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-
Santiago (Nelson) Joaquin-Ortega o/a Casa Nova Bar & Dance
Licensee
decision on sanction
Panel: S. Grace Kerr, Board Member Alex McCauley, Board Member
Decision Date: September 19, 2008
Hearing Location: Cambridge, 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 Santiago (Nelson) Joaquin-Ortega, Licensee ) On his own behalf
Authorities
Big Ed's Tap and Grill, [2007] O.A.G.C.D. No. 144 Papa's Pizzeria, [2007] O.A.G.C.D. No. 283 Golden Ring Bar and Grill, [2007] OAGCD No. 473
Allegations
A hearing into a Notice of Proposal number 16354 dated May 30, 2008 to revoke a liquor licence and an Order dated May 30, 2008 to immediately suspend a liquor license on an interim basis to liquor licence number 805675 (‘the Licence’), issued to Santiago (Nelson) Joaquin-Ortega operating as CASA NOVA BAR & DANCE, 1-5 Water Street North, Cambridge, Ontario, N1R 3B2, on the basis of alleged violations of section 6 of the Liquor Licence Act ("LLA") and subsection 45(2) Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on June 19, 2008 in the City of Cambridge.
On May 30, 2008, the Registrar ordered the interim suspension of the Licensee’s licence in the interest of public safety and subject to an Order by the Board of the Alcohol and Gaming Commission of Ontario (the Interim Suspension). The interim suspension was continued by the Board’s Order of June 25, 2008.
In a decision dated August 1, 2008, the Board found that the Licensee violated subsection 45(2) of the O.Reg and section 6(2)(d) of the LLA. The parties were directed to provide written submissions on an appropriate sanction. In the interim, Ms. Karen Zvulony, who was the Licensee’s representative at the hearing, provided notice that she was no longer retained.
The Board has received submissions on behalf of the Registrar. Although the Licensee was given an extended period of time to make submissions, the additional time granted has also passed and no submissions have been provided to the Board. Accordingly, the Board has reviewed the submissions it has received and ORDERS the licence is revoked, effective immediately. Reasons follow.
Submissions
The Registrar asks the Board to revoke the liquor licence in view of the Board’s findings that the Licensee has breached subsection 45(2) of the O.Reg and subsection 6(2) of the LLA. Specifically, the Registrar notes the Board’s findings that the Licensee arranged deals for the sale of cocaine from the establishment. Also, the Licensee’s partner in the drug sales was seriously involved in the licensed premises as the head of security and also as the person in charge of the establishment when the Licensee was not present.
There is precedent for revoking the licence: the Board’s previous decisions in Big Ed’s Tap & Grill, Papa’s Pizzeria, and Golden Ring Bar and Grill were cited by the Registrar in support of this submission.
Analysis, Reasons and Decision on Sanction
The Board has carefully reviewed and considered the evidence in this matter as well as the written submissions received. Having taken into account that specific and general deterrence are the two guiding principles in determining the appropriate disposition in any case before the Board, a number of very serious facts necessitate that this Licensee’s licence be revoked.
First, the Board is convinced, and as was reflected in its findings, the Licensee, Santiago (Nelson) Joaquin-Ortega, was using the establishment as a front for purposes of selling cocaine, a controlled substance under the Controlled Drugs and Substances Act. Further and importantly, the Licensee was directly involved in the sale of cocaine. That Mr. Ortega tried to distance himself by having his staff person, Miquel, complete the transactions on his behalf does not diminish this significant fact. Besides, in the evidence before the Board at the hearing, Miquel was both an active participant in the business of the bar as well as Mr. Ortega’s partner in the drug world. Thus, for the purposes of determining disposition, the Board holds that Mr. Ortega either knew or certainly ought to have known of Miquel’s involvement in the sale of cocaine to the undercover officer.
In any event, the Board also concludes that Mr. Ortega was sufficiently involved with and connected to the transactions as to be held responsible for same as a Licensee: the undercover officer was directed to and did in fact contact Mr. Ortega at a particular cell phone number; Mr. Ortega (exclusively) answered at that number; he was in the establishment on at least a couple of occasions when the calls were made to that number; and, the underlying purpose of the phone calls was to complete the sale of cocaine.
Of additional consequence to the Board’s decision, the two times when a sale to the undercover officer was completed and the third occasion when a sale was arranged but ultimately aborted when the Licensee became suspicious of whom he was dealing with all occurred within weeks of the Licence being granted.
The Board agrees with the Golden Ring Bar and Grill decision that there is a qualified and not an unfettered right to a liquor licence in Ontario; it carries responsibilities to ensure compliance with the LLA and its regulations. Here, there were no submissions by the Licensee, and there was nothing in the evidence either, to assure the Board that the Licensee will adhere to the legislative requirements or his responsibilities as a Licensee. As a result, a strong action, in this case, a revocation of the Licence is necessary as well for the safety of the public as well as the continued public confidence in and integrity of the regulatory regime of liquor licences in Ontario.
Finally, given the weighty factors described above, taken in conjunction with how fundamental and serious were the breaches of the legislation by this Licensee, the option of issuing a lengthy suspension to the Licensee and/or imposing further conditions on the Licence is not appropriate from both a general and specific deterrence point of view.
Thus, and for the reasons articulated above, the Board has decided that a revocation of the Licence is appropriate and required, and properly satisfies the dual guiding principles as to disposition, given the particulars of this case.
Order
- The Board ORDERS that liquor licence number 805675 issued to Santiago (Nelson) Joaquin-Ortega operating as CASA NOVA BAR & DANCE, 1-5 Water Street North, Cambridge, Ontario, N1R 3B2, is REVOKED, effective immediately.
DATED AT TORONTO THIS 19th DAY OF SEPTEMBER, 2008.
S. GRACE KERR, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER
SGK/sm