LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: PAPA’S PIZZERIA 8040 Lundy’s Lane, Niagara Falls, Ontario L2H 1H1
Licensee: Ann Mary D’Amico Licence Number: 803357
Notice of Proposal: To REVOKE a licence Dated August 16, 2006
The Proposal alleges that:
(I) with respect to section 6 of the Act:
(a) the past/present conduct of the licence holder, or if a corporation, the present/past conduct of its officers or directors, or of a shareholder who owns or controls 10% or more of its equity shares, or of a person having beneficial interest in the business of the licence holder; or of a person having responsibility for the management or operation of the business of the licence holder affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty.
(II) with respect to contraventions of the Liquor Licence Act, the Regulations thereto:
contrary to subsection 45(2) of Ontario Regulation 719/90 under the Liquor Licence Act (the “O.Reg”), the licence holder permitted a person to hold, offer for sale, sell, distribute or consume a narcotic as defined in the Controlled Drugs and Substances Act on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.
Hearing: Sheraton Fallsview 6755 Fallsview Blvd. Niagara Falls, ON February 19, 2007.
Presiding
Board Members: Kirsti Hunt, Vice-Chair Brian J. Ford, Member
Appearances: Phillip Morris, Registrar’s Representative Robert Plouffe, Licensee’s Representative
Attendance: Cst. Ryan McComber, Niagara Regional Police
Exhibits: #1 - Agreed Statement of Facts consisting of a package of documents
DECISION and ORDER
The Board of the Alcohol and Gaming Commission of Ontario (“AGCO”) held a hearing on February 19, 2007 pursuant to a Notice of Proposal dated August 16, 2006 to revoke licence number 803357 issued to Ann Mary D’Amico operating as Papa’s Pizzeria at 8040 Lundy’s Lane, Niagara Falls, Ontario, L2H 1H1
Mr. Phillip Morris appeared as counsel for the Registrar. Mr. Robert Plouffe appeared as agent for the Licensee who waived her right to legal counsel.
As a preliminary matter, an agreed statement of facts consisting of a package of documents was made Exhibit #1 through which the Licensee admitted all the allegations in the Notice of Proposal, the particulars being:
Cocaine was purchased in the licensed premises from the person in charge of the premises on July 5, 2005, July 7, 2005 and July 12, 2005.
On July 13, 2005, a search warrant was executed at the licensed premises. Approximately 76 grams of cocaine was seized. The person, who sold the cocaine on the earlier noted July dates, was arrested.
Further, on June 11, 2006, the same person who sold cocaine in July 2005 again sold cocaine in the licensed premises to an undercover police officer.
The person referred to in the particulars of the Notice of Proposal is Vincenzo (Vincent) D’Amico, the father of the Licensee.
The Board also heard testimony for the Registrar from Cst. Ryan McComber of the Niagara Regional Police Service as well as from the Licensee Ann Mary D’Amico.
Preliminary Matters
Mr. Morris advised the Board that there was an agreement with the licensee that there was no disputing of the police evidence as to the purchasing of drugs by undercover officers from Vincent D’Amico, the father of the Licensee. Mr. D’Amico was working behind the bar on the dates in question. Mr. Morris advised the Board that he would be seeking a revocation of the liquor licence.
Mr. Robert Plouffe also advised the Board that he does not dispute the police officers evidence regarding the trafficking of drugs by Vincent D’Amico in the establishment on the dates in question.
Evidence of the Registrar
On Tuesday July 5, 2005, Constable Shannon Murray and Constable Lori Cowper of the Niagara Regional Police working in an undercover capacity attended Papa’s Pizzeria at 8040 Lundy’s Lane in Niagara at 9:44 pm. Once inside the establishment they met with Vincenzo D’Amico and Constable Murray purchased 0.7 grams of cocaine from him for $100.00.
On Thursday July 7, 2005, Constable Shannon Murray and Constable Lori Cowper, while working in an undercover capacity, attended Papa’s Pizzeria at 8040 Lundy’s Lane in Niagara at 9:21 pm where they again met with Vincenzo D’Amico at which time Constable Murray purchased 1.0 gram of cocaine from Mr. D’Amico for $100.00.
On Tuesday July 12, 2005, Constable Shannon Murray and Constable Lorie Cowper, while working undercover, attended Papa’s Pizzeria at 8040 Lundy’s Lane in Niagara at 7:27 pm and met with Mr. Vincenzo D’Amico. On this occasion Constable Murray purchased 0.8 grams of cocaine from him for $80.00.
On Wednesday July 13, 2005 at 2:46 pm, the Niagara Regional Police executed a Controlled Drugs and Substance Act search warrant at Papa’s Pizzeria. Once inside the police arrested Vincenzo D’Amico, advised him of his rights and searched him. He was found to have had 14 grams of cocaine inside the right front pocket of his pants. The cocaine was separated into two packages.
A further search of the pizzeria revealed an additional 62 grams of cocaine concealed inside a container of yeast that was located on the food storage shelf. The cocaine was wrapped in a baggie that contained 62 packages ranging in weight from 7.20 grams to .4 grams. Also discovered during the search were a set of scales, baggies, twist ties and a debt list.
Constable Ryan McComber of the Niagara Regional Police testified that on June 11, 2006, while working in an undercover capacity, arrived at Papa’s Pizzeria. Constable McComber went into the establishment and he went up to the bar. He spoke with an older female attending the bar and asked to see Vince D’Amico. The female is now known to be Vince D’Amico’s wife.
A younger male person known to be Vince D’Amico’s son, Amedeo D’Amico, came out from the kitchen area and approached the officer. He asked the officer if he knew Papa. The undercover officer said that he knew him and again asked if he was around. Vince D’Amico came out and signalled for the officer to follow him and they went into the washroom. In the washroom the officer confirmed the identity of Vince D’Amico. He advised D’Amico that he needed some powder (cocaine). Mr. D’Amico left the washroom. Shortly thereafter, a heavyset female entered and gave the officer a slice of pizza and a five dollar bill folded in half, in which was a packet of 0.3 grams of cocaine.
On the way out the officer gave Mr. D’Amico forty dollars for the cocaine and said thanks.
Officer McComber, under cross-examination, could not remember if Ann Mary D’Amico was present on that day.
Licensee’s Evidence
Ann Mary D’Amico, the Licensee, testified that she works at the pizzeria for forty to fifty hours a week. Her shifts vary from time to time. She testified that she was not aware that her father was dealing drugs. She did not recall if she was there on the days when the police were there.
She did, however, recall working when her father was arrested. Other than that, she did not recall anyone walking to the washroom. She also stated that she does not think her brother knew her father was dealing drugs. She also stated that her father was in the establishment seven days a week.
Submission of Registrar’s Representative
Mr. Morris noted that there is clear and convincing evidence to make a finding under subsection 45(2) of the O. Reg.
Mr. Morris is also of the opinion that the Board could make a finding under section 6(2)(d) of the Act.
Mr. Morris characterized Papa’s Pizzeria as a supermarket for drugs. He noted that the father had open conversations with drug clients. The whole issue of drug sales was evidently in the open.
Mr. Morris also noted that Vincenzo D’Amico was charged the year before for dealing drugs out of the Pizzeria. Ms. D’Amico either knew what was going on or there was reckless indifference.
Licensee’s Representative’s Submission
Mr. Plouffe notes that the only licensee of record is his client. He states that there is no evidence that she was involved in the sale of drugs. He also feels that there is no evidence about further knowledge of drug activity. He does not see how she can be held accountable.
Decision on the Facts
Based on the Agreed Statement of Facts and the evidence of Cst. McComber, the Board finds that cocaine was purchased in the premises from Vincenzo D’Amico on July 5, 7, 12, 2005 and July 11, 2006. Cocaine, drug paraphernalia and a drug list were found in the premises on July 15, 2005.
Based on these facts, the Board FINDS a breach of subsection 42(2) of the O. Reg. under the Liquor Licence Act.
Past Conduct
Although the Licensee claims no knowledge of her father’s drug activities in the licenced premises, the evidence is clear that the drug sales in 2005 were in the open and, on one occasion, right at the service bar. Also the father was arrested on July 13, 2005 for selling cocaine in the premises but was working again in the premises on July 11, 2006 at which time he sold cocaine again to an undercover police officer.
Based on the evidence of the Licensee, her brother Amedeo worked as a manager in the premises. Based on the evidence of Cst. McComber, Amedeo D’Amico had knowledge of his father’s drug activity. Given the amount of drugs found in the premises, the drug paraphernalia, the actions of the father in selling the drugs, the number of times the drug sales occurred and the brother’s apparent knowledge of the father’s activities, the Licensee knew about or was wilfully blind to the drug activities in the premises. Furthermore, as a Licensee, Ms. D’Amico is responsible for what employees, managers or family members do in the premises.
Furthermore, from the evidence it appears to the Board that the father of the Licensee is the chief operator of the establishment based on the evidence of the Licensee that he was there every day and she only worked limited shifts with Wednesdays and Thursdays off and based on her lack of knowledge about what was occurring in the premises. Not knowing or seeing that her father was conducting a drug transaction at the service bar because she was speaking to a friend, as happened on July 11, 2006, is not an acceptable defence.
Based on the reasons given, the Board FINDS, under subsection 6(2)(d) of the Act, that the past conduct of the Licensee affords reasonable grounds for belief that the business will not be operated in accordance with the law and with integrity and honesty.
Submissions on Sanction
Mr. Morris submitted that the Registrar is seeking a revocation of the licence. Even if the Licensee were given one more chance, she got that chance in 2005 but the father was back in the premises selling drugs in 2006. Therefore, as a specific and general deterrence a revocation of the licence is an appropriate sanction.
Mr. Plouffe submitted that the only person on trial is Vincent D’Amico. Unfortunately, his actions reflect on the Licensee, on his family and the family’s reputation. A Licensee can’t be in the premises 24/7 and 100% responsible for the activities in the premises because she can’t be there all the time. There is no dispute about the activities of Vincent D’Amico. However, there is no evidence that the Licensee had any knowledge of her father’s or brother’s activities be they a manager, employee or family member. Mr. Plouffe asked the Board to impose a condition on the licence that the father not be in the premises in any capacity and allow Ann Mary D’Amico to keep the licence. If the Board accepts Registrar’s counsel’s request to revoke the licence, Ms. D’Amico is entitled to voluntarily surrender the licence so that at another time she can make a living with a liquor licence for another business with which she may be involved.
Mr. Morris submitted in reply that the time to voluntarily surrender the licence was after the events in 2005 or 2006. The Board has made findings that the Licensee knew or was wilfully blind to the drug activities. It is not appropriate to accept the voluntary surrender of the licence after the strong findings made. He also submitted that the Board does not have the authority to accept the surrender of the licence. Based on subsection 15(11) of the Act, it is within the Registrar’s discretion to accept the surrender of the licence. The Notice of Proposal is to revoke so a surrender of the licence is not appropriate.
The Registrar is opposed to a lengthy suspension and a condition excluding the Father from the premises. That may have been appropriate after July 2005. However, the Licensee has had 11 months to make changes but in July 2006 the Father was again selling drugs in the premises. Therefore, that sanction is not appropriate in 2007.
Decision on Sanction
Given the findings made and the seriousness of this matter, the Board finds that the revocation of this licence is appropriate.
In the view of the Board, the surrender of the licence at this stage in the proceedings is an attempt to circumvent the hearings process and avoid the responsibility for what has happened in the premises.
Based on subsection 10(6) of the Alcohol and Gaming Regulation and Public Protection Act once a matter is before the Board in a hearing, the Board has the authority to accept or refuse the surrender of a licence, but in this case the Board agrees with the Registrar that accepting the surrender of the licence, at this stage of the proceedings and in the circumstances of this case, is not appropriate.
Therefore, the Board hereby CONFIRMS its ORAL ORDER that licence number 803357 issued to Ann Mary D’Amico operating as Papa’s Pizzeria at 8040 Lundy’s Lane, Niagara Falls be REVOKED IMMEDIATELY.
DATED AT TORONTO THIS 13th DAY OF JUNE 2007.
KIRSTI HUNT, VICE-CHAIR BRIAN J. FORD, BOARD MEMBER
KH/BJF/mw