Registrar, Alcohol and Gaming Commission of Ontario v. Marinho (Marino) Moniz, 2009 CanLII 70927

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-

Marinho (Marino) Moniz operating as or intending to operate as

Manny’s Sports Bar

Applicant

DECISION

Panel: Allan Higdon, Board Member Eleanor Meslin, Board Member

Decision Date: November 26, 2009

Hearing Location: Hamilton, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario 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 Marinho (Marion) Moniz, Applicant ) R.J. Plouffe, Representative

The Application

1. The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal (“NOP”) number 17456 dated August 17, 2009 to renew a liquor sales licence number 802743 issued to Marinho (Marino) Moniz (the “Licensee”), operating as MANNY’S SPORTS BAR, 545 Main Street East, Hamilton, Ontario, L8M 1H9, on the basis that the Registrar has reason to believe that the Licensee would be disentitled to a renewal of the licence under clauses 6(2)(d), 6(2)(e) and 6(2)(f) of the Liquor Licence Act (the “LLA”), was held on October 20, 2009 in the City of Hamilton.

Decision

2. After considering all the evidence and submissions, the Board DECLINES to renew the liquor sales licence for Marinho (Marino) Moniz operating as Manny’s Sports Bar. Reasons to follow.

Preliminary Matters

3. Mr. Morris presented the following, which were entered as exhibits:

• Exhibit #1 CPIC Report on Marinho Moniz
• Exhibit #2 Liquor Licence Renewal Application dated August 2, 2008
• Exhibit #3 Letter to AGCO from Marinho Moniz dated October 9, 2008
• Exhibit #4 CPIC Report on Manuel (Manny) Moniz
• Exhibit #5 Occurrence Summary re Possession of Stolen Property re Manuel Moniz
• Exhibit #6 Letter to AGCO from Manuel Moniz dated October 9, 2008
• Exhibit #7 Letter to AGCO from Novo Business Services Ltd. dated October 9, 2008
• Exhibit #8 Transfer Application dated October 30, 2001
• Exhibit #9 Liquor Licence Renewal Application dated August 19, 2002
• Exhibit #10 Terms of Registration for Break-Open Ticket Supplier dated October 10, 2004
• Exhibit #11 Liquor Licence Renewal Application dated September 8, 2005

4. On consent, the Board ordered an exclusion of witnesses.

Registrar’s Evidence

5. Art Ristan, an AGCO inspector, attended the premises on July 23, 2009 at 13:05 p.m. after receiving a call from the licensing office to talk to the Licensee regarding a renewal.

6. He spoke briefly to the bartender, Gerette Moniz, when Manny Moniz approached him and presented himself as the owner of the building, but not the license-holder.

7. They discussed the Confirmation Notice which allowed them to operate for one year while waiting for the licence renewal. He advised Mr. Moniz that the year was almost up.

8. Manny Moniz presented himself as the owner. He buys all the products, pays all the taxes, including liquor sales tax, and pays the employees. He put all the money into purchasing the business.

9. He told the inspector that Marinho Moniz was only there for the first year as a convenience to get the liquor licence, since Manny Moniz had a DWI charge against him.

10. Inspector Ristan testified that he had attended the bar four or five times and the only owner present appeared to be Manny Moniz.

11. When asked if he could identify the man sitting at the Licensee’s table at the hearing, he said he did not know the man. The man was Marinho Moniz.

12. The Inspector said he had done a break-open ticket inspection in 2007. The Registrant was Manny Moniz (Exhibit #10).

13. He always spoke English with Manny Moniz who had no trouble understanding and responding to him in English.

14. Responding to Mr. Plouffe’s questions, Inspector Ristan said he had worked in the area for five years and visited the bar once a year for 15 to 20 minutes each time. There had been no problems with the bar.

15. He said that Manny Moniz’s English was very understandable and he had never told Inspector Ristan that he did not understand his questions.

16. On July 23, 2009 Manny Moniz had told him he was the landlord and that he ran the business. Inspector Ristan indicated that, to his knowledge, managers did not usually control the business funds. He agreed that family members were often involved in a business.

17. Renee Serianni is a Sergeant with the Ontario Provincial Police (OPP). She works in the AGCO Niagara Region Office as the Manager and is in charge of investigations.

18. She supervised the Renewal Application for Manny’s Sports Bar and compiled the reports of the Licensing Officer.

19. Regarding the CPIC Report (Exhibit #1) on Marinho Moniz, he was charged with impaired driving on April 19, 2008, convicted and fined $800 with a one year suspension of his driver’s licence.

20. Sergeant Serianni referred to the Renewal Application (Exhibit #2) and indicated that in the Personal History section, in response to question 10 regarding criminal convictions, the applicant had answered “no”, which was a false statement. He also did not disclose his stolen property conviction in the Statutory Declaration above his signature. Failing to disclose this information could result in a refusal to renew a liquor licence.

21. Regarding Marinho Moniz’s letter of October 9, 2008 (Exhibit #3) he said that although there was a conviction, the case had not gone to court. He said he was convicted and the reason he did not report this was that he did not read the report when he signed it. Sergeant Serianni commented that this was not an acceptable explanation.

22. Referring to Exhibit #4, the CPIC, RCMP Identification Services report on Manny Moniz, it listed his criminal convictions:

• 1994 – driving while impaired - $750 fine
• 2001 – driving while impaired - $1,500 fine
• 2004 – obstruct peace officer - $800 fine or 6 days for non-payment
• 2008 – possession of property obtained by crime over $5,000 - $4,000 fine

23. Regarding the 2001 conviction, his blood alcohol level was three times the legal limit. In the 2004 offence, Manny Moniz and a friend attended at Casino Rama. His friend was refused entry and Manny at first refused to identify himself, then gave a false name and date of birth. When the police arrived and indicated he was bound by a probation order, he then gave his correct identification.

24. Sergeant Serianni testified regarding Exhibit #5, the Occurrence Report about the stolen property over $5,000.00 conviction. In the Synopsis on page 4 it indicated that the stolen property had been brought to Manny Moniz at his request from someone named “Dan”.

25. In Exhibit #6, Manny stated he had four convictions but forgot the dates and results, which is not a reasonable explanation, according to Sergeant Serianni.

26. His reason for non-disclosure was that he signed without reading the form. He admitted that his conviction for possession was his fault but said the goods belonged to someone else. Sergeant Serianni indicated that she believed he was not credible and was unwilling to accept responsibility for his actions.

27. Regarding Exhibit #8, the 2001 Transfer Application, the owner was given as Marinho Moniz at section 3.1.1. In section 3.9, the manager is listed as “self”. On the Personal History Report in Question 1, he is listed as the owner. Question 5 indicates he will be employed in the establishment. His age is given as 19.

28. In Exhibit #9, the 2002 Renewal Application, on page 2, Marinho Moniz is listed as the owner, but the credit card holder is Manny Moniz.

29. On the 2005 Renewal Application (Exhibit #11), Question 3 lists the contact person as Marinho Moniz and Question 4A names him as the sole proprietor. Question 6C indicates he will manage the day-to-day operations himself. He is also listed in the Personal History Report as the proprietor. There is no mention of Manny Moniz.

30. Also, in Exhibit #2, Marinho Moniz is listed as the contact person, sole proprietor and day-to-day manager of operations.

31. In response to Mr. Morris’ question as to whether the licence should be in Manny Moniz’s name, Sergeant Serianni said that would not be acceptable, since there had been no demonstration of his honesty or integrity. Asked if the licence should be issued to Marinho Moniz with Manny Moniz being excluded, she replied that because he had not disclosed his criminal convictions and also lacked honesty and integrity, she would object to issuing the licence renewal.

32. To Mr. Plouffe’s questions, Sergeant Serianni responded that she had never been to the bar or met either man. Her investigation was based on reports she received and she did not make the final decisions.

Licensee’s Witnesses

33. Luis Manuel Pimenta has been Manuel (Manny) Moniz’s accountant since the business started. He did the first renewal application and the Licensee was Marinho Moniz. Manny has been an employee since the second year. Mr. Pimenta filled in the renewal applications, including the Personal History Reports. He indicated that he completed the applications on his own, without checking with the brothers and used previous applications’ information.

34. He spoke only Portuguese to them and often translated forms for them.

35. Responding to Mr. Morris, he admitted he was a bookkeeper, not an accountant. He said that Manny Moniz has difficulty speaking English and Mr. Pimenta doesn’t know if he can read or write in English.

36. He testified that on the 23rd of each month he picked up the Provincial Sales Tax (“PST”) returns from the bar and filled them out using the cash tapes.

37. He was asked to pick up a Renewal Application by one of the brothers and he completed it on August 26 at the bar. One brother was there and signed it and the other did so later. He felt they were competent to sign without him present, but not to read or understand it.

38. In Exhibit #2, Question 10 he outlined Manny Moniz’s convictions. He did not sit with each brother and read each question to them. He filled the forms out on his own.

39. At the beginning he dealt exclusively with Marinho Moniz who signed all the forms. Later, Manny Moniz took over. Mr. Pimenta did not know who controlled the business or who bought the liquor.

40. In response to the Board’s questions, he said the handwriting on the applications was his. He made no attempt to see if the information from the previous applications was current when he copied it to the new application.

41. Marinho Moniz has been the licence holder for about eight years. He works behind the bar mostly on weekends and in construction during the week.

42. He has known Mr. Pimenta for six and a half to seven years. Mr. Pimenta is their bookkeeper and filled in the applications for him which Mr. Moniz signed. He did not sign the Personal History Report or authorize Mr. Pimenta to sign it.

43. He has never been charged with any liquor infractions.

44. Responding to Mr. Morris’ questions, he indicated that he is 27 years old. He came to Canada when he was six and his brother was 18.

45. The liquor licence was transferred to him in 2001. Prior to 2001 he had no experience in the liquor industry. Between 1989 and 2001 Manny Moniz worked in a factory and had no liquor experience. His brother bought the building and the bar to be a family business under Marinho Moniz’s name. Marinho Moniz made no lease or rental payments to Manny Moniz.

46. Marinho Moniz worked at the bar 20 to 25 hours a week. The bar was open daily from 7:00 p.m. to 12:00 a.m. His sister runs the bar from Monday to Friday.

47. The bookkeeper completed all the PST payments and Marinho Moniz did not know when they were due. The Application (Exhibit #2) was completed by the bookkeeper. He was not there when it was done, but he signed it later at home. He does not purchase the liquor for the bar; it is done by the other employees. He speaks excellent English but has some difficulty reading it.

48. He knew that the Personal History Report (Exhibit #2) dealt with criminal charges. Although he had been charged with impaired driving in 2008, he signed off that he had no criminal charges because he had not been convicted at the time.

49. He did not read Manny Moniz’s Personal History Report and did not know until later that Manny Moniz had been charged criminally. After the form had been completed, Manny Moniz told him about the stolen tools in the bar. He did not fire Manny Moniz because he was family and was in charge of the bar.

50. In response to Mr. Plouffe, he stated that Manny was an employee and manager of the bar and not the owner.

Registrar’s Submissions

51. The Registrar is asking for findings under clauses 6(2)(d), (e) and (f) of the LLA regarding past conduct and false statements.

52. First, regarding the criminal record of Marinho Moniz, his recent conviction of impaired driving would not, by itself, be reason to deny a renewal. However, his false statements as shown in Exhibit #2, by his response that he had no convictions, having been recently charged, is of great concern to the Registrar.

53. His testimony at this hearing, that he had misread the application conflicts with his letter to the AGCO where he wrote that he did not read the application.

54. He has misled the Board and it should so find.

55. Second is Manny Moniz’s criminal record:

• 1994 – impaired driving
• 2001 – impaired driving
• 2004 – obstruct police
• 2008 – possession over $5,000.00

56. He is the real owner of the bar and the 2008 conviction is a very serious one. He was purchasing stolen goods on order and keeping them in the bar to fence them.

57. The only reason the Registrar did not issue an NOP to revoke the licence was because he was not aware of the 2008 conviction at the time. Because of the seriousness of the crime, it is grounds enough by itself to refuse to renew the licence.

58. Even if Manny Moniz was only the manager, this is a serious concern since Marinho Moniz is rarely there and Manny Moniz is in control.

59. Exhibit #2 is misleading since there is no disclosure of the two recent convictions. The reasons given in Manny Moniz’s letter (Exhibit #6) are not believable. He did not appear at this hearing to testify on his own behalf and the Board should draw a negative inference from this.

60. Regarding the bookkeeper’s testimony, he admitted that he completed the forms and had them signed, without consulting with either Marinho Moniz or Manny Moniz. He was unclear about who actually owns the business and his testimony cannot be relied on.

61. Inspector Ristan’s evidence was clear that he had no difficulty communicating in English with Manny Moniz who said he was the owner, bought all the products, paid the employees and the taxes. He told the Inspector that Marinho Moniz had only been at the bar for a year and did not work there very often. The Inspector had only dealt with Manny Moniz and had never seen Marinho Moniz until the hearing.

62. Mr. Morris submitted that the business is Manny Moniz’s and Marinho Moniz is a front to get the licence renewal. The renewal should be refused because both brothers have criminal records, they made false statements regarding those records, and Marinho Moniz’s alleged ownership of the bar. Therefore, the licence should not be renewed.

Licensee’s Submissions

63. Marinho Moniz’s impaired conviction is not criminal activity.

64. Sergeant Serianni’s evidence is not helpful since she has never met either Manny Moniz or Marinho Moniz and has never been at the bar.

65. Inspector Ristan has only visited the bar four or five times over five years and never met Marinho Moniz.

66. The bookkeeper spoke to them only in Portuguese and they trusted him and did as he asked regarding the forms and the RST payments. He assumed that nothing had changed and they did not tell him about their past criminal conduct.

67. Marinho Moniz was not aware, at the time, of Manny’s possession over $5,000 conviction. He is not a criminal and is a hard worker and should be given a chance by renewing the licence.

68. Regarding Manny Moniz’s conduct, the Board could order that he not be permitted to work at the bar.

69. The bookkeeper had admitted his errors which have jeopardized the licence and there have never been any problems regarding liquor matters at the bar. Therefore, the licence should be renewed.

Registrar’s Reply

70. Manny Moniz has been the owner and this does not mean that Marinho Moniz can now run it. He also has a criminal conviction. It is not reasonable to believe that both brothers were not aware of the question on the application regarding criminal convictions. The bookkeeper cannot be blamed. They are each responsible for filling out the application.

Analysis and Reasons

71. The onus is on the Registrar to prove the past or present conduct of the Licensee affords reasonable grounds for belief that the Licensee will not carry on business in accordance with the law and with integrity and honesty.

72. Marinho Moniz falsely stated on the Renewal Application (Exhibit #2) that he had no criminal convictions, although he had been recently charged with impaired driving. The excuse to the Board was that he had misread the application. This was in conflict with his excuse in a letter to the Board (Exhibit #3) stating he had not read the application. The Board does not accept either of these explanations. They are contradictory and no explanation was provided for the contradiction. In addition, each of the explanations is implausible and unacceptable. Also unacceptable is the argument that the bookkeeper always filled out the forms. It is the responsibility of the person completing the form to have either read it or have it read to him, or translated, if necessary, before signing. He has misled the Board with his excuses.

73. Regarding Manuel (Manny) Moniz, he did not disclose his two most recent convictions on the Renewal Application. His reasons for not doing so, as outlined in his letter to the AGCO (Exhibit #6), that he forgot the dates and results and that someone else completed it for him and that he did not read it before signing are unacceptable to the Board. Particularly since the 2008 conviction of possession over $5,000 is a very serious matter, which is compounded by the fact that the stolen goods were kept in the bar.

74. The Board draws a negative inference from the fact that Manny Moniz was in attendance when the Registrar’s representative presented its case, but was conveniently absent, thus not testifying during the Licensee’s presentation of its evidence.

75. As to the ownership of the licence, the Board accepts the testimony of Inspector Ristan that Manny Moniz had told him he was the owner, had bought all the products and paid the employees and the taxes. He also told Inspector Ristan that he had purchased the business and that Marinho Moniz was there the first year as a convenience to get the liquor licence, since Manny had a DWI charge against him.

76. In addition, Marinho Moniz testified that he only worked at the bar on weekends, made no product purchases, knew no details regarding payment of taxes and when he found out about Manny’s possession of stolen goods conviction, took no action to fire or reprimand him. This lack of action or responsibility further supports the Registrar’s submission that Marinho Moniz was not the owner, but was a front for Manny Moniz in order to get the licence renewed.

77. The Board does not accept the Licensee’s contention that because of the brothers’ poor English, they trusted the bookkeeper to complete the forms which they then signed. The responsibility for ensuring the information completed was correct lies with the signatories, in this case Manny Moniz and Marinho Moniz.

78. For the above reasons, the Board FINDS that the Registrar has met its onus of proving that the past or present conduct of the Licensee affords reasonable grounds for the belief that the Licensee will not carry on business in accordance with the law and with integrity and honesty and that the Licensee has violated clauses 6(2)(d), (e) and (f) of the LLA.

Order

79. Therefore, the Board DECLINES to renew liquor sales licence number 802743 for Marinho (Marino) Moniz (the “Licensee”), operating as MANNY’S SPORTS BAR, 545 Main Street East, Hamilton, Ontario, L8M 1H9.

DATED AT TORONTO, THIS 26th day of November , 2009.

ALLAN HIGDON, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER