Registrar, Alcohol and Gaming Commission of Ontario v. 1716342 Ontario Inc., 2011 CanLII 45121

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-

1716342 Ontario Inc. operating as Colonel Mustard’s Pub and Deli Licensee

Reasons for DECISION

Panel: Brian Ford, Board Member Allan Higdon, Board Member

Decision Date: June 21, 2011 Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Richard Kulis, Representative

Allegations

1A hearing into Notice of Proposal number 18075 dated May 18, 2010 to revoke liquor licence number 805872 (the “licence”) issued to 1716342 Ontario Inc. (the “Licensee”) operating as COLONEL MUSTARD’S PUB AND DELI, 3030 Don Mills Road, Toronto, Ontario, M2J 3C1, on the basis of alleged violations of section 6(2)(d) and subsection 45(1) of the Liquor Licence Act (the “LLA” or the “Act”) was held on March 29, 2011 in the City of Toronto.

Decision

2The Board FINDS the Licensee contravened section 6(2)(d) and subsection 45(1) of the Liquor Licence Act. Reasons follow.

Preliminary Matters

3The principal of the corporate licensee, Mr. Wen Hao Chen, did not attend the hearing, although served with notices of hearing on or about December 10, 2010 and March 1, 2011. Further, the Board heard evidence from Ms Teresa Standish, support staff within the Hearings Department that she did, on the morning of March 29, 2011, speak to an assistant in Mr. Kisaka’s office, Mr Chen’s solicitor of record, who advised that Mr. Kisaka was no longer representing the Licensee and would not be attending the hearing. In addition, Ms Standish testified that she made two attempts on the morning of March 29, 2011 to speak to Mr. Chen, at the telephone number provided on the Request for Hearing form, to determine if he would be attending the hearing. On the first phone call, Ms Standish identified herself to the male identified as Mr. Chen. When she inquired whether he would be attending this morning’s hearing regarding Colonel Mustard’s Pub and Deli, he responded that he did not understand and he then hung up. On the second attempt, there was no answer to the call.

4In the circumstances, Mr. Kulis requested that the matter proceed ex parte, which request was granted.

Registrar’s Evidence

5Ka Ng is an inspector with the Alcohol and Gaming Commission of Ontario (the “AGCO”).

6Inspector Ng stated he attended AGOGO Karaoke on March 13, 2010 at 3:00 a.m. The premises are located at 2101 Brimley Road, Toronto. On arriving he noted the parking lot was half full.

7Inspector Ng went to the second floor and entered AGOGO Karaoke. Inspector Ng stated there is a hallway with 10 rooms on both sides of the hallway.

8Inspector Ng stated he entered room #3 and observed six patrons in the room. The patrons were sitting around a table. Inspector Ng noticed there were numerous glasses of beer on the table and one male had a glass of beer in front of him. Inspector Ng asked the male what the drink was and was told it was beer.

9Inspector Ng stated that he entered several other rooms and there were signs of beer, wine and mixed drinks present and not cleared away.

10Inspector Ng stated he entered room #4 and there were glasses of beer. He took a sample of the beer. Inspector Ng stated he then spoke to the manger who had come to room #5 and advised him of the beer.

11Inspector Ng stated that in room #5 there was a male who was on the staff of AGOGO. Inspector Ng stated that he knew this male from a previous occasion.

12Inspector Ng stated he advised the manger, Mr. Hoy Dong Li, of the infraction. The manager asked Inspector Ng to give him a break.

13Inspector Ng stated he heard someone yelling in the hallway and he and the manger went to see who was yelling. Inspector Ng saw that it was one of the security in uniform telling people to leave. Inspector Ng noticed that it was room #6 and he also noticed glasses of beer and a black wine bottle upside down in a plastic tub in the room.

14Inspector Ng stated he and the manager went back to room #5 where he had taken the sample of beer. Inspector Ng stated when he attempted to take samples from two jars he saw Mr. Chen. Inspector Ng stated Mr. When Hao Chen works at AGOGO.

15Inspector Ng stated Mr. Chen saw him holding the samples of beer. He grabbed them, poured them on the floor, looked at him and smiled. Inspector Ng took his blackberry out and took a picture of the jugs on the floor.

16Inspector Ng. stated when he was trying to take the pictures Mr. Chen shoved him and tried to block his view.

17Inspector Ng stated Mr. Chen then said he would give him money if he did not report it. Inspector Ng stated Mr. Chen took a bundle of $20 bills and put it up to the inspector's chest.

18Inspector Ng stated he told the manager, Mr. Li, and asked him to get Mr. Chen's driver’s licence. Mr. Li told the Inspector that Mr. Chen was not working that night, he was off duty. The Inspector told Mr. Li he has to ask for the identification whether Mr. Chen is on duty or not. Mr. Li did not ask for the ID.

19Inspector Ng stated he asked Mr. Chen for his identification and he refused to give it to him.

20Inspector Ng stated a police officer came and Mr. Chen provided information to the officer. Mr. Chen was identified as Wen Hao Chen, date of birth January 6, 1982.

21Inspector Ng stated he advised Mr. Li that he was obstructing an inspection by lying to him about his knowledge of Mr. Chen's identity. Inspector Ng also advised Mr. Li of the failure to clear service.

22Inspector Ng stated he left AGOGO at 3:42 a.m.

23Inspector Ng stated he and Ontario Provincial Police (“OPP”) Sgt. Andre Pierre attended AGOGO Karaoke on April 10, 2010.

24Inspector Ng stated he went to the kitchen area of the establishment and saw Mr. Chen, who was talking to people in the kitchen. Mr. Chen advised Inspector Ng he was not working, that he was a customer that night.

25Inspector Ng stated he asked Mr. Chen to come out into the hallway with him. Once in the hallway Inspector Ng pointed Mr. Chen out to Sgt. Pierre as the individual who assaulted him and attempted to bribe him on March 13, 2010.

26Inspector Ng stated Sgt. Pierre asked Mr. Chen for ID. At that time Mr. Chen took off but was apprehended by Sgt. Pierre.

27Inspector Ng stated Mr. Chen was yelling and screaming and very belligerent. Mr. Chen kept yelling for someone to call the police.

28Inspector Ng stated Sgt. Pierre had his OPP badge on a lanyard in front of him clearly visible and he was also telling Mr. Chen that he was a police officer. Sgt. Pierre tried to calm Mr. Chen down.

29During this time Mr. Chen looked Inspector Ng in the eye and said, “I know where you go,” “I make you die,” “Bastard,” “I have a lot of money, I see that you lose your job.” Inspector Ng. stated the threat was all in Chinese.

30Inspector Ng stated Toronto Police Sgt. Derange and five to six constables arrived. The Toronto police officers took Mr. Chen outside.

31Inspector Ng stated the Toronto police officers searched Mr. Chen and found the following documents which were turned them over to him (Inspector Ng):

1. Canada Revenue letter from AGOGO
2. Retail Sales Tax form from AGOGO
3. Canada Revenue document AGOGO
4. Via Receipt April 3, 2010
5. Via transaction record
6. AGOGO sales report March 20, 2010 to March 21, 2010.

Mr. Chen was then turned over to Inspector Ng.

32Inspector Ng stated Mr. Chen said that he was a customer. Inspector Ng then asked him how he got the AGOGO documents. Mr. Chen did not respond.

33Inspector Ng stated he asked Inspector Marzo to ask the manager for security footage from April 3, 2010 at 7 p.m. and April 10, 2010 at 3:30 a.m. He also requested the sales report for March 20-21, 2010.

34Inspector Ng stated he left at 3:56 a.m.

35Inspector Ng was asked by Mr. Kulis how he felt about the threat made by Mr. Chen. Inspector Ng stated he has worked for many years with the AGCO and no one has ever said things like that to him. He stated he had talked to the Toronto police and was advised that Mr. Chen is a suspected drug trafficker. Inspector Ng feels that Mr. Chen might be able to carry out the threat.

36Frank Marzo is an Inspector with the AGCO. Inspector Marzo stated he attended at AGOGO on April 10, 2010. Inspector Marzo corroborates the evidence of Inspector Ng as it pertained to the visit to AGOGO on April 10, 2010.

37Sergeant Andrew Pierre is a member of the OPP. Sgt. Pierre stated he attended AGOGO on April 10, 2010 along with Sgt. Pierre and AGCO Inspectors Marzo and Ng.

38Sgt. Pierre stated Inspector Ng pointed out the male who assaulted him in March of 2010. Sgt. Pierre stated he went over to the male showed him his OPP issued badge and asked for his identification.

39Sgt. Pierre stated the male then became very belligerent and loud, shouting and screaming. Sgt. Pierre had the male exit to the foyer area. Sgt. Pierre stated once outside, Mr. Li, the manager, came out and spoke to Mr. Chen in Chinese, after which Mr. Chen's behaviour escalated and he physically resisted.

40Sgt. Pierre handcuffed Mr. Chen.

41The Toronto police took control of Mr. Chen and searched him. The Toronto police Officer turned over:

1. Exhibit #3 - Canada Revenue Agency request for a business number for AGOGO Karaoke Inc.
2. Exhibit #4 - CRA Business Number Summary of Accounts form for AGOGO Karaoke Inc.
3. Exhibit #5 - Ontario Ministry of Revenue Retail Tax form for AGOGO Karaoke Inc.
4. Exhibit # 6 - a personal history report for one Wen Hao Chen showing him as a manager at AGOGO Karaoke Inc.

42Sgt. Pierre stated that Mr. Chen lied on his personal history form (Exhibit #6, Line 13).

43Sgt. Pierre stated Mr. Chen was charged by the Toronto police and he pled guilty to utter death threats and obstruct a peace officer. The Toronto police case tracking report was entered as Exhibit # 7.

44Sgt. Pierre stated Mr. Chen, as a result of the guilty plea, was ordered not to attend AGOGO, yet two weeks ago his vehicle was seen in the parking. Mr. Chen was not found in the premises.

45Sgt. Pierre stated Mr. Chen is a refugee applicant to Canada.

Registrar’s Submissions

46Mr. Kulis submits that Mr. Chen would not operate in accordance with the law as is evident by his pleading guilty to obstructing and threats.

47Mr. Kulis also submitted that there was evidence of a breach of subsection 45(1) of the LLA in that the licence holder obstructed a person carrying out an inspection under the Act.

48Mr. Kulis submits that Mr. Chen's conduct is such that he would not operate within the law and is a danger to Inspector Ng. Mr. Chen, he noted, pled guilty to death threats to an AGCO inspector.

49Mr. Kulis submitted Inspector Ng was threatened with death and was fearful that Mr. Chen might carry out the threat.

50Mr. Kulis asked that the Board find that Mr. Wen Hao Chen, the Licensee of record for 1716342 Ontario Inc. Operating as Colonel Mustard's Pub and Deli, 3030 Don Mills Road, Toronto Liquor Licence No. 805872, is disentitled to a licence under section 6(2)(d) of the LLA.

Reasons and Analysis

51The Board carefully reviewed and considered the evidence and verbal submissions. The witnesses gave their evidence in an open and credible manner.

Obstruct an Inspection

52The board heard clear and convincing testimony from Inspector Ng of how Mr. Chen assaulted him when he was trying to conduct an inspection at AGOGO Karaoke. Inspector Ng also testified as to how Mr. Chen tried to bribe him to drop the matter.

53Inspector Ng also testified to the fact that Mr. Chen poured evidence of beer, which the Inspector had collected, onto the floor.

54The Board also heard from Inspector Ng of how Mr. Chen threatened him with a death threat. Inspector Ng testified that he was fearful of the death threat uttered to him by Mr. Chen.

55The Board heard testimony from Sgt. Pierre on how Mr. Chen acted violently when he was approached by Sgt. Pierre who identified himself with his OPP badge. Sgt. Pierre testified that Mr. Chen had to be handcuffed and yet he still resisted yelling, shouting and pulling away.

56Sgt. Pierre testified that Mr. Chen pled guilty to uttering a death threat and obstructing of a Peace officer in criminal court.

57The Board also heard testimony from Inspector Ng that Mr. Chen was a manager of AGOGO at the time of the assault, attempted bribe, death threat and obstruction of an inspection

58The Board notes that Mr. Chen is the licensee of record of Colonel Mustard's Pub and Deli, liquor licence number 805872.

59The Board finds that Mr. Chen's actions on March 13, 2010 and April 10, 2010 are reasonable grounds for the Board to conclude the Licensee will not carry on business in accordance with the law, and with integrity and honesty.

Conclusion

60Therefore, the Board, in the Order of March 30, 2011 having made the findings referred to in paragraph 2 above, ORDERED that liquor licence number 805872 issued to 1716342 Ontario Inc. operating as COLONEL MUSTARD’S PUB AND DELI, 3030 Don Mills Road, Toronto, Ontario, M2J 3C1, be IMMEDIATELY REVOKED.

DATED AT TORONTO THIS 21st DAY OF June , 2011