G. Bar & Grill Inc. o/a G Bar & Grill v. Registrar of Alcohol and Gaming, 2015 CanLII 89198

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-11-23

FILE:

9610/LLA

CASE NAME:

9610 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 Suspend a Licence

G. Bar & Grill Inc. o/a G Bar & Grill

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Appellant:

William Luke, Counsel

For the Respondent:

Joyce Taylor, Counsel

Heard in Toronto:

September 30 and October 29, 2015

REASONS FOR DECISION AND ORDER

1The Registrar issued Notice of Proposal # 20755 dated February 23, 2015 proposing to suspend the licence of the Appellant for a period of 14 days on two grounds: that the Appellant obstructed an inspection on the evening of November 27, 2014 and that the Appellant had gaming machines on the licensed premises in breach of a condition on its licence on that same evening. The Appellant appeals to this Tribunal arguing that it did not obstruct the investigation and that the machines that were found on the premises were not gaming machines.

2It is common ground that on November 27, 2014 there were two machines on the premises. They were unplugged and facing the wall. The Appellant takes the position that these two machines were not gaming machines as there was no chance of winning a payout. It argues firstly that the machines were inoperative and latterly that, even if they were operative, they were for entertainment purposes only and thus not prohibited. In light of the admissions of the principal of the Appellant both in this proceeding and in an earlier proceeding, the Tribunal finds no merit in this position.

FACTS

3There has been previous action by the Registrar against the Appellant arising out of allegations of permitting illegal gaming and possessing gaming machines on the premises. These facts are set out in the Agreed Amendment of Notice of Proposal # 20428. The action arose out of three inspections conducted on the Appellant’s premises on November 2, 2013, March 8, 2014, and September 8, 2014. On November 2, 2013, inspectors and police found seven gaming machines. They were removed by the police. The March 8, 2014 inspection found that the seven confiscated machines had been replaced by eight gaming machines. The September 4, 2014 inspection found four gaming machines on the premises.

4The earlier proceeding resulted in a settlement between the Appellant and the Registrar wherein the Appellant admitted the alleged contraventions of the Liquor Licence Act, R.S.O. 1990, c. L. 19 (the “Act”) and O/Reg 719/90 and agreed to serve a fourteen day suspension between January 2 and January 16, 2015. Further, the Appellant agreed to the addition of conditions to its licence. One of those conditions is at issue in this proceeding. The Appellant consented to a condition on its licence that:

The licence holder agrees that there shall be no gaming or gaming machines of any kind in the premises.

5On November 27, 2014, Inspector McInnis of the Alcohol and Gaming Commission of Ontario (AGCO) went to the Appellant’s premises to deliver a placard that was to be posted in a prominent place during the suspension. He met with the Appellant’s principal, Giacinto Elia and delivered the placard. Inspector McInnis asked Mr. Elia if there were any gaming machines on the premises. Inspector McInnis testified that Mr. Elia answered: “No.” He cautioned Mr. Elia to be honest because he was going to check the back room, but Mr. Elia continued to deny that he had any gaming machines on the premises. Inspector McInnis then went to the back room where he found two machines unplugged and facing the wall. He asked for the machines to be opened and confirmed that their cash drawers were empty. He did not ask for the machines to be turned on, but took photographs. The photographs confirm that the machines are outwardly identical to machines found in earlier inspections which the Appellant admitted was in breach of the prohibition against permitting gaming in s. 45 (1) of O/Reg 719/90.

6The allegation of obstructing an inspection is based on Inspector McInnis’s evidence that Mr. Elia denied that he had gaming machines on the premises despite being cautioned to tell the truth. Mr. Elia’s evidence in that regard is directly contradictory to the evidence of Inspector McInnis. He testified that he informed the inspector that he had two machines in the back room; that both were unplugged; and he was having them removed the next morning. He admitted in his evidence that these machines were two of the machines that had been on the premises during the September 8, 2014 inspection, a keno machine and a fruit machine. He knew he was supposed to get rid of them. He disabled them pending removal. He did not explain why, three weeks after he signed the settlement agreement, he still had not removed them.

ANALYSIS

7The Registrar does not allege that the Appellant permitted illegal gaming on his premises on November 27, 2014. He alleges that the Appellant breached a condition of his liquor licence by having the two gaming machines on his premises three weeks after agreeing to a condition that he have no “gaming machines of any kind in the premises.” The Appellant argues that by unplugging the machines they ceased to be gaming machines and there was no evidence that they were being used for gaming. The Appellant further argues that it was well aware of the prohibition on gambling so any use of the machines would not be gaming, it would be for entertainment purposes only. Players would not be permitted to cash in their credits negating an essential component of gaming, the gambling aspect.

8Ms Taylor, Counsel for the Registrar, submits that if the Tribunal finds that the two machines were, in fact, the illegal gaming machines that had previously been found on the premises, then the case with respect to that allegation is proven. There is no need for the Tribunal to consider whether they were plugged in or operative or, in fact being used for the purpose of gambling. In the alternative, she submits that the licence condition is broader that the legislative prohibition against permitting gaming in the premises. She asserts that a gaming machine is any machine upon which games may be played, regardless of any gambling use the equipment may be put to. In support of this position the Tribunal heard evidence from Aviva Harari, the counsel for the AGCO who had negotiated the licence condition. The Appellant put forward the evidence of Mitchell Worsoff, its counsel during the negotiations, with respect to his interpretation of the licence conditions.

9In light of all of the evidence, especially the admission by Mr. Elia that these two machines were gaming machines that had not yet been removed, the Tribunal is of the view that it is unnecessary to embark on a lengthy analysis of what constitutes gaming and whether all machines, whether they involve a chance of winning money or not, are gaming machines as set out in the licence condition. It is sufficient that the two machines in question had previously been used for illegal gaming and that the Appellant had admitted that fact. An illegal gaming machine does not cease to be such because it is unplugged. Therefore, the Tribunal finds that there were gaming machines on the premises, regardless of whether that term as it is used in the licence condition includes machines that may be used innocently for pure entertainment or whether it includes only those machines that are used for some form of gambling.

10The allegation that Mr. Elia obstructed Inspector McInnis in the course of his inspection is governed by the provisions of s. 45(1) of the Act which states:

Obstruction

45. (1) No person shall obstruct a person carrying out an inspection under this Act or withhold, destroy, conceal or refuse to provide any relevant information or thing required for the purpose of the inspection.

It is alleged that Mr. Elia refused to provide relevant information. Given the circumstances, the Tribunal is not satisfied on a balance of probabilities that Mr. Elia did fail to disclose that there were machines in the rear of the premises.

11The Tribunal notes that there is no evidence that Mr. Elia attempted to prevent Inspector McInnis from entering the premises. In such circumstances the presence of the machines would be obvious and Mr. Elia would have nothing to gain by lying to the inspector. Inspector McInnis was delivering a placard to be placed prominently during the period of suspension. Mr. Elia was upset. The Tribunal notes that Mr. Elia has difficulty with English, and, although he is certainly functional in English, questions had to be explained on several occasions. Without in any manner impugning the integrity of Inspector McInnis, in the context of that evening and the concern over the placard, the Tribunal is not satisfied that Mr. Elia was making the outright denial which has been alleged.

ORDER

12Having reviewed all of the evidence, the Tribunal finds that the Appellant was in breach of the condition on its licence that there be no gaming machines on the premises. The Tribunal finds that the Appellant did not obstruct Inspector McInnis in the course of his inspection. The Registrar shall have seven days from the date of the release of these reasons to make submissions as to penalty. The Appellant shall have seven days from the receipt of the Registrar’s submissions to make responding submissions and the Registrar shall have three days from the receipt of the responding submissions to make any reply submissions.