ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The : Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
B E T W E E N:
Registrar, Alcohol and Gaming Commission Ontario
Registrar
-and-
Whitney Marie Stevens Intending to operate as
AAA Mofo Yo Buck Delivery (LDS)
Applicant
DECISION
Panel: David C. Gavsie, Chair Bruce Monteith, Board Member
Decision Date: September 11, 2007
Hearing Location: Peterborough, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone (416) 326- 0366 Fax (416) 326-5566 Website:agco.gov.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Richard Kulis, Representative Whitney Marie Stevens, Applicant ) Wendy Cotnam, Representative
Authorities
Puss & Boots Jack Rabbit Home Delivery, [2006] O.A.G.C.D. No. 532
Statutory Powers Procedure Act R.S.O. 1990,c.S.22
The Application
- The Deputy Registrar of the Alcohol and Gaming Commission of Ontario (the “AGCO”) issued a Notice of Proposal dated November 2, 2006 (the “NOP”) to refuse to issue a liquor licence to Whitney Marie Stevens (the “Applicant”) intending to operate a liquor delivery service by the name of AAA MOFO YO BUCK DELIVERY (the “Application”) from premises at 487 Cordach Crescent, Peterborough, Ontario, K9H 3A4, organization number 52387. The NOP alleges issues under paragraphs 6(2)(d), (f) and (e) of the Liquor Licence Act (“LLA”). A hearing with regard to the NOP was heard in Peterborough on April 26, April 27 and July 17, 2007.
Decision
- After consideration of the evidence and submissions of the parties, the Board REFUSES the Application.
Preliminary Matters
The Applicant waived her right to be represented by legal counsel, and indicated that Wendy Cotnam, her mother, would be acting as her representative.
On Consent, all witnesses were ordered excluded.
Mr. Kulis indicated that a decision of the Board in the case of another Peterborough liquor delivery service, namely Puss & Boots Jack Rabbit Home Deliver (“Puss & Boots”), was germane to Deputy Registrar’s case, and indicated that under section 16 of the Statutory Powers Procedure Act R.S.O. 1990,c.S.22 (“SPPA”), a tribunal may in making its decision, take notice of facts that may be judicially noticed. A copy of the decision of the Board in the Puss & Boots matter was placed in evidence as Ex. 1.
Mr. Kulis stated at the outset of the hearing on April 26, 2007 that he had received late the day before a box of documents from the Applicant and Ms. Cotnam. The box contained 4 volumes of transcripts from the Puss and Boots hearing. Mr. Kulis asked that the Board take judicial notice of the testimony contained in the 4 volumes which he placed in evidence. The volumes were given the following exhibits number:
Date of Hearing Ex. No
October 16, 2006 2A
October 17, 2006 2B
October 18, 2006 2C
October 19, 2006 2D
As a number of matters from the Puss & Boots hearing dealt with days in 2005, Mr. Kulis placed in evidence a calendar of 2005 (Ex.3).
Mr. Kulis also indicated that on pages 17 and 18 of the prior Board decision in Puss & Boots (Ex.1), 40 exhibits were set out. Mr. Kulis asked the Board to accept those 40 exhibits as exhibits in this case. The Board agreed. To avoid confusion with that hearing, yet allow for easy cross-reference, the Board retained the numbering used and identified them as Exhibits 4-1 to 40, inclusive.
Registrar’s Evidence
Constable Dale Dixon of the Ontario Provincial Police (“OPP”) appeared. He has worked with the OPP for 19 years in uniform. Until November 20, 2006, he worked with the AGCO in Orillia. While attached to the AGCO, he conducted liquor licence investigations and background checks.
Const. Dixon conducted an investigation into issues with Puss & Boots regarding alleged infraction by it of provisions of the LLA and/or regulations enacted under it. In the end, the Puss & Boots Licence was revoked.
With regard to the present Application by the Applicant, Const. Dixon said he had been requested to look into:
a) the affiliation between the Applicant and Puss & Boots. Const. Dixon indicates he knew that Miss. Stevens was a driver for Puss & Boots, and that she was the daughter of Wendy Cotnam, the manager of Puss & Boots who was the wife of Basil Cotnam, the licensee of Puss & boots; and
b) determine the Applicant’s suitability with respect to the Application.
Const. Dixon said that this Application by the Applicant is a new matter. The Applicant, Whitney Stevens, was a driver for Puss & Boots. She is the daughter of Wendy and Basil Cotnam. Wendy Cotnam was the manager of Puss & Boots, and Basil Cotnman, Wendy’s husband and the Applicant’s step-father, was the owner of Puss & Boots.
Const. Dixon proceeded to give the following overview of his inspection regarding Puss & Boots. It began on August 18, 2005 with a complaint against the Puss & Boots business alleging service being made to an intoxicated customer, David Wiley. Mr. Wiley lived in a trailer park in Peterborough. The Complaint was made by Clinton Williams, a friend of Mr. Wiley’s.
Mr. Wiley had been found in his trailer in bad health. He had been taken to hospital by ambulance. He was a diabetic.
Mr. Williams described the condition of the trailer to Const. Dixon. It smelled of urine. There were feces at the front door, on the main room floor, in the bedroom, in the kitchen and in the bathroom.
Mr. Williams also said that Mr. Wylie was lying on a couch, he was feeble and had a stubble beard. There were a large quantity of empty beer bottles lying on the floor. Mr. Wiley appeared drunk to Mr. Williams.
Const. Dixon referred to Ex. 4-1 which was a series of photographs taken by Mr. Williams of Mr. Wylie’s trailer on August 18, 2005. They show the conditions Mr. Wylie was living in. The photos were taken the evening of the complaint made to Const. Dixon.
Ex 4-1A shows the main door of Mr. Wylie’s trailer. Ex 4-1B gives a closer look inside. Const. Dixon pointed out the large number of beer bottles on the floor inside. Ex 4-1E and 4-1F show the inside living area including the couch where Mr. Wylie was found and also a lot of beer bottles on the floor primarily. Ex 4-1J and 4-1K show clothing on the bathroom floor which were soiled with feces.
Cons. Dixon was in contact with Mr. Wylie’s daughter, Lisa. Mr. Williams also told Const. Dixon to contact Mr. Wylie’s next door neighbour, Ken Wheeler, who would have information. Const. Dixon spoke to Mr. Wheeler the same night and again on August 22, 2005.
Const. Dixon referred to Ex. 4-24. It is a written statement signed by Mr. Wheeler on August 25, 2005 at his residence obtained by OPP Const. Capper. The interview detailed a severe drinking problem that Mr. Wylie had, the deliveries of Puss & Boots of alcohol to Mr. Wylie, cheques some blank and some made out to Puss & Boots, the fact that Mr Wylie had threatened to kill himself several times.
Const. Dixon met with Lisa Wylie and Mr. Wheeler on August 22, 2005. Lisa Wylie had a power of attorney from her father.
Const. Dixon was told that Mr. Wylie had a large quantity of personal cheques from his bank account. Some were dated back as far as March 5 and some were current. All were made payable to Puss & Boots. Ms. Wylie had received copies from the bank. All of the cheques were made in 2005, and they ran up to August 16, 2005 which is when Mr. Wylie was transported to hospital and kept there.
Mr. Wheeler told Const. Dixon that he lived 50 feet away from Mr. Wylie and had a clear view of Mr. Wylie’s driveway and front door. Mr. Wheeler saw deliveries to Mr. Wylie’s home by Puss & Boots. Their cars had their company name on them. Mr. Wheeler said Puss & Boots were paid by cheque. The cheque book was left on the table in the kitchen of the trailer. The table is shown in Ex. 4-14.
Const. Dixon referred to Ex. 2C at pages 355-388 being the transcript of the evidence of Mr. Wheeler given at the Puss & Boots hearing on October 18, 2006. In that evidence, Mr. Wheeler testified to the numerous deliveries of Molson Beer to Mr. Wylie, being everyday and sometimes twice a day.
Mr. Wheeler told Const. Dixon that on July 19, David Wiley’s brother, Garnet Wylie, and his wife attended at David Wiley’s trailer, then came over to see Mr. Wheeler and his wife to discuss David Wiley’s bad state of health. While talking in the living room, another delivery of beer – 2 cases of 24 bottles – to Mr. Wylie’s trailer was made by Puss & Boots.
Mr. Wheeler also testified at the Puss & Boots hearing that David Wylie’s daughter, Lisa Wiley, told him that the deliveries of beer were always by Puss & Boots, and that the beer was paid by cheque, and that she had ordered the blank cheques for her father.
Const. Dixon said he contacted the Peterborough OPP detachment and asked that they investigate Puss & Boots regarding their deliveries to David Wylie. As a result, Const. Capper took 3 statements from:
a) Lisa Wiley;
b) Mr. Wheeler (Ex 4-24); and
c) Lenore Joyce, another resident of the trailer park.
Const. Dixon said that on November 10, 2005, he interviewed Garnet Wylie and his wife, Judith Wylie (Ex 4–13). Judith Wylie’s testimony at the Puss & Boots hearing on October 18, 2006 is found at page 292 of Ex. 2C. That of Garnet Wylie is found at page 324 of Ex. 2C.
During Judith Wylie’s testimony at the Puss & Boots hearing, she introduced photos she took with her camera on or around July 19, 2005 at the trailer park (Ex. 4-12).
Const. Dixon stated that Garnet and Judith Wylie had visited David Wylie at his trailer on or around July 19, 2005. They had been summoned by Mr. Wheeler who told them that David’s health was not good, he looked dishevelled, he was not himself, he was intoxicated all the time, he defecated on himself.
Const. Dixon said Garnet visited with David and then told his wife that David was drunk. Garnet while at the Wheeler trailer saw a Puss & Boots car pull up to David Wylie’s trailer. A female driver exited the vehicle with a case of 24 beer and was about to deliver that beer to David Wylie’s trailer. Garnet Wylie spoke to the driver and asked her not to make the delivery, but it was made.
Const. Dixon said that Judith Wylie took her photos 2 or 3 days later because there was a problem in developing the photos she took on July 19. So she returned to take photos (Ex 4-12). Const. Dixon also said that the photos Ex 4-12 depict the same things he saw on August 18, 2005.
Const. Dixon stated that he was in contact with Lisa Wylie about her father’s cheques. She had ordered copies of cancelled cheques from her father’s bank.
On December 9, 2005, Const. Dixon said he spoke with David Wylie who was then living in a retirement home in Peterborough. Mr. Wylie gave Const. Dixon copies of the cheques. Ex. 4-10 is Mr. Wylie’s signed statement.
Mr. Wylie’s testimony at the Puss & Boots hearing given on October 17, 2006 is contained in Ex. 2B starting at page 244.
Const. Dixon stated that at 2:02 p.m. on December 9, 2005, be initiated contact with Basil and Wendy Cotnam at 338 Daniel Street. He told them that they had to cease delivery to David Wiley.
Const. Dixon said that on December 20, 2005, a demand was made on Puss & Boots for their records being orders and deliveries for 2005.
On December 29, 2005, a bankers box pursuant to the demand was delivered to OPP headquarters in Orillia. Const. Dixon retrieved the box and reviewed the records inside the box.
Const. Dixon stated that he found the Puss & Boots records not to be in compliance with the LLA. The delivery records did not contain required information. There were numerous deficiencies.
Wendy Cotnam agreed that there were deficiencies at the Puss & Boots hearing (Ex.1) as stated at paragraph 5 on page 3 of the Board decision. Findings were made by the Board at paragraphs 127, 131, 132 and 135 of its decision (Ex.1).
Const. Dixon said the Board also found there to be a violation of section 6 of the LLA by Basil and Wendy Cotnam at paragraph 121 of its decision (Ex.1).
Const. Dixon then referred to section 15.2 of Ontario Regulation 718/90 under the LLA (Board note-that section provides that a delivery service licence holder cannot purchase alcohol from the LCBO or the Beer Store before receiving an order from a person legally entitled to purchase liquor).
Const. Dixon said that one of the drivers for Puss & Boots was Cheryl Patterson. He found her name on a record for October 10, 2005. Ms. Patterson had contacted Const. Dixon in February, 2006 after she had left employment by Puss & Boots. Const. Dixon took Ms. Patterson’s statements (Ex 4-15, 16 and 17). Ms. Patterson also testifies at the Puss & Boots hearing (Ex. 2B-pp 184f).
Const. Dixon discussed Ms. Patterson’s records from Puss & Boots with her. One was for October 10, 2005, Thanksgiving Monday. It was a statutory holiday, so all government stores were closed. There could not be legal liquor deliveries that day.
Ms. Patterson told Const. Dixon that prior to a holiday, Basil Cotnam would stockpile beer and on the holiday, the business would carry on. Instead of picking up alcohol from a government store, Ms. Patterson said she would pick up alcohol from the business and that extra fees were charged.
Const. Dixon said that Corey Locke was another driver for Puss & Boots. He had work records for both March 25, 2005 which was Good Friday, and July 1, 2005 which was Canada day, both statutory holidays (Ex 4-3). The government stores were closed on both days.
Const. Dixon pointed out an entry on the March 25, 2005 Divers Log of Cory Locke (Ex 4-3, page 1) which indicated a delivery to 48 Jackson Avenue of “2/24 Carling” and “2/28 Canadian” with prices, delivery and total in right hand columns. On Ex 4-4 being the Puss & Boots Order book for March 25, 2005, there is no reference on either of the 2 deliveries to 48 Jackson Ave. Const Dixon said this was an example of the Board findings in the Puss & Boots hearing – paragraphs 135 and 137 of Ex.1.
Const. Dixon recounted a conversation with Cheryl Patterson where she said records of Puss & Boots were altered prior to the records being given to the OPP in December, 2005. Instruction to do so were given to drivers by Wendy Cotnam and this was done after the demand for the records was served on December 20, 2005 and before the records were delivered to the OPP on December 29, 2005. The Board in the Puss & Boots hearing found this did occur – Ex 1, paragraph 130.
Const. Dixon said that Ms. Patterson had given him a statement on March 9, 2006 ( Ex 4-16) in which she said other drivers were involved who she identified as Larry Dwyer, Kate Curran, and Whitney Stevens, the Applicant. The alteration of records was ordered by Wendy Cotnam. Her explanation for the alteration was that prior to a government store closing, the drivers were to have extra products in their cars, and for those deliveries, there would be an extra fee charged. The attempt was to cover up larger fees.
Const Dixon examined Cheryl Patterson’s records with her and she showed him which ones she had changed herself. A delivered product with a set price had a set delivery fee. An extra fee $2.00 would be added for an item such as cigarettes, or an additional stop. The combined price of the products did not add up.
Const. Dixon stated that the Puss & Boots records of Whitney Stevens contained entries which had been altered as well.
Const. Dixon wanted to initially only identify the deliveries made by Puss & Boots to David Wylie. After receiving the information from Ms. Patterson, he widened the scope of the investigation.
Const. Dixon reviewed the Puss & Boots records for Ms. Patterson (Ex 4-21). She referred to these in giving her testimony at the Puss & Boots hearing (Ex 2B, pages 186ff).
Const. Dixon said that the records for Whitney Stevens were consistent with those of Ms. Patterson – alterations have been made.
Const. Dixon stated the records of Puss & Boots showed that a lot of deliveries were made to David Wylie. Some were marked “cig”, and some “cash back”. Some deliveries of beer had the entry “food cash back” marked in the records.
Const. Dixon said that in Whitney Stevens’ records, there were 2 for July 9, 2005 – for the same day (Ex 4-39). On page 2 of Ex 4-39, there is a line through the page. On line 5, which is also crossed out, thee is an eatery for a delivery to “Dave 24 can 3 smokes”. Page 1 of Ex 4-39 does not have a reference to Dave, but at line 4 shows “Heritage #7 Red McDonalds food, cash back”. Const. Dixon said “Heritage” is where the trailer park is. Const. Dixon also noted that the first 3 lines of both pages are the same.
Const. Dixon said that with regard to Whitney Stevens, the records showed her making a delivery to a licensed establishment “Clancy’s”. She also made a delivery to a silver Grand Am, a car, at a Shoppers Drug Mart location. The Puss & Boots records for her do not contain all of the required information.
Const. Dixon stated that Basil Cotnam’s records re David Wylie on August 16, 2005 contained a problem. Mr. Cotnam had made a delivery to David Wylie on August 15, 2005. Deliveries were made when they should not have been. There were deliveries to golf courses, to commercial buildings, and there were liquor store transfers. Also, Larry Dwyer’s records were bad. They showed a delivery of LCBO product or beer, but did not name the product, and addresses were not shown, etc.
Const. Dixon said that based on his review, Puss & Boots was charged with offences under the Provincial Offences Act. He then prepared a review package for the AGCO. An interim suspension of the Puss & Boots licence was issued by the AGCO, a hearing was held, and their license revoked.
Const. Dixon said that with regard to David Wylie and his condition, he attended at the Peterborough Health Centre. He also received a letter from David Wylie’s physician (Ex 4-9) which was quoted in the Puss & Boots decision (Ex 1) at paragraph 34. The letter set out the condition of David Wylie on being admitted to hospital on August 16, 2005. Const. Dixon noted that Basil Cotnam had made a delivery to David Wylie on August 15, 2005.
In answer to question on cross-examination, Const. Dixon stated he could not tell from the Puss & Boots records if Whitney Stevens delivered anything on July 16 or 23, 2005.
62, Const. Dixon was referred to Ex. 5, specifically the 3 pages headed “Orders as per order sheets to David Wiley”. He said that he had prepared it. He was asked what did he use to prepare Ex. 5 Const. Dixon answered from the delivery logs of the drivers. He said that there was no delivery log for the Applicant for a Saturday delivery in the month of July, 2005.
Wendy Cotnam introduced 5 pages of logs of Puss & Boots for November 13, 2005 as an exhibit (Ex 6). Const. Dixon was referred to Ex. 6, pages 2 and 3 being the log of Puss & Boots for November 13, 2005 showing addresses and things ordered. At line 34 on the 2nd page, there was a line through the entry “Whit-Clancy’s- 24 laker”. Const. Dixon was then referred to Whitney’s log for the same date, 7 lines from the bottom of the page stating :Clancy Hunter St(bar)-24 laker 36.90”. Const. Dixon agreed. He also agreed that the last line on the same page read “12 Coors Shoppers Mart silver Grand Am”, and that no amount was shown on the right-hand column.
On the same page, Const. Dixon agreed the 3rd and 4th lines were scribbled out, and what was deleted was not shown on Puss & Boots log (Ex 6, pg 2). He also agreed that the name Cheryl was shown at the top of page 1 of Ex. 6.
Applicant’s Evidence
Wendy Cotnam gave evidence on behalf of the Applicant.
Ms. Cotnam introduced evidence 9 pages of records from Puss & Boots showing, ostensibly, after-hours deliveries attributable to Whitney Stevens (Ex 7). Ms. Cotnam said that they were assumed to be after-hours deliveries because of the delivery charges on the pages. She said that page 1 shows runs to Coyle Crescent in Lakefield. These were Basil’s runs. They show charges from $12 to $14. On page 3 – Whitney’s call log for May 10, 2005, the second last entry on the page shows 12 Molson delivered to 61 Coyle Crescent for a delivery fee of $15.00. On Whitney’s call log for June 4, 2005, the last entry on the page is “24 Carling 61 Coil Cres” and there is a delivery fee shown of $13.00, although something else was scratched out. There are various other fees shown on other pages of Ex. 7.
Ms. Cotnam stated that the normal delivery fee for an “in Peterborough” delivery is $8.00. Earlier in 2005, it was $6.50.
Ms. Cotnam said that part of the documents or records attributable to Whitney are being used to support an agreement that these are for after–hour deliveries. The fact is that Whitney did not make after-hour deliveries.
Ms. Cotnam referred to Whitney’s log for October 5, 2005, part of Ex 7. There are different charges for different deliveries, some with food, some with additional stops. The fees range from $8.50 to $14.00. Ms. Cotnam next referred to Ex. 6, pages 3. On line 34, there is a line through it. Underneath the line it reads, “Whit – Clancy’s – 24 Laker”. Page 4 of the exhibit had letter marked down the left side (The Board could not see this on the copy the Board was looking at). Ms. Cotnam said that this page was not written by Whitney. Every single order goes on this log sheet. Pages 2 and 3 of Ex. 6 were prepared by the dispatcher in the office.
Ms. Cotnam was not sure who had prepared page 4 of Ex. 6. Regarding the check marks on the left side of the page, this means the item was transferred to another sheet.
Ms. Cotnam introduced a 3 page exhibit, the first containing credit card vouchers, the second page being Cheryl Patterson’s log for September 5, 2005, and the third page being an e-mail from Heather Hassall dated October 10, 2006 to the effect that McKnights’s Flower Shoppe Inc. was closed on Labour day in 2005 and did not order anything from Puss & Boots on that day (Ex 8).
Ms. Cotnam stated that the copy on the left side of page 1 of Ex. 8 was a batch for a night. She then pointed out the entry on page 2 of Ex 8, forth line from the bottom, which reads, “24 Moose 123 Rideau MC 36.95 11.50 48.45”. The “MC” means a Mastercard charge. The fee was $11.50, $3.00 for the charge card and $8.50 for delivery. On page 1 of Ex. 8, bottom of the middle column, Ms. Cotnam said that the voucher for 48.45 was that Mastercard charge.
Ms. Cotnam stated that September 5, 2005 was Labour Day. On page 2 of Ex. 8, the 3rd and 4th lines from the bottom were attempted to be delivered on Labour Day. Cheryl said she worked that day. She was told to add on the 3rd line from the bottom. “Players Light King Size”, and the delivery was being made to 1095 Glendale. The order total was $61.45. This is shown on page 1 of Ex 8 in the top of the middle column. Ms. Cotnam pointed out that all of the vouchers on this page show the date of September 6, 2005, not September 5, 2005.
Ms. Cotnam said that she was chastised for deliveries on Labour Day 2005. Cheryl said she worked that day, and that she was part of the group that altered documents. Ms. Cotnam stated that she did not tell Cheryl or anyone to change anything. Cheryl Patterson’s evidence that she delivered on September 5, 2005, according to Ms. Cotnam, was a “bold-faced lie”.
Ms. Cotnam said that regarding Whitney Stevens and her call logs, sometimes prior to 2006 things were not written down e.g. signature of patron, name of patron. According to Ms. Cotnam Whitney Stevens got these habits from her husband, Basil Cotnam, and from a variety of other drivers.
Ms. Cotnam produced 29 pages of message logs (Ex 9). She also owns TLL Message & Communications Inc. This service dispatched and took calls for 4 other liquor delivery services. New companies were started by former employees of liquor delivery services, and took up the same habits as they had used before. Her only communication with drivers is shown on Ex. 9.
Ms. Cotnam said that Whitney Stevens was taught to prepare her records by Ms. Cotnam and her husband.
In 2006, Ms. Cotnam realized that she needed to record names and required drivers to put in actual delivery addresses.
Ms. Cotnam referred to Whitney Stevens’ log for May 24, 2005 (Ex. 10). Ms. Cotnam referred next to page 5 of Ex 5, being a cancelled cheque of David Wylie. It was for the final delivery by Puss & Boots to him for August 15, 2005. On the back of the cheque, there is a bank stamp indicated the cheque was deposited into the Puss & Boots account on August 15, 2005. Mr. Wylie had said he did fill out the cheque including making it payable to “Cash”. “Cash “ was a cover word for alcohol being delivered to David Wylie.
Regarding the Registrar’s allegation that Whitney Stevens is a front for her, Ms. Cotnam denied that, saying that Whitney and her husband and 2 children lived in Brighton up to 2005. Then because of the increasing volume of sales of Puss & Boots which exceeded $500,00 and in that Basil Cotnam turned 76 and has a heart problem, Whitney put her Brighton house on the market, sold it, and moved into a new home to Peterborough on May 5, 2006.
Whitney’s intention to apply for a liquor licence started in 2005. Ms. Cotnam and her husband decided to get out of the business. Ms. Cotnam has her hands full with other businesses she owns and runs. Mr. Cotnam makes trays in their delicatessen. He is a house husband and helps out by answering the business phones. Ms. Cotnam prefers to drive.
Their plan is to give Whitney 6 vehicles and some cash, the first out of love and affection. Whitney will not be a front.
On cross-examination by Mr. Kulis, Ms. Cotnam agreed that she was the agent for Puss & Boots at its hearing and that she had the opportunity to examine witnesses.
Mr. Kulis asked Ms. Cotnam a number of questions about up charges, entries on various pages of the exhibits being logs, and possible alteration of records. There were no answers which were different from the information previously given by Ms. Cotnam in her testimony.
Mr. Kulis referred to Ms. Cotnam to Ex 9, being pages of messages. Ms. Cotnam said these were messages only for Puss & Boots and other liquor delivery services.
Ms. Cotnam said she got into the business in December 2002. She did not look to find out the rules applicable to a liquor delivery service. She thought she knew the rules because she had answered phones for these services.
In 2003, Ms. Cotnam got input from a Peterborough lawyer and from AGCO Inspector Stacy Guymer. In 2006, Ms. Cotnam found out she needed to record names of patrons and to obtain their signatures for deliveries.
Ms. Cotnam found this out at a meeting held in Peterborough in the fall of 2005. A number of liquor delivery services were told they were not in compliance with the rules.
Whitney Stevens
Ms. Stevens started working for Puss & Boots in February 2005. She had on the job training by driving around with Puss & Boots drivers. She applied for her own license before the problems arose at Puss & Boots.
Ms. Stevens stated she applied for her license in August 2006. The interim suspension of Puss & Boots was dated May 18, 2006. She had decided to start her own liquor deliver service business in the summer of 2005. She sold her house in Brighton and moved to Peterborough.
Ms. Stevens said no one helped her prepare her application for a licence. Someone did read it over before she sent it in.
Ms. Stevens also said that once a driver was trained, the job was a “no brainier”. If someone had questions, they will ask her or drivers from other companies. Being an operator used to be simple.
At the start of day 3 of the hearing on July 17, 2007, Ms. Cotnam said she had recently received information from the Provincial Crown Attorney’s office including a video of an interview held by Const. Dixon with Cheryl Patterson. Ms. Cotnam explained that the Puss & Boots hearing, a transcript of this interview was placed in evidence, namely Ex 4-15. she wanted to now play the video. Ms. Cotnam also said there was the transcript of another interview of Ms. Patterson filed as an exhibit in the first hearing, namely Ex 4-16. The video is about the other drivers who supposedly prepared reports. It relates to Whitney Stevens and the allegations being made against her.
The video was placed into evidence (Ex 11) being a DVD of Const. Dixon’s interview of Cheryl Patterson held on May 2, 2006.
In the DVD, Ms. Patterson made the following points:
a) She worked on both Labour Day and Thanksgiving Day in 2005 for Puss & Boots. Beer was stored at their (the Cotnam’s ) home;
b) October 10, 2005 was Thanksgiving. She had 5 deliveries, all for a $15.00 fee expect for the last one which was made for a fee of $25.00. It could have been made out of town, to someone who was not a regular;
c) She was told what to change;
d) Beer was stocked for a holiday. It was kept inside the main entrance of Puss & Boots;
e) there were lots of returns the day after the holiday;
f) they charged $10.50 for delivery after the Beer Store had closed, so the drivers could make an extra $2.00;
g) Wendy (Cotnam) took the calls. She would ask who had been on hand when the Beer Store was closed;
h) if stuff was left in the car at the end of the night, the drivers would have to get rid of it;
i) Wendy (Cotnam) would ask drivers to get extra 12 packs;
j) Whitney, Basil and Kate would be doing the same thing. All were dispatched by Wendy (Cotnam);
k) she reported for work at 10:00 a.m., would pick up a car and wait to be called. She would go to the house and pick up beer. There was enough there to keep the drivers busy for the whole day;
l) Wendy would call Basil regarding preferred customers, who would not be charged the normal fee;
m) Kate and Cheryl Patterson were the only drivers working on October 10, 2005;
n) regarding changes to the records, Ms. Patterson was instructed to make changes by Wendy (Cotnam). This happened in Wendy’s house. They had talked about it a few days earlier. Ms. Patterson had a day off and Wendy sent her home with sheets for some days and told her what to write. Ms. Patterson gave the list back to Wendy;
o) everyone – Whitney, Kate, Larry – were instructed similarly. Larry was in the room, re-writing records for hours. Larry re-wrote his delivery records as if they were originals;
p) she caught on because of the pricing. The records were talked about for 2 weeks. Wendy (Cotnam) was delaying and covering things up;
q) she was told what to say if caught. There was a temporary lady dispatching. Her name was Sarah;
r) it was quiet on Thanksgiving and as a result, she made no money;
s) she was not sure if she worked Labour Day; and
t) she had never seen David Wiley or his trailer. Kate told her what it was like. She recalled being at The Beer Store with Kate on a day when a man said please do not deliver to Dave (Wiley) again.
Ms. Cotnam referred to Ex 4-16 stating that the date on the second line of March 19, 2006, the supposed date of the interview, should read May 9, 2006.
Ms. Cotnam said that Cheryl Patterson did not say that Whitney was involved in the alteration of the documents, a point with which Mr. Kulis agreed.
Ms. Stevens denied that she served alcohol to David Wiley when he was intoxicated, nor had she ever done so for anyone else.
Ms. Stevens said she had never falsified any delivery records regarding David Wiley.
Ms. Stevens said she had not changed, altered or removed any delivery records to conceal an after-hours delivery.
Ms. Stevens stated she did not work an extra hour after her shift ended. Rather, she went home when her shift ended.
Ms. Stevens said she did deliver alcohol to licensed establishments, but she did not know that was not permitted. The alcohol was bought under the license of the establishment.
Ms. Stevens recalled picking up an order at the Chapters mall store of the LCBO for delivery to the Peterborough Golf and Country Club. The Club would call the LCBO, and Ms. Stevens would go and pick it up and deliver the order. She signed a paper at the LCBO stating where she was delivering it, and after the delivery, she would take the paper back to the LCBO store.
Ms. Stevens recalled doing the same thing for the Grass Roots restaurant. She would also do transfers between LCBO stores. The manager would call in and give the delivery service a list, and tell them where it was to be delivered.
Ms. Stevens was asked a number of questions about various entries in logs. She could explain some but could not explain a lot because she did not write most of the entries referred to.
Ms. Stevens stated that she did not know about the law requiring delivery services to record addresses, products delivered and the total of the bill. She simply had learned to do her job through Wendy Cotnam’s training.
In January 2006, Ms. Stevens found out that she needed to record the name of an individual to whom the order was delivered. The dispatcher was to give the name and address of the delivery and the product being delivered. Ms. Stevens would need to total the bill and have the customer sign the driver’s log.
Ms. Stevens said that no other owner of a delivery service told the dispatcher what was required. She found out what was required at a meeting in December 2005 held at the police station in Peterborough attended by AGCO inspector Stacey Guymer. Ms. Guymer later attended at the home of Wendy Cotnam. It was in that second meeting that Ms. Stevens found out what had to be done. Prior to that, she did the same as everyone else.
On cross-examination, Mr. Kulis asked questions of Ms. Stevens about the documents and information she would be responsible for as the person in charge of the delivery service. Ms. Stevens indicated the information required, but was not sure about things such as an order form.
Ms. Stevens said that she had not yet opened a bank account for the business, but she will if she gets the licence applied for. She said she has not yet talked to the bank. She does not have a business plan.
Ms. Stevens said that the business would be operated by herself and her husband, with his cousin helping by answering the telephones. 2 drivers would be hired. Ms. Stevens would also drive. Cars for the delivery service would be transferred to her by her parents.
Regarding David Wylie, Ms. Stevens said she never went into his trailer. She delivered to him outside. She did notice a big man’s diaper outside his trailer home.
Mr. Kulis referred Ms. Stevens to various exhibit pages in Exhibit 4 where the notation “cash back” was written in relation to Mr. Wylie. She was also referred to her evidence at the Puss & Boots hearing found in Ex 2D at page 468 and following.
Mr. Kulis said that Mr. Wylie in her evidence at the Puss & Boots hearing said he never asked for cash back. Ms. Stevens said she still maintains her evidence that she had given actual cash back to Mr. Wylie.
In response to question from Ms. Cotnam in re-direct, Ms. Stevens said she was not in his (Mr. Wylie’s) house, and that it seemed pretty clean to her from the door.
Submissions of Registrar
Mr. Kulis began by stating that the Application should be denied as it is linked to the Puss & Boots decision of the Board dated November 30, 2006 (Ex.1). Ms. Stevens, the Applicant, as part of her employment with Puss & Boots was engaged in the activities and therefore the NOP was issued by the Deputy Registrar on November 2, 2006.
One of the alleged violations against the applicant as stated in paragraph (e) of section 4 of the NOP is that she failed to maintain records as required under the LLA. She did not conform to the requirements regulation 718/90. Inspections cannot be performed if a licensee does not have the proper information. In Puss & Boots, no receipts were taken from the person who received the liquor.
Another of the alleged violations against the applicant as stated in paragraph (d) of section 4 of the NOP is that she delivered liquor to people not in a residence as required by the LLA. She admitted deliveries to a non-licensee, the Peterborough Golf Club, and between LCBO stores.
Another alleged violation against the Applicant as stated in paragraph (a) of section 4 of the NOP is that she delivered liquor to a person who was intoxicated. Mr. Kulis referred to photographs being exhibits (Ex 4-1,4-12,4-13), all of which showed David Wylie’s surroundings. Friends tried to clean it up, but the mess would return. Bottles and old food was strewn about, especially near the couch. He would go to the bathroom, sometimes. This was going on for a long time, certainly during the time the Applicant was a driver for Puss & Boots and attended at Mr. Wylie’s trailer home.
Mr. Kulis referred to Ex 4-9 being a letter from a doctor who treated Mr. Wylie. The letter states Mr. Wylie was admitted to hospital on August 16, 2005. Ms. Stevens was there on August 6 and 9, 2005.
Mr. Wylie, in his evidence at the Puss & Boots hearing, said he was constantly intoxicated. In Exhibit 2B, being the October 17, 2006 transcript, at pages 248-249, Mr. Wylie said he switched liquor delivery services to use Puss & Boots in the spring of 2005 and stayed with them. Mr. Wylie also stated that he drank primarily Molson Canadian beer in bottles – 12 packs, occasionally a 24.
Mr. Kulis continued that Mr. Wylie said in his evidence – Ex 2B, page 255 – that he could not make out the complete cheques he used to pay for the liquor, so he signed a bunch of cheques and left them there. He left the cheques on a table inside. The person from Puss & Boots would come inside and get the cheques. Mr Kulis submitted that the Applicant did exactly this when she was at Mr. Wylie’s trailer on the dates in August that she made deliveries to him.
Mr. Wylie said his place was a mess. He left the cheques on a table in his kitchen inside the door. A person would have to come inside to retrieve a cheque (Ex 2B, p.256).
Mr. Wylie said that he was in bad shape, that he was drinking, he was not taking insulin, and that he could not get up for days (Ex 2B, p.257)
Mr. Wylie said at the end, he hardly got off his couch and this was going on for 3 to 5 weeks before he went to the hospital (Ex 2B, p.259).
Mr. Wylie also said that from April to June he was sober, then he started drinking every day. He was pretty much intoxicated all the time in June, July and August. Only Puss & Boots delivered liquor to him (Ex 2B, p.260).
Mr. Kulis said that the Puss & Boots records showing deliveries to Mr. Wylie had been altered. The records were coded to show instead of a beer delivery, that he had received “cash back”. For example, on Ex 439, pages 1 and 2 there is a diagonal line through page 2. On page 1, the delivery to Heritage has the notation “cash back”. Both pages are the call log sheets for the Applicant for July 9, 2005. Mr. Wylie testified that he did not remember ever getting cash back from Puss & Boots (Ex 2B, p.289).
Mr. Kulis said the previous Board panel in the Puss & Boots decision drew the conclusion that “cash back” in the records of Puss & Boots meant beer was delivered. Mr. Wylie was incapable of doing anything. He just wanted to drink. He did not want cash. He wanted beer to drink himself to death.
The previous Board also said that the evidence of the Applicant at the Puss & Boots hearing was self-serving. The Board did not believe her. She was self-serving then, and she still is (Ex 1, page 16, paragraph 120).
Mr. Kulis said that the Applicant is applying for a licence based on the experience of her father and mother. The Board in its Puss & Boots decision said that they were “ungovernable” (Ex 1, page 16, paragraph 117). It was dangerous to issue a licence to someone whose main experience was gained from someone who was ungovernable. While Ms. Stevens testified she had learned requirements from Inspector Guymer, her testimony showed she did not understand what is required.
The Board in the Puss & Boots decision said that the evidence in the Puss & Boots hearing from Cheryl Patterson and David Wylie was credible (Ex 1, page 16, paragraph 118).
The Board also found that the evidence of Basil Cotnam was unbelievable and insensitive (Ex 1, page 16, paragraph 119).
Mr. Kulis said there is no doubt the Applicant attended at Mr. Wylie’s trailer on the August dates. Her evidence about what she saw and smelled is unbelievable and incomprehensible. There was a stench from the trailer. Mr. Wylie’s appearance was dishevelled. He was near death’s door. Ms. Stevens testified that “maybe he had a cold”.
The previous Board in the Puss & Boots decision found that the phrase “cash back” was a code for a liquor delivery (Ex 1, page 16, paragraph 125). The order and other forms prepared by Ms. Stevens are evidence that she participated and was involved in the “cash back” scheme.
The previous Board in the Puss & Boots decision found that the delivery logs were altered, and no reasonable explanation had been provided for the alterations and discrepancies (Ex 1, page 17, paragraph 130). Ms. Stevens participated in this.
Based on the documentary evidence, the Registrar proved the allegation the allegation in paragraph (1) of section 4 of the NOP – served liquor to an intoxicated person.
The Registrar has also proven the allegation in paragraph (b) of Section 4 of the NOP, namely that there were changes and/or falsification of records regarding deliveries to David Wylie.
Mr. Kulis admitted that there was no evidence regarding paragraph (c) of section 4 of the NOP, namely that Ms. Stevens had participated in after-hours deliveries of liquor and changing or falsifying records of some.
Mr. Kulis said that people should be able to show what they are going to do if there were past problems. Ms. Stevens gave no evidence towards that, nor did anyone else.
Ms. Cotnam, as her daughter’s representative, has tried to vindicate herself rather than showing why Ms. Stevens, her daughter, should receive a liquor delivery service licence.
The previous Board in the Puss & Boot decision found the action of Puss & Boots reprehensible. The Applicant, Ms. Stevens was part of Puss & Boots. She did not distance herself from that. Mr. Kulis asked how is she going to carry on business in accordance with the law? Other than drivers, she will repeat what she learned and what she knows from her mother and father.
Mr. Kulis referred to a provision of the SPPA, namely subsection 15(1) which provides:
“15(1)…a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing,
relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious…”
- Based on that subsection, Mr. Kulis said that the evidence presented in the Puss & Boots hearing should be accepted in the present hearing. In Mr. Kulis’ view no evidence was adduced at the hearing which would change any findings of the Board in the Puss & Boots decision.
Submissions of Applicant
Ms. Cotnam said it would be ridiculous for Ms. Stevens to give evidence other than what she said at the Puss & Boots hearing. Ms. Stevens did not truly believe she made mistakes.
Mr. Wylie gave evidence that he could not remember a thing from July and August 2005. He knew he was at Cheryl Yetter’s house for a night, but he could not remember when (Ex 2B, pages 286-287).
Ms. Cotnam said she had admitted the call and delivery logs for Puss & Boots were not in compliance with the law. Prior to starting Puss & Boots in 2002, Ms. Cotnam said she had an answering service which took recorded information the same as Puss & Boots did. In February 2003, 2 liquor inspectors - Guymer and Owens - came to her office, looked at her records, and told Ms. Cotnam they were not in compliance then. No notice was given to her, so she continued on.
In January 2006, Ms. Cotnam said she realized what she had to do to be in compliance. One driver was slack, so he was fired. Ms. Cotnam took responsibility for the documentation of Puss & Boots not being in compliance.
Regarding the allegation that deliveries were made to places other than to residences, Ms. Cotnam said the orders were purchased by a licensed establishment on its liquor licence at the Beer Store or the LCBO. The delivery service transported what was ordered. As for deliveries between LCBO stores, that was ordered by a manager of the Beer Store or the LCBO.
After discussion with Inspector Guymer, Ms. Cotnam said she retained a local lawyer to go over the LLA and regulations with her. He explained what could be done, what could not be done, and what had to be done. She stopped picking up order for licensed establishments. She spoke to the LCBO manager about transfers. He did not realize they could not be done. No transfers have been handled since.
Const. Dixon’s evidence re deliveries to David Wiley stemmed from statements of Garnet and Judith Wylie. Judith Wylie said it was her husband who told her a delivery was made to David Wylie by Puss & Boots. Garnet Wylie said he assumed it was Puss & Boots because he had seen Puss & Boots cars all over town.
Ms. Stevens acknowledged that the Puss & Boots log sheets were not done correctly up to January 2006. She did explain in giving evidence what is required. She has read some documents.
Ms. Cotnam said she was never at David Wylie’s trailer. The doctor’s report did not say he was on death’s door. He was a diabetic. The food he ordered would have put any diabetic in harm’s way.
Ms. Cotnam said the 3 Wylie’s were apologetic. They probably felt guilt. David Wylie could not remember a thing from July and August 2005, except for spending a night at Cheryl Yetter’s house.
Ms. Cotnam said that Whitney Stevens has learned a lot from the Puss & Boots situation.
Decision
- The Deputy Registrar directed the NOP to be issued for 3 reasons expressed in the alternative:
a) pursuant to paragraph 6(2)(d) of the LLA, the past/present conduct of the applicant, or a person having beneficial interest in the business, or a person having responsibility for the management or operation of the business affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty: or
b) pursuant to paragraph 6(2)(f) of the LLA, the applicant is carrying on activities that are in contravention of the LLA and the Regulations thereto; or
c) pursuant to paragraph 6(2)(e) of the LLA, the applicant, or an employee or agent of the applicant has made a false statement in the application.
No direct evidence was adduced or submissions made by Registrar’s representative as to paragraph 6(2)(f) or paragraph 6(2)(e) of the LLA.
Nor was there any direct evidence adduced or submissions made by Registrar’s representative as to a role in the proposed business which is the subject of the Application other than for the Applicant.
Therefore, the Board is left with the question of whether or not Whitney Stevens affords reasonable grounds for belief that the business will not be carried on in accordance with the law and with integrity and honesty.
The Board is of the view that the Registrar has established such grounds.
Ms. Stevens was a driver for Puss & Boots. She delivered to Mr. Wiley’s trailer home in August, 2005 on 2 occasions. Mr. Wiley testified at the Puss & Boots hearing that he was completely intoxicated during July and August 2005.
Mr. Wiley also testified at the Puss & Boots hearing that he left signed but blank cheques on a table inside his trailer. Ms. Stevens said in evidence that she was not in the trailer and only thought Mr. Wiley had a cold. Based on the balance of probabilities, the Board finds that Ms. Stevens was inside the trailer and saw the mess depicted in the photographs tendered as an exhibit (Ex 4-1, 4-12 and 4-13).
The Board also finds on a balance of probabilities that Ms. Stevens saw Mr. Wiley in an intoxicated state or stupor, or saw the complete mess inside his trailer and should have known there was a serious issue with Mr. Wiley’s drinking, yet she proceeded with her deliveries.
There is also ample evidence to indicate, and the Board so finds, that Ms. Stevens changed her delivery records/log to try to cover up either the actual deliveries to David Wylie, or the nature of the products –alcohol- being delivered to Mr. Wylie. Neither Ms. Cotnam nor Ms. Stevens provided any reasonable or cohesive explanation as to why changes had been made to Ms. Stevens’s records.
Ms. Stevens admitted, as did Ms. Cotnam, that Ms. Stevens delivered liquor to a licensed establishment and made transfers between LCBO. The excuse offered that they did not know it was wrong, and did not know until a liquor inspector told them.
Ms. Stevens admitted, as did Ms. Cotnam, that records as required by the LLA and Regulations were not maintained and kept, but again, after discussions with the inspector and with a lawyer, they now know what records are required,
The Board is sceptical that Ms. Stevens fully knows and understands what she can and cannot do as a liquor delivery service licensee. Her only experience in this line of business is working with her mother and step-father at Puss & Boots, where she delivered products as a driver. The evidence of Const. Dixon to this hearing, as well as the evidence from the Puss & Boots hearing, show the gross inadequacies of the Puss & Boots business which was owned by Basil Cotnam and managed by Wendy Cotnam.
Another reason for the Board’s scepticism about Ms. Stevens is the way in which her mother, Wendy Cotnam, conducted her case at the hearing. It appeared that Ms. Cotnam was intent on explaining away the evidence and discussion in the Puss & Boots hearing, instead of concentrating on how the Applicant would run her new business if licensed, and how it would be run in accordance with the law and with integrity and honesty by Ms. Stevens, thereby differentiating it from Puss & Boots.
Conclusion
- Therefore, the Application for a liquor licence from Whitney Marie Stevens intending to operate a liquor delivery service as AAA MOFO YO BUCK DELIVERY at 487 Cordach Crescent, Peterborough, Ontario, K9H 3A4, organization number 52387 is REFUSED.
DATED AT TORONTO THIS 11th DAY OF SEPTEMBER, 2007
DAVID C. GAVSIE, CHAIR BRUCE MONTEITH, BOARD MEMBER
DCG/sm