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-
Salvatore Vastano O/A Azzurri Sports Club
Licensee
DECISION
Panel: Allan Higdon, Board Member
Guy Maurice, Board Member
Decision Date: December 18, 2008
Hearing Location: Hamilton, 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 ) Phillip Morris, Representative
Salvatore Vastano, Licensee ) On his own behalf
Allegations
- A hearing into a Notice of Proposal (“NOP”) number 16492 dated July 23, 2008, to revoke liquor licence number 800522 issued to Salvatore Vastano (the “Licensee”) operating as AZZURRI SPORTS CLUB, 293 Highway 8, Unit 1, Stoney Creek, Ontario, L8G 1E5, (the “Premises”), on the basis that the licence holder would be disentitled to a licence 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 November 25, 2008, in the City of Hamilton.
Decision
- After considering all the evidence and submissions the Board REFUSES to revoke the Licence of Azzurri Sports Bar. Reasons follow.
Preliminary Matters
- The Licensee appeared without legal counsel or a designated representative/agent. The Licensee agreed to waive his right to counsel.
Registrar’s Evidence
Sean Kirkey is a Field Collection Officer with the Tax Revenue Division of the Ministry of Revenue. He has been with the Ministry for nine years and in his current position for 2.5 years.
The witness presented Exhibit #1, Schedule “A” dated November 24, 2008, which details the (Licensee) vendor’s tax remittances since November 2000.
The witness gave evidence that since November 2000, only 5 of 84 tax filings have been submitted on time with payment. Some payments are almost two years late. In addition, the vendor frequently submits his returns in batches of several months, instead of by the 23rd day of each month following collection as required under the Retail Sales Tax Act.
As of June 12, 2008 the vendor had $8,841.80 owing. An NOP dated July 23, 2008 was issued to revoke the vendor’s licence.
Following the issuance of the NOP, the June and August 2008 payments were made on time. Several additional payments were made in late 2008.
The Ministry is seeking revocation because the licence holder is in contravention of subsection 15(1) of the Liquor Licence Act in that his business practices over time have demonstrated reasonable grounds for belief that his business will not be carried on in accordance with the law.
The behaviour of the vendor has resulted in considerable and costly administrative time to be spent in pursuing his tax obligations.
The vendor has had five bank garnishees imposed on him. Four Requests for a Hearing have been issued. The Ministry has lost patience with the vendor’s long history of non-compliance.
On cross-examination, the vendor had no questions.
Licensee’s Evidence
Salvatore Vastano is the Licensee and owns the Azzurri Sports Club.
The witness acknowledged that Retail Sales Tax (“RST”) payments have not been made on a regular basis but stated the payments have been made.
The witness apologized for his behaviour and stated he would make his payments on time from now on.
Mr. Vastano has a family of five and the operation of the business has sometimes been difficult. He certainly did not intend to cause difficulties.
On cross-examination the witness stated he knew the RST is money belonging to the province and is held in trust. He said he knew the money should be remitted by the 23rd day of the month following collection.
The witness admitted he did not file 79 out of 84 required filings on time.
Responding to the panel, the witness stated he would shut his business down if he were late in submitting a future filing.
Registrar’s Submissions
Registrar's Counsel stated the Licensee has a very long history of non-compliance for which he has no adequate explanation.
The Ministry of Revenue is spending significant time and money pursuing the Licensee and getting him to conform to the law as stated in the Retail Sales Tax Act. This waste of time and resources cannot continue.
The Licensee pays his outstanding sales tax only when he is threatened with legal action by the Ministry.
The licence of Azzurri Sports Club should be revoked due to consistent non-compliance with the law.
If the panel does not impose that ultimate sanction at the very least it should set a date for full payment of any amounts owing to the Ministry, accompanied by the required documentation.
Licensee’s Submissions
- Mr. Vastano stated he solemnly undertakes to submit all future filings complete and on time. He will close his business if he is unable to do so.
Analysis & Reasons
The Licensee did not challenge any of the evidence filed in Exhibit #1 which documents a history of non-compliance dating back to November 2000.
The Licensee could give no coherent explanation as to why he did not abide by the provisions of the Retail Sales Tax Act.
It is clear to the panel the Licensee has not honoured the obligations imposed on him as a Licensee. The Licensee acknowledged his non-compliance.
The Licensee stated his establishment was the principal source of income for his family and he pleaded for the opportunity to remain in business. He appeared very contrite and stated he would shut his business down if he did not comply with the Retail Sales Tax Act in future.
Conclusion
The Board has given consideration to the commitment of the Licensee to abide by all future Retail Sales Tax remittances due to the drastic effect the revocation of licence would have on the Licensee and his family.
The panel notes that all outstanding amounts owing to the Ministry of Revenue are to be submitted by January 23, 2009, accompanied by the required documentation. This includes the December 2008 submission. The panel warned the Licensee that any future RST violations could result in the immediate revocation of his licence by the Board. The Licensee appeared to understand and appreciate the potential consequences.
The Board therefore REFUSES to revoke liquor licence number 800522 issued to Salvatore Vastano operating as AZZURRI SPORTS CLUB, 293 Highway 8, Unit 1, Stoney Creek , Ontario, L8G 1E5.
DATED AT TORONTO THIS 18th DAY OF DECEMBER, 2008.
ALLAN HIGDON, BOARD MEMBER GUY MAURICE, BOARD MEMBER