Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-01-27
FILE:
7332/LLA
CASE NAME:
7332 v. Registrar of Alcohol and Gaming
Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 - to Revoke a Licence
Luigi Calabro o/a Incontro Cafe
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Simon Dann, Member
APPEARANCES:
For the Applicant:
Adam Goodman, Counsel,
Robert Burke, Counsel
For the Respondent:
Aviva Harari, Counsel
Heard in Toronto: October 29, November 13 and 14, 2013
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, dated March 21, 2012, to revoke the liquor licence (“the licence”) of Luigi Calabro operating as Incontro Caffe (the “Applicant/Incontro”). The Applicant appealed this Proposal to the Licence Appeal Tribunal.
The basis of that Proposal was the Registrar's belief that a person having beneficial interest in the business and responsibility for the management or operation of the business afforded the Registrar with reasonable grounds for belief that the business would not be carried on in accordance with the law and with integrity and honesty.
An Amended Notice of Proposal was issued on July 9, 2012 which included allegations arising from an attendance by police officers on April 9, 2012. On September 19, 2013, the Registrar issued an Amended Amended Notice of Proposal which included the fact that the Licensee had, on or about June 6, 2013, been found guilty in Provincial Court of several charges, contrary to the Liquor Licence Act and its Regulation 719/90 (“Reg. 719/90”) including obstructing an inspection, failing to remove signs of service and, failing to comply with the Fire Protection & Prevention Act.
The Amended Amended Notice of Proposal also states the Licensee had, on August 6, 2013, also been found guilty of other charges including permitting unlawful gambling ( section 45(1) of Reg719/90), and possession of proceeds contrary to section 46.1(2) of the Liquor Licence Act.
EVIDENCE
Sgt. Sean McCutcheon is a member of the Toronto Police Services and has worked in Liquor Licence Act enforcement for about 4 years. On March 12, 2012, he received information about an establishment, identified as Incontro Cafe, that reportedly had slot machines at the front and poker tables at the back.
When he arrived at the location at 11:00 am that day, he found several patrons, the owner (Luigi Calabro), one table top machine, one unplugged and 3 coin operated gaming machines identified as a Cherry Master, a Super Shanghai and a Keno (Exhibit 3). Mr. Calabro acknowledged he did not have a permit for the machines and said they were not "paid out".
Sgt. McCutcheon went behind the bar and found a ledger book noting a page with the date heading of January 29, 2012. The same page had a list of names and amounts, which led him to conclude that there was illegal gaming going on in the establishment.
After asking Mr. Calabro to close the bar and have the patrons leave, he continued his search and found dozens of decks of cards and poker chips behind the bar. A menu (Exhibit 5) was taped to the wall behind the bar and the fire exit lights were not working. The establishment's liquor licence was two thirds concealed by bags of chips. Cigarette butts were found on the floor around the gaming machines, contrary to the Smoke Free Ontario Act.
When he checked the unlicensed area in the basement, Sgt. McCutcheon found the floor was littered with cigarette butts and beer caps. He also found poker, baccarat and blackjack gaming tables folded against a wall, in a closet. In a furnace in a corner of the basement room, he found "baggies" with what he thought was trace amounts of cocaine.
He returned to the main floor, seized all the cash and called his supervisor. After AGCO Inspector Hetherington arrived, they spoke with Mr. Calabro, who admitted machines did pay out 5 cents per game and once a player earned 1000 points, there was a $50 payout. Mr. Calabro described amounts in the ledger book as patron bar tabs.
Sgt. McCutcheon left the establishment after the gaming machines had been removed.
On April 9, 2012, about 3:00 am, Sgt McCutcheon conducted a follow-up inspection. He and two other officers were in uniform and they parked at the rear of the establishment to avoid being seen before entry.
Sgt. McCutcheon saw a male come out of the establishment’s rear door before he and the other officers were able to enter. He said the male, on seeing the police, ran back into the establishment and locked the door with a deadbolt. Sgt. McCutcheon nonetheless managed to open it and gain entry.
Inside Incontro, they found two people behind the bar; one was an employee ("F") and the other, a patron. There were another 8 patrons and two had alcoholic beverages.
Sgt. McCutcheon said the place reeked of smoke, the floor was littered with ashes, and 15 cases of beer were stored on the stairway to the basement. The establishment's liquor licence was hidden behind bags of chips. Mr. Calabro was not present but he did arrive shortly after being called by the employee F.
Through cross-examination, the Tribunal heard that no money had been found in the gaming machines, no one was seen using the machines and no one was found in the basement.
Sgt. McCutcheon said they tried to find the male who had locked the back door and obstructed him in his duties which could have led to the arrest of the person. Obstruction in itself is sufficient cause for a liquor licence charge.
He acknowledged that a glass of red liquid, on a patron's table, had not been examined to verify what the liquid was.
Jennifer Garner, a Toronto Police Services officer was a member of the team at Incontro on March 12, 2012. She entered at the same time as Sgt. McCutcheon and went directly to the back room where she saw 5 gaming machines. She described one as being broken, one was coin operated and the other three, with padlocks on them, were a Cherry Master, a Super Shanghai and a Keno.
Her testimony confirmed Mr. Calabro had said he did not have permits for the machines. She also saw the exit signs were not working, that there were playing cards and numerous sealed playing card decks behind the bar. There was also a debt book ledger with names and numbers. The liquor signage was hidden behind bottles and the posted menu did not display the liquor volumes to be served, only prices.
Her testimony confirmed the finding of cigarette butts, beer caps, and gaming tables leaning against a wall in the basement. She found small baggies with white residue in a furnace in a corner of the basement. The material was later sent to Health Canada for analysis and it found to be a cocaine substance (Exhibit 7).
Officer Garner returned to Incontro, with Sgt. McCutcheon on April 9, 2012. She confirmed they were at the rear of the establishment at 2:55 am, but she did not see a man running though she heard a door slam shut. She did hear Sgt. McCutcheon shout that there was someone running and was not sure how he managed to get the locked back door open.
Once inside, she saw two females with wine glasses containing a red liquid as well as two men behind the bar - one was "F", an employee. She also noted another person in front of the bar holding a bottle labeled Coors Light and it appeared half full.
When she went to the basement, she found the stairway door partially obstructed by 15 beer boxes. In the basement, she found evidence of cigarette smoking as well as a poker chip on the floor.
Exhibits 8 and 9, Toronto Police Case Tracking numbers 2457099-1 and 2467708-2 confirmed that Mr. Calabro was found guilty on the charges of obstructing inspection (LLA 45(1)), failure to remove signs of service (LLA 29, Reg 719/90), failing to comply with the Fire Protection Act (LLA 50(c), Reg 719), permit unlawful gambling on premises (Reg. 719/90), and possession of proceeds of designated Liquor Licence Act offence (LLA 46.1(2)).
Roland Galdiks is with Toronto Police Services and conducts liquor inspections. On March 12, 2012, he was called to join Sgt. McCutcheon at Incontro where he participated in seizing and removing 5 gaming tables, a number of loose playing card decks, 113 sealed decks, poker chips (Exhibit 10 photos) as well as cash in the till. He said he had no dealings with Mr. Calabro and did not hear him say anything.
Sean McCahery is with the Toronto Police Services and attended at Incontro on March 12, 2012 to take evidentiary value photographs. He was directed by Sgt. McCutcheon and Officer Garner. The photos he took are contained in Exhibit 11.
Paul Young is with Toronto Police Services and he occasionally does liquor licence inspections. He was with Sgt. McCutcheon on March 12, 2012 to assist with seizing the gaming machines but did not have any dealings with Mr. Calabro.
His testimony included a description of the gaming machines and tables. His notes included references to cigar and cigarette smoke in the air but he did not see anyone smoking. He was aware of the baggies with a white substance but did not handle them.
Officer Young also attended the April 9, 2012 follow-up inspection. He saw Sgt. McCutcheon run after a male running into the bar. Once inside, he saw two males behind the bar and a male and female at a table with an empty wine glass containing what he called wine residue in front of them. He also saw a bottle of beer on the bar.
Stephen Hetherington, an AGCO inspector, arrived at Incontro Café just before noon on March 12, 2012. He found the front door locked but was let in by Mr. Calabro.
He noted the liquor licence was obscured by bags of chips and the posted menu did not show portion sizes for alcohol drinks. He also noted that contrary to Fire Code requirements, the front and rear exit signs were not lit.
Mr. Hetherington saw the illegal gaming machines in the back room and a list of payouts on the machines. He said the basement is not a licenced area but that there were gaming tables and beer caps. He did not see the small baggies which the police officers had reported.
Mr. Calabro told him that he operates the machines and there is a $0.05 payout and credits can build to a total of 1000 at which point the player gets a $50 payout. Mr. Hetherington also went behind the bar where he saw a black book with names and numbers. Mr. Calabro said these were debts for bar tabs. Mr. Hetherington advised Mr. Calabro this represented illegal gaming and that he would be writing a report regarding the violations.
Mr. Hetherington was not at the April 12th inspection and did not do any further inspections.
Ontario Provincial Police Staff Sgt. David Andrew Taylor and Inspector Daniel Alakas did not take part on either of the inspections at Incontro. Their evidence, as witnesses, for the Registrar, is based on the review of observations and materials collected by the previous witnesses on March 12, 2012.
Staff Sgt. Taylor is recognized as an expert in gaming machines technology and Inspector Alakas is recognized as an expert in gaming law.
The testimony of the witnesses was in regard to the gaming machines, game tables and the quantity of playing cards and poker chips found at Incontro Café during the March inspection. It was their opinion that there were on-going games and illegal gambling taking place at Incontro Cafe.
Staff Sgt. Taylor pointed to a spreadsheet (Exhibit 12, Tab 3) which referred to credits paid out as cash values and, the ledger (Exhibit 6) which listed 26 recorded dates for a total of payouts of $6,305. In his opinion, Mr. Calabro was the owner of the machines and the machines were in constant use.
In cross-examination, Staff Sgt. Taylor acknowledged the machines seized are found “quite regularly” in all kinds of locations, including clubs, variety stores and restaurants. He also acknowledged that while the ledger entries could be consistent with Mr. Calabro's explanation that the entries were a record of food and drink debts, the ledger entries noted names and payouts (Exhibit 6).
Inspector Alakas' testimony focused on the law around the “business of gambling” and that the “house” will profit from the activity but not necessarily participate in it. He said that if an establishment is found to have 100 decks of cards which can be used in a poker game, it is of concern and indicates gambling activity. Cards in play will get marked in some way and another player can determine which card someone holds by the mark. This leads to the frequent change of decks.
Inspector Alakas explained that poker is meaningless unless played for stakes which may be, prizes, food or drinks and include 2 players or tournaments of 6 to 10 players. In licensed establishments there is generally a requirement to buy food or drink and a mandatory purchase means the establishment becomes a ‘house’ and if it profits from that game, it is illegal.
It was his opinion that the sign reading “For any card playing one consumption per game per person” (Exhibit 11, photo 2586) was consistent with a gain for the house and only the government can allow gambling.
Counsel for the Applicant elected not to call any evidence.
Registrar's Closing Submissions
Ms Harari referred to the Registrar's Notice dated, September 19, 2013, and submitted that a number of the grounds can be described as technical breaches, in particular, those set out in paragraphs 3 (d), (e), (f), (i), (j) of that Proposal.
She noted that findings of guilt had been made by a court against Mr. Calabro, on the charges of obstructing an inspection, failing to remove signs of service, failing to comply with the Fire Protection and Prevention Act, and permitting unlawful gambling. Ms. Harari referred to Jacobs v. Registrar, Motor Vehicles Act, 2004 SCJ 639/01 ("Jacobs") to argue that the Tribunal cannot go behind the guilty findings on those charges.
Regarding the specific issue of the gaming machines, Mr. Calabro's counsel, Mr. Burke, conceded they had been found on the premises and are illegal.
Ms. Harari submitted the Licensee, as the owner of the machines, used the bar for illegal gambling, that he was a financial beneficiary of the gambling activity and has been found guilty of permitting illegal gambling. She submitted the conduct has been repeated, on-going, and therefore, the proposal for revocation of the liquor licence is the appropriate sanction.
In her submissions, Ms. Harari referred the Tribunal to the following cases: Com & Play Cafe Inc. (c.o.b. Vivid Bar Lounge) (Re), [2010] O.A.G.C.D. No.283 ("Vivid") and Adams Pizzeria (Prescott) Ltd. (c.o.b. Limit Exotic) (Re), [2011] O.A.G.C.D. No. 156, ("Adams").
Ms. Harari argued that under section202(1)(b) of the Criminal Code of Canada, it was not necessary for the machines to actually be in use, or to have been used, rather it was sufficient the licensee owned and kept a machine he knew was a gambling device.
Applicant's Closing Submissions
The Applicant's Counsel, Mr. Burke, submitted that Mr. Calabro has readily admitted to the police that he owned the gaming machines and agreed that it is a serious issue.
Regarding the obstruction charge, Mr. Burke pointed out that Mr. Calabro was not present at Incontro when the second inspection occurred and therefore could not have been involved with any obstruction. However, when Mr. Calabro was called, he arrived within a very short time and cooperated with the police.
Mr. Burke submitted that liquor service at Incontro was compliant: the bar did not permit drunkenness, did not serve after hours, and served only what was supposed to be served.
Regarding the appropriate sanction, Mr. Burke made reference to case law in which the contraventions, he suggested, were more serious but the result was a suspension rather than licence revocation. Therefore, a substantial suspension and conditions would be the more appropriate sanction in this instance: Youssef (Re), 2007 CanLII 21349 (ONAGC); 2076110 Ontario Ltd. (Strokers Sports Bar & Pool) (Re), 2008 CanLII 52592 (ONAGC); and 1008835 Ontario Ltd. (Tara Inn Pub & Restaurant) (Re), 2009 CanLII 20293 (ONAGC).A number of additional cases cited were:
Re 1590677 Ontario Inc. (c.o.b. Island Jerk Restaurant), [2009] OAGCD No. 207 Re Embrun La Casa D'Embrun, [1995] OLLBD No.219;
Re 535702 Ontario Inc. (c.o.b. Albert's Hotel) [2009] OAGCD No. 298;
Re 1765669 Ontario Inc. (c.o.b. Sogo Bar & Lounge), [2010] OAGCD No. 202.
Mr. Burke submitted that this is the Applicant's first offence and there are no other issues, specifically adding that Mr. Calabro's tax filings are clear and that he was not present when the obstruction issue occurred. Mr. Calabro appeared immediately after being called at 3:00 am and also accepted responsibility for another person's action.
Mr. Burke submitted that the Licensee can operate with honesty and integrity. He has never hidden anything, has been completely open and should not have his liquor licence revoked.
In reply, Ms. Harari pointed out that the Licensee was found with the gaming machines and also admitted it. She argued the fact of the debt books cannot be overlooked and that the best indicator of future conduct is the past conduct and therefore the situation merits revocation.
Regarding submissions on sanction, the parties agreed that written submissions on the Tribunal's findings were not required and that the Tribunal’s decision on sanction would be based on the evidence heard and Counsel’s oral submissions at the hearing
Reasons and Analysis
There was a significant amount of evidence given in this hearing. The majority of it was expert testimony regarding the gaming machines, ledger books, playing cards and associated items found in Incontro.
The Registrar's allegations can be divided into two groups. The first are those charges on which the Applicant has been found guilty, in June 2013 and on August 6, 2013: permitting unlawful gambling to occur on the premises, failure to ensure the premises complied with the Fire Protection & Prevention Act; obstructing a person carrying out an inspection, and failure to clear signs of service and consumption within 45 minutes after the end of the period during which liquor may be sold and served.
Based on Jacobs, the Tribunal finds that there were, for the purposes of this proceeding, breaches of these particular provisions of the LLA and its regulation. Indeed, the Applicant is not disputing this and has not attempted to re-litigate these issues.
The second group of allegations are those for which there is no previous finding:
permitting a person to hold, offer for sale, sell, distribute or consume a controlled drug or substance;
failure to post the licence in a conspicuous place;
failure to make available lists describing varieties of liquor for sale, the amounts of each type of drink, the varieties of non-alcoholic beverages available and the purchase price of food, liquor and non-alcoholic beverages;
failure to facilitate an inspection;
failure to ensure that no person was allowed to enter behind the bar while liquor was being sold and served.
These are determined as follows.
Section 45(2) of Regulation 719/90 - permitting a person to hold, offer for sale, sell,
distribute or consume a controlled drug or substance
The evidence of Officers McCutcheon and Garner was clear in that during the March 12, 2012 inspection, "baggies" containing a white powdery substance were found in the basement. They believed the substance to be trace amounts of cocaine.
The baggies were sent to Health Canada for analysis and the resulting report confirmed that the white substance was cocaine (Exhibit 7).
While there is no question about the substance being cocaine, there is no evidence to indicate how or when it got there, or who left it there and under what circumstances.
The Tribunal finds no evidence to enable it to arrive, on a balance of probabilities, at a finding that the Licensee permitted, that is, that he knew or ought to have known that there was any possession, sale, distribution or consumption of cocaine occurring on the premises.
Section 52 of Regulation 719/90 - failure to post the licence in a conspicuous place
The evidence on this issue is the undisputed testimony of Sgt. McCutcheon that on each of the two inspections, he observed the Incontro liquor licence to be obscured by bags of chips. Inspector Hetherington also testified that during the March 12th inspection, he observed the liquor licence to be obscured by bags of chips.
Therefore, the Tribunal finds the licensee failed to post the liquor licence in a conspicuous place where it would be visible at all times.
Section 53 of Regulation 719/90 - failure to make available lists describing varieties of
liquor for sale, the amounts of each type of drink, the varieties of non-alcoholic
beverages available and the purchase price of food, liquor and non-alcoholic
beverages
The evidence on this issue is the undisputed testimony of Officer Garner who said that during the March 12th inspection she saw the liquor signage was hidden behind bottles. The posted menu showed prices for alcoholic drinks but not the volumes to be served for the price. Inspector Hetherington testified he did not see portion sizes for alcohol drinks on the posted menu.
A copy of the posted drink menu (Exhibit 5) confirmed there was no portion size or other information provided other than the type of drink or food offered for sale.
Therefore, the Tribunal finds the licensee failed to make available lists describing varieties of liquor for sale, the amounts of each type of drink, the varieties of non-alcoholic beverages available and the purchase price of food, liquor and non-alcoholic beverages.
Section 45(2) of the LLA - failure to facilitate an inspection relevant to the licence
The facts are that on the April 9, 2012 inspection, the police parked at the rear of the establishment and were going to the back door when a male came out of Incontro. Officer McCutcheon's testified that as soon as the male saw the police, he immediately ran back in and locked the door behind him. Officer Garner testified she did not see any one running into Incontro but she did hear a door slam shut. Officer Young stated he saw Sgt. McCutcheon run after a male.
There was no evidence as to how the police gained entry into the establishment however, when they did gain entry and attempted to find the person who had locked the back door on them, there is a lack of evidence about exactly what the police did in attempting to find that person. The fact is that they were unable to identify or find that person and whether it anyone for whom the licensee would have had responsibility. Mr. Calabro, who was not in the establishment at that time, arrived shortly after being called and was said to be cooperative.
The relevant facts for the Tribunal are: (1) that Mr. Calabro was not in the establishment at the time of the inspection but arrived as quickly as he could; (2) the testimony regarding his conduct during the March 12, 2012 inspection indicated he was cooperative with the police and the AGCO Inspector - that he did not in any way hinder the inspection that day; and (3) the police were unable to identify the male who was alleged to have locked the back door during the April 9th inspection. Whether that male can be considered to have acted on his own as a private individual or as an employee and a representative of the licensee is unknown.
While the Tribunal notes the Applicant was found guilty of obstructing an inspection, specific to the inspection of April 9, 2012, there is insufficient evidence to suggest that the licensee or any employee failed to facilitate the inspection. Based on the evidence of Mr. Calabro's cooperative conduct during the two different inspections, the Tribunal finds that on a balance of probabilities, the Licensee's policy would have been to cooperate and or facilitate an inspection.
Section 44(1) of Regulation 719/90 - failure to ensure that no person was allowed to
enter behind the bar while liquor was being sold and served
The testimonies of Police Officers McCutcheon, Garner and Young are that during the April 9th inspection, they each saw 2 people behind the bar. One individual was determined to be an employee of Incontro and the second person was not. This testimony was not disputed and therefore the Tribunal finds the Licensee allowed a person who was not an employee behind the bar while liquor was being sold and served.
Therefore, after reviewing all of the evidence and submissions, the Tribunal finds the Licensee contravened the Liquor Licence Act as follows:
permitted unlawful gambling to occur on the premises (subsection 45(1), O. Reg 719/90);
failed to post the liquor licence in a conspicuous place (section 52, O. Reg 719/90);
failed to make available lists describing varieties of liquor, amounts of liquor in each type of drink offered (section 53, O. Reg 719/90);
failed to ensure the premises complied with the Fire Protection and Prevention Act (clause 50(c), O. Reg 719/90);
obstructed a person carrying out an inspection (subsection 45(1), of the LLA);
failed to clear signs of service and consumption as required (section 29, O. Reg 719/90);
failed to ensure that no person was allowed to enter behind the bar (subsection 44(1), O. Reg 719/90).
The Tribunal dismisses the allegations of a violation of section 45(2) of the LLA and section 45(2) of Regulation 719/90 – permit controlled drugs or substances.
The Tribunal must weigh all of the evidence together with the above noted violations and consider whether the Registrar has reasonable grounds for belief that the licensee cannot be relied upon to operate or manage its business in accordance with the law and with integrity and honesty (in accordance with s.6(2)(d)).
In considering the issue, the Tribunal notes that Ms Harari characterized some allegations as ‘technical” breaches; and others, such as the illegal gaming and the obstruction as being more significant.
However, balanced against this, there was no evidence of a continuing pattern of failure to comply with the Act. Taken as a whole, the evidence does not suggest a lack of honesty and integrity or that the operations of this Licensee will not, in the future, be carried out in accordance with the law.
There is no evidence to indicate that the past conduct, as found by the Tribunal, will impact the licensee's future conduct. Therefore the Tribunal dismisses the allegation that the Licensee breached this provision.
In light of the foregoing, the Tribunal must now address the issue of sanction.
Regarding the Adams decision cited by Ms Harari, the Tribunal notes that the licensee in that instance was found to have failed to properly display their liquor licence, sold alcohol to go, to have had liquor bottles containing substances not originally in the bottles, allowed unlawful gambling on the premises (confirmed by the testimony of an employee of the licensee) and that there were quantities of controlled drugs/substances, cash and debt lists consistent with drug dealing, as well as paraphernalia indicative of drug trafficking. Based on its findings in Adams, the Board ordered the immediate revocation of the establishment's liquor licence.
The Licensee appealed the Board's decision; the Court upheld the Board's decision stating that:
The Board reasonably concluded that the owner of the appellant had constructive knowledge of the drug activity on the premises....he was the person in possession of the key to the locked office in which the drugs were found...The quantity of drugs found was significant. There was also drug paraphernalia, such as the scale and small plastic bags, as well as debt lists written on guest checks. Given the evidence, the Board could reasonably conclude that the drugs were to be distributed on the premises [and] conclude that management permitted illegal drug activity in the premises, as they knew or ought to have known of that activity.
With regard to its deliberation on sanction, the Tribunal finds the Adams case to be distinguishable from Incontro. In Adams, an employee witness testified she was responsible for reloading a poker machine with loonies and that it was her handwriting on guest checks recording points earned on the poker machines. There is no such evidence in this matter. The material evidence of drugs and illegal gambling in Adams was more significant than in Incontro.
The Tribunal notes there was no finding of repeated gaming conduct during the second inspection on April 9th.
In Adams, the appeal court's finding was that there was significant evidence for the Board "to reasonably conclude" management permitted illegal drug activity in the premises. This is not the circumstance in this matter.
While accepting the Board's facts found in Vivid, and that here, too, the Licensee contravened subsection 45(1) of the O. Reg by permitting unlawful gambling to occur on the premises, the Tribunal also pays particular note of the fact that the sanction in Vivid was a monetary penalty of $4,000, not revocation of its liquor licence.
Regarding sanction, the Appellant's Counsel, Mr. Burke, pointed out that the Licensee did not attempt to avoid his responsibility and that the AGCO Board, in prior cases, has given credit for such acknowledgement to mitigate a sanction.
Regarding the appropriate sanction in this matter, the Tribunal is fully alive to the fact the Licensee has been found guilty on a number of charges and there is no dispute of those facts.
In arriving at its decision on sanction, the Tribunal considers the following to be mitigating factors in this case:
there is no evidence of prior contraventions;
the Licensee has fully acknowledged his conduct regarding the contraventions;
Mr. Calabro was found to be cooperative and responsive during both inspections;
despite the Registrar's allegation about "on-going" activities regarding the illegal gambling, there was no evidence to indicate long and on-going or repeated conduct in the second/follow-up inspection), as found during the first inspection;
the evidence was insufficient to find the Licensee, or any of the Licensee's employees, failed to facilitate the police in their duties during the second inspection.
For these reasons, and for reasons of general and specific deterrence, a lengthy suspension is appropriate. Therefore, Tribunal concludes that revocation is not appropriate in this case rather, a suspension of the licence for a period of 60 days, with a condition to install a security camera on each of the main and basement floors will be an appropriate sanction, given the seriousness of the offenses.
ORDER
The Tribunal directs the Registrar not to carry out the Proposal dated September 19, 2013 and directs the Registrar to suspend the liquor licence of Luigi Calabro, operating as Incontro Cafe, for a period of 60 days to be served on days on which the establishment normally operates. The Applicant shall submit proposed suspension dates to the Registrar within seven days of the date of the decision, failing which the Registrar may set the suspension dates without further notice to the Applicant.
In addition, the Applicant shall also be subject to the following condition which shall attach to the licensee's liquor licence:
- At all times while the premises are open, the licensee shall ensure that there is a clearly visible and functioning security camera on the main floor and basement floor of the establishment and positioned to provide full video surveillance of licensed and unlicensed areas. All digital video shall be retained for 30 days after the date of recording and shall be made available immediately on demand by Toronto Police Services and/or AGCO enforcement officers.
LICENCE APPEAL TRIBUNAL
Simon Dann, Presiding Member
Released: January 27, 2014