Registrar, Alcohol and Gaming Commission Ontario v. Laurinda’s Bar & Grill Ltd., 2008 CanLII 35222

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-

Laurinda’s Bar & Grill Ltd. O/A Laurinda’s Restaurant & Bar & Grill Licensee

DECISION

Panel: Patricia McQuaid, Vice-Chair Beryl Ford, Board Member

Decision Date: April 24, 2008

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 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Richard Kulis, Representative

Allegations

1. A hearing into a Notice of Proposal number 15672 dated September 30, 2007 to revoke liquor licence number 800074 ( the “Licence”) issued to Laurinda’s Bar & Grill Ltd. operating as LAURINDA’S RESTAURANT & BAR & GRILL, 19 Simcoe Street, Bradford, Ontario, L3Z 2B3, on the basis that the licence holder would be disentitled to a licence either under section 6 of the Liquor Licence Act (“LLA”) or that the licence holder is in breach of a condition of the existing licence, was held on April 21, 2008 in the City of Toronto.

Decision

2. After considering all the evidence and Mr. Kulis’ submissions, the Board made FINDINGS of violations pursuant to subsections 6(2)(a), (d) and (f) of the LLA and ORDERED the liquor licence REVOKED effective immediately. These are the reasons for that decision.

Preliminary Matters

3. Mr. Botelho, the principal of the corporate licence holder was not present at the commencement of the hearing, at 9:30 a.m. At 9:45 a.m., no representative of the licence holder was in attendance. Mr. Kulis made a motion to have the hearing proceed ex-parte. Ms. Kristina Krause was called as a witness in support of the motion.

4. Ms. Krause is the Case Management Coordinator for the Hearings Department of the Alcohol and Gaming Commission of Ontario (“AGCO”), and in that role schedules hearings and sends out notices of hearing. A hearing in this matter was scheduled initially for January 25, 2008. Mr. Botelho attended on that date and requested an adjournment. That adjournment was granted; the next hearing date was to be peremptory on the licence holder. A Notice of Hearings was sent to Mr. Botelho in respect of this hearing date on March 7, 2008 (Ex.1), by both registered and regular class mail. Letters sent to both the home address and the licensed premises were returned.

5. In addition, Ms. Krause advised that attempts were made on five occasions to contact the licence holder by phone, again at contact numbers for Mr. Botelho’s home address and the licensed premises. Either voice mail was not activated or there was no answer.

6. Based on the evidence, the Board concluded that the licence holder had received effective notice of the hearing. The motion was granted and the hearing proceeded ex-parte.

Registrar’s Evidence

7. Jennifer Brake works in the collections branch of the provincial Ministry of Finance (“Ministry”) in Oshawa and, specifically, deals with collection of retail sales tax. She is familiar with this licence holder and testified that as of April 21, 2008, the licence holder owes $44,051.37 in retail sales tax.

8. The licence holder has been in arrears since June, 2004. Many attempts have been made to collect the amount owing, most recently by means of a Memorandum of Understanding (“MOU”) dated October 25, 2006. The licence holder did not comply with the terms of that agreement. By February, 2007 the MOU had been broken. Ms. Brake stated that the Ministry has received fifteen cheques from the licence holder since the business commenced in June, 2003. All those have been returned with insufficient funds (“NSF”). Two cheques were provided to the Ministry since January, 2008, the first in the amount of $2,000.00 and the second for $331.00. Again, both cheques were returned NSF. The licence holder has filed returns, and these are up to date, but without funds.

9. Ms. Brake stated that a Ministry official attended at the licensed premises in October, 2005 to educate Mr. Botelho about his obligation to file retail sales tax returns with funds, and on time. The Ministry’s position at this time is that he has not shown the requisite responsibility to continue in business.

Reasons & Findings

10. Mr. Kulis stated in his submissions that the licence holder has been given the opportunity on several occasions to meet his obligations and pay the arrears owing for retail sales tax. He met with Ministry officials in October, 2005. A year later in October 2006, a MOU was signed for payment of the outstanding amounts. That agreement was breached almost immediately. Then in January, 2008 Mr. Botelho was granted an adjournment and the panel, on that date, noted as a term of the adjournment that the licence holder was to submit monthly remittance of RST beginning in January, on time and in full.

11. The retail sales taxes which the licence holder is obliged to submit are essentially trust funds. These are not a license holder’s funds to allocate as it deems appropriate. There is, here, an unfortunate and chronic history of non-compliance, with arrears now owing of $44,051.37. The licence holder has been unresponsive to efforts by the Ministry to resolve the issue and indeed has since been unresponsive to the Hearings Department in its efforts to secure attendance at the hearing. Up to date filing of returns without sufficient funds in no way alleviates the situation. Arrears have accumulated and default on payments has continued. No mitigating factors for non-compliance have been offered to this Board. Non-compliance has been an issue since the business’ inception.

12. The facts therefore, strongly suggest financial irresponsibility in the conduct of the business and therefore the Board makes a FINDING pursuant to section 6(2)(a) of the LLA.

13. Further the facts, viewed historically, lead to the conclusion that the licence holder has not conducted the business in accordance with the law and with integrity and honesty, in particular, the continual failure to meet its obligations under the Retail Sales Tax Act and makes a FINDING pursuant to the allegations contained within subsection 6(2)(d) of the LLA.

14. Finally, having made these findings the Board further concludes, as a consequence thereto, that the licence holder is carrying on activities in contravention of subsection 6(2)(f) of the LLA.

Order

15. The Board, therefore, herby confirms its oral ORDER that liquor licence number 800074 issued to Laurinda’s Bar & Grill Ltd. operating as LAURINDA’S RESTAURANT & BAR & GRILL, 19 Simcoe Street, Bradford, Ontario, L3Z 2B3 be REVOKED effective immediately.

DATED AT TORONTO THIS 24th DAY OF APRIL, 2008

PATRICIA MCQUAID, VICE-CHAIR BERYL FORD, BOARD MEMBER

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