Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2016-04-01
FILE:
9936/AGRPPA
CASE NAME:
9936 v. Registrar of Alcohol and Gaming
Appeal from an Order of Monetary Penalty of the Registrar of Alcohol and Gaming under the Alcohol and Gaming Regulation and Public Protection Act, 1996, R.S.O. 1996, c. C. 26
Tri Star Chinese Restaurant Inc. o/a Tri Star Chinese Restaurant
Appellant
-and-
Registrar of Alcohol and Gaming
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Alex McCauley, Member
APPEARANCES:
For the Appellant:
Tam Tran, Agent
For the Respondent:
Faye Alipour, Student-at -Law
Aviva Harari, Counsel
Heard in Toronto:
March 21, 2016
DECISION AND ORDER
BACKGROUND
This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of an Order of Monetary Penalty issued by the Registrar of Alcohol and Gaming, under the Alcohol and Gaming Regulation and Public Protection Act, 1996 (the “Registrar” and the “Act” respectively.) The Order dated November 19, 2015 imposed a monetary penalty on Tri-Star Chinese Restaurant Inc. (the “Appellant”), with respect to a contravention of Section 45(1) of Ontario Regulation 719/90 under the Liquor Licence Act. The Registrar alleges that the Appellant permitted unlawful gambling in the premises.
EVIDENCE
On August 5, 2015, AGCO Inspector Ewan McInnis attended at Tri Star Chinese Restaurant at 1:52 a.m. He was accompanied by another AGCO Inspector Kevin Pierobon. They were attending to conduct a “Compliance Assessment” inspection.
Upon entering the premises, they spoke with Sang-Soo Baek, who identified herself as the manager in charge.
The Inspectors noted two gaming machines located on a table on the west side of the establishment.
Inspector McInnis described the machines as having a bill receptor on the right side of the machines. There were locked cash boxes within the machines. The screens displayed a “Cherry Master”. There was a red “kill switch” located on the top. These buttons are used to remove credits from the machines, and are common on gaming machines according to Inspector McInnis.
Each machine had a six coloured buttons at the bottom of the machines. These performed various functions for activating the machines. You could play credits, double bets, etc. Photos of the machines and the described hardware are clearly illustrated in Exhibits 3 A-E, which are photographs taken by Inspector Pierobon at the time of the inspection.
In their conversation with Ms. Baek, she advised the Inspectors initially that the machines were for entertainment only and were owned by “an Italian guy”. She later stated that her husband had the keys for the machines.
She admitted that there are cash pay-outs to patrons as often as 7 times a day. Pay-outs were generally between $10 and $15. Ms. Baek would make the pay-out to winners and would be reimbursed by the “Italian”.
No debt book was located.
Inspector Pierobon corroborated the evidence of Inspector McInnis regarding his discussions with Ms. Baek.
Inspector McInnis was satisfied that the gaming machines met the test of being ‘unlawful’. Specifically, the machines clearly accepted cash, which clearly these did and there was a pay-out as confirmed by the statement of Ms. Baek.
Tam Tran gave evidence and stated that the machines in question are for amusement only. Winners receive food or drink, not cash.
THE LAW
Section 45(1) of Ontario Regulation 719/90 under the Liquor Licence Act makes it an offence for a licensee to permit unlawful gambling on the premises. Specifically, the section states as follows:
45 (1) The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder. (emphasis added)
In submissions, the Registrar’s representative referred the Tribunal to the decision in Authority Com. & .Play Café, Inc. (c.o.b. Vivid Bar Lounge) (Re)[2010] O.A.G.C.D. No. 283. That decision provides guidance in cases such as this in that it sets out the
three elements generally accepted as being required for a definition of gambling (both at poker tables and video gambling machines):
A fee required to play,
The game is a mix of Chance and Skill.
There is a prize or reward.
ISSUES
The Tribunal must determine, in this particular case, two matters: were the machines described in the evidence gaming machines in that there was in fact a game of chance that a patron would pay to play and was there a pay-out to successful participants.
ANALYSIS
Dealing with the first part of the test, as set out above, the evidence from the Inspectors was clear, and supported by the photographs submitted as exhibits. They stated that based on their general knowledge and training, the machines described fit the definition of games of chance. There were cash receptors, locked cash boxes and buttons that players could use to control the game, thereby creating elements of “chance”. In addition, the red “kill” button on the top of the machines is standard on these types of gaming machines.
Further, from the evidence, it was clear that a person had to pay into the machine to use it.
Based on this evidence, the Tribunal is satisfied that indeed the machines in question were gaming machines.
The second part of the test requires a determination that there was, in fact, a pay-out. The Inspectors in their evidence recounted the discussion with Ms. Baek, who told them that there were cash pay-outs. This evidence was never challenged or refuted.
Mr. Tran, the principal of the Licensee, in his evidence stated that there were rewards for winners: food and drink but not cash.
On these facts, it makes little difference whether cash or food and drink were given to winners. The evidence is clear: a prize or reward was given. The Tribunal is satisfied based on the evidence that there was a pay-out to the winners.
A licensee has a duty to understand their responsibilities under the Act. The Appellant appears to be aware of that. Based on the evidence of Inspector McInnis, the machines in question were left in the establishment. Mr. Tran’s manager was advised they were illegal and she was advised that they should be removed. Inspectors do not have the authority to remove the machines. Mr. Tran, who was present during this evidence, did not dispute that the machines were still in the establishment. There has been no evidence that the machines have been removed.
Based on the evidence, the Tribunal finds that the Appellant was in a violation of s. 45(1) of Ontario Regulation 719/90 under the Act.
ORDER
Pursuant to the authority vested in it by the provisions of s. 14.1(7) of the Act, the Tribunal confirms Order of Monetary Penalty #1323, dated November 15, 2015, in the amount of $2000.00.
LICENCE APPEAL TRIBUNAL
Alex McCauley, Member
Released: April 1, 2016