Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 8120/LLA
CASE NAME: 8120 v. Registrar of Alcohol and Gaming
Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 - to Revoke a Licence
Long Minh Do o/a Truc Karaoke Applicant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Applicant: Francesca Pagotto, Paralegal
For the Respondent: Joyce Taylor, Counsel
Heard in Toronto: June 14, 2013
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal dated May 30, 2013 which proposed to revoke the liquor licence of Long Minh Do operating as Truc Karaoke. The Applicant appealed the Proposal to the Licence Appeal Tribunal.
The Registrar also issued an Order dated May 30, 2013 immediately suspending the licence of the Applicant. The hearing commenced on June 14, 2013 and the Tribunal reserved its decision. The Registrar requested that the suspension order be extended until the Tribunal’s decision was issued. No submission was made on behalf of the Applicant in this regard and the request was granted.
In summary, the grounds for the Notice of Proposal are:
The conduct of the licence holder affords reasonable grounds for belief that its business will not be carried out in accordance with the law and with integrity and honesty; and,
The licence holder is carrying on activities in contravention of the Act or conditions of the licence, in particular:
i. the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises;
ii. the licence holder failed to ensure that the licence holder maintained control over the premises; and
iii. the licensee failed to comply with the conditions of the licence requiring the submission of a Compliance Plan to the Registrar by May 3, 2013 and the installation and maintenance of security cameras.
EVIDENCE AND FACTS
Registrar’s Evidence
The evidence of the Registrar comprised the testimony of four witnesses.
Rebecca Castillo is currently the Manager of Liquor Eligibility at the Alcohol and Gaming Commission of Ontario (“AGCO”) with responsibility to review applications for licences.
The Applicant applied for a liquor licence for the premises are located at Unit 9, 3585 Keele Street on January 3, 2013 and the licence, with conditions, was issued on April 10, 2013. Ms. Castillo testified that the Applicant previously held a liquor licence for the premises at Unit 5 at the same address. As part of the assessment of the Applicant’s eligibility for a licence, a background check was conducted as a well as a review of the Applicant’s licence history. This revealed five infractions in the previous five years, including two for failing to clear the signs of service by the prescribed time and two for serving alcohol outside of prescribed hours. She also had information concerning a September, 2012 incident when shots were fired in the parking area outside the premises.
As part of the AGCO’s risk assessment process, one of three levels of risk is assigned to a licensee. The Applicant was categorized as a level two risk. As a result, in addition to the same conditions that had been on his previous licence, an additional condition was added which required the submission of a Compliance Plan to address public safety issues by May 3, 2013. Ms Castillo explained that the purpose of the Plan is to have licensees critically address the risks associated with their business and identify how those risks will be mitigated.
Ms Castillo testified that the Applicant was advised of the requirement for the Compliance Plan and provided with the AGCO Guidelines for its preparation when he received his licence. On April 12, 2013, the AGCO received an e-mail from Benito Zapia, a representative of the Applicant, which stated that the conditions on the new licence were signed in error (Exhibit 7). After advising Mr. Zapia by e-mail that the Applicant had agreed to the conditions, Ms Castillo spoke directly to Mr. Zapia on April 18, 2013 and explained the purpose of the Compliance Plan. Mr. Zapia told Ms Castillo that there were issues with respect to the cost of security and Ms Castillo explained that there was a process available to request the removal of conditions should circumstances so warrant in the future. Reminders that the Plan was due were sent on April 26 and May 13, 2013. On May 27, 2013, Mr. Zapia sent an e-mail (Exhibit 7) stating “the licensee is in full agreement with all the conditions...the licensee will fully comply with all obligations”. Ms Castillo testified that this response does not comprise a Compliance Plan and on June 7, 2013, she sent another e-mail to Mr. Zapia enclosing second copy of the AGCO Guidelines for a Compliance Plan. She has now received a response from Mr. Zapia stating that a Plan is being prepared.
Detective Sanjee Aroda of the Toronto Police Service testified with respect to an attempted murder which took place in the Applicant’s premises on May 29, 2013. Detective Aroda is one of two officers in charge of the ongoing investigation.
On May 29, 2013 a 911 call was made by a passerby who had been stopped by two males in a vehicle, one of whom had been stabbed in the chest. Both had just come from Truc Karaoke where, accompanied by three other individuals, they had been patrons. Another group of five individuals was also in the Applicant’s premises and a fight had broken out between the two groups.
Detective Aroda testified that moments after receipt of the first 911 call, a second 911 call was made from within the Applicant’s establishment where there was a second individual who had received multiple stab wounds. Both the victim in the vehicle and the victim in the establishment were transported to hospital on emergency runs. The first victim has been able to speak to police but the second victim remains in critical condition following several surgeries and is unable to communicate. Detective Aroda testified that in his 17 years of policing, he had never seen anyone survive so severe a stabbing.
The weapon used in the incident was a large kitchen knife which came from the Applicant’s premises. When officers arrived at the scene, the Applicant was supporting the neck of the second victim and trying to assist him by providing first aid. Detective Aroda testified that while the Applicant had a waitress call 911, that when police arrived, evidence had been lost because the area had already been cleaned up. The knife had been placed in a box in the kitchen. The Applicant provided police with video recordings from the security cameras but because all were facing outward, there was no recording of the interior of the premises.
Because of the ongoing nature of the investigation, Detective Aroda was unable to provide more detail with respect to the incident.
Detective Constable Craig Dickie testified that the Applicant’s premises are located in a small strip plaza which currently has three licenced establishments but has had as many as five in the past. He reported that a search of Toronto Police Service databases revealed that in the past ten years, the area has been “plagued” with violent incidents involving firearms, assaults, and two murders. As a result, the area “has drawn considerably more police attention” within 31 Division.
The Applicant took control of Truc Karaoke in February, 2010. Since March 2, 2010, the Applicant has been charged eleven times in Provincial Offences Court: five charges for failing to remove the signs of service; four for overcrowding; two for permitting narcotics on the premises; and, one for selling alcohol outside of prescribed hours. Several matters are still before the Court, but there have been four convictions: one for failing to remove the signs of service; two for overcrowding and one for selling alcohol outside of prescribed hours. In addition, there is a police report dated January 8, 2011 concerning assault with a weapon.
Ontario Provincial Police Detective Sergeant Andrew Pierre is attached to the AGCO where he supervises a team of inspectors. On May 29, 2013, he received an occurrence report with respect to the incident at the Applicant’s premises. On Thursday May 30, 2013, Sergeant Pierre contacted the Applicant by telephone to determine what he had done to assist with the incident, if he intended to open his establishment that day, and what safety measures he planned. The Applicant indicated that he did intend to open, but had no plans for additional security and specifically referred to the condition on his licence which requires security guards only on Fridays and Saturdays. The Applicant admitted to Sergeant Pierre that the inside security camera was used only to monitor access to the premises. Asked if he had called 911, the Applicant told Sergeant Pierre that he had a record of doing so on his cell phone and indicated that that he was fully co-operating with police. He advised Sergeant Pierre that there had been two groups of patrons in the establishment but Sergeant Pierre testified that because the investigation was active, he did not delve into the facts of the incident. Sergeant Pierre indicated that he had no difficulties communicating with the Applicant over the telephone.
The Applicant met with Sergeant Pierre at the AGCO on the evening of May 30, 2013 to pick up the immediate suspension order and the Notice of Proposal. After the reasons for the order and Notice of Proposal were explained, the Applicant provided details concerning the incident. He told Sergeant Pierre there were two groups of patrons in his establishment, one group of five males who were regular customers, and another group of four males and a female. All of the patrons were singing karaoke and were sharing the machine when a fight broke out. The Applicant indicated that after the stabbing, he took the knife, which he recognized, away from the patron and put it in a box in the kitchen. Sergeant Pierre asked the Applicant to show his cell phone call history and there was a record of a 911 call which the Applicant said he had made. With respect to the inside camera, the Applicant stated that it did not work but he was going to have a friend fix it. The Applicant also said he had owned a previous establishment and had no history of incidents there.
Applicant’s Evidence
Long Minh Do testified that at approximately 10 p.m. on May 29, 2013, four males and one female patron, who were not regular customers, entered his establishment. There were no other customers. When five males, whom the Applicant does know, came in approximately an hour later, the first group had already paid its bill and he expected they would be leaving. The Applicant, who is the establishment’s chef, his wife and a waitress were the only other individuals present.
The Applicant’s policy is to rotate use of the karaoke machine, allowing each table two songs. After the new arrivals used their two songs, they wanted another. The original group, however, wanted to sing again and an argument broke out. The two groups were sitting at tables opposite each other. Referring to an individual in the original group, one of the second group said “I want to beat him up” and in spite of an attempt by the female at the table to stop him, the patron started a fight. The Applicant intervened and managed to get the attacker outside of the establishment although he testified he was hit by a chair in the process. While the Applicant was outside, another patron had obtained a kitchen knife and the stabbing took place. When the Applicant came back in, he saw the knife and took it away. Only then did he see that one patron had fallen down on the floor. Asked if he called 911, he stated that he did not have time to think about it but that his wife told him that the female patron had.
The Applicant does not know how the patron obtained the knife although he testified that the kitchen was unattended while he was outside because both his wife and the waitress were frightened and had run into the washroom.
The Applicant testified that he did open his establishment the day after the incident, but he did not hire a security guard because most of his customers are families.
In his direct testimony, the Applicant testified that he understood the conditions on his licence although when asked the Compliance Plan, the Applicant, whose first language is not English, stated that he did not understand. On cross-examination, however, the Applicant did respond when asked what extra steps he would take to keep customers safe, stating he would train his staff to call 911 and he would have security guards present on Fridays and Saturdays. When Counsel pointed out that the conditions on his licence already require him to have security guards on weekend nights, and asked again about extra steps he was prepared to take, the Applicant stated that a problem could happen at any time. He indicated that patrons have tried to start something in his establishment but he has always been able to handle it by telling them to relax and “cool down”. He then indicated he would ensure his knives were secured and stated that he had never seen anyone bring in a knife, that his patrons come to enjoy his establishment, not to fight.
The Applicant then testified that he has started to discuss the Compliance Plan but stated that it would be too expensive to hire security every night and if he had to do so, he would have to close because his establishment is not busy during the week.
THE LAW
Section 6 of the Act states:
(2) Subject to subsection (4) or (4.1), an applicant is entitled to be issued a licence to sell liquor except if,
(a) having regard to the applicant’s financial position, the applicant cannot reasonably be expected to be financially responsible in the conduct of the applicant’s business;
(b), (c) Repealed: 1998, c. 18, Sched. E, s. 167 (1).
(d) the past or present conduct of the persons referred to in subsection (3) affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty;
(e) the applicant or an employee or agent of the applicant makes a false statement or provides false information in an application under this Act;
(f) the applicant is carrying on activities that are, or will be, if the applicant is licensed, in contravention of this Act or the regulations;
Section 15 (1) of the Act states:
The Registrar may issue a proposal to revoke or suspend a licence to sell liquor or refuse to renew such a licence for any ground under subsection 6 (2), (4) or (4.1) that would disentitle the licensee to a licence if the licensee were an applicant or if the licensee has contravened this Act, the regulations or a condition of the licence.
The relevant sections of Ontario Regulation 719/90 state:
45(1) The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.
45.2 The licence holder shall ensure that the licence holder or a manager appointed by the licence holder maintains control over the premises, including exercising control over who is permitted to enter the premises or remain on the premises and the activities that are permitted to occur on the premises
APPLICATION OF LAW TO FACTS
It is the responsibility of the Registrar to prove to the Tribunal, on balance of probabililities, that the Applicant has breached the Act or the regulations under the Act.
The Notice of Proposal sets out four particulars with respect to the allegation that the licence holder is carrying on activities in contravention of the Act or conditions of the licence.
The evidence clearly indicates that the Applicant has breached the two licence conditions cited in the Notice of Proposal. The Compliance Plan due to be submitted to the Registrar by May 3, 2013 is still outstanding. With respect to the condition requiring that cameras be installed and maintained at the entrance to the establishment as well as within the establishment, Detective Aroda testified that while the Applicant provided video recordings to the police, there was no recording of the interior of the establishment. Sergeant Pierre testified that the Applicant admitted to him at their meeting on May 30, 2013 that the camera was not working.
The evidence also indicates that the Applicant failed to maintain control over the premises contrary to section 45.2 of O. Reg 719. A fight took place on May 29, 2013 which resulted in serious injuries to two patrons, one of whom remains in critical condition. Not only was the Applicant unable to control the patrons’ behavior, but the weapon used in the fight was a knife obtained from the establishment’s kitchen which was left unattended while the Applicant was outside the premises and while the only other staff present, the Applicant’s wife and a waitress, had retreated to the washroom.
The last allegation before the Tribunal is whether or not, in accordance with section 45(1) of O. Reg. 791, the Applicant permitted the conduct which took place on May 29, 2013. The fact that there was a fight within the premises does not necessarily mean that the conduct was permitted by the licensee.
The only evidence before the Tribunal of the events that occurred within the establishment is that provided by the direct testimony of the Applicant and the testimony of Sergeant Pierre with respect to his conversation with the Applicant. The Applicant’s evidence is that on May 29, 2013, he intervened to break up the fight by ejecting one of the involved patrons from the establishment. The situation escalated while he was outside. The details are somewhat unclear as to how long the Applicant was outside or as to who called 911. While the Applicant told Sergeant Pierre that he made the call, in his testimony, the Applicant suggested a female patron made it. Detective Aroda testified the establishment’s waitress made the call. Notwithstanding the contradictory evidence in this regard, a 911 call was made and when police arrived, the Applicant was attempting to provide first aid to the victim who remained in the establishment.
Sergeant Aroda testified that the area had been cleaned when police arrived at the establishment. While this action may not reflect the exercise of sound judgment, the Tribunal must address the action taken by the Applicant before and at the time of the incident to determine if the he permitted the conduct.
Counsel for the Registrar argued that the Applicant’s lack of planning reflected by his failure to submit a Compliance Plan in effect means that the Applicant failed to have preventive measures in place and thereby permitted the conduct. The incident took place early on a Thursday morning, a day when the Applicant was not required to have security guards. The Tribunal cannot speculate whether the incident would have occurred or would have been less serious if, for example, the Applicant had a functioning indoor camera or a security guard on duty, or if he had chosen to call 911 rather than attempt to break up the fight.
In determining whether the Applicant permitted riotous, quarrelsome, violent or disorderly conduct on the premises, the Tribunal must consider whether the Applicant knew or ought to have known that this conduct was likely to occur. While the Tribunal does not wish to diminish the seriousness of the May 29, 2013 occurrence, there is no evidence before it to suggest the Applicant either actively permitted or passively created an environment which tolerated the conduct. For example, there was no testimony to suggest that the Applicant had any previous experience with trouble from these patrons or that there were warning signs that an altercation might occur. Notwithstanding the fact that the Applicant may have started an unfortunate chain of events by leaving the premises while ejecting a patron, the evidence indicates he took action to try stop the conduct when it began. The Tribunal therefore finds that the Applicant did not contravene section 45(1) of the Act.
While the Tribunal has found that the Applicant did breach two conditions of his licence, Ms Castillo testified that she understands the Compliance Plan is now being prepared and the Applicant testified the indoor camera will be maintained. Based on this evidence and the finding that the Applicant did not contravene section 45(1) of the Act, the Tribunal, in considering the totality of the conduct, finds, on balance of probabilities, that there are not reasonable grounds for belief that the Applicant will not carry on business in accordance with the law and with integrity and honesty.
With regard to the contraventions that the Tribunal finds did take place, Section 15 of the Act provides for either suspension or revocation of a licence in the case of contravention of the Act, regulations or a condition of the licence. In this regard, the Tribunal is requesting submissions on sanction. The Applicant’s licence was suspended on May 30, 2013. On June 14, 2013, the Tribunal ordered that the suspension stay in effect until the release of this decision. For clarity, the interim suspension order will remain in place until the Tribunal’s decision on sanction is issued.
DECISION AND ORDER
The Tribunal finds Long Minh Do operating as Truc Karaoke to be in breach of section 45.2 of O. Reg 719 and of the conditions of his licence with respect to maintenance of security cameras and the submission of a Compliance Plan.
With respect to sanction, the Registrar’s representative shall serve and file a written submission within five (5) days of the date of this decision and the Licensee shall have five (5) days to serve and file a written response. The Registrar’s representative may serve and file a reply within two (2) days. All submissions are to be filed with the Tribunal.
The Tribunal orders that the interim suspension shall remain in place until the decision on sanction is issued.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Presiding Member
Released: June 24, 2013