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Sir Michael said, "This is not a proper case for the court to exercise its discretion to restrain the police from discharging their duties as they consider it proper to do."
The Office of the Attorney General had asked the court to discharge the conservatory order granted by Isaacs.
Attorneys representing a group of web shop operators were seeking to have that order extended until the court rules on their substantive case. They argue that what their clients do is legal.
In a letter to Attorney General Allyson Maynard-Gibson on January 29, attorney Wayne Munroe said his clients' operations do not offend the Lotteries and Gaming Act.
Lawyers for the web shop operators contend that the development of technology and business methods took the operations outside the behavior defined in and covered by the Act.
But Sir Michael ruled that "even if this action were to raise issues as the validity of the Lotteries and Gaming Act, it would not be a proper exercise of my judicial discretion to restrain the police from enforcing the law whilst the validity of the challenged law is being tested".
"Laws are presumed to be valid and must be obeyed unless and until they have been adjudicated as being invalid," he said. "The police must be allowed to enforce the law unless and until the law has been declared to be invalid."
The chief justice added, "I accept that if the constitutionality of the relevant provisions of the Act is challenged in any criminal proceedings in the Magistrates Court, those criminal proceedings may be stayed pending the determination of the constitutional issue in the Supreme Court.
"Be that as it may, it is no justification for not enforcing the law in the meantime."
Sir Michael noted that in their affidavits filed on behalf of the operators, the attorneys do not clearly state the business their clients are involved in.
He also said there is nothing exceptional about this case which requires that the issue of whether the operators' conduct would constitute a criminal offense, should be determined in civil proceedings brought for declaratory relief.
"In my judgment the claim in this action for declaratory relief as to whether the conduct amounted to a criminal offense is not an issue that should be tried in these civil proceedings," he said.
"That issue is properly determined in the criminal court after a criminal prosecution has been initiated."
The attorneys for the operators also claimed that issues to be decided in the matter are whether the Lotteries and Gaming Act offends the constitution and whether the government and police by threatening to prosecute them violated their legitimate expectation to have been granted whatever licences were necessary to ensure that their activities were not in contravention of the provisions of the Act.
Sir Michael said it is unclear how the constitutional question is raised in these proceedings.
He said the only action that is being threatened is a criminal prosecution under the Lotteries and Gaming Act.
He also said the claim by the operators that they would become bankrupt if an interim injunction is not granted is based upon the premise that the police can shut down their entire operations whilst the matter is being litigated.
"There is no basis for this fear," the chief justice said.
"...In my judgment, the claim that the [operators] will suffer irreparable harm unless an interlocutory injunction is granted is not supported by any credible evidence."
Attorneys Wayne Munroe and Alfred Sears, who represent the web shop bosses, said they plan to launch an appeal and asked for a short conservatory order while they consult with their clients.
Sir Michael denied the request.
Outside court, Crown Counsel Loren Klein said the ruling was a victory for the rule of law.
When asked if the ruling meant police would shut down web shops immediately, Klein said, "I think the authorities would respect the process of the courts.
"I don't see that happening, certainly not until the Court of Appeal has had a chance to consider the matter."
Munroe represents Percy Web Cafe, Island Luck, FML Group of Companies, Asue Draw, Whatfall and Chances.
Sears, a former attorney general, and Jeff Lloyd represent Paradise Games.
The Office of the Attorney General sought to block the continued operations of web shops despite an order from Senior Supreme Court Justice Jon Isaacs in January to prevent a shutdown of the businesses, alleges an affidavit filed recently.
The affidavit filed by attorney Claude Hanna of Munroe & Associates said a group of web shop bosses faced significant delays in trying to get business licenses renewed and some owners have still not yet received licenses.
Hanna said the government, through the Business Licence and Evaluation Section of the Ministry of Finance has sought to adversely affect the business of the web shop owners by delaying licenses.
He said this was an attempt to circumvent the conservatory order issued by Justice Isaacs for the businesses to remain in operation pending the outcome of a substantive court challenge.
The owners filed court action after a majority of people who voted in a referendum voted against the regularization and taxation of web shops and the establishment of a national lottery. They contend that their businesses are operating legally.
Justice Isaacs granted the order the morning after Prime Minister Perry Christie ordered an end to web shop gaming.
Hanna said that in the past, the process of issuing licenses involved submitting an application, paying the required fees and the Business Licence Unit would issue the license in a matter of days.
The longest period of delay in the past has been a week, according to the affidavit.
The affidavit said that this year the web shop owners and or their agents were informed by "servants of the Business Licence Unit" that the Office of the Attorney General (the defendant) has advised the Ministry of Finance to put a halt to licenses being issued to web cafes.
According to Hanna, the matter had to be addressed by Chief Finance and Revenue Officer Joseph Mullings, who circulated a minute paper on March 15, 2013 to all staff about the issuance and renewal of business licenses to web shops.
A copy of the minute paper was filed in court.
It said, "Effective immediately, you can issue new and renewal business licenses to web shops. The only license description will be Internet cafe and Internet related services."
According to the affidavit, the process of getting licenses has been "riddled with hurdles".
The affidavit said Pete Deveaux of Percy Web Cafe reported that after submitting the business license application, paying fees in full and satisfying all other requirements, his company was told by Mullings that he could not issue the license because they were awaiting written confirmation from the Office of the Attorney General.
"It was only after insistent calling that [Deveaux] received the business license on March 27," the affidavit said, adding that some of the other plaintiffs also received licenses last week.
"This has represented a delay that in most cases has been at least three to four times the usual delay in the process."
The affidavit said Whatfall and Asue Draw were still awaiting licenses.
It said, "The plaintiffs (web shop owners) have a history of being fully compliant with all laws and regulations governing their businesses."
The affidavit also said that during the general election campaign and during the referendum campaign members of the Free National Movement (FNM) and their bloggers suggested the web shop owners supported only the Progressive Liberal Party (PLP).
"I am advised by the plaintiffs that it was thereby being suggested that this was done because the PLP had committed to support the plaintiffs," the affidavit said.
"Indeed, much was made during the referendum campaign that the PLP government had a horse in the referendum race."
But the web shop owners have advised that this perception is incorrect, according to the affidavit.
"I am advised that the plaintiffs supported both the PLP and FNM as they always have done," Hanna said.
"If this is disputed they are able to disclose the persons and events together with the amounts that they supported."
The affidavit said the web shop owners met with the government after the general election but are unwilling to disclose the exact contents of these meetings unless it is deemed necessary to do so.
Hanna also said in the affidavit that the need to terminate staff would cause a loss to the plaintiffs "far beyond the financial costs associated with their terminations".
"I am advised by the plaintiffs that they care about the welfare of their employees to the point that they are mentally affected by the prospect of having to terminate persons with whom they have worked closely over the years."
The web shop owners and their attorneys have made an application to have the conservatory order issued by Justice Isaacs extended.
The attorney general is seeking to have that order discharged.
Chief Justice Sir Michael Barnett will today hear arguments from both sides.
Wayne Munroe represents Percy Web Cafe, Island Luck, FML Group of Companies, Asue Draw, Whatfall and Chances.
Former Attorney General Alfred Sears and Jeff Lloyd represent Paradise Games.
Attorney General Allyson-Maynard Gibson said yesterday her office will seek to have lifted an injunction secured by a group of web shop owners last month that prevents them from being shut down.
Senior Justice Jon Isaacs granted the injunction on February 30, two days after a gambling referendum failed.
Maynard-Gibson said the matter may be heard in mid-March.
The government filed an appearance in connection with that injunction earlier this month. The documents were filed on February 15.
"The judge indicated that he is prepared to hear it," the attorney general told reporters outside Cabinet.
"It will be the chief justice, I have been advised, and also once all counsel is ready."
Asked how long before this matter would reach some resolution, the attorney general said although a hearing should commence in mid-March, "who knows where it goes from there".
Attorneys Alfred Sears and Jeffery Lloyd represent Paradise Games. Wayne Munroe represents Island Game, Island Luck, FML Group of Companies, Asue Draw, Whatfall and Chances.
Maynard-Gibson said the prosecution must be able to prove that something illegal is happening in order for those web shops to be closed.
"The matter will be to lift the injunction and I want to say that we don't want to close any lawful business in The Bahamas," she said. "That is not the objective."
When asked whether web shops in The Bahamas were lawful businesses, Maynard-Gibson said if the web shops are strictly offering web services, "that is fine, but anything else, gaming is obviously illegal".
Sears and Munroe filed documents in the Supreme Court in an effort to permanently prevent the government from shutting down their clients' operations.
Even prior to the gambling referendum, web shop raids were scarce. More notably, in September 2011, a magistrate confiscated just under $1 million, which police seized during a raid on an FML Group of Companies web shop two years prior.
Maynard-Gibson said she expects FML Group of Companies CEO Craig Flowers' appeal to soon be heard in relation to that matter. She could not recall the date for that matter.
Saturday 23rd April 2011
Featuring: Waka Flocka & Vybz Kartel Also featuring other artists Music by: Nassau's Hottest DJs Tickets: $50, VIP; $80, Platinum; $200, Backstage/All Access (All students with ID get $10 off pre-sold tickets) Where: Carnival Site, Queen Elizabeth Centre Tickets can be purchased from Airbrush Junkies, Stilletos, Asue Draw, Urban Ragz & Hammerheads Bar & Grill For more information, contact 242-394-3260
A webshop employee is the latest murder victim of the year after being shot multiple times in the face at the corporate offices of Asue Draw on East Bay Street.
This article was first published on May 27, 2010.
Ingraham seems stuck between two painful alternatives: a) shut down the web cafes and drive numbers underground, which will anger thousands and deny the government an opportunity to gain taxation revenue it desperately needs; b) legalize and regulate numbers, but be condemned in pulpits across the nation. OK, there’s a painless third: Do nothing.
Here’s my take. First, I confess, I find games of chance like Backgammon and cards harmless fun. Numbers, however, is a game of chance where the gambler (despite the promise of wealth dangled before him) will almost always lose his/her money and the house will almost alwa ...
Responding to calls for the police to shut down web shop gaming, Police Commissioner Ellison Greenslade declared yesterday that no one can tell him how to do his job.
"No one has a right to tell me what date and what time and who and how," said Greenslade at a press conference at Police Headquarters on East Street.
"It can not happen...That is an insult to our intelligence. The Bahamian people must hear me say it can not happen."
However, Greenslade acknowledged that police have an obligation to shut down businesses that are conducting illegal activities.
Greenslade was responding to Free National Movement (FNM) Leader Dr. Hubert Minnis' criticisms of the government's and police force's "inaction".
Last week, Chief Justice Sir Michael Barnett lifted a conservatory order that protected web shops from interference by authorities.
On Sunday, Minnis urged the police to act in light of that ruling.
"We urge a forthright and immediate course of action by the police to obtain search warrants, to close down all illegal gambling and lottery operations, and to confiscate all computer terminals, servers and the ATM machines which are being used to facilitate illegal gambling, and illegal money transfers, whether that gambling takes place in the web shops themselves, or in private homes, so that the law of The Bahamas, the sound and well considered ruling of the chief justice, and the administration of justice generally are not brought into disrepute by what appears to be lame excuses, and no action by the police and the minister of national security," he said.
Prime Minister Perry Christie also responded to Minnis yesterday.
"The government, the prime minister doesn't get involved in enforcing it. The police know what their job must be," said Christie. "... I can't [insert] myself and say 'go and arrest this one; go and arrest that one.' The police officers are well-trained and a well-led organization and this whole thing about the leader of the opposition, you know what he can do -- tell him go have a swim."
Greenslade said the only thing that can hold his feet to the fire is the law.
"The commissioner is bound to the law," he said.
"I will not take instructions from anyone but the law. It's as simple as that. I'm not 'wishy- washy'.
"And that's a general comment to anyone. I'm not going to be disrespectful to anyone over me.
"I've asked my officers to follow my lead. I'm not going to respond or offer my opinions in an arena where I'm not allowed to. That would be disrespectful."
Greenslade acknowledged that the public has a right to comment on and question police action.
"When you offer a comment it's a comment being offered in The Bahamas, which is a country that you claim to love, I love and we all love and when we have destroyed it because of carelessness, there is no way of turning back," he said.
"I don't know if there is any other way that I can put that to you."
On January 28, a majority of people who voted in a referendum voted against the establishment of a national lottery and the regulation and taxation of web shops.
The next day, Christie ordered all web shop operators to shut down their gaming operations immediately or face arrest and prosecution.
On January 30, attorneys Wayne Munroe and Alfred Sears, a former attorney general, obtained the conservatory order on behalf of Island Luck, Island Game, Whatfall, FML Group of Companies, Asue Draw, Paradise Games and Chances.
The lawyers have appealed Sir Michael's ruling.
After police conducted a search of several web shops in the East Bay Street area on Monday, attorney Wayne Munroe, who represents a group of web shop bosses, said yesterday that although his clients were annoyed by the action, it proved that police are not going to interfere with their operations while it is before the court.
"The one thing it does show is that legitimate business is carried on in web shops," he pointed out.
Munroe said while the search may have negatively impacted his clients' business, "it satisfied that you don't have drug dealing or illicit activity happening in these places".
He represents Percy Web Cafe, Island Luck, FML Group of Companies, Asue Draw, Whatfall and Chances.
Police shut down two businesses during the search, Double D's Restaurant and Bahama Dreams on Okra Hill, for allegedly operating without a business license.
Assistant Commissioner of Police Leon Bethell said police are not going to arrest anyone arbitrarily, adding that they are investigating and compiling evidence.
Munroe said, "I think the commissioner and his officers are doing the sensible thing in not usurping the power of the court. I think that's the proper exercise of their function.
"In fact, bearing in mind what has happened I will have to consider whether there is any basis for me to continue with the appeal of the chief justice's refusal to grant an injunction because if the commissioner of police is going to demonstrate that he is not going to, by his action and by his officer's action, usurp the powers of the court I really have nothing to fear about them not abiding the outcome of the litigation."
The Court of Appeal on April 17 rejected a bid by attorney Alfred Sears and Munroe to stay a ruling delivered by Chief Justice Sir Michael Barnett.
Sir Michael lifted a conservatory order that prevented web shops from being subjected to police interference.
The lawyers secured the conservatory order on January 30, two days after a gambling referendum failed.
Following the referendum, Prime Minister Perry Christie ordered that all web shop gaming cease.
The substantive case is expected to be heard on May 24.
It would be a gamble for police to take any action on web shops while the matter is still before the courts, attorney Wayne Munroe has warned.
Munroe, who represents six web shops, was responding to statements made by Commissioner of Police Ellison Greenslade last week.
Greenslade warned web shop gamblers and operators to "obey the law" and stop gambling as police can turn up at "any time" to make arrests.
Munroe said he has no problem with the police carrying out investigations, but added that the police have to be careful not to act outside the law when doing so.
"If they were to do something while issues are before the court it [would be] a gamble," he said.
"When you gamble, some games of chance are improved by the exercise of skill, but fundamentally they are games of chance and while you are in litigation, it's a gamble."
Greenslade said when the police determine that it is appropriate to take a course of action, they will.
"But I could assure you if there is illegal activity taking place I would suggest that those persons who are a part of it should pay attention," he said.
"We can turn up at any time."
Munroe said if the police act irresponsibly, then the victim has a right to take action.
"Unlike some people, I'm not going to presume to tell [the commissioner] how to do his job," Munroe said.
"No doubt he'll be taking advice. But the most perplexing thing for us is if he acts then of course we will catch it on the CCTV cameras that are in these institutions, we'll memorialize it for evidence and no doubt it will feature in the case.
"But we take no issue with [the commissioner's] statements. He says what's on his mind. He takes a position and he has been consistent with it.
"If indeed something happens that we say is improper there is a remedy for us. Whether it would be adequate or not for us is a different issue."
Asked if he is concerned that the police may raid the web shops, Munroe said, "My position is this, we have to be prepared for what happens.
"The police will do what the police will do and once they've done it, as I said, most of these establishments have CCTV cameras, so it would be caught on camera.
"No doubt in this age of technology it will be recorded on people's cell phones, video recorders...So if police are belligerent and don't do their duty or act bizarrely then it will be captured.
"The police have the ability to [go anywhere] to investigate so nobody is saying they should not do their job. They will take advice and they will do what they intend to do. I don't intend to tell the commissioner of police how to do his job."
Munroe represents Percy Web Cafe, Island Luck, FML Group of Companies, Asue Draw, Whatfall and Chances.
Those web shops are appealing Chief Justice Sir Michael Barnett's decision to discharge a conservatory order that prevented web shops from police interference.
Paradise Games, which is represented by Alfred Sears, is also appealing that decision.
The case will be heard on May 24.
Both Munroe and Sears charged in their appeals that Sir Michael erred in his judgment.
The web shop operators took court action after a failed gambling referendum on January 28.
A prominent pastor has called the government's proposed Gaming Act a "shame and a disgrace".
Rev. Dr. Philip McPhee, of Mt. Calvary Baptist Church, was referring to a bill that would allow local casino operators to facilitate online and mobile gambling.
"I think it is a shame and a disgrace to even [consider] passing that type of legislation without giving Bahamians the full opportunity to benefit from it," he said.
McPhee had pushed for the passing of a referendum on web shop gaming and the establishment of a national lottery.
The majority of people who voted in the January 28 gambling referendum voted 'no'. Voter turnout was less than 50 percent.
The question of whether Bahamians ought to be permitted to gamble in casinos was not on the ballot.
McPhee said yesterday he was "shocked' by the proposed legislation.
"I am hoping that the government of the day will not do anything to jeopardize itself in terms of the people's trust and in terms of it being true and faithful to Bahamians first," he said.
"Bahamians voted 'no' to web shops in The Bahamas. We certainly didn't vote 'yes' for foreigners to benefit from the same system.
"We are hoping we have not been hoodwinked and bamboozled because that is certainly not what we voted for, and certainly that is not what we are standing for.
"If you're going to ban web shop gambling in [The Bahamas], let it be from here, straight across to Paradise Island."
Under the new law, it would still be illegal for Bahamian citizens to gamble.
As reported by The Nassau Guardian yesterday, the bill would make legal "interactive gaming", which would permit gambling "through communications technology and accessed over the Internet".
It would also provide for "proxy gaming", which is defined as "the placement of a bet or wager on a gambling game by a player located within a permitted area, using any communications technology or device, including the Internet or intranet, wireless, wire or cable, radio, light, optics, microwave, smartphone or mobile device, or computer data network..."
Such a license would only be issued to the holder of a gaming license and only in respect of the casino resort managed by it.
The proposed legislation would allow hotel guests to gamble at pools or beachside on smartphone technology or hand-held tablets.
The accompanying regulations stipulate that a mobile communications device used for gambling must be designed or programmed such that it may only communicate with approved mobile gaming systems.
While local casino operators have long been pushing for updated gaming laws to allow them to be more competitive with other established gaming destinations, web shop owners see the proposed bill as discriminatory.
Attorney Wayne Munroe, who represents Percy Web Cafe, Island Luck, FML Group of Companies, Asue Draw, Whatfall and Chances said on Wednesday his clients are "disappointed".
McPhee insisted the government should not consider the new legislation, especially while attorneys are still making a case before the Court of Appeal on behalf of web shop owners.
"This whole struggle and fight that has gone on over the last several weeks seems to be very ironic," he said.
"This seems to be a set up. It seems as though Paradise Island can have benefits and the people in the ghetto can't have them, and that is not right."
McPhee said he plans to take a stance against the proposed legislation, which he called "inequality", and encouraged others to do so.
He also said the legislation would contribute to Bahamians becoming second-class citizens in their own country.
Another vocal religious leader in favor of regulating and taxing web shop businesses did not wish to comment directly on the proposed bill yesterday.
Bishop Simeon Hall, of New Covenant Baptist Church, said he has moved onto "more important issues".
Asked whether his position has changed since the referendum, Hall said it has not.
"The Bahamian people have spoken and I acquiesce to what the majority have said, and I don't care to fight it anymore," said the former Bahamas Christian Council (BCC) president, who spoke at Vote Yes rallies.
Minister of Tourism Obie Wilchcombe, who has responsibility for gaming, was unavailable for comment as he was out of the country.