at Circa on previous occasions. At times he would have no name to provide to management, only a location of an incident. The management always cooperated fully in the past and acted quickly.
He believes that the staff manipulated the employee list on March 8/9th, 2008 and that they tried to hide the person responsible. He believes “Frankel had it right”.
Detective Stephen Henkel is a police officer with the Toronto Police Service. He is currently responsible for the vice-team. He has been a police officer for 21 years.
Detective Henkel is familiar with Circa. He was present on the evening of March 9th, 2008.
He arrived at approximately 1:29 a.m. after receiving a radio call from dispatch at 1:17 a.m. to attend the premises. He was accompanied by other police officers. The call came from Officer Rourke who was at the scene.
He was met by two female police officers who had been assigned to the entertainment district and referred to as ‘call back’ officers.
He received a report from Officer Rourke of an incident inside Circa. A patron had been assaulted inside the club by a bouncer prior to his ejection.
Detective Henkel spoke to the victim Sergei Frenkel when he arrived. He observed a fairly large cut to his bottom lip and a piece of flesh appeared to be missing from the lip. He had marks on his neck, nose and in the area of his eye.
Detective Henkel asked Officer Rourke if she and her partner would take a statement from Mr. Frenkel and take pictures of the victim. Officer Rourke and her partner were in uniform.
Detective Henkel was given a description of the bouncer who had hit him by Mr. Frenkel who told him that he had overheard a conversation that a security person made over the radio while he was waiting at the rear door. He had heard this person say “get the guy out of here”.
Detective Henkel entered the club and met with two male staff members, Orin Bristol and manager Alan Morris. He advised them of the reason he was there and asked for their assistance in identifying the bouncer who was involved in the ejection and injury of Mr. Frenkel.
Detective Henkel requested that D/C James, Officer Aiello and Mr. Frenkel do a walk through of the establishment in an attempt to find the person that had assaulted Mr. Frenkel.
Detective Henkel requested that all in-house security staff’ on duty that evening that fit the description provided by Mr. Frenkel assemble in the front lobby for an I.D. line-up.
It took approximately 45 minutes for five or six security staff to gather in the lobby. Some were very tall with shaved heads, but Mr. Frenkel confirmed the person who had assaulted him was not in the line-up.
A request was also made that a staff list of those on duty be provided to the police officers.
Detective Henkel was concerned about the length of time that it took for Mr. Morris to obtain a staff list. It was eventually produced after about 45 minutes with approximately 20 to 30 names listed.
Detective Henkel testified that he thought some “goofing around with the lists” was going on.
He cautioned staff about his concerns of possible obstruction issues in identifying the staff member responsible for the assault.
He stated that he did not get good ‘vibes’ about what was going on in the attempt to identify the person responsible for the assault. He felt there was a deliberate delay in providing the staff lists and shared this with the management staff.
Detective Henkel said there were two types of security – regular staff and some from Eastmount, the latter wearing blue shirts. Mr. Frenkel said the male who assaulted him was not wearing a blue shirt.
Mr. Frenkel told Detective Henkel he only had one drink and was sober.
Detective Henkel stated that when the employee list finally arrived, he went over it with the manager. He “did not get good vibes” from the manager. The establishment had issues regarding ejections and security.
Detective Henkel said it took a long time to get the list. He thought this was a purposeful delay. He was used to this. He did not have great hopes.
In answer to a question, Detective Henkel said the list was composed of in-house people. There were 20 to 30 names on it. Detective Henkel cautioned the manager not to obstruct.
Detective Henkel stated that an ejection should not have led to an injury such as that suffered by Mr. Frenkel.
On re-direct, Detective Henkel stated that the management seemed surprised that the incident involving Mr. Frenkel took place.
Detective Henkel departed from Circa at 2:10 a.m.
In cross-examination, Detective Henkel clarified that he had been informed of the incident through Officer Rourke and did not get the information initially directly from Mr. Frenkel.
He agreed that Mr. Frenkel had assumed that the information he had overheard on the radio call to “get the guy out of here” was referring to the person that had assaulted him.
Detective Henkel stated that he recalled cameras in the club, but was not familiar with the system.
Detective Henkel confirmed that he was told that there was no surveillance cameras in the area where the assault was reported to have taken place.
Although he had not requested in writing a copy of the surveillance tapes or DVD, he did ask Officer Aiello to speak to Mr. Bristol and request the surveillance tapes. He has not received that material to date.
Police Constable (”P/C”) Tony Aiello is a member of the Toronto Police Services, 52 Division. P/C Aiello testified that on the Sunday, March 9th, 2008 he was working with Detective Henkel and D/C James. They received a radio call at 1:17 a.m. to attend Circa Nightclub.
Police Officer Rourke was already present at Circa. P/C Aiello spoke to Mr. Frenkel and Officer Rourke. Mr. Frenkel had an obvious recent injury to his lip. There was a severe cut to the lip and he was dabbing fresh blood.
Mr. Frenkel reported that he had been assaulted by a bouncer at the club. A white male had punched him in the face. He had been choked. A mark was visible under his right eye and on his neck.
P/C Aiello went inside the club with the other officers and Mr. Frenkel. A list of the employees working that evening was requested from the manager, Mr. Morris. He recalls it took a long time to arrive, much longer than usual for this type of request.
While they were waiting, it was decided that he with D/C James and the victim would do a search of the club to find the security person responsible for the assault. They escorted Mr. Frenkel to the area where the assault occurred, but they did not find the person responsible.
The officers and Mr. Frenkel returned to the lobby where staff that fit the description of the perpetrator were asked to assemble. The individual responsible was not amongst the security staff gathered.
P/C Aiello was aware that two security companies were working for Circa. There were five or six security staff brought to the front lobby. When they walked through the building he observed about 12 security staff present.
Before the officers left at 2:10 a.m. they ensured that Mr. Frenkel was sent by ambulance to the hospital for the injuries he sustained.
Mr. Frenkel was requested to attend the police station later to provide a formal statement.
P/C Aiello spoke to Mr. Bristol on the telephone and visited the premises the next day in an attempt to gather more information. He enquired about a video surveillance for the previous evening; he could not recall why he was not able to get the video or the DVD for the evening in question. He was not successful in gaining any further information from staff.
In cross-examination P/C Aiello stated that he usually has a good relationship with Mr. Bristol and he was co-operative. However, there was suspicion by himself and the other officers as to why there was a delay in getting staff and the employee lists to the front lobby as requested. The witness also said he has suspicions in general when dealing with security.
He had no idea why there was a delay in providing the lists and could not recall which staff member had been sent to retrieve them.
P/C Aiello said he searched the initial area but there was nothing unusual in the staircase area.
Mr. Wesley Leah is a 25 year old graduate of York University. He is friends with Messrs. Frankel and Vassallo.
Mr. Leah testified that he arrived at a birthday party at the Delta Chelsea Hotel on March 8th, 2008 at approximately 10:00 p.m. to 10:30 p.m. with Mr. Frenkel and a girlfriend. They were amongst the last to arrive at the hotel and were aware that the group at the party planned on going to Circa later for the birthday celebration.
He reported that although he had three vodka and cranberry juice at the hotel, he felt quite sober when they left in a cab at approximately 11:15 p.m.
Mr. Leah took a cab with Mr. Frenkel and two others to Circa. They arrived at Circa at 11:30 p.m. and initially went to the front doors, after finding a cover charge and believing there was a guest list, they tried the rear entrance, only to return to the front entrance to gain entry. He stated that at this time both he and Mr. Frenkel were sober.
He recalled that they purchased a vodka and cranberry drink each and watched some games being played. At approximately 12:45 a.m. he purchased another vodka and cranberry drink. Both he and Mr. Frenkel went to the second floor where there is a dance floor. He stated again that at this time both he and Mr. Frenkel were sober.
He recalled dancing, when a patron fell into Mr. Frenkel. He saw them push each other. The next thing he saw the male ‘bouncers’ descend on Mr. Frenkel and the other patron and take them from the dance floor in different directions.
Mr. Frenkel did not resist. Mr. Leah did not think the bouncers did anything improper up to that point. He did not look directly at Mr. Frenkel’s face, but he did not see any cuts or blood on Mr. Frenkel.
The bouncers took Mr. Frenkel to a back entrance area which he described as a platform leading to stairs. Mr. Leah put his drink on a table and went over to speak to one bouncer for about 30 seconds when he heard a commotion on the stairs.
He looked down to see Mr. Frenkel curled in a ball on the platform leading down the stairs, trying to protect himself. Although he did not see punches connect with Mr. Frenkel, it was apparent to him that three bouncers were hitting him.
He went to his friend’s aid and tried to pull the Asian bouncer off Mr. Frenkel as he was holding him down.
The three bouncers, with the exception of the Asian male, were all much bigger than himself; he described the white male and the dark skinned bouncer as over 6 feet tall. They eventually released their hold on Mr. Frenkel. Because of his intervention he was also ejected by the bouncers.
He saw their friend Shane Vassallo on the stairs ahead as he was being escorted out by a bouncer.
He saw the gash on Mr. Frenkel’s face as they were exiting the rear door.
When they were outside, they tried to gain entry out of the cold back inside the doors, but the bouncers at the door refused. A male person, who appeared to be a medic, gave Mr. Frenkel a napkin to wipe the blood from his face.
When they could not gain entry from the cold, Mr. Frenkel called police from his cell phone. After about 15 minutes, Mr. Leah and Mr. Frenkel and the witness walked to the front of the building where the police had arrived.
The witness was taken by a police officer to a restaurant next door to Circa to provide a statement of what had happened. He thought that Mr. Frenkel had been taken inside the premises to search for the bouncer who hit him. After his interview, an ambulance took Mr. Frenkel to St. Michael’s Hospital. Mr. Leah accompanied him.
In cross-examination, Mr. Leah confirmed he had gone to the Delta Chelsea to a party. He was there for 1 hour tops. He had consumed three mixed drinks there. He and Mr. Frenkel had brought a bottle of vodka (750) ml and had picked up a mix as well. Mr. Leah said he mixed his own drinks without measuring the alcohol.
Mr. Leah stated that at Circa, he and Mr. Frenkel had just bought their second drink before the incident happened on the dance floor.
He confirmed the bouncers had their hands on Mr. Frenkel on the stairway landing, holding him down. It appeared they were hitting him. He did not see any fists connect with Mr. Frenkel.
Mr. Vassallo was down at the lower landing. A bouncer was with him and he did not come up the stairs.
All the bouncers were wearing headsets. Three of them escorted Mr. Frenkel out.
Mr. Leah testified that the three security staff that were present at the hearing were not the staff he had seen on the platform with Mr. Frenkel. He stated that he was not asked to identify anyone on the evening of March 9th, 2008, he recalled all the security officers were wearing headsets.
He recalled their faces being familiar to him from the club, but was positive they were not involved in the incident on the platform with Mr. Frenkel.
Licensee’s Evidence
Mr. Enoch Wamalwa has worked at Circa as a security officer for the past three years.
Mr. Wamalwa was working on the evening of March 8th/9th, 2008. He had been assigned initially to monitor the outside exit doors that evening, but later was working security in the Hip Hop room on the 3rd floor of the establishment.
Mr. Wamalwa gave the Board an overview of his responsibilities. If there was an altercation, he would call it in right away on his radio. If an ejection was possible, he would say that on the radio. Staff would come right away to deal with the problem. He stated that the premises are a large building with many rooms. He gave a description of the premises and where the bars and dance floors are located.
Mr. Wamalwa described the 3rd floor area and the Hip Hop room where the incident occurred. He was working that night. His job is to circulate in the area he is assigned to and monitor the activities of patrons. He observed a group of males in an altercation on the main dance floor of the 3rd floor. He radioed the Manager, Orin Bristol, to advise of the altercation. Mr. Wamalwa made his way towards the situation which appeared to be mass confusion.
Two males were shoving each other. People were trying to get away. Mr. Wamalwa testified that he took hold of the arm of the male person closest to him, and informed him that he was security and that Circa did not condone fighting. The male kept trying to grab the other male’s shirt.
It was Mr. Wamalwa’s intention of getting the patron, identified later as Sergei Frenkel, out of the area quickly. Other security staff took control of the other male patron involved in the altercation.
Mr. Wamalwa escorted Mr. Frenkel from the Hip Hop room to stairs that go down in tiers to the ground floor. Mr. Wamalwa clarified that the ‘back’ stairs are usually used by staff when patrons are being escorted out of the building, and less used by patrons.
Mr. Wamalwa and Mr. Frenkel stopped before going down the staircase. Mr. Frenkel was trying to convince him that he would have done the same thing to the other male. Mr. Wamalwa did not respond.
Mr. Wamalwa said Mr. Frenkel was fairly inebriated. He had a cut on his lip when he started to talk to Mr. Wamalwa. Mr. Wamalwa said he did not restrain Mr. Frenkel. He was trying to get him downstairs as fast as possible. There was no communication between them.
As they reached the last step, Mr. Wamalwa said another security person took over and he headed back up the stairs.
Mr. Wamalwa said there was no altercation or struggle with Mr. Frenkel on the way down the stairs. Mr. Frenkel said he was being disrespected. His speech was a “little loud and a little slurred”.
Mr. Wamalwa said at the bottom of the stairs there is a corridor that leads to the back door. There are two exits at the back. Mr. Wamalwa identified “C.S.” as the other security guard who took over Mr. Frenkel. He is a tall male, about 6”4”, shaved bald head, dressed in black.
Mr. Wamalwa said Mr. Frenkel had his lip covered on the way down the stairs which Mr. Wamalwa noticed when he handed Mr. Frenkel over to the other security person. Mr. Frenkel made no comment about an injury.
In cross-examination, Mr. Wamalwa agreed that he did not pay much attention to Mr. Frenkel’s lip and thought the blood was on the side of his mouth.
He did not consider the incident to be major. He said he called in the incident and started to move toward it. He assumed both Orin Bristol, the general manager, and Allan Morris, the manager, would have heard his call in. He was not involved in a line-up when the police arrived and were investigating the incident. He had not received a radio call from management to assemble in the front lobby. He was not brought to the attention of police investigating the incident.
He was called into the office by his supervisor at the end of his shift at 3:25 a.m. and asked to write a brief report of the incident. His supervisor, Mark Talbot, told him what had happened that night. He agreed he had checked the boxes and made a comment on the incident report (Exhibit 6) but had not checked off that there were any injuries.
Mr. Wamalwa confirmed in cross-examination (Exhibit 7) that he did not see any punches thrown in the altercation but saw pushing and shoving taking place.
In response to a question, Mr. Wamalwa re-iterated that he did not see any punches thrown, only shoving; he stated that he did not see the altercation start.
Mr. Wamalwa then stated that the aggressor was throwing punches, and agreed with counsel that there was nothing in his statement (Exhibit 7) about “throwing punches”.
He then went on to say that the “aggressor male was throwing a punch at the other male involved in the altercation. He was holding the other male and punching him.”
In response to a question, Mr. Wamalwa responded that he didn’t call 9-1-1 because his job was only to escort the patron out of the premises.
Edward Estupinan is currently employed by Circa as a supervisor. He was working on the night of March 8th, 2008 supervising security staff on duty. He stated he did not know who started it.
He is usually posted at the front doors but circulates throughout the establishment during the evening. He had no recollection of what he was wearing that evening. He has worked in security for 10 years and at Circa since it opened two years ago.
He was on the second floor when he heard a radio call from security staff member Enoch Wamalwa who was working on the third floor. Mr. Wamalwa was requesting assistance because of a disturbance on the dance floor. Mr. Estupinan proceeded to the third floor to investigate the call. He was the first staff person to arrive in response to the radio call that had gone out to all security staff.
He recalled a few patrons around Mr. Wamalwa. They were on the dance floor, Mr. Wamalwa was holding a patron later identified as Mr. Frenkel. Mr. Wamalwa was holding him by the arm and guiding him towards an exit area. A patron identified as Wesley Leah was also involved in the altercation. Mr. Frenkel appeared upset but he did not notice that he was bleeding from his face.
Mr. Estupinan took Wesley Leah by the arm and led him towards the exit area where Mr. Wamalwa had taken Mr. Frenkel.
The exit led to a staggered flight of stairs that led down from the third floor to the ground floor.
Edward Estupinan led Mr. Leah down the stairs. He retrieved his coat from the coat check on the ground floor, and he exited the building without further incident.
Mr. Estupinan re-entered the building and saw Mr. Frenkel with C.S. near the ladies washroom on the ground floor. C.S. left Mr. Frenkel with Mr. Estupinan. He assumed that C.S. had gone back upstairs to the third floor. Mr. Estupinan described C.S. as being 6’4” tall, white, bald and he wore a goatee.
Mr. Frenkel appeared upset. He was bleeding from the lip. Mr. Estupinan spoke to him and considered taking him to the paramedic room near the exit to have the injury treated. However, because Mr. Frenkel was so upset he followed him outside the building.
A paramedic who is employed by Circa went outside the building to treat Mr. Frenkel; he also gave him a bottle of water. He could not recall if Mr. Frenkel said he was calling the ‘cops’ but assumed that he did.
In questioning, Mr. Estupinan stated he went around to the front of the building and saw the police officers speaking to staff; he did not speak to the officers himself. He did recognize one of the Officers as Detective Henkel, and stated that he is a “tough person”. Detective Henkel told Mr. Estupinan, “we are going to make an example out of you”.
The next time he saw Mr. Frenkel he was in the front lobby of the premises with the police officers. He thought his lip looked fine.
The police officers requested from either Orin Bristol or Alan Morris that all the ‘white guys’ who were working that evening report to the front area. They also requested a list of staff working that night, and wanted to know who had two-way radios.
Mr. Estupinan was not involved in the requests made by the police and did not know what documents were produced but had overheard the conversation from close by.
He did see some of the ‘white guys’ come to the front area and C.S., a floater, was with them.
Mr. Estupinan said the male, Mr. Frenkel, came in with the police officers. His lip was fine. The paramedic cleaned him up. Mr. Estupinan said perhaps his lip was “a bit swollen”.
Mr. Estupinan said that C.S came down when the call went out for the “white guys” to assemble in the front lobby. The police saw him and the patron, Mr. Frenkel, saw him.
In cross-examination Mr. Estupinan confirmed that Mr. Wamalwa was holding one person, identified as Mr. Frenkel when he arrived on the third floor. He stated that he did not see Mr. Frenkel bleeding from the lip at that time. He recalled Mr. Frenkel “was in Mr. Wamalwa’s face”; Mr. Frenkel was yelling but not trying to fight.
Mr. Estupinan confirmed the next time he saw Mr. Frenkel after leaving the dance floor was at the bottom of the stairs near the washrooms and smoking area.
Mr. Estupinan confirmed that he did not ask Mr. Frenkel what happened to cause the cut lip but decided he would wait until he got Mr. Frenkel outside and then ask him. The injury did not seem serious. The cut was not deep.
Mr. Frenkel did not tell him that staff had assaulted him. Mr. Frenkel was yelling and swearing, he did not say who had hit him.
Mr. Estupinan admitted he did not know what had happened on the stairs when he was escorting the other patron out.
Mr. Estupinan said that he was sure all required did come to the front lobby. In answer to a further question, Mr. Estupinan said he really did not know if all those required did in fact come down.
Alan Richard Morris has worked at Circa as both operational manager and general manager. At the time of the incident his role was that of General Manager.
He was working on the evening of March 8th, 2008. He was in his office on the 4th floor when he heard a radio security call of an incident on the 3rd floor.
Nothing stood out as unusual about the call, it was routine, and he receives hundreds of calls in the course of an evening for many different reasons. He denied that he had heard a radio call between 1:00 to l: 30 a.m. from someone saying “get him out of here, he’s calling the cops”. In any event, he did not associate the two events. He said there are hundreds of calls from staff each night.
That evening there were approximately 1500 patrons in the establishment. He was informed that police had arrived at the establishment and wanted to see him.
He proceeded to the front of the building which he described as a large building, approximately two city blocks long and four stories high. It took him approximately three to four minutes to walk down to the front lobby area where he was met by Detective Henkel. Mr. Morris described the location of his office on the 4th floor of the building. It takes him a long time to get to the front door.
Detective Henkel said “I have been here a long time and I’ve been doing this a long time,” “Bring the person who hit Mr. Frenkel down”.
Mr. Morris stated that there was approximately 25 security staff on duty that night. Detective Henkel said “get the doorman that hit this guy”.
Mr. Morris stated that ‘we’ called, from memory, all the white doormen down to the front lobby. He thought approximately four security staff came to the front.
He stated that C.S. was the only one who would fit the description given by Mr. Frenkel.
Detective Henkel then asked for a list of all security staff who had punched-in on duty that evening. Mr. Morris went back upstairs to the 4th floor to access the payroll system on the computer.
Mr. Morris was unfamiliar with the process to access this information; it took him approximately ten minutes to access it and print the list.
Mr. Morris stated that he never attempted to cover up the incident; he considered himself an excellent manager who had been in a supervisory role for 15 years.
When he returned with the list, Detective Henkel in a raised voice said that he was stalling in producing the list. Another police officer took the list from Mr. Morris. Detective Henkel refused to take the list and said to Mr. Morris. “I am going to make a special project of Circa” before walking out.
Mr. Morris denied that he exercised delaying tactics in accessing and producing the staff list. He stated that he had cooperated fully with the police.
Mr. Morris outlined to the Board the procedures that are followed by staff in dealing with incidents that involve fights between patrons.
Mr. Morris testified that about one week after the incident, Mr. Frenkel called Circa Nightclub and asked for compensation.
His request was for remuneration for clothing, loss of work and time spent in hospital for a total amount of approximately $1500 to $2000.
In cross-examination, Mr. Morris agreed that because of his request for compensation, he thought Mr. Frenkel had made up the description of the person who had hit him. He agreed that he has no idea how Mr. Frenkel was injured.
He stated that he was using his 15 years experience to base his assumption that Mr. Frenkel was trying to extort money from the Licensee when Mr. Frenkel called for compensation.
Mr. Morris disputed that he had personally conspired to hide anything from the police.
He did not hear a radio call from a staff person saying “get him out of the club”.
He assumed from the first radio call from Mr. Estupinan that it was an “average” call of an incident and there was no rush to deal with it. He did not speak to Mr. Estupinan himself that evening. The first time he saw Mr. Frenkel he already had the injury.
He agreed that the description of the person who Mr. Frenkel stated had assaulted him was distinctive.
C.S. is a white male, 6”4” tall and was working that night.
C.S. is no longer is employed at Circa and Mr. Morris has no idea of his whereabouts.
Submissions of the Registrar
Registrar’s Representative, Phillip Morris, submitted that the allegation is a breach of subsection 45(1) of the O.Reg.
It is alleged that a bouncer assaulted a patron.
Although there is no charge of obstruction in the Notice of Proposal, Mr. Morris submitted that the evidence suggests a staff cover-up is significant throughout the hearing.
Mr. Morris submitted that there were six factors to consider:
a) behaviour prior to the arrival of the party at Circa;
b) time of arrival at Circa;
c) time spent at Circa before the incident;
d) how the incident began;
e) how Mr. Frenkel was injured;
f) aftermath of the event.
Mr. Morris submitted that the evidence of the three witnesses, Mr. Frenkel, Mr. Vassallo and Mr. Leah, indicated these individuals were not ‘trouble makers’. They were not presented as expert witnesses but their evidence of the incident was consistent and relevant.
Mr. Frenkel arrived at the hotel between 10:30 p.m. – 11:00 p.m.; he had approximately two vodka and cranberry beverages. He was not intoxicated. Mr. Vassallo and Mr. Leah both testified that they had consumed two to three alcoholic beverages before going to Circa. They were feeling good but sober.
All three witnesses were credible and honest. Although Mr. Frenkel had said he arrived at Circa at 11:00 p.m. during a police interview, he was guessing and admitted he was wrong. There is no evidence to suggest the three witnesses were drinking at Circa for two hours prior to the incident. There is no basis to suggest they were power drinking before or arriving at Circa.
Mr. Frenkel testified that there was only pushing on the dance floor; there was no fight and nobody punched him in the mouth on the dance floor.
Mr. Vassallo testified that there was pushing on the dance floor between Mr. Frenkel and another patron, and that he and his friend Mr. Leah ‘jumped’ in to grab them. Both Mr. Vassallo and Mr. Leah did not see blood on Mr. Frenkel; he was not bleeding while he was on the dance floor or being led off the dance floor.
The bouncers did nothing improper; they jumped into the altercation and said “fight over”. Mr. Frenkel was not injured by a patron.
Mr. Wamalwa said that he only saw shoving on the dance floor and saw some blood on Mr. Frenkel when he walked from the floor. He said he saw the cut on Mr. Frenkel’s lip but did not mention it to him.
Registrar’s Representative submitted it was not possible that Mr. Frenkel had such a serious cut to his lip and was bleeding and Mr. Wamalwa did not immediately notice it on the dance floor.
In Exhibit 6, Mr. Wamalwa did not mention an injury. A security guard would usually ask a patron what had happened if he saw such an injury. It did not make sense that he did not mention it.
Only in cross-examination did Mr. Wamalwa mention that Mr. Frenkel had landed a punch. Registrar’s Counsel referred to the exhibits and stated that the whole story was concocted by Mr. Wamalwa; he had made up the story to put Mr. Frenkel in a ‘worse light’.
Mr. Estupinan testified he did not see the incident on the dance floor start. He saw Mr. Frenkel with Mr. Wamalwa. He did not know what Mr. Frenkel was saying, but he heard him say something. He did not see blood on Mr. Frenkel and did not know how he got hurt.
Mr. Frenkel testified that he, an Asian bouncer, a tall white bouncer and an unknown bouncer were on the stairs.
Mr. Frenkel was adamant in his testimony and statements that a white male, 6’5” tall, shaved head, was the bouncer that grabbed him by the throat on the stairs. The white bouncer ‘landed’ three punches in his face. He curled up in a ball on the floor to protect himself. Blood was coming from his mouth.
Mr. Leah testified that he heard a commotion behind him while he was going down the stairs and talking to the bouncer escorting him out. He turned around and saw the bouncers on top of Mr. Frenkel; Mr. Leah tried to pull the Asian bouncer off Mr. Frenkel; the three bouncers released Mr. Frenkel; Mr. Frenkel was bleeding from a gash on his lip.
Mr. Vassallo testified that when he got to the ground floor he heard Mr. Frenkel screaming on the stairs. Mr. Vassallo ran up the stairs and saw Mr. Frenkel covered in blood.
After Mr. Frenkel was shoved outside the club by staff, they refused to let him stand inside the club while waiting for police to arrive. It was Mr. Frenkel who called the police, not staff. He had overheard a staff person say on the radio, “get him out of here, he’s calling the cops”.
Mr. Frenkel had toured the club with Detective Henkel; he did not see the white bouncer who hit him.
There were five or six people in the line-up requested by police; they did not include the Asian bouncer or the white bouncer with a distinctive appearance of 6’5’ tall with a shaved head. It was Licensee’s Counsel’s submission that a manager would recognize that description immediately.
It had taken the management over 20 minutes to bring the bouncers down for the line-up. It took almost an hour for staff to produce a staff list to police, suggesting that there was an attempt to delay the investigation.
It was not believable that a manager could not produce the lists quickly; his excuse being he was not familiar with the computer.
One year after the incident, the club has still not produced the bouncer who had hit Mr. Frenkel.
Mr. Frenkel made a mistake a week after the incident in calling the club and claimed that he was working when he in fact was not working at the time. What Mr. Frenkel should have done was hire a lawyer and sue Circa.
Mr. Frenkel did not make the story up. It is far fetched for anyone to suggest that Mr. Frenkel wanted to “go after the club”. He was subpoenaed to appear at the hearing and had not launched a civil suit against the club.
There was a cover-up by the club suggesting that Mr. Frenkel was injured on the dance floor and not by a bouncer employed by the club.
The Licence holder is responsible for the acts of staff and therefore is in breach of subsection 45(1) of the O.Reg.
Licensee’s Submissions
Counsel for the Licensee submitted that the allegation under subsection 45(1) of the O.Reg, “permitted”, is significant in this case.
All parties agreed that there was an altercation on the dance floor and security staff intervened appropriately to separate the parties involved.
It was the handling of the incident after the fact that has become the issue. No employer can prevent himself against a rogue employee. Due diligence is the responsibility of the Licensee.
The Licensee did his part to deal with the incident and how it was dealt with after the fact.
Mr. Frenkel had testified that he overheard a radio call from staff saying “get the guy out of here he is calling cops”. Only Mr. Frenkel apparently heard this call, his friends did not hear it. There was the assumption it meant ‘get the bouncer out of here’ and there was a cover up by the club management.
When police arrived, at least one knew about the radio call. Officers Henkel, James and Aiello explicitly said “they know how this goes” “it took a long time to get the line-up and records”; their evidence was ‘peppered’ throughout with such comments.
The whole incident appears to have taken 35 minutes according to some evidence, yet D/Sgt. James said over one hour.
Management of Circa stated that staff were brought from the 4th floor to the ground floor.
The evidence of the police officers was not consistent in describing the line-up, the number of bouncers brought down varied from 4 to 5 males to 5 to 10 males in the line-up.
The delay in acquiring the staff lists was a manager was attempting to get the information from a computer and attempting to isolate security staff from the full staff lists.
The Manager was told by Detective Henkel that he would make a ‘special project of them’.
Staff cooperated with police. They produced the staff lists, assisted with the walk through and arranged a line-up of staff that fit the description given to them.
Mr. Frenkel and his party had consumed alcohol at a hotel prior to arriving at Circa. Evidence was heard that a large bottle of vodka was taken to the party by Mr. Frenkel and Mr. Leah. Nobody measured the amount of alcohol they had consumed.
Counsel stated that he was not suggesting that the party came in intoxicated, but relaxed and happy. They were not staggering through the bar.
Leah agreed that he had consumed two more alcoholic drinks at Circa. There seemed to be a difference in the time frame that Mr. Frenkel, Mr. Leah and Mr. Vassallo were at the bar before the incident. It is difficult to know how long they were at the bar.
Mr. Frenkel testified that he was complaining and pleading with the bouncers as he was being led down the stairs. Mr. Wamalwa described Mr. Frenkel as the aggressor towards the other party involved in the dispute on the dance floor.
Counsel for the Licensee asked the Board to find that Mr. Frenkel ‘glossed over’ the incident on the dance floor; he had attempted to minimize the incident in his evidence.
According to Mr. Frenkel he was taken to a holding area near a room called the Robot Room close to a staircase and held for about 10 minutes. His friends did not mention this point.
Mr. Wamalwa testified he was separating the individuals involved in the altercation to avoid further problems. He initially did not see the cut to Mr. Frenkel’s face.
Mr. Wamalwa did not fill out the report referencing the injury because he was concentrating on the ejection.
Counsel for the Licensee suggested that it was expecting a lot of a manager that he would know everyone and everything about the staff lists.
It was suggested that if the person who was described as the one that hit Mr. Frenkel was not brought down for the line-up, then there was a cover up by the management.
Because this individual was not brought down, does not mean he exists.
Counsel submitted that there be no findings against Circa. They did not permit this incident to happen.
Circa did everything possible to assist the police.
Detective Henkel assumed it was a bouncer who caused the injury “based on his experience”.
He stated that he did not hold out much hope of finding the bouncer as it was a large bar.
Detective Henkel agreed that some individuals with shaved heads were brought to the line-up. He also admitted that he was frustrated with the time it had taken management to respond to their request and had therefore cautioned them against obstruction charges.
Reply
Counsel for the Registrar submitted that if Mr. Frenkel made up the whole story, if he had his lip cut in a fight and was never hit by a bouncer, if this story was all conspired, then there is no issue.
Counsel asked the Board to decide, “is Mr. Frenkel credible, if so, then a cover-up is collaborated”.
The question raised was if Mr. Frenkel was injured on the stairwell or before going into the stairwell.
Mr. Estupinan testified he saw blood on his way back up the stairs.
Mr. Wamalwa was not brought down to speak to police to say “I took him out”. The police were stone-walled. They did not find the person who was described as the bouncer who had hit Mr. Frenkel. Nobody said on the night in question that Mr. Frenkel was lying.
Analysis/Reasons/Findings
The Board has given careful consideration to the testimony and thoroughly examined the exhibits provided by all parties in determining a finding in this case.
The Registrar suggested that there was a cover-up of an incident that involved the assault of a patron by an employee or staff person of the Licensee. The Licensee has denied that there was a cover-up of the incident, rather the Licensee cooperated fully with the police in their investigation.
The Board finds the evidence of Mr. Frenkel to be credible. He provided his testimony in a straightforward manner. His testimony was generally consistent, both internally, and as well with both the photographs of his injuries, and with the testimony of other witnesses including the police and the people who attended at the premises with him.
He admitted that he had provided some conflicting times frames in his statements to the police and at the hearing. This was attributed to a time delay between the event and the hearing; confusion due to tiredness; and medication shortly after the incident when providing statements to the police. The Board finds these to be very legitimate reasons. It is obvious to the Board from photos of the injury that Mr. Frenkel could have been quite traumatised by the incident.
There was no attempt by Mr. Frenkel to make excuses for the discrepancies. The events leading up to the assault were, in general, corroborated by witnesses who were with him most of the evening prior to and arriving at Circa. The Board finds the testimony of these two witnesses, Mr. Vassallo and Mr. Leah, to be credible. Although they were friends of Mr. Frenkel, the Board found their testimony to be straightforward, generally consistent and without embellishment. They do not appear to have any interest in the outcome of this hearing.
Assertions by the Licensee that Mr. Frenkel was showing signs of intoxication, including being loud and belligerent, appear to be exaggerated and self-serving. Police witnesses, who have no interest in the outcome of this hearing, testified that Mr. Frenkel was sober when he was interviewed immediately following the incident. The Board is not persuaded that Mr. Frenkel was intoxicated at the establishment or that somehow his condition caused or contributed to the injuries inflicted on him.
Mr. Frenkel admitted that he had made a phone call seeking compensation for his injuries and damages incurred. He was not employed as he claimed, to the Licensee. He realised this was an error on his part and told the Board that he should not have made that statement to Circa but felt they owed him compensation for the ordeal he had experienced. The Board appreciates Mr. Frenkel’s candidness and admission, and finds that, in the circumstances, it has no significant negative impact on his overall credibility.
There is no reliable evidence that there was a fight on the dance floor involving Mr. Frenkel and another patron. The Licensee’s witness, Mr. Wamalwa, stated that he only saw pushing and shoving on the dance floor. It was only during cross-examination that Mr. Wamalwa said that he saw the victim “land a punch”. The fact that no one reported that they had been injured or assaulted by a patron supports the Board’s conclusion that there was not a fight involving punches by Mr. Frenkel on the dance floor.
The conflicting evidence provided by Mr. Wamalwa during cross-examination is cause for concern and, frankly, raises doubts about his credibility. He clearly stated that he had seen no punches thrown on the dance floor, Exhibit 7, a statement provided by Mr. Wamalwa, made no mention of punches thrown by Mr. Frankel. It was only in cross-examination that he mentioned Mr. Frankel being the aggressor and throwing punches at another male person.
The incident report filed by Mr. Wamalwa after the incident did not indicate that there were any injuries to the victim. It is the opinion of the Board that this would have been an important fact in filling out an incident report.
The injury to Mr. Frenkel’s lip was severe. It is difficult to comprehend that security staff would not notice it immediately and seek medical help.
The Board finds the evidence of Mr. Wamalwa not credible. He stated that he escorted the victim from the top of the stairs to the exit without incident. Yet the Board heard that a witness actually went to the assistance of the victim on the stairs while he was being held down by bouncers while being punched.
Another witness stated that while being escorted out, he heard the victim screaming and ran back up the stairs to find the victim covered in blood.
There is no evidence to suggest that Mr. Frenkel has launched a law suit against Circa. In fact, he was subpoenaed to appear at the Hearing.
It was stated by Counsel for the Licensee that “no employer can prevent himself against a rogue employee”. The Board finds, however, that the Licensee’s handling of the incident after the fact is also at issue.
The Management did provide staff lists to the police on request. However, the time taken to provide the lists was raised as suspect by the investigating police officers.
The Manager stated that he was not familiar with the computer program used to access staff lists, which caused the delay. Police witnesses stated that it is customary for staff lists to be kept on clip boards by establishments.
Security staff on duty were called to an assembly to allow the victim to identify the person who assaulted him. Although there were people who were white, tall, with shaven heads brought down for the line-up, the person responsible for the assault was not present. The bouncer was described as unusually tall, 6’4” or 6’5”, had a shaved head, very muscular, about 250 lbs. This description should have immediately identified him to a Manager yet neither the name nor the person was given to police.
Mr. Frenkel testified he had overheard a security guard at the rear door give a message over the radio “get him out of here, he’s called the cops”. The Board heard that all security staff are fitted with radio headphones.
Circa Manager, Alan Morris, testified that he had heard a radio call that there was an incident on one of the floors. There was no indication it was serious and he paid little attention to it until he was asked to meet with the police downstairs.
While Mr. Morris denied that he had heard a radio call from anyone saying ‘get him out of here, he’s calling the cops’ the Board prefers Mr. Frenkel’s testimony in this regard. The Board is of the view that the person referred to “him”, was the person who assaulted Mr. Frenkel, as Mr. Frenkel was already outside the premises.
A walk through of the establishment by the victim and police officers did not locate the employee responsible for the assault. He simply disappeared after the assault on the stairs.
The Board believes that the management for the Licensee was aware of the name of this person. He was working that evening. He was not in the line-up for identification.
The time taken to access the lists and assemble the security staff was sufficient to allow the perpetrator to leave the establishment.
The Board finds that the Licensee’s staff did conspire to cover up the incident by suggesting that the victim was injured on the dance floor and by not providing the name or the person who assaulted Mr. Frenkel.
The Board finds that the Licensee permitted violent conduct on its premises. The attack by the Licensee’s bouncer on Mr. Frenkel was violent, excessive, and unprovoked. Other staff assisted in this attack. Still other staff were more concerned with removing Mr. Frenkel from the premises than ensuring that he was not hurt, notwithstanding the paramedic who later gave Mr. Frenkel a bottle of water. Once the Licensee’s staff became aware that Mr. Frenkel was calling the police, their concern was to have the perpetrator of the attack removed from the premises.
The Board is satisfied on a balance of probabilities that not only was there violent conduct on the Licensee’s premises, but the Licensee’s staff, as evidenced by their conduct caused and thereby, permitted same. Further, knowing it had happened, staff did little, if anything, to assist the person against whom the violent conduct was made.
Conclusion
For the reasons given, the Board FINDS the Licensee violated subsection 45(1) of the O.Reg.
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. 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 26th DAY OF November , 2009
DAVID C. GAVSIE, CHAIR, AGCO BERYL FORD, BOARD MEMBER