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-
El Barrio Cuisine Inc., operating as or intending to operate as
El Barrio Cuisine
Applicant
DECISION
Panel: Alex McCauley, Board Member Allan Higdon, Board Member
Decision Date: December 22, 2010
Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Rena Khan, Representative
El Barrio Cuisine Inc., Applicant ) Yiqun Fan accompanied by Jingyi ) Wu, On their own behalf
The Application
- The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18258 dated August 30, 2010 to refuse the application for a liquor licence made by El Barrio Cuisine Inc. (the “Applicant”) intending to operate as EL BARRIO CUISINE, 234 Augusta Avenue, Unit C01, Toronto, Ontario, M5T 2M1 (the “establishment” or the “premises”), establishment number 814249. The proposal alleges violations of subsections 6(2)(d) and 6(2)(e) of the Liquor Licence Act (“LLA”). A hearing of the application was held on November 8, 2010 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board DENIES the Application made by El Barrio Cuisine Inc., for a liquor licence at EL BARRIO CUISINE, 234 Augusta Avenue, Unit C01, Toronto, Ontario, M5T 2M1. Reasons follow.
Preliminary Matters
The Applicant appeared without counsel and was advised of his right to be represented. He waived his right to counsel.
Registrar's Counsel requested an adjournment as there were outstanding charges against the Applicant under the Criminal Code. A trial is scheduled for February 2011. Counsel stated it was appropriate to await the outcome of those deliberations as a denial by the panel of the liquor licence application would mean the Applicant could not apply for a renewal for two years. This would be prejudicial to him.
The Applicant did not speak to the application for adjournment.
The panel ruled the hearing would proceed as the issues to be decided in criminal court were entirely independent of the issue currently before the panel. The criminal allegations had no bearing on these proceedings, and therefore could not be considered prejudicial.
The request for adjournment was denied.
Registrar’s Evidence
Harold Westerman is a member of the OPP, seconded to the AGCO since February 2010.
The witness is familiar with the Applicant Yiqun Fan as he prepared a background report on him.
Exhibit # 1 is an OPP Investigation Report dated March 15, 2010 on Yiqun Fan, Applicant for liquor licence.
The witness stated the Applicant had been charged under the Criminal Code with extortion, aggravated assault, and assault and on December 4, 2009 was released on his own recognizance with conditions.
On March 15, 2010, the witness spoke to the Applicant, Yiqun Fan, who confirmed that charges were outstanding against him.
Exhibit # 2, is a Personal History Report completed by Yiqun Fan dated December 28, 2009.
The witness asked the Applicant why he did not disclose outstanding criminal charges against him as requested in the Personal History Report. The Applicant stated he did not read the Personal History Report thoroughly.
The witness stated criminal charges against the Applicant are still before the courts.
There were no questions on cross-examination or on reply.
Applicant’s Evidence
Jingi Wu is an accountant and business consultant. Mr. Fan is one of her clients.
The witness stated she did all the paperwork for her client’s liquor licence application. This is the first time she has completed such an application.
Ms Wu stated she thought the Personal History Report required her to disclose any convictions registered against her client, but not charges. Her client has no convictions.
The witness stated she was given complete responsibility for the application. The Applicant just signed it. Unfortunately, she did not read the form carefully enough.
On cross-examination the witness stated she completed all the forms required by the AGCO for Mr. Fan in December 2009.
The witness confirmed she asked the Applicant all pertinent questions such as his address, phone number, and place of birth.
The witness knew that charges were outstanding against the Applicant but did not seek legal advice to answer question #10a on the Personal History Report which states:
a. “Have you ever been convicted of any offences including absolute and conditional discharges and are there any outstanding charges against you in any jurisdiction? Failure to disclose any convictions or charges may result in refusal of the application.” (sentence in bold)
The witness stated she is no longer a minority partner in the Applicant’s business.
There were no questions on reply.
On questions from the panel, the witness stated she did not question the Applicant about outstanding charges.
The witness agreed the requirement to disclose outstanding charges is clear in question 10(a) of the Personal History Report.
Yiqun Fan is the Applicant for the liquor licence.
The witness stated he did not know the difference between charges and convictions as he has no knowledge of legal terms.
The witness is sorry he did not read the Personal History Report form but he was very busy getting his premises ready and doing renovations. That is why he employed Ms Wu to attend to all paperwork.
On cross-examination the witness stated he has an adequate command of English and deals with all his contractors.
The witness confirmed the signature on page two of the Personal History Report is his. He signed the form but did not read it.
On questions from the panel, the witness stated he agreed with the final paragraph on the Personal History Report, the Statutory Declaration, which states:
“I, Yiqun Fan, solemnly declare that I have read over this form and I make this solemn declaration conscientiously believing its content to be true and knowing that it is of the same force and effect as if made under oath.”
- The statement is signed and dated December 28, 2009.
Registrar’s Submissions
The Board should uphold the allegations made in the NOP and refuse the application for a liquor licence made by El Barrio Cuisine Inc.
The Applicant failed to disclose outstanding charges on his Personal History Report. He had three outstanding criminal charges against him at the time the report was completed by his agent and signed by him.
On March 15, 2010 the Applicant confirmed that he had outstanding charges registered against him.
The Applicant claims he did not know the difference between charges and convictions at the time he completed the form.
The Applicant and his agent did not seek legal advice in completing question 10(a) of the Personal History Report. This question specifically asks for all charges and convictions to be noted.
The Applicant stated he knew it was his obligation to ensure the Personal History Report was complete and accurate.
The Applicant has demonstrated a complete lack of responsibility to provide accurate and truthful information to the AGCO.
The NOP should be upheld.
Applicant’s Submissions
An official at the AGCO pushed the Applicant to pay a second instalment of over $1K. He explained to her about the outstanding criminal charges.
The restaurant needs a liquor licence. He is just selling fast food currently because he does not have a licence.
The fact that the Applicant cannot get a liquor licence due to outstanding charges is unfair.
Reasons and Analysis
The Registrar seeks to refuse an application for a liquor licence because the Applicant is alleged to have misled the AGCO by failing to disclose outstanding criminal charges.
This failure to disclose could disentitle an Applicant to a licence because under subsection 6(2)(d) of the LLA, the past or present conduct of the Applicant “affords reasonable grounds for belief that … business will not be carried on in accordance with the law and with integrity and honesty.”
The Applicant is also alleged to have made a false statement in the application, a contravention of subsection 6(2)(e) of the LLA.
The evidence is clear that a false statement was made.
Police Officer Harold Westerman testified that he investigated the Applicant and found there were three outstanding criminal charges laid against the Applicant that had not been declared as required by the Personal History Report.
Constable Westerman testified he contacted the Applicant on March 15, 2010. The Applicant confirmed there were outstanding charges against him.
Exhibit # 1 confirmed charges were laid against the Applicant and he was released on his own recognizance on December 4, 2009.
Exhibit # 2 confirms the Applicant signed his Personal History Report on December 28, 2009.
It is clear from the evidence that charges were outstanding when the Applicant signed his Personal History Report and attempted to mislead the AGCO by stating he had no convictions or outstanding charges.
The Applicant defended himself by stating he was too busy to read the form carefully. He hired an agent to fill it out for him.
However, the Applicant did sign the concluding paragraph on the form which stated he had read the form and conscientiously believed its contents to be true. Yet the Applicant testified he did not read the form.
The Applicant stated he was aware it was his responsibility to ensure the form was accurate and complete. He did not fulfill that responsibility.
The fact that his form was completed by an agent is irrelevant. The Applicant is responsible for a full, complete, and accurate application, and no one else.
The signed form was not accurate and clearly misleading. The attempt to deceive in the application, combined with a defence in which the Applicant attempted to deny any personal responsibility for his actions, gives ample reason for the Board to conclude that the Applicant would not carry on his business in accordance with the law and with integrity and honesty.
Decision
- Based on the evidence cited above, the Board FINDS the Applicant is in breach of subsections 6(2)(d) and 6(2)(e) of the LLA and CONFIRMS the Notice of Proposal to Refuse an Application for a licence to El Barrio Cuisine Inc.
DATED AT TORONTO, THIS 22 day of December , 2010.
ALEX McCAULEY, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER