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-
Bennigins Dining Lounge Ltd. operating as Bennigins Dining Lounge Licensee
DECISION
Panel: David C. Gavsie, Chair, AGCO Decision Date: September 8, 2010 Hearing Location: Windsor, 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 ) Rena Khan, Representative
Allegations
- A hearing into Notice of Proposal number 18012 dated April 15, 2010 (the “NOP”) to revoke liquor licence number 203914 (the “licence”) issued to Bennigins Dining Lounge Ltd. operating as BENNIGINS DINING LOUNGE (the “Licensee”), 18B Talbot Street North, Essex, Ontario, N8M 1A5 (the “establishment” or the “premises”), on the basis of alleged violations of subsection 6(2) of the Liquor Licence Act (the “LLA”) was held on August 31, 2010 in the City of Windsor.
Decision
- The Board confirms its oral ORDER given at the conclusion of the hearing, namely that the licence is revoked.
Preliminary Matters
The Licensee had requested the hearing, and was served with the Notice of Hearing (Exhibit 1). Neither the principal of the Licensee, Douglas Earl McCormick, nor any representative for the Licensee appeared at the start of the hearing. The Registrar’s Representative tried to contact Mr. McCormick at 9:30 and 9:45 a.m., without success.
At the request of the Registrar’s Representative, the Board ORDERED the hearing proceed on an ex parte basis.
Registrar’s Evidence
Ms Marilyn Blazevic, an employee of the Ontario Ministry of Revenue (“MOR”) was called to give evidence. She has been employed with the MOR for 28 years. Since 1991, she has been a field officer. Her job is to investigate delinquent accounts through a field audit consisting of looking at financial books and records, bank accounts, etc., all with a view of determining retail sales tax (“RST”) arrears.
Ms Blazevic explained that under Ontario law, a licensee is required to collect RST, hold it in a trust account, and pay it on the due date to the Ontario government, such date being usually 23 days after the end of a reporting period. The RST was eight per cent on food over $4.00, and at ten per cent on all alcoholic drinks.
Through Ms Blazevic, the MOR Licensee’s Record was put into evidence (Exhibit 2). Ms Blazevic stated that through August 30, 2010, the day before the hearing, the Licensee had an outstanding balance owing of $30,249.37. The MOR believed the Licensee was still operating.
On Exhibit 2, MOR’s position was stated to be: “The Licensee has clearly demonstrated that he/she can no longer be expected to be financially responsible in the control and remittance of RST paid to him/her in trust.”
Ms Blazevic said there was never a memorandum of understanding between the MOR and the Licensee, nor ever any payment arrangement entered into.
An MOR account springboard dated August 30, 2010 for the Licensee was put into evidence (Exhibit 3). There were two sections to the account springboard. The first shows the money – tax, penalty and/or interest with payments. The second deals with returns – not filed, late filed or filed on time.
Ms Blazevic said that Exhibit 3, which covers the period from July 2004 through June 2010, shows the Licensee consistently late-filed his RST returns. Exhibit 3 also shows a balance owing – tax, interest, penalties and some credits – of $30,249.37.
Ms Blazevic stated that the returns for March, April, May and June, 2010 were not filed. As a result, the MOR estimated the RST owing as it had for previous months in the period.
Ms Blazevic said that after June 30, 2010, the harmonized sales tax (HST) had come into effect so there were no further obligations to file returns for a period ending after June 30, 2010.
Ms Blazevic explained that the Licensee was audited and that accounted on Exhibit 3 for the large amount of tax and interest on the line for the period September 2008.
A MOR statement of account for the Licensee was put into evidence (Exhibit 4). It is a current statement showing that on August 30, 2010, the Licensee’s account balance was $30,249.37.
Ms Blazevic stated Exhibit 4 showed the results of the audit in September 2008, together with amounts for subsequent periods. This statement is mailed out to delinquent taxpayers each month.
Ms Blazevic said she never talked to the principal of the Licensee, but someone from the MOR’s desk collection unit would have regarding the balance owing.
Registrar’s Submissions
Ms Khan said it is clear the Licensee owes RST, interest and penalties which money is in a trust fund being held for the Ontario government. It is also clear that the Licensee has a history of non-compliance in filing RST returns and making payment.
The Licensee has made no attempt to resolve the issue despite notices from the MOR. Further, the Licensee did not even attend the hearing he himself requested, nor did he send a representative.
The evidence shows a financial irresponsibility in carrying on the Licensee’s business.
The Registrar requests findings under paragraph 6(2)(a) and 6(2)(d) of the LLA with a result of the revocation by the Board of the Licence.
Board Findings and Order
Based on the uncontested and unrefuted evidence of Ms Blazevic, which the Board accepts in its entirety, the Board finds that the Licensee has breached the provisions of both paragraphs 6(2)(a) and 6(2)(d) of the LLA.
Accordingly the Board ORDERS that the licence issued to Bennigins Dining Lounge Ltd. operating as BENNIGINS DINING LOUNGE, 18B Talbot Street North, Essex, Ontario, N8M 1A5, is hereby REVOKED.
DATED AT TORONTO THIS 8th DAY OF September , 2010
DAVID C. GAVSIE, CHAIR, AGCO