Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-04-16

FILE:

9171/GCA

CASE NAME:

9171 v. Registrar of Alcohol and Gaming

Appeal from the Notice of Proposed Order of the Registrar under the Gaming Control Act, 1992, S.O. 1992 c. 24 - to Refuse Registration

Madhusudan Raman Patel

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Jacqueline Castel, Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Joyce Taylor

Heard in Toronto:

April 1, 2015

DECISION AND ORDER

BACKGROUND

The Registrar of Alcohol and Gaming (the "Registrar") under the Gaming Control Act, 1992, (the "Act") issued a Notice of Proposed Order dated September 25, 2014, which proposed to refuse the registration of Madhusudan Raman Patel (the "Appellant") as a gaming assistant in the class of Category 1 Gaming Assistant. The Appellant appealed this Notice of Proposed Order to the Licence Appeal Tribunal and a hearing was held in this matter on April 1, 2015, before this Tribunal in the presence of the Appellant and Joyce Taylor, Counsel, representing the Registrar.

FACTS

The Tribunal entered the Notice of Proposed Order to Refuse Registration, dated September 25, 2015, and the Notice of Appeal as Exhibits 1 and 2, respectively. Ms Taylor filed the Registrar's Book of Documents, which the Tribunal entered as Exhibit 3.

Ms. Taylor called two witnesses, Mr. Frank Ryder and Mr. Frank Cuda.

Mr. Ryder, an investigator with the Alcohol and Gaming Commission of Ontario ("AGCO"), was assigned to conduct the due diligence investigation of the Appellant as part of his application for registration as a gaming assistant. He testified that the Appellant has three criminal convictions on his record. He was convicted of assault with a weapon in 1995 and received a suspended sentence and probation for twelve months. In addition, he was convicted of assault and criminal harassment in 2005 and sentenced to five days of pre-sentence custody and two years probation for the harassment plus a three month conditional sentence and two years probation, served concurrently, for the assault. The Appellant is also subject to a prohibition order respecting firearms and other weapons which will expire on November 22, 2015. This order arises out of his conviction for criminal harassment.

Mr. Ryder testified that because of the Appellant's criminal record, the Registrar did not approve the Appellant's August 2007 application for registration as a supplier (in the class of lottery retailer) and on December 31, 2007, the Appellant resigned as the sole officer and director of 2092554 Ontario Inc., operating as Food Galore Grocery ("Food Galore Grocery").

Subsequently, the Appellant's wife, Bena Patel, became the sole officer and director of Food Galore Grocery. Mrs. Patel, on behalf of Food Galore Grocery, consented to a term of registration, as a condition of the Registrar's approval of her company's application for registration as a supplier, in the class of lottery retailer, which read:

Mr. Sudan Patel a.k.a. Madhusudan Patel, will have no involvement in the management, conduct, sale and redemption of OLG (Ontario Lottery Gaming) products.

Mr. Ryder testified that when he interviewed the Appellant he confirmed that he was aware of this term of registration and that he understood what it meant. Mr. Ryder summarized the instances in which the Appellant contravened this term of registration:

• On January 25, 2012, Mrs. Patel faxed a form to the Ontario Lottery and Gaming Corporation ("OLG") giving OLG permission to release all information about Food Galore Grocery's lottery account to Sudan Patel.
• On June 1, 2012, a clerk identified as "Mike Sudan" sold lottery products to an OLG mystery shopper and did not ask the mystery shopper for identification. The clerk in question was the Appellant.
• On June 20, 2012, the OLG spoke to the Appellant because a fund transfer from Food Galore Grocery to OLG was NSF. The Appellant informed OLG that it was likely a bank error and he would have the bank forward a letter to OLG respecting this and a previous NSF violation.
• On June 29, 2012, the Appellant requested a copy of an invoice for Food Galore Grocery from OLG and the invoice was faxed to him.
• On August 7, 2012, an AGCO investigator attended Food Galore Grocery and the Appellant was the only employee in the store. One customer was holding an instant scratch OLG lottery ticket in his hand, directly across the counter from the Appellant. When the investigator asked to speak with Bena Patel, the Appellant told the investigator that she was gone for the day and would be back the following day at 8 a.m.
• The same AGCO investigator obtained a list of lottery activity for Food Galore Grocery from OLG for the time immediately before and after his visit to the premises. The report showed that the Appellant had conducted numerous lottery transactions before and after the investigator's visit.

The registration of Food Galore Grocery was revoked after a LAT hearing on March 15, 2013, because of the aforementioned non-compliance with the term of registration requiring that the Appellant have no involvement in the management, conduct, sale and redemption of OLG lottery products. (7670 v. Registrar of Alcohol and Gaming, March 15, 2013).

Mr. Frank Cuda is the Manager of Gaming Eligibility and the Deputy Registrar under the Act. He testified that his primary reason for refusing to register the Appellant relates to the non-compliance with the terms of registration of his wife's former business. Mr. Cuda stated that the Appellant knew he could not be involved in the conduct, management, sale or redemption of lottery products and chose to contravene the term. According to Mr. Cuda, this demonstrates an unwillingness to comply with rules and regulations.

The Appellant filed the following six documents, which the Tribunal entered as Exhibit 4A-G:

• Letter of Support from Kamlesh Patel dated December 17, 2014 (Exhibit 4A);
• Letter of Support from Natu S. Patel, President, Milplex Circuit (Canada) Inc., dated December 22, 2014 (Exhibit 4B);
• Letter from Dr. Ajay Bhardwaj, MD, dated December 19, 2014 (Exhibit 4C);
• Letter of Support from Rajneesh K. Sharda, Sharda Law, dated December 18, 2014 (Exhibit 4D);
• Letter From Michael D. Olszak, Director, Admissibility Review Office, U.S. Customs and Border Protection, which indicates he is eligible to travel to the United States, dated February 27, 2012 (Exhibit 4E);
• Licence issued to 2092554 Ontario Inc. o/a Food Galore Grocery, by Toronto Municipal Licensing Standards, for Cigars, Cigarettes & Tobacco; Refreshments; Foodstuffs, issued March 17, 2010, and expiring on March 17, 2011 (Exhibit 4F);
• Licence issued to 2092554 Ontario Inc. o/a Food Galore Grocery, by Toronto Municipal Licensing Standards, for Cigars, Cigarettes & Tobacco; Refreshments; Foodstuffs, issued January 22, 2008, and expiring on March 20, 2008 (Exhibit 4G).

The Appellant stated that he contravened the terms of registration of Food Galore Grocery because his wife was sick, she could not get another employee to work, and customers asked him to keep the store open. He indicated that he has learned from his mistakes and will not do the same thing again. He asked the Tribunal to give him another chance.

THE LAW

Section 11 of the Act states:

The Registrar shall refuse to register an applicant as a gaming assistant ... if, (a) there are reasonable grounds to believe that the applicant will not act as a gaming assistant in accordance with the law, or with integrity, honesty or in the public interest, having regard to the past conduct of the applicant ...; or (b) the applicant is carrying on activities that are, or will be, if the applicant is registered, in contravention of this Act, the regulations, the standards and requirements established by the Registrar under section 3.8 or the terms of registration.

ISSUE

The issue before the Tribunal is whether the Registrar had reasonable grounds for believing, based on the Appellant's past conduct, that if he were registered as a gaming assistant, he would not comply with the law or act with integrity, honesty or in the public interest.

APPLICATION OF LAW TO FACTS

The test under section 11 of the Act requires an examination of the past and present conduct of the applicant for registration as a gaming assistant. The purpose of the examination is to determine whether there are reasonable grounds for the belief that, if registered, the person will not act in accordance with the law and in the public interest.

As there were no allegations or evidence that the Appellant is carrying on activities that are or will be in contravention of the Act, regulations or standards, the Tribunal's examination relates solely to section 11(a), namely the past conduct of the Appellant.

The Tribunal considers the Appellant's criminal convictions for assault and criminal harassment to be very serious. The first conviction occurred in 1995 and the next two convictions occurred in 2005. Therefore, there was a repetition of criminal conduct of a similar nature after a long period of time (i.e., 10 years) elapsed. Nevertheless, given that the Appellant has had a clean criminal record for the last ten years, less weight was attributed to his criminal history than would be the case if the convictions had occurred more recently.

The Tribunal put much more weight on the Appellant's non-compliance with the term of his wife's company's supplier registration, that he have no involvement in the conduct, management, sale or redemption of lottery products. Non-compliance with this term was relatively recent and occurred on multiple occasions in 2012. This was not the case of an isolated instance of non-compliance. The non-compliance also occurred in the same type of business for which the Appellant is seeking a registration as a gaming assistant.

The Appellant has testified that he will not make the same mistake again and that he has learned his lesson. However, the test under section 11(a) is whether the applicant's past conduct affords reasonable grounds to believe he will not act as a gaming assistant in accordance with the law, or with integrity, honesty or in the public interest. As such, present or future intentions, however sincere they may be, have less relevance under section 11(a) and on these facts, do not override the numerous recent contraventions of the term of registration of his wife's business under the Act.

The lottery business is cash-intensive. Lottery retailers are spread out over thousands of retail outlets throughout the province. As such, lottery retailers and the gaming assistants they employ cannot be monitored by AGCO inspectors on a daily or even weekly basis. To ensure public confidence in the honesty and integrity of lottery retail operations, it is therefore imperative that lottery retailers and gaming assistants meet very high standards of honesty and integrity. Given the Appellant's recent non-compliance, on numerous occasions over multiple dates, with the terms of registration of his wife's lottery retailer business, the Tribunal finds that the past conduct of the Appellant affords reasonable grounds for the belief that he will not act as a gaming assistant in accordance with the law and with integrity and honesty.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to carry out the Proposal.

LICENCE APPEAL TRIBUNAL

Jacqueline Castel, Member

Released: April 16, 2015