Registrar, Alcohol and Gaming Commission of Ontario v. 1254667 Ontario Inc., 2011 CanLII 64076

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-

1254667 Ontario Inc. operating as Mr. Bob’s Gourmet Pizza

Licensee

DECISION

Panel: Joan Lougheed, Board Member

Alex McCauley, Board Member

Decision Date: August 16, 2011

Hearing Location: Peterborough, 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 ) Tamara Brooks, Representative

1254667 Ontario Inc., Licensee ) Tracy Robinson, Principal of the

) licensed corporation

Allegations

1. A hearing into Notice of Proposal (“NOP”) number 15709 dated October 18, 2007, to revoke a licence, an Order dated October 18, 2007, to immediately suspend a liquor licence on an interim basis and a Supplementary Notice of Proposal number 15739 dated November 1, 2007 to revoke liquor licence number 202449 (the “Licence”), issued to 1254667 Ontario Inc. (the “Licensee”), operating as MR. BOB’S GOURMET PIZZA, 655 The Queensway, Units 1-4, Peterborough, Ontario, K9J 7M1, on the basis of alleged violations of clause 6(2)(d) 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 heard on June 27, 2011, in the City of Peterborough.

Decision

2. The Board orders the immediate revocation of liquor licence number 202449. Reasons follow.

Preliminary Matters

3. Tracy Robinson, principal of the licensed corporation, was self represented and waived the right to be represented by legal counsel.

4. The Board ordered that witnesses be excluded on consent.

5. Exhibit # 1, the drug exhibit log, was agreed to be accurate by the parties.

Registrar’s Evidence

6. Jamie Brockley is a police officer with the Ontario Provincial Police (“OPP”) and has served for 11 years. At the time of the events at the licensed premises he was a member of the combined forces drug enforcement unit.

7. The witness is familiar with the licensed establishment, and the principal of the company, Tracy Robinson, who was present at the hearing.

8. The witness stated that he was part of the team executing drug search warrants at the licensed premises and the residence of Mr. Tracy Robinson. Mr. Robinson’s trailer was located in the Anchor Bay trailer park. The search of Mr. Robinson’s licensed premises occurred October 15, 2007 and the trailer search occurred October 31, 2007.

9. On October 15, 2007 the witness along with several officers were directly involved in the search of the licensed premises. They attended the establishment at approximately 9:40 p.m. There were employees and patrons in the licensed premises. All occupants of the licensed premises were searched. The patrons were released and the employees were detained.

10. A search of the premises revealed the following:

1. In the women’s employee washroom on a top shelf, a box was located which had six individual packages of cocaine. The packages were red and black with the wording “Stay high.” Also found on the shelf was a pill container containing 44 ecstasy pills. There was a rose symbol on the pills.

2. In an office there was a filing cabinet and a fax machine. In the bottom drawer of the filing cabinet below the fax machine four percocet pills were found. In order to access the drawer a key had to be obtained from one of the employees.

3. In an old poker front storage room off the kitchen area a Styrofoam container was located which contained seven ecstasy pills stamped “ZZ.”

4. There was a safe located in a locked office. Mr. Robinson came and opened the safe. Located therein were 51 more percocet pills in a white pill container that had no label. Beside the pills in the safe were bundled cash in Canadian and American currency. The cash totaled $14,846.00. There were seven bundles of cash. Of those bundles five were bundles of Canadian dollars at $1,000 each, a sixth bundle contained $4,200 Canadian and the seventh bundle contained $5,646 American.

5. In a back room off the kitchen in the ceiling area behind some paint cans, two bags of ecstasy tablets in a zip lock bag were located. One bag contained 593 pills and the second had 592 pills. The pills were pink in colour. As well, in the attic area a grey grocery bag was found. The bag contained five dime bag packages of cocaine, each were 15.1 grams. The total weight was 86.7 grams.

11. Mr. Robinson stated to the witness when he had opened the safe that the only drugs in the business were the percocets and he had a prescription for those. No prescription was ever tendered and the pill bottle was not labeled.

12. The cocaine discovered in the attic of the licensed premises were in blue packages and had a koala bear symbol on the package.

13. The witness stated that “dime bags” are the common means for drug traffickers to move their product. A “dime bag” usually sells for $100.

14. Of the ecstasy tablets found in the washroom of the licensed premises, 44 were pink with a rose pattern. The ecstasy found in the attic area was similar in colour and design.

15. At the police station the witness spoke to Mr. Robinson. Mr. Robinson admitted ownership of the ecstasy found in the licensed premises, but denied knowledge of the cocaine. He further stated that staff had no knowledge of the drugs at the licensed premises.

16. The ecstasy recovered from Mr. Robinson’s residence as illustrated on exhibit #1 item 1 matched that of the ones recovered at the licensed premises.

17. At Mr. Robinson’s trailer on October 30, 2007, police recovered a clear plastic bag containing a single red and white dime bag with 2 grams of cocaine.

18. The “dime bags” found at Mr. Robinson’s residence on the October 15, 2007 were identical to those found at the licensed premises containing cocaine.

19. Analysis of the seized drugs showed positive for the cocaine. The ecstasy contained significant quantities of methamphetamine, which is a scheduled controlled item.

20. Mr. Robinson was charged with a number of offences under the Controlled Drug and Substances Act, including but not restricted to trafficking of a narcotic.

21. In cross-examination Mr. Robinson asked the witness how police gained entry to his trailer. He was told police found an insecure window and gained entry that way.

22. Ernie Garbutt is a police officer with the OPP. He is a member of the OPP’s drug unit. At the time of the events in question he was assigned to the Kawartha Combined Forces Drug unit.

23. On October 15, 2007 the witness was a member of the police search team searching the residence of Tracy Robinson. The witness was also responsible for compiling exhibit # 1, which was admitted on consent by the parties at the hearing.

24. At 21:56 hours the witness spoke to Mr. Robinson outside the residence. He described Mr. Robinson as very shaken. He had advised Mr. Robinson that he needed the combination for the safe in the office at the licensed premises. He further advised Mr. Robinson that he had found ecstasy in the basement. Mr. Robinson denied knowledge of ecstasy in the restaurant.

25. After finding several items the witness approached Mr. Robinson and suggested he tell him if there was other drugs or paraphernalia in the residence. Mr. Robinson was concerned about what was going to happen to his wife and child. He was assured that the mother and child would not be separated that night. Mr. Robinson then took him to the basement of the residence. In the laundry room he reached up to a shelf and took out a red Zellers bag (Item 4, Exhibit #1). The witness stated there was two ounces of cocaine in the bag.

26. When asked about drugs at the restaurant, Mr. Robinson stated there was about three grams of cocaine and a few pills in a pill bottle.

27. The items in a pill bottle as illustrated in Exhibit 1, item 8, were legitimate.

Licensee’s Evidence

28. Mr. Robinson stated he admitted to the pills in the bar because the police told him they were there. He doesn’t know how the pink pill got there.

29. Mr. Robinson stated he didn’t know about the cocaine in the ceiling at the licensed premises. He stated he didn’t put it there.

30. Mr. Robinson stated mistakes were made - there were dishonest employees that are no longer there.

31. With regard to the cocaine find at the trailer, Mr. Robinson was of the view that it was planted by the police.

32. In cross-examination Mr. Robinson admitted taking police to the drugs hidden in his residence.

33. He admitted being aware of the drugs at the licensed premises only because the police told him.

Registrar’s Submissions

34. Ms. Brooks submitted that Mr. Robinson is the sole officer of the corporation, which is the licensed premises.

35. On a balance of probabilities, the drugs found in the licensed premises and the home of Mr. Robinson were for the purpose of trafficking.

36. The notice of proposal sites a breach of subsection 45(2) of O.Reg. 719/90 in which the licence holder permitted a person to hold, offer for sale, sell or distribute a controlled drug or substance as defined in the Controlled Drug and Substances Act. The supplementary NOP simply adds on the finding at Mr. Robinson’s trailer.

37. Further the Registrar alleges that the Licensee is disentitled to a licence as it has breached clause 6(2)(d) of the LLA. The Licensee, because of past or present conduct, will not carry on business in accordance with law and with integrity and honesty.

38. Mr. Robinson’s assertion that he had no previous knowledge of the cocaine at the licensed premises cannot be believed because packaging (dime bags) found in his residence were the same as packaging containing cocaine in the licensed premises (item 2 on exhibit # 1). The ecstasy pills found at the residence matched those located in the licensed premises

39. The percocets found in the safe were not in a prescription bottle, nor did Mr. Robinson ever offer up a prescription for the pills.

40. The public interest must be ensured. The public must know that a licensed establishment will be operated with integrity and honesty. The public must be protected from drug trafficking.

41. The Registrar further moves that the interim suspension currently in place remain until the Board renders its final decision.

Licensee’s Submissions

42. Mr. Robinson states he never admitted the drugs were his. They were found five minutes after he left the licensed premises.

43. He stated he was scared at his residence and may have made statements he shouldn’t have.

44. The Pizzeria is still operating.

45. He wasn’t aware of events at the restaurant previously. He has cleaned the place up.

46. Mr. Robinson states there will be no more problems if his licence is reinstated.

Decision

47. The Board has considered the evidence as presented. The witnesses for the Registrar gave their evidence in a very concise and straight forward manner.

48. The Board is satisfied that the drugs found in the licensed premises and in the residences of Mr. Robinson were controlled drugs as scheduled in the Controlled Drugs and Substances Act. The way the drugs were stored and packaged is indicative of drugs that are being trafficked. The large amount of cash is also indicative of the manner used by drug traffickers. The use of the “dime bags” is clear evidence of drug trafficking. The paraphernalia as listed in exhibit 1 and admitted by Mr. Robinson such as digital scales is further evidence of drug trafficking.

49. From the evidence it is clear that Mr. Robinson had detailed knowledge of the narcotics in his home and in the licensed premises. The similarity to the drugs and packaging found in Mr. Robinson’s home, to which he led the police and the drugs and packaging recovered from the licensed premises is more than mere coincidence. The inference is clear that the drugs and paraphernalia located in Mr. Robinson’s home were all part of the larger supply recovered at the licensed premises.

50. The Board, based on the obvious evidence to the contrary, does not believe Mr. Robinson’s assertion that he had no knowledge of the drugs in the licensed premises. Further, the Board believes Cst. Brockley when he stated that Mr. Robinson admitted to him at the police station that he was aware of the ecstasy at the restaurant.

51. The Board finds that the percocet located in the safe in Mr. Robinson’s office were not there legally as medication for Mr. Robinson. The pills were in an unmarked container and no prescription was ever presented. In usual circumstances a prescription would have quickly been presented to show that possession of the pills was for a lawful purpose. This was never done. The Board does not accept Mr. Robinson’s explanation.

52. The Board is satisfied that the licensed premises was the base of a drug trafficking operation and that Mr. Robinson was complicit in all aspects of the illegal operation.

53. The Board is satisfied, based on a clear balance of probabilities, that the Licensee breached subsection 45(2) of O.Reg. 719/90 under the LLA.

54. Further, the Board has reasonable grounds to believe, based on the foregoing, that the Licensee’s business will not be carried on in accordance with the law and with integrity and honesty. The Licensee is in breach of section 6(2)(d).

55. Therefore, for the above reasons the Board orders the immediate revocation of liquor licence number 202449, issued to 1254667 Ontario Inc. operating as MR. BOB’S GOURMET PIZZA, 655 The Queensway, Units 1-4, Peterborough, Ontario, K9J 7M1.

DATED AT TORONTO THIS 16^th DAY OF August , 2011

JOAN LOUGHEED, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER