Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2015-12-08
FILE:
9238/LLA
CASE NAME:
9238 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
1559149 Ontario Limited o/a Piccola Citta Bar & Cafe
Appellant
-and-
Registrar of Alcohol and Gaming
Respondent
DECISION AND ORDER ON SANCTION
ADJUDICATOR:
Simon Dann, Member
Eleanor White, Member
APPEARANCES:
For the Appellant:
Michael Hassell, Counsel
For the Respondent:
Aviva Harari, Counsel
DECISION AND ORDER ON SANCTION
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal ("NOP"), dated November 12, 2014, to revoke the liquor sales licence of 1559149 Ontario Limited o/a Piccola Citta Bar & Cafe (the “Appellant/Licensee”). The appeal was heard on April 14, 2015. The Tribunal’s decision was issued in October 2015. The Tribunal found the Licensee to be in breach of s 45(1) of the Ontario Regulation 719/90 (“O.Reg 719/90”) under the Act in that it permitted unlawful gaming on the , but not in breach of s. 25(1) of O.Reg 719/90.
The parties were directed to provide written submissions on the appropriate sanction. The Tribunal has received and reviewed those submissions.
In her submission on sanction, the Registrar’s Counsel confirmed the Registrar was specifically seeking revocation of the liquor licence but also submitted that in the alternative, the licence holder be given a 30 to 40 day suspension, with the addition of a condition stipulating the licence holder "shall ensure there is no gaming nor gambling machines of any kind in the premises."
The Registrar's Counsel submitted that the Licensee was "at all times aware of the unlawful and prohibited nature" of having the gaming machines and permitting unlawful gambling. This, it was submitted, "is an extremely serious violation ...[and]... conduct that is criminal in nature". Reference was made to 7332 v. Registrar of Alcohol and Gaming2014 CanLII 7962 (ON LAT) ("Incontro") to emphasize the seriousness of the infraction of illegal gaming. There were additional breaches found in that matter and the licence holder was given a 60 day suspension.
The Tribunal was asked to consider protection of the public, the industry and regulator reputations, the issues of general and specific deterrence, as well as rehabilitation of the licence holder.
In reply, the Appellant's Counsel submitted that a more appropriate sanction would be a suspension of 7 days, without the proposed condition. He agreed that "factors such as protection of the public, deterrence and rehabilitation of the licence holder are significant" but disagreed with the submission that industry and regulator reputations were appropriate considerations when determining sanction..
Mr. Hassell submitted that Incontro was distinguishable from this matter in that Incontro involved Provincial Court convictions and a "much more significant" gaming issue than is the case with the Appellant. It was submitted that, along with a number of other considerations, revocation of the Appellant's liquor licence, in this matter, would be unreasonable and a suspension of 7 days would be the more appropriate sanction.
In considering the submissions of the parties, the Tribunal notes the Appellant Counsel's view that the evidence of gambling in this case is "much less serious" than what was found in Incontro. Therefore a significantly lesser suspension, without condition, would be more appropriate.
In the Tribunal's mind, this ignores the fact that the gaming machines were on the premises at all, when they should not have been there in the first place.
The fact is that three gaming machines were in the premises. They were not permitted to be there. The Tribunal also found that their location, in the back room, was suggestive of the fact that they were not there for simple amusement. The machines accepted money, recorded credits and had a reset button, though they did not pay out. While there was no evidence of patrons actually playing the machines (and no evidence that they were regularly used as suggested by Registrar’s Counsel in her submissions), the Tribunal found Mr. Pacifico’s evidence of the manner in which the machines were used not to be credible.
In arriving at a decision on the appropriate sanction, the Tribunal notes that of the two allegations contained in the NOP l, only one was found. In addition, the Appellant has had limited disciplinary history with the AGCO – a monetary penalty in 2012 for two infractions. This is the first infraction relating to gambling in the premises. This is an important consideration when determining the appropriate sanction. Gaming, like liquor sales and service, is a highly regulated industry. In the case of gaming, that regulation provides for protection of the public by adherence to certain prescribed standards. Operation of unauthorized gaming machines means no such protections are in place.
A sanction is intended to achieve the goals of specific and general deterrence, in this instance to owning and operating illegal gaming machines. However, in light of the limited disciplinary history, and these particular facts, a suspension of 30-40 is harsh. Balanced against this, the Appellant’s explanations for the gaming machines were not accepted by the Tribunal, leaving the Tribunal to conclude that a 7 day suspension is insufficient to serve the purpose of specific deterrence. Therefore, the Tribunal has concluded that a suspension for a period of 21 days, with a condition to ensure the prohibition of gaming on the premises is appropriate.
ORDER
Therefore, the Tribunal orders that the liquor licence held by 1559149 Ontario Limited o/a Piccola Citta Bar & Cafe be suspended for a period of twenty-one (21) consecutive days.
In addition, the Tribunal orders that the following condition shall be attached to the Appellant’s liquor licence:
- The Licensee shall ensure that there is no gaming or gaming machines of any kind in the premises.
The Appellant shall submit proposed suspension dates to the Registrar within seven (7) days of the date of this decision, failing which the Registrar may set the suspension dates without further notice to the Appellant.
LICENCE APPEAL TRIBUNAL
Simon Dann, Member
Released: December 8, 2015