Registrar, Alcohol and Gaming Commission of Ontario v. Antonio Francis Passero O/A Penalty Box Restaurant, 2010 CanLII 25977

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-

Antonio Francis Passero O/A Penalty Box Restaurant Licensee

DECISION ON SANCTION

Panel: David C. Gavsie, Chair, AGCO Kirsti Hunt, Vice-Chair, AGCO

Decision Date: April 1, 2010 Hearing Location: St. Catharines, 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 Antonio Francis Passero, Licensee ) On his own behalf

Authorities

Big Ed's Tap and Grill (Re), [2007] O.A.G.C.D. No. 144 Golden Bell, LLBO Decision dated March 3, 1992 (Unreported) Papa's Pizzeria (Re), [2007] O.A.G.C.D. No. 283

Allegations

1A hearing into Notice of Proposal (“NOP”) number 16981 dated January 27, 2009, to revoke liquor licence number 25589 (the “licence”), issued to Antonio Francis Passero (the “Licensee”), operating as PENALTY BOX RESTAURANT, 225 Gilmore Road, Fort Erie, Ontario, L2A 2M2 (the “premises” or “establishment”), with respect to section 6 of the Liquor Licence Act (the “LLA”) and subsection 45(2) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA, was held on September 16, 2009 in the City of St. Catharines.

2In its decision of February 2, 2010, the Board made findings that the Licensee contravened section 6(2)(d) of the LLA and subsection 45(2) of the O.Reg and directed parties to file written submission on the appropriate sanction.

3The Registrar provided written submissions. Despite several requests for submissions from the Licensee, none were received from him.

Registrar’s Submissions

4The Registrar submitted that a revocation of the licence is appropriate as a specific as well as a general deterrence based on the past history of four previous suspensions of the licence and the aggravating circumstances of the present case. Despite knowing that in 2004, G.P. had been convicted for possession of cocaine while working in the premises, the Licensee permitted his brother to continue to work in the premises and in fact be in charge of the premises during the evening. Mr. Passero was at minimum reckless about his brother’s activities in the premises and attempted to abdicate his responsibilities as a licensee. G.P.’s involvement in the business far exceeded that of a normal employee.

5The Registrar cited the Board decisions in the cases of the Golden Bell, Papa’s Pizzeria and Big Ed’s Tap and Grill which are similar to this case. One family member is operating the establishment and another family member is selling drugs. The Licensee has been either unwilling or unable to stop or prevent the drug sales from occurring.

Decision on Sanction

6The Board reviewed the submissions of the Registrar, as noted above. The Licensee filed no submissions regarding an appropriate sanction despite numerous requests to do so.

7The Board notes that this licence has been suspended on four occasions, in 1991, 1993, 2004 and 2008. The infractions on those occasions were serious but by themselves did not warrant the revocation of the licence.

8However, the present matter reflects a situation that cannot be tolerated in a licensed premises. The Board agrees with the Registrar that the circumstances of this matter are similar to those in the decisions cited in which cases a family member was running the establishment and selling drugs and the Licensee was either unwilling or unable to stop or prevent it. The Board ordered a revocation of the licence in those cases. In this case, the Licensee permitted his brother to work and be in charge of the premises, thus giving him an opportunity to engage in drug activity in the premises despite knowing of his brother’s conviction for possession of cocaine while working in the premises in 2004. The Licensee tried to distance himself from the actions of his bother, asserting that the matter of the drugs involved G.P. only, thus abdicating any responsibility as a licensee. This a licensee cannot do. A licensee is responsible for what happens in the licensed premises and for the conduct of his employee

9The Board considered a lengthy suspension and attaching a condition on the licence that would prohibit G.P. from being in the premises or playing any role in the operation of the business. However, the Board is not satisfied that this would have any more deterrent effect than the existing condition of the licence which prohibits G.P. from being in the licensed areas or in any adjacent area of the premises. Despite the condition, the Licensee permitted G.P. to work and be in charge of the premises in the evening. The Board has no evidence to conclude that the Licensee would abide by an amended condition any more than he did the current one. No condition would appear to resolve the concerns that the Licensee was operating in clear breach of the current condition by permitting G.P. to work there.

10In the specific circumstances of this case, the Board finds that revocation of the licence is appropriate as a specific as well as a general deterrence.

Order

11Therefore, the Board ORDERS that liquor licence number 25589, issued to Antonio Francis Passero, operating as PENALTY BOX RESTAURANT, 225 Gilmore Road, Fort Erie, Ontario, L2A 2M2, be REVOKED immediately.