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 Ontario
Registrar
-and-
1708432 Ontario Inc. intending to operate as Allegro Cafe
Applicant
DECISION
Panel: Guy Maurice, Board Member Patricia McQuaid, Vice-Chair
Decision Date: July 30, 2007
Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone (416) 326- 0366 Fax (416) 326-5566 Website:agco.gov.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Sujin Chan, Representative 1708432 Ontario Inc., Applicant ) David Winer, Representative
Authorities
Registrar of Alcohol and Gaming v. Hosseini-Rad, 2004 CanLII 34450
The Application
- The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued a Notice of Proposal dated April 24, 2007 to review an application for a liquor licence from 1708432 Ontario Inc., (the “Applicant”), for an indoor area at ALLEGRO CAFÉ, 850 Browns Line, Toronto, Ontario, M8W 3W2, establishment number 804321, the (“Premises”). A hearing of the Application was held on June 6 and July 5, 2007 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board APPROVES the Application on the conditions set out below. Reasons follow.
Preliminary Matters
- An Order excluding witnesses was made.
Registrar’s Evidence
Clay Foley, a liquor licence inspector with the AGCO, attended at the Applicant’s establishment eight times between November, 2006 and February 2007. His first attendance on November 25, 2006 was prompted by a request from the AGCO licensing department for a pre-licence inspection. He was advised by the licensing department that the local police had concerns, in particular, that one of the rooms for which a liquor licence was sought may be used for illicit gambling.
At his first attendance, he met with the Applicant, Rosina Bartone. He saw no evidence of illicit gaming nor any evidence of service of alcohol. He viewed the room at the rear of the establishment (area #2 on the liquor licence application, Exhibit 1) which appeared to be a food preparation/kitchen area. Ms. Bartone advised him that she had no intention of using this area for the sale and service of alcohol and appeared to have no knowledge that this area was included on the Application.
Mr. Foley next attended on December 6, 2006 at approximately 12:07 p.m. and again met with Ms. Bartone. He observed individuals playing cards at one table, but again no service of alcohol. He did see, in the rear room, what appeared to be three video gaming terminals. Ms. Bartone stated that the machines appeared the previous night, brought in by a young individual, without her knowledge. Mr. Foley was concerned by this response and indicated that the presence of the machines could affect the Application and further, that licensees were expected to have control of their establishment. That she was not aware that these machines had been delivered was troubling. Ms. Bartone advised that she would have the machines removed and asked him not to report that he had seen them, to which he responded that he would have to report what he saw. However, if they were removed, that would be reported as well. Discussion then occurred about the request for a licence for the food preparation area. Ms. Bartone again expressed astonishment that it was included. They decided that he would return it with the Application so it could be amended to remove this area.
Mr. Foley left at this point, returning about an hour later to obtain the phone number for the establishment. Ms. Bartone again expressed concerns about his observations that day.
On December 8th, Mr. Foley attended at approximately 1:40 p.m. The video gaming machines had been removed. He and Ms. Bartone reviewed the Application which had been submitted. Changes were made, removing the rear room (area #2). Those changes were initialled by Ms. Bartone. He queried who had completed the Application given that it was never her intention that the area be licensed, however, Ms. Bartone indicated that she did sign the Application. During discussions with Ms. Bartone, a male party sitting at the table next to them, continually tried to interject. This individual was not identified to him. It was Mr. Foley’s view that these were private discussions between himself and Ms. Bartone and not this person’s business. He asked Ms. Bartone if she wanted this person to be privy to their discussions. She responded “no”. He asked the male to leave them on several occasions, which he eventually did.
A short time later, another male arrived who identified himself as Gabriel Piscelli, Ms. Bartone’s lawyer. Mr. Piscelli’s name appeared as a contact on the Application form. Mr. Piscelli indicated that he penned the Application. He was in Mr. Foley’s view, rude, scolding Ms. Bartone for wishing to remove area #2 from the Application and indicating quite vocally that he believed it should remain as an overflow area. Mr. Foley felt Mr. Piscelli was interfering in an Application that was not his. Mr. Piscelli did eventually accede to the wishes of Ms. Bartone.
Before he left, Mr. Foley indicated to Ms. Bartone’s and Mr. Piscelli that he had some concern about who was actually running the business and Ms. Bartone’s ability to take control.
Mr. Foley returned later that day, at 7:55 p.m. Ms. Bartone was not present. He spoke to the manager for the night, Sam Zaffino. Mr. Zaffino told him that the Applicant owned two other licensed establishments. Mr. Foley checked the records at the AGCO. His search did not suggest that Ms. Bartone has held a liquor licence previously.
His next attendance was on January 24, 2007 with Ontario Provincial Police (“OPP”) officer Donna Barrick, at approximately 8:45 p.m. Ms. Bartone was not present. They spoke to the male behind the bar, who identified himself as “Joe”. Joe told them that the owner spent about $70,000 in renovations of the premises. He and Det. Constable Barrick left at 9:00 p.m., however, he went back in briefly to identify two males seated at a table. One of the males gave his name as Tom Fisher.
Mr. Foley attended again on February 7, 2007 at 7:55 p.m. He recognized Mr. Fisher. He asked him if the owner was present. Mr. Fisher directed him to the male previously known as “Joe”. He asked “Joe” for his name, to which he got a loud and aggressive response. He yelled at him, about the delay in the Application process, the cost of renovations and the effect of the delays on Ms Bartone. Mr. Foley asked him if his name was Cosimo as that was the name Mr. Fisher used, to which the male nodded in the affirmative.
Cosimo Zaffino’s demeanour did cause Mr. Foley to wonder whether he was a “concerned” party in the Application as his interest seemed very personal. As well, Mr. Zaffino complained that the back room had been taken out of the Application, all of which seemed to Mr. Foley to reveal an inappropriate level of knowledge and interest in the Application process.
Mr. Zaffino advised that he worked at the premises and had done some plaster and paint work there. His son, Sam, also worked at the establishment. He stated that he knew Rosa for years, and that she had her Smart Serve certificate. By the time he left, Mr. Foley found Mr. Zaffino to be civil. He apologized for his behaviour, indicating he was agitated.
On cross-examination, Mr. Foley confirmed that he never once saw any indication of the service of alcohol nor did he observe any gambling taking place. His concern was that Ms. Bartone seemed astonished at what was on the Application, specifically, the back room as a licensed area. He found both Mr. Piscelli and Mr. Zaffino’s behaviours to be unusual, displaying a personal interest which made him question whether Ms. Bartone was in full control, and the guiding mind of the establishment. She seemed not to know what was going on with the business, for example, the delivery of the video gaming machines. Mr. Foley acknowledged that with respect to the absence of a record of Ms. Bartone as a past licensee, she may have worked at another establishment, but had no ownership interest.
Upon questioning from the Board, Mr. Foley stated that the back room, the “food preparation area”, contained a sink, a chest freezer, refrigerator, microwave and cutting board. He also saw boxes of supplies. He did not recall seeing any food service when he was present.
Donna Barrick is a detective constable with the OPP and as such conducts liquor licence investigations. In this instance, she was asked by David Baxter, the manager of Liquor Sales Licensing at the AGCO to conduct an investigation on the Allegro Café. A letter had been received from the Toronto Police Service expressing concerns about illegal gambling on the premises.
As part of her investigation, she requested a list of documents from Mr. Piscelli, the contact person for Ms. Bartone. Those documents were received on January 17, 2007. She attended the premises on January 24, 2007 with Mr. Foley at approximately 8:45 p.m. A male employee identified himself as “Joe” and advised that Ms. Bartone had spent between $55-70,000 on renovations and equipment. There were no signs of alcohol nor of the video gaming machines that Mr. Foley had observed on an earlier occasion.
On January 25, 2007, Ms. Barrick met with Ms. Bartone and Mr. Piscelli to review the documents that had been supplied and to obtain more financial disclosure. As well, Mr. Foley had expressed some concern to her as to whether Ms. Bartone had care and control of the business, the appearance of the video gaming machines without her knowledge being an indicator of that.
The following documentation had been requested and provided: bank statements for one year, credit card statements, line of credit information, income tax records for five years, employment history, citizenship card, a statement of investments, a copy of the lease and landlord information and a list of business parties, or those with a financial interest such as mortgagees. Information about a business account opened at the Canadian Imperial Bank of Commerce (“CIBC”) was subsequently provided.
Ms. Barrick was able to confirm that Ms. Bartone paid rent of $1,700 per mont. She was given two months (August and September) rent free. Ms. Barrick also spoke to the customer relations coordinator at TD Canada Trust, Ms. Consentino, who confirmed that Ms. Bartone had been a client and a good customer since 1995. Ms. Consentino confirmed that all of Ms. Bartone’s accounts were in good standing and she had sole signing authority on the accounts. She had two lines of credit on which she paid the minimum monthly amount. One of the lines of credit was used for renovations to the café and to her residence. She also holds a $30,000 GIC. There was no derogatory information on the file.
Regarding the CIBC accounts, the December 2006 statement did not indicate a withdrawal for rent though there was one on the statement for January 2007. Ms. Barrick spoke to the business advisor at the CIBC, Beata Malecki, who confirmed the account was in good standing. There was no derogatory information on file regarding her account or her business credit card.
On January 30th, Ms. Barrick contacted Frank Ditella, the landlord’s son. He confirmed that Ms. Bartone took possession of the premises in August 2006 and started renovations. She was given free rent during the renovation period. A five year lease (at $1,700/month plus GST) was entered into in September 2006.
On February 5, 2007, Ms. Barrick received copies of receipts for the renovation and expenses of the business (Exhibits 6 – 13). Some of this documentation raised concerns in that it indicated payment by cheque when she could find no record of a cheque in the bank statements, or payment by a Visa card which was not Ms. Bartone’s, nor did the expenditures appear in her Visa statement.
On February 7, 2007, Ms. Barrick spoke to Mr. Ditella who advised that the February rent had not been paid yet. She did, however, on February 17, receive confirmation from Mr. Ditella that a rent cheque had been received, written on the business account of Allegro Café. She also received, from Ms. Consentino at the TD Canada Trust, a copy of a cheque in the amount of $15,000, dated August 2, 2006 written by Ms. Bartone to Mr. Cosimo Zaffino. At this time, Ms. Barrick had no documentation to explain this cheque to Mr. Zaffino. She called, on February 7, 2007, to inquire of Ms. Bartone where she got the money for the renovations and other expenses. Mr. Piscelli answered the phone, explaining that Ms. Bartone was busy. She was advised that Ms. Bartone had paid for the renovations with cash she had and from money won at the casino.
Ms. Barrick did run a police record check on Mr. Zaffino and received information that he had been convicted of keeping a gaming house in February 1990 and received a fine of $575 and two years probation. Ms. Barrick had been told by Mr. Foley that the male at the bar first identified as “Joe” was Mr. Zaffino and that he was upset and angry about the delay in the liquor licence Application.
On February 19th, she met with Ms. Bartone to clarify some outstanding matters. Mr. Piscelli, Sgt. Ed Chong and an interpreter were also present. Ms. Barrick found Mr. Piscelli to be condescending, yelling at Ms. Bartone and leading her with answers. On one point, he suggested that Ms Bartone tell them about her casino winnings. Ms. Bartone told them that she won $50,000 at Woodbine, receiving a cash payout. Of that amount, she deposited $40,000 into her bank account, though had no documents to verify her winnings or the deposit.
Ms. Barrick later requested a player record check from Woodbine and determined that Ms. Bartone won $15,000 in July, 2003 (Ex.2). There was no record of any other win. Woodbine does record winnings of over $10,000. Ms. Bartone’s first recorded activity as a player was on November 27, 2000 and her last was on August 6, 2004.
During the interview, Ms. Bartone also advised that she received $25,000 from her father’s life insurance policy in 1995 and brought some of that money with her when she immigrated to Canada. She had no documentation in respect of this.
Regarding the video gaming machines, Ms. Bartone stated that she did not know who delivered them to the premises or who removed them. She was home at the time. An employee, Sam Zaffino was present. He no longer works for her.
In terms of the financing for the business and its renovations, Ms. Bartone explained to her that she had $2,000 cash at her residence. She gave Cosimo Zaffino, a trusted friend of 20 years on whom she depends for assistance, a cheque for $15,000 in August, 2006. With that he paid for renovation materials (for example at Home Depot) and the rent. Exhibit 14, a letter from Mr. Piscelli indicated that $28-29,000 was the cost of renovations. Ms. Bartone could not account for the cost of all materials, which, on Ms. Barrick’s calculation came to $18,000. Mr. Zaffino may have spent some of his own money, perhaps as much as $6,000. She knew she owed him some money, though unsure how much. She did not pay him for his labour for the renovations nor does she pay him for when he works at the business. She would pay him back slowly as the café makes a profit.
Ms. Bartone told her that she borrowed $9,000 from a man named John, from Woodbridge. There is no written agreement to document the loan.
Ms. Barrick summarized the conclusions from her investigation as follows. Some of the information was, in her view, ambiguous and evasive. Ms. Bartone seemed to lack control and knowledge of her expenses. She did not appear to have the financial resources and/or documentation to support her statements, for example, the casino winnings, the life insurance proceeds and the loan from John.
Ms. Barrick concluded that there was evidence to suggest that Mr. Zaffino had a financial interest in the business. He paid for the first and last months rent, he paid for some of the purchases of renovation materials. The concern is that Ms. Bartone may be “fronting” the business for him. His presence as a patron was not a problem but greater involvement as a person in charge, was.
On cross-examination, Ms. Barrick conceded that virtually all documentation requested was eventually provided. Further, if Mr. Zaffino was hired as a general contractor it was reasonable that with the $15,000 cheque given to him by Ms. Bartone, that he would buy materials and pay subcontractors. If he, as well, paid the first and last month rent from that sum, Ms. Bartone might well understand that she had, in effect, paid the rent.
As to the lack of control suggested by the appearance of the video gaming machines, Ms. Barrick agreed that the removal of those machines at Ms. Bartone’s instance indicated some control over the situation. Ms. Barrick confirmed that the only charge or conviction on record for Mr. Zaffino was the one in 1990. The concern that he might be involved in the business (based on the documentation that shows he paid rent and made purchases for the renovation and the fact that he has been working at the premises) and might use the premises for illegal gaming is based on that 1990 conviction and the drawing on the Application which showed a back room which may be used for gaming. Ms. Barrick acknowledged that the room was no longer part of the Application and stated that if the door to the room was unlocked, her concern would be alleviated.
Applicant’s Evidence
Gabriel Piscelli was retained by Ms. Bartone to incorporate the Applicant company, register its business name and to assist with the liquor licence Application. He is not her lawyer, but he has known her for 6-7 years. In reviewing Exhibit 15, the document brief, Mr. Piscelli indicated that while he prepared certain documents such as the Application and her personal history report, the documents were signed by Ms. Bartone. He took instructions from her. Any document signed by him, for example, the municipal liquor licence clearance questionnaire at Tab 15 or the business name registration at Tab 18, was signed with her authorization to do so. She is the sole officer, director and shareholder of the company.
Regarding the meeting with Clay Foley, Mr. Piscelli denied yelling at Ms. Bartone during the meeting. The kitchen area which contained six seats was a problem. The plan was amended.
On cross-examination, Mr. Piscelli confirmed that two areas were included on the licence Application. The back room was designed to seat four to six people if they wanted more privacy. Ms. Bartone was aware that this area appeared on the Application. He would not describe it as a food preparation area though it did contain a fridge, freezer and microwave.
It was his recollection that originally Ms. Bartone did not want this area deleted from the Application, but Mr. Foley pressured her. If it was a problem, she was agreeable to its deletion.
Mr. Piscelli stated that he believes Ms. Bartone spent approximately $28,000 in renovations to the premises. He understood that Mr. Zaffino, who he was known for 20 years, helped Ms. Bartone with the renovations, arranging for people to do the work and purchasing some of the materials. Mr. Zaffino was not otherwise involved in the business.
Rosa Bartone is 63 years old and the mother of three sons, ages 43, 46 and 37, two of whom live at home with her. She is the sole shareholder, director and officer of the Applicant corporation. She has known Cosimo Zaffino, and his wife Consulata, her best friend, for at least 20 years. She hired Mr. Zaffino to do the renovations at the café.
Exhibit 15, Tab 27 shows photographs of the café. In particular, photos numbered 1, 4 and 5 show the back room which was an issue on the Application. She thought the entire area was included, however, the room was intended for her own personal use. She did not intend to serve alcohol there. So, when Mr. Foley suggested that the Application be amended to remove that room from the Application, that was not a problem for her. The café serves espresso and cold cut sandwiches which are prepared in the area depicted in photo #3. No other food items are available.
Regarding the video gaming machines, she recalled that she left the café around 4:00 p.m. the day they appeared. She did not go straight home, but went to get groceries. She did not have her cell phone with her. Sam Zaffino, who worked part-time for her, was at the café and, apparently, a friend of his asked if he could leave three machines there. This was done without her permission.
When she discovered them the next day, she covered them with a blanket and told Sam to have them removed. The machines were not plugged in. Mr. Foley came in, saw them and advised her that they were gambling machines. She told him they would be removed and they were taken away the next day. She fired Sam as a result of this incident. She made no request of Mr. Foley that he not report the presence of the machines.
Ms. Bartone advised that she is the only one authorized to sign on the company bank accounts. She has provided all the documentation requested, cooperating fully. Ms. Bartone stated that she is the only one entitled to profit from the business and she alone makes decisions for the business. She retained Mr. Piscelli who she knew for 5 years, to prepare the Application. He reported to her alone. Mr. Piscelli would come by for a coffee every day.
She hired Cosimo Zaffino as a general contractor. She paid him $15,000 from which he paid the first and last month’s rent. The remainder he was to use for materials and subcontractors. He may have used his Visa to pay for some materials, but he had the money she gave to him, in hand, when he did so.
Ms. Bartone indicated that she still owes Mr. Zaffino about $5,000 for his unpaid labour. There is nothing in writing to evidence this. He is employed at the café and she wants him to continue to work there. She trusts him as a good friend. At the moment, she opens the café at 8:00 a.m. and works until 4:00 p.m. when Mr. Zaffino takes over. He closes up between 9 – 12 p.m.
As to her win at Woodbine, she told Ms. Barrick that she won $50,000 at least eight years ago and a further $15,000. Ms. Bartone made inquiries herself about record of the $50,000 win and was told that Woodbine does not keep records of wins, on site, after three years. When she won, she asked for the money in $100 bills. She gave $1000 to each of her children and kept the rest. She purchased a $30,000 GIC, paid some bills and the remainder she kept for emergencies.
On cross-examination, Ms. Bartone acknowledged that the Application, as originally filed, included a “rear seating lounge” with a seating capacity of 4. When told by Mr. Foley that it could not be licensed, she did not ask why, but accepted his advice as it was not important to her that it be licensed. What Mr. Piscelli wanted did not matter to her.
Ms. Bartone explained that the business is slow and the café is not making a profit. When it does, she will gradually pay back, Mr. Zaffino when she is able. She stated that he did not put any money into the business nor did he say that he spent more that the $15,000 she gave him,
Ms. Bartone was questioned about the large screen T.V. shown in the photographs (Ex.15, Tab 27, photos 7 and 8). She advised that this was purchased two weeks after the café opened. She purchased it at the Brick on their one year line of credit, under Mr. Zaffino’s name. She is, however, responsible for the payment.
Regarding the funds to finance the business, Ms. Bartone was confused as to when her $50,000 win happened, but believed that it occurred shortly after the casino opened. She had proceeds from her father’s life insurance policy, though could not document receipt of this money as the policy was paid out in France in 1995. As well, her sons pay about $600/month, each in rent. She has enough money to run the business. Her costs are between $2500-$3,000/month. She has spent between $28,000-$30,000 on the renovations, and if one includes the monthly costs, has spent close to $50,000. The café has been open since October, 2006. As well as borrowing money from the banks with a $15,000 line of credit, she also received a loan of $9,000 from a friend named John. He comes by the café daily. She has not paid him back yet. She confirmed that there is nothing in writing to document the loan.
Ms. Bartone stated that people might assume Mr. Zaffino is an owner because he is there every day, but she reiterated that she is the owner. She needs Mr. Zaffino there to work for her when she is not present, as she trusts him. If business picks up, she would hire someone else part time.
Decision
The Registrar is seeking findings pursuant to subsections 6(2)(d) and (e) of the Liquor Licence Act (“LLA”), which findings would disentitle the Applicant to a licence pursuant to the decision of the Divisional Court in Registrar of Alcohol and Gaming v. Hosseini-Rad. In the alternative, should the Board grant a licence the Registrar requests that conditions attach. An extensive list of conditions was provided to the Board by Ms. Chan at the conclusion of her submissions. The Registrar’s concern, as indicated by the evidence is that the Applicant, Rosa Bartone, is a front for Cosimo Zaffino, who was convicted of an offence under the Criminal Code in February, 1990, namely of keeping a gaming house. He was fined $575, and received two years probation. Toronto Police Service expressed concerns to the AGCO that this establishment may be used for illicit gambling.
Mr. Foley, through his discussions with Ms. Bartone, Mr. Piscelli and Mr. Zaffino concluded that Mr. Zaffino, not Ms. Bartone, was in control. She seemed not to have adequate knowledge of what was going on at the premises. He pointed specifically to the issue concerning the Application and the inclusion of the back room and the appearance of the three video gaming machines. Ms. Bartone had no objection to the removal of the back room from the Application.
Further, two days after they were observed by Mr. Foley, the machines were removed as was undertaken by Ms. Bartone.
There was no lack of cooperation by Ms. Bartone in his dealing with her nor was she evasive. She did follow through in commitments made to Mr. Foley. At no time during his eight visits between December, 2006 and February, 2007 did he see any indication of the service of alcohol. What Mr. Foley has suggested through his evidence is that others, in particular, Mr. Piscelli and Mr. Zaffino, seemed too interested in her business and were in fact rude and overbearing in their behaviour towards her. Indeed, Mr. Foley indicated on one occasion that he had to do Ms. Bartone a favour by getting a patron to leave them be and, on another, he had to straighten her out in terms of the Application. What the Board infers from the evidence is that there were too many people, including Mr. Foley, who seemed compelled to protect or direct Ms. Bartone. What the evidence does not suggest is that she is a person in such need.
With respect to the financial records which were the focus of Ms. Barrick’s evidence, the Board agrees that the manner of financing this endeavour seem unusually informal, specifically the retention of Mr. Zaffino as general contractor, the manner by which he is to be paid in that role and as an employee of the establishment and the loan from John. Yet, there is also evidence that the landlord has been paid by Ms. Bartone and her bank account information showed no derogatory information. Ms. Bartone does not lack financial resources, based on the information from her bank. She has given evidence that her costs are approximately $2,500 per month to run this establishment. The café has been operational, without a licence since October, 2006. There is no evidence that she is in arrears in on her rent or otherwise. The fact that an applicant may finance the operation in an unconventional manner, without suggestion of illegality, is not itself, an issue. There is a question in the Board’s mind, about Ms. Bartone’s evidence regarding two wins at the Woodbine Casino, there being a record of only one of $15,000. While this does raise an issue of credibility, it is collateral to the central issue, that being whether the evidence establishes, on a balance of probabilities, that Ms. Bartone is fronting for Mr. Zaffino and has misstated information on the Application.
Ms. Barrick concluded that Cosimo Zaffino has a financial interest in the business. His involvement as a person in charge (which the evidence is clear he is on a daily basis) was also a concern. The concern is based on the 1990 conviction. That concern would be alleviated, she stated, by a condition that the door to the back room be unlocked at all times. The Board notes that though observations were made by Mr. Foley about card playing in the establishment, and questions posed by Ms. Chan to Ms. Bartone about those observations, there was no evidence of illegal gambling in the establishment.
Further, there is no evidence to suggest that Mr. Piscelli has an interest in the establishment. He may have been over zealous in his promotion of this Application, but there is nothing to suggest an interest in the establishment, beyond that of agent for the Applicant. As of March 1, 2007, he is no longer representing her interest in this matter.
The Registrar is, essentially, asking the Board to infer from the ambiguity of Ms. Bartone’s financing of this business, that she is a front for Mr. Zaffino. The relationship is clearly a close, trusting friendship from her perspective, however, from the totality of the evidence, and in particular the evidence and demeanour of Ms. Bartone, there is not sufficient evidence to establish on a balance of probabilities that she is a front for Mr. Zaffino.
Furthermore, there was no evidence or explanation provided by the Registrar to suggest a reason or motive for such deception to occur. The Board heard, through Mr. Foley and Ms. Barrick, that the Toronto Police Service had a concern about illegal gambling but no more than that. There was no evidence from a witness from the Toronto Police Service to elaborate on that concern. Apart from some ambiguity in the finances, there is not sufficient evidence to suggest that the Applicant, Rose Bartone, will not operate this business in accordance with the law and with honesty and integrity. The Board therefore dismisses the allegations made by the Registrar pursuant to subsection 6(2)(d) of the LLA.
Ms. Chan, in submissions, stated that a finding was also being sought pursuant to section 6(2)(e) of the LLA, the false statement being that she is not the only owner. No other falsehoods are alleged. Having declined to find that Ms. Bartone is a front for Mr. Zaffino, the Board cannot, therefore draw any such conclusion. The Board dismisses the allegation under subsection 6(2)(e) of the LLA.
The Board, having dismissed the allegations, is prepared to approve the licence. As indicated above, Ms. Chan, on behalf of the Registrar submitted a list of conditions, attached as Schedule A. Mr. Winer in his submissions omitted to respond to those conditions, stating only that the licence should be granted without conditions. Subsequently, having realized his inadvertence, Mr. Winer made submissions in writing, with the consent of Ms. Chan. In those submissions, Mr. Winer advised that if a licence was to be granted with conditions, he would consent to all but the first on Ms. Chan’s list. That condition states that Mr. Zaffino can only be present at the establishment if Ms. Bartone is present. Mr. Winer submits that the need for such a condition was not supported by the evidence. Ms. Chan reiterated her position in reply.
It is axiomatic that, if conditions are to attach to a licence, they must be responsive to concerns raised through the evidence and they must be enforceable if they are to be effective in any real way. There was without question, some ambiguity in the financing as explained by Ms. Bartone which caused some concern.
The Board does agree with Mr. Winer’s submissions that Ms. Barrick, in her evidence, clearly indicated that Mr. Zaffino’s presence as a patron was not a concern, with a caveat that the door to the back room be kept unlocked. The Board also notes that this is Ms. Bartone’s Application and ultimately her licence; conditions on the licence must be directed to compliance by her as licensee, not Mr. Zaffino, or his wife Consulata about whom there was no evidence except as a long time friend of Ms. Bartone.
However, in response to the Registrar’s concerns for, and to ensure the continued integrity of the licensee, noting Ms. Bartone’s consent through counsel to certain conditions, the Board is prepare to impose conditions on the licence which are set out in paragraph 72 below.
The Registrar has asked for a condition that all financial records including receipts, cheques issued for the business, bank statements evidencing total finances of the business shall be made available immediately upon request by an inspector or police officer. Given the wide ranging documents encompassed in such a request it is not reasonable that such be immediately provided. Some documents would foreseeably be in the possession of third parties. The Board is satisfied that the requirements upon a licensee as set out in subsection 45(1) and (2) of the LLA can and will ensure compliance with all reasonable requests for financial information relating to the licensed establishment.
Order
For the above reasons, the Board APPROVES the Application for liquor licence made by 1708432 Ontario Inc., intending to operate as ALLEGRO CAFÉ, 850 Browns Line, Toronto, Ontario, M8W 3W2, establishment number 804321, subject to the filing of all usual and required clearance letters and application requirements.
The Board ORDERS that the following conditions be attached to the licence, to which the Applicant, through submissions, has consented:
Cosimo Zaffino shall not be an employee, manager, owner, consultant, shareholder or director of the business, or perform any duties related to those functions, whether for compensation or not.
Cosimo Zaffino shall not hold a key to the premises.
Cosimo Zaffino shall not pay for or loan money for any part of the operations of the business including, but not limited to purchases of supplies, renovation, alcohol, food, rent and transportation.
The licensee shall not accept any donations or gifts for the business from Cosimo Zaffino.
The door to the back room (area 2 – rear seating lounge on the licence Application) shall remain unlocked at all times.
DATED AT TORONTO THIS 30th DAY OF JULY, 2007
PATRICIA MQUAID, VICE-CHAIR GUY MAURICE, BOARD MEMBER
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