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-
2143165 Ontario Inc. O/A Esperado Licensee
DECISION
Panel: Joan Lougheed, Board Member, AGCO Eleanor Meslin, Board Member, AGCO
Decision Date: December 10, 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 2143165 Ontario Inc., Licensee ) Richard Kesten, Representative
Authorities
1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553 (Ont. C.A.)
Allegations
1A hearing into Notice of Proposal number 17212 dated April 24, 2009 to suspend liquor licence number 807508 (the “licence”) issued to 2143165 Ontario Inc., (the “Licensee”) operating as ESPERADO, 6321 Yonge Street, 2nd Floor, North York, Ontario, M2M 3X7 (the “premises” or the “establishment”), on the basis of alleged violations of subsection 45(1) of Ontario Regulation 719/90 (“OR 719/90”) and section 45(1) of the Liquor Licence Act, (the “LLA”), was held on September 30, 2009 in the City of Toronto
Decision
2After considering all the evidence and submissions the Board DISMISSES the Registrar’s allegations of violations of subsection 45(1) of OR 719/90 and subsection 45(1) of the LLA. Reasons follow.
Preliminary Matters
3Mr. Seung Jin Park was sworn in as a Korean/English interpreter for Mr. Ji Ho Cho.
Registrar’s Evidence
4Ji Ho Cho was a patron at Esperado. He is 35 years old, and married. He is not working at present because he was injured in an altercation before he could start a business.
5On October 1, 2008, he attended at Esperado at approximately 10:00 p.m. with friends to have a drink. He had been there before.
6He entered at the door beside the kitchen at the back near the parking lot. He went through a hallway into a Karaoke room where others were drinking. He was not sure if there were staff in the kitchen.
7In the Karaoke room there were others drinking and he was greeted by his friends Jason and Alex and given a whiskey. One of the other people was a patron called Randy, who then approached him and asked him to step outside. There were no staff in the room at the time.
8He was taken outside to the back parking lot by Randy and two friends who then assaulted him. They spoke to him in English, but they were Vietnamese.
9Although he had no problems with Randy, he did have one with a friend of Randy’s.
10When they got outside, Randy’s two friends started punching him in the face and when he was on the ground they began stepping on him. Randy stomped on him and kicked him in the face, while he was on the ground. The assault lasted about 30 to 40 minutes. There were people watching and he yelled for them to call police, but no police came.
11The two men got him up by the arms and took him back inside the bar with Randy. Blood was dripping from his head, face and ears. He was only partly conscious.
12When they entered the Karaoke room, Randy asked everyone to leave, closed the door, and then they assaulted him again. He was hit on the head and back with bottles and cups and there were broken bottles on the floor. It lasted 20 to 30 minutes.
13He described Randy as Korean, 39 years old with a long face and slanted eyes. One of the others had a big round face, was shorter than him, but very large. The other man was very handsome with short hair and was Vietnamese.
14While assaulting him Randy quietly said “are you going to the cops?” The other two were swearing at him in Vietnamese.
15After about 30 minutes they left and the others returned to the room. He couldn’t see if there was blood on the floor but his shirt was covered with blood.
16Jason and other friends took him to hospital where he needed seven stitches in his eyebrow and four or five stitches on his ear. He also had a head injury, but no stitches. They took x-rays of his back, but no bones were broken, only the muscles and intestines were injured.
17The attackers took his wallet, watch, keys and a necklace.
18When patrons arrived in the Karaoke rooms, staff would bring them drinks and then leave the room. If you wanted more drinks, patrons had to leave the room to call on staff.
19On cross-examination Mr. Cho said he had known Randy before October 1, 2008 and had had drinks with him. He also knew a bar owner from another bar named Suki. He said that he had heard that Suki had hired Randy to get money from him.
20He indicated that he had told police, in a statement on October 2, 2008, that they had taken money, a money order, and Korean I.D. that was in his wallet.
21Mr. Cho said he knew the owner of Esperado and had seen her when he arrived at about 10:00 p.m., but did not speak to her.
22Mr. Kesten provided the Board with a hand-drawn picture of the inside of the premises (Exhibit # 1).
23Mr. Cho indicated that on arriving he went into one of the Karaoke rooms. Before entering the room he saw someone at the bar in the main room, but when he left the room he did not see anyone.
24Randy was already in the room when his friend Alex called Jason to tell him that Randy was there. He did not think there would be trouble when Randy asked him to step outside, so he did not call to staff. On the way outside, he did not see any staff and when he was taken back inside, he was not conscious.
25When they brought him back to the room, Randy told everyone to leave, then closed the door. After the beating, his friend Jason took him to the hospital. He did not hear Jason speak to anyone as they were leaving.
26In response to Mr. Morris’ questions, Mr. Cho said when he arrived he was in the hallway and he saw the Licensee behind the bar. He said he was taken out and returned by someone holding each arm.
27He did not know the two men with Randy. They were not in the room when he arrived. He did not remember if any staff came to help during the second assault.
28Everett Elliot is a police officer. At 7:00 a.m. on October 2, 2008, he was advised by officers that had interviewed Ji Ho Cho of the assault on October 1, 2008 at Esperado.
29He arrived at Esperado at 4:40 p.m. with Officer Lalonde, found the premises closed until 8:00 p.m. and returned at 8:30 p.m. with three other officers. They investigated the room where the alleged assault took place.
30F.I.S. (Forensic Investigation Science) officers conducted an investigation with Luminol of the Karaoke room, marked with a black star on Exhibit # 1. It showed streaks of blood on the wall and floor. They also found small shards of glass embedded in the floor.
31At 9:40 p.m. the Licensee, Young Wan Park arrived. The officers advised her of the incident and the Luminol findings. She said she was unaware of anything happening that night. She said three men, ages 40 to 50 had rented that room. She did not know them. She advised that the security cameras in the hall and the main room were not operating. She said that there had been one other server that night, J.S., but since her records were at home, she could not contact him. The cook, S.L., was also there that night but could not be reached and no longer worked there.
32Officer Elliot checked the garbage dumpster in the parking lot and could not find any evidence of clothing or towels with blood from the bags he could reach.
33He returned on October 4, 2008, spoke with the Licensee and was given a bill in Korean with no names on it.
34He indicated that Exhibit # 1 had been drawn by one of the officers. The Karaoke room that they investigated was the room with the black star on the diagram. Mr. Cho had pointed out the room marked with a yellow star as where he and his friends had been drinking. No blood was found in it.
35The Licensee said she was there every night either at the bar or in the Karaoke rooms. If someone was in the hall, they could have seen the bar from there.
36Mr. Morris introduced the following exhibits:
Exhibit #2A - a photo of Mr. Cho’s mouth, cheek and nose Exhibit # 2B - a photo inside of Mr. Cho’s mouth Exhibit # 2C - a photo of his eyebrow injury Exhibit #2D - a photo of the top of his head Exhibit # 2E - a photo of the injuries to his left arm and elbow Exhibit # 2F - a photo of the injury to the back of his leg
37The photos were taken on October 2, 2008 by police.
38Responding to Mr. Kesten, Officer Elliot said that the injuries happened at Esperado. He also responded that there was no proof that it was Mr. Cho’s blood, since there were no actual blood samples available.
39Officer Elliot testified that in Officer Lalonde’s notes she indicated that, before spraying with Luminol, there was no blood visible in the Karaoke room, the hallway or the stairs. With Luminol blood is seen as a blue colour.
40Officer Elliot said that the room Mr. Cho pointed out was a different room from the one where the blood was found. There was no evidence that an assault took place in the room that Mr. Cho said he was in at the time. There is no evidence that ties the Licensee to the assault. The only evidence of Mr. Cho’s assault was his testimony.
41In response to Mr. Morris’ questions, Officer Elliot said that no Luminol had been used in the hall or on the stairs. He also stated that regarding the room where no blood was found, it was possible that certain cleaning products could cause blood to degrade and not be picked up.
42Ms. Haewon Lee was sworn in as an interpreter for Ms Park.
43Young Won Park is the representative of the Licensee and owner of Esperado. She was at the establishment from approximately 10:00 p.m. to 2:00 a.m. on October 1, 2008. There was also a waiter, J.S., and a part-time cook, S.L., present.
44It was not a busy evening. Three Karaoke rooms were in use and patrons occupied two or three tables in the main room. One of the Karaoke rooms, shown with a black star on the diagram, was booked by an older man. She did not recall who had booked the other two rooms.
45She did not know Mr. Cho, but had seen him in the bar a couple of times before the incident. She did not see him on October 1, 2008.
46The waiter served the Karaoke rooms that night and she visited them each once during the evening to say “hello”. She did not notice any problems that night and did not see any blood in the rooms or in the hall. She did not instruct staff to clean up any blood and did not know Randy.
47In response to Mr. Morris’ questions, she said that she smoked, as did J.S., and when they did they used one of the three exits.
48She knows Officer Elliot who attends regularly and disagreed with his statement that smokers only use the rear exit to smoke.
49She testified that she did not know either Jason or Alex by name. When Mr. Cho attended, before October 1, 2008, she greeted him. He had never caused any problems. She was unaware of any incident regarding Mr. Cho on October 1, 2008 and did not think he was making up the assault.
50Ms Young said that she makes up a bill for every room. Each room has a number and she makes the bill up for the room number not for the name of the person reserving the room.
51J.S. was not at the hearing because he had to take a school test, nor was S.L. No one was in attendance who could corroborate her story.
52She or the waiter look into the rooms about once every hour. She indicated that the cameras were not working that night.
53Ms Young said she had been busy at the bar speaking to a friend, P.A., that evening. He was not in attendance at the hearing as a witness because she did not want to subpoena him.
54She stated that if she had known about an assault she would have called the police.
55To the Board’s question, Ms Young said she had no explanation about the blood that police found.
Registrar’s Submissions
56The Registrar submits that the Board should find violations of subsection 45(1), disorderly conduct, and subsection 45(1) for obstruction to carry out an inspection.
57Regarding subsection 45(1) of OR 719/90, the evidence was clear that Mr. Cho entered the premises at 10:00 p.m. and went into one of the Karaoke rooms. He told police the room was on the left side of the hall, but today at the hearing he said it was on the right side. It is possible that he could have been in two Karaoke rooms during that evening.
58The Registrar submits that either everything took place in the room shown with the black star or only the beating took place there.
59Mr. Cho was first taken outside by two people, one on each side of him, and beaten in the parking lot, where he asked onlookers to call the police. There was no evidence that any staff were present and the Licensee would not be responsible up to that time.
60Mr. Cho is then half-carried back inside to the “black-star” room, where he is beaten severely. From the evidence photos, (Exhibits 2A to 2F), the number of stitches he received and his description that he was bleeding heavily, blood must have been in the hall and in the Karaoke room.
61Once in the room, Mr. Cho testified that everyone was thrown out and he was beaten again using bottles and cups.
62Mr. Cho is a regular patron. If he was assaulted by Randy outside why didn’t he just press charges against Randy? There was no reason for him to say the assault occurred in the establishment unless it did. His evidence was very credible. There is no reason to disbelieve that he was severely injured in the establishment. You can’t believe that a Licensee would not know that someone was being beaten in one of the rooms. It was not a busy night and at one point everyone else in the room was thrown out. The Licensee must have known.
63The Licensee’s evidence about smoking rules is indicative. Constable Elliot was clear that all staff and patrons only used the rear exit for smoking, while the Licensee insisted all exits were used.
64The Licensee’s excuse that she was busy with a friend at the bar is not acceptable. It is a Licensee’s duty to know what is going on in the premises.
65Police evidence about the blood stains was that they could have been cleaned up by bleaching.
66Any witness who could have corroborated the Licensee’s evidence was not at the hearing.
67Following the Sin City decision, the Licensee “ought to have known” that an assault was occurring. The defence cannot be that the rooms aren’t checked unless patrons order more liquor. The Licensee here is liable under subsection 45(1) of OR 719/90 – “permit” and “ought to”.
68If there were blood stains and then Licensee cleaned them up without calling police and denied that any assault happened, then the Licensee is obstructing under subsection 45(1) of the LLA.
Licensee’s Submissions
69There is no reference in the NOP regarding cleaning up as obstructing.
70For the Licensee to have permitted or ought to have known, there must have been an incident. The Registrar has not given sufficient evidence that an incident occurred in the premises.
71Mr. Cho was injured but there is no evidence regarding where or when it occurred. No hospital records were presented in evidence. The photos do not say when the incident happened. Mr. Cho’s evidence was that it occurred in the room to the right.
72Officer Lalonde’s notes state that there was no visible blood, no obvious signs of an altercation and no photos of that room.
73Regarding the Luminol findings, there was no visible blood in the hallway or the back stairs, even though Mr. Cho said he was bleeding heavily. The blood in the room may not have been fresh and could have been there long before the alleged incident.
74Regarding “permit” and “ought to have known”, the evidence is that no one noticed anything, including patrons in other rooms. There was nothing to know.
75Officer Elliot searched the dumpster and found nothing. There was no search for a bottle of bleach or the smell of beach at the time.
76To deny anything happened is not obstruction. There is no evidence that the blood from the incident was cleaned up and the Licensee’s evidence was clear that nothing happened.
Registrar’s Reply
77The fact that there were no hospital reports is irrelevant, this does not shed light on what occurred. It is the witnesses’ credibility that is important.
78The reason the Licensee would turn a blind eye was because they didn’t want to be charged. There was no corroboration of the Licensee’s testimony.
Analysis and Reasons
79The Registrar is seeking findings of violations of disorderly conduct in the licensed premises on October 1, 2008 under subsection 45(1) of OR 719/90 and of obstruction under subsection 45(1) of the LLA.
80Mr. Cho’s evidence was that when he entered the premises at 10:00 p.m., he went into a Karaoke room on the right side of the hall. The Board was told in his statement to police he said it was the room on the left side. This raises concern about his credibility.
81He testified that his friends Alex and Jason were in the room and that Alex had called Jason to say that Randy, one of the alleged assaulters, was also there.
82Mr. Cho’s testimony is confusing and contradictory. Either Alex and Jason were in the room when he arrived or only Alex was there and called Jason to tell him that Randy was in the room.
83If Mr. Cho had been returned bleeding to the room after the parking lot assault, the Board find it implausible that his friends in the room, when being ordered to leave, would not have either informed the Licensee or called police. Nor did Mr. Cho call his friends to give evidence to corroborate that an assault took place in the premises and that they took him to hospital. The Board does not accept Mr. Cho’s testimony as credible.
84Although the photos of his injuries were taken by police on October 2, 2008, there were no hospital records given as evidence to provide further detail of the extent of the injuries or the date of the hospital visit.
85The Licensee testified that she was at the bar but did not see Mr. Cho in the hallway when he arrived. She said that either she or her waiter visited the Karaoke rooms about once an hour. She neither heard nor saw any disturbance that night.
86According to Officer Elliot’s evidence there were no visible signs of blood in the room on the right and no photos were taken of the room. He did testify that forensic evidence by Luminol testing showed blood on the floor and wall of the room identified by a black star on Exhibit # 1. This was not the “room on the right”. There was no blood found in the hall or back stairs even though Mr. Cho testified that he was bleeding profusely when he was brought back inside from the parking lot.
87The officers indicated that bleach is often used to clean up evidence of blood.
88There was no evidence as to when the “Luminol” blood appeared in the room or that it was Mr. Cho’s blood.
89Officer Elliot testified that he had checked the dumpster in the back parking lot and found no evidence of bloody clothing or bleach.
90The Board is of the view that, if there was an assault on Mr. Cho in the vicinity of the establishment, it took place in the parking lot, after he left the premises with Randy.
91Regarding the Registrar’s submission that the Licensee either knew or ought to have known that a disturbance or assault was taking place in the premises, the Board is not persuaded, on a balance of probabilities, that anything of this nature occurred in the premises on October 1, 2008.
92Therefore, the Board DISMISSES the Registrar’s allegations of violations of subsection 45(1) of OR 719/90 and subsection 45(1) of the LLA.
DATED AT TORONTO THIS 10th DAY OF December, 2009
JOAN LOUGHEED, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER