Registrar, Alcohol and Gaming Commission Ontario v. Daniel Campsall o/a D. C. Services (LDS), 2007 CanLII 47115

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-

Daniel Campsall o/a D. C. Services (LDS)

Licensee

DECISION

Panel: Bruce Monteith, Board Member Eleanor Meslin, Board Member S. Grace Kerr, Board Member

Decision Date: October 18, 2007

Hearing Location: Brantford, 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 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Brad Alton, Representative Daniel Campsall, Licensee ) Ian Gerald Smits, Representative

Authorities

Barzooka's Tap & Eatery [2001] O.A.G.C.D. No. 214

Sapporo Ichiban Restaurant [2002] O.A.G.C.D. No. 33

George's Deli and Restaurant [1999] O.A.G.C.D. No. 69

Allegations

1. A hearing into a Notice of Proposal number 14865 dated January 12, 2007 to refuse to renew liquor delivery licence 39619 of Daniel Campsall, operating as D.C. SERVICES, 55 Cashel Crescent, Brantford, Ontario, N3T 6L5, on the basis of alleged violations of sections 6(2)(a), 6(2)(d) and 6(2)(e) of the Liquor Licence Act (“LLA”), was held on August 28, 2007 in the City of Brantford.

Decision

2. The Board finds violations of sections 6(2)(a)(d) and (e) of the LLA.

3. The Board orders that licence number 39619 not be renewed. Reasons follow.

Preliminary Matters

4. The Board ordered that witnesses be excluded.

Registrar’s Evidence

5. Michael Pierzchalski is an Ontario Provincial Police (“O.P.P.”) Constable. On October 10, 2006, at the request of Lynda Clayton of the Alcohol and Gaming Commission of Ontario (“AGCO”), he conducted an investigation of D.C. Services to determine the details of any criminal convictions for Daniel Campsall and submitted his Report (Ex.5) in December, 2006 to the AGCO.

6. He began his investigation by reviewing Mr. Campsall’s Personal History Report of September, 2006 (Ex.2) and noted that Mr. Campsall had answered questions 10 (re. convictions and outstanding charges) and 12 (re. undischarged bankruptcy) with “No”.

7. Officer Pierzchalski checked into Mr. Campsall’s background and found 2 bankruptcies, one of them undischarged. Also 3 criminal convictions, 19 Highway Traffic Act (“HTA”) offences and one Driver’s Licence suspension were found.

8. The undischarged bankruptcy was declared on June 10, 2005, with listed liabilities of $474,000 and assets of $197, 000.

9. The criminal convictions included:

• fraud over $1,000 (May 10, 1996), resulting in a suspended sentence, 3 years probation and a restitution order for $10,000; and

• invitation to sexual touching and sexual assault of a 9 year old, between 1996 and 2005, resulting in a 6 month jail sentence, 2 years probation and a lifetime probation of firearms.

10. The Probation Order (March 22, 2006 to March 21, 2008) included: no contact with the minor or her family; abstaining from the purchase, possession or consumption of alcohol and non-medical prescribed drugs and restrictions on owning, possessing or carrying a weapon.

11. The 11 HTA offences included: speeding and a Driver’s Licence suspension for unpaid fines on September 15, 2004. The licence was reinstated on September 29, 2004.

12. In response to questions from Mr. Smits, Officer Michael Pierzchalski indicated that there have been no liquor licence offences, no breaches of probation or complaints about D.C. Services. He also stated that the majority of HTA offences were for speeding between 1981 and 1990 and only 2 after that time. Officer Pierzchalski was aware that Mr. Campsall’s role in the business was as a dispatcher.

13. Lynda Clayton is the Manager of Manufacturing and Special Licensing at the AGCO. She is responsible for issuing Liquor Delivery Service licenses. Before the fall of 2001, this was the responsibility of the LCBO.

14. In 2001, because of Mr. Campsall’s response to question 10 (re. convictions) a Canadian Police Information Centre (“CPIC”) check was ordered. Mistakenly, the check was made on DAVID not DANIEL Campsall. It came back clean and a delivery service licence was issued.

15. In 2004 when a liquor licence renewal was requested, the computer still showed the name David and the renewal was granted in that name.

16. Mr. Campsall sent a letter to the AGCO in 2004, pointing out the incorrect name and the licence was changed.

17. On the 2006 renewal application, the name Daniel appeared and a new CPIC check was requested. This one showed the past the convictions and resulted in an investigation.

18. Ms. Clayton testified that liquor delivery licenses are different from the liquor licences for a bar or restaurant, because they are more difficult to monitor. There are no overseers or inspectors to check the premises, or the drivers. Delivery services are generally self-regulating.

19. Based on the information she has received on Mr. Campsall, she is concerned that, given his past practices, he would not uphold the law.

20. In response to Mr. Smits questions, Ms. Clayton agreed that there had been no previous infractions of the LLA and she was not aware of any breaches of Mr. Campsall’s court orders. She also admitted that all his Personal History Reports were completed in the name of Daniel not David Campsall.

Licensee’s Evidence

21. Daniel P. Campsall is 53 years old. He testified that he has cerebral palsy, diabetes and high blood pressure and is on medication. He has always been self-employed and has held a Liquor Delivery licence for D.C. Services since 1990. He employs 7 people and a night-dispatcher. For the past 5 years he has only done dispatching, from his home. His wife helps with dispatch and his son does deliveries. Both of them have Smart Serve. The service charges $5.60 per delivery. The driver gets $3.00 and the Service gets $2.60.

22. When he noticed that his licence was in the name of David, he tried unsuccessfully to have it corrected by the LCBO by phoning them. Later he sent a letter and a fax informing the AGCO of the error.

23. All the Personal History Reports were completed by his wife for him and signed by him.

24. Mr. Campsall testified that although he pled not guilty to the 2 assault and touching convictions, he was found guilty and jailed. His probation order expires in March, 2008 and he continues to see a Probation Officer, every 2 weeks. None of the criminal convictions included alcohol.

25. His HTA convictions occurred mainly when he drove taxi and were for speeding. His last speeding conviction was April 6, 2000.

26. Regarding his responses on the Previous History Reports (PHR), he did not list his convictions because he feared losing his delivery licence.

27. Mr. Campsall testified that his 1978 bankruptcy came from the break-up of his first marriage. His 2005 bankruptcy was because Revenue Canada refused to allow $170,000 in fuel expenses. He turned over 2 trucks worth $34, 000 and his share of his house, valued at $30,000. He also mortgaged his house to pay the government. He still owes $700, which he will soon remit. D.C. Services has no debts, drivers are paid daily, and all purchases made at the LCBO are in cash.

28. His response to Question 12 (bankruptcy) in his first PHR was a mistake since he thought it was asking about his first bankruptcy and thought it didn't apply.

29. Mr. Campsall pointed out that if he had wanted to deceive the AGCO, he would have left the licence in the name of David. In addition, he has never had a liquor licence violation, keeps all the purchase receipts, maintains a “do not deliver” list, requires all his drivers to have Smart Serve certificates and has met with Brantford police to get a list of procedures for following the law.

30. To Mr. Alton’s questions, Mr. Campsall stated that he believed his bankruptcy had been discharged at his court hearing, but admitted he had received no discharge papers. He also responded that although the business was in his name, his wife operated it while he was in jail. He also admitted that he did not notify the AGCO about being in jail.

31. Mr. Campsall agreed that he had answered “no” to questions 10 and 12 in his 2001, 2003 and 2006 PHRs. He did not believe speeding was a criminal offence. He believed that by answering "yes" regarding his sexual assault convictions and the invitation to sexual touching, his life would be over.

32. Maryann Campsall is Mr. Campsall’s wife of 23 years. Their house is valued at between $265,000 and $270,000 and has an $185,000 mortgage. They run the business, including a courier delivery service, from home and have 5 full-time and 2 part time employees. Employees, when hired, are told about the AGCO rules and are Smart Serve trained. Mr. Campsall is a dispatcher, he does not make deliveries or purchase the alcohol. The drivers make the purchases and deliveries.

33. When shown on Ex. 1 that the name on the licence was David, not Daniel, Mrs. Campsall stated that all the correspondence they viewed from the AGCO was addressed to Daniel. She testified that she had called the AGCO on September 29, 2006 and sent a letter pointing out the name error.

34. She stated that she was aware of her husband’s criminal background and his bankruptcies. She believed he incorrectly answered Question 10 because he was afraid to tell the truth. She also believed, after the bankruptcy court hearing, that it had been discharged. Mrs. Campsall testified that the income from D.C. Services pays all the expenses and the mortgage and it has no outstanding debts.

35. In response to Mr. Alton’s questions, Mrs. Campsall admitted that they had no bankruptcy discharge certificate, that she had operated the business while Mr. Campsall was in jail and did not inform the AGCO of this.

Analysis and Reasons

36. The Board has carefully considered the evidence and the submissions. The Board has also reviewed the 3 cases presented by Mr. Smits. The cases do not deal with the unique situation of a liquor delivery service and the Board does not believe they apply in this matter.

Re: section 6(2)(a)

37. Regarding Mr. Campsall’s bankruptcies, Mr. Alton submitted that the 2005 bankruptcy involved thousands of dollars and to-date is undischarged. Mr. Smits responded that all but $700 has been repaid and that D.C. Services is without debt.

38. To have accumulated a debt of $474,000 raises serious concerns about whether the licensee can reasonably be expected to be financially responsible in the conduct of his business. Although D.C. Services has no debt, this is due to Mr. Campsall's recent bankruptcy proceedings. He is the sole owner and his conduct cannot be separated from that of his business. In addition, he still owes $700 and is an undischarged bankrupt.

39. For these reasons, the Board FINDS there has been a violation of section 6(2)(a) of the Liquor Licence Act.

Re: section 6(2)(d)

40. The Registrar’s representative submitted that the sexual assault criminal convictions in 2005 had involved a 9 year old indicating a serious breach of trust. Taken with the additional HTA offences, his bankruptcies and his failure to inform the AGCO that, while in jail, his wife had run the business, he was not operating with honesty, integrity and in accordance with the law.

41. Licensee’s representative argued that most of the incidents relating to Mr. Campsall’s convictions were not recent, occurring between 1996 and 2002. Mr. Campsall was embarrassed by his criminal convictions, has paid his debt to society and is coming to the end of his probation period. He pointed out that while in jail Mr. Campsall spoke regularly with his wife about managing the business and believed they were a team even though he was the sole owner.

42. The Board agrees with Mr. Alton that although a number of his convictions and one bankruptcy occurred many years ago, the criminal convictions for sexual assault are recent and go to the issue of a breach of trust.

43. Mr. Campsall’s past conduct includes 3 criminal convictions, 19 HTA offences and 2 bankruptcies. Although a number of these convictions and one of the bankruptcies occurred many years ago, the criminal convictions in 2005 for sexual assault and touching are recent and deeply disturbing. The Board agrees with Registrar’s counsel that, even though Mr. and Mrs. Campsall believe the accusations were false, it cannot go behind the criminal conviction.

44. Mr. Campsall’s past conduct affords reasonable grounds for the Board to believe that his business will not be carried on in accordance with the law. Therefore, the Board FINDS a violation of section 6(2)(d) of the Liquor Licence Act.

Re: section 6(2)(e)

45. The Registrar’s representative submitted that Mr. Campsall admitted to making false statements on 3 Personal History Reports regarding his past criminal convictions and his bankruptcy. Licensee’s representative replied that Mr. Campsall had been honest and forthright in admitting that he done so and asked the Board to consider Mr. Campsall’s reasons for doing so.

46. Mr. Campsall has admitted that he made false statements on 3 Personal History Reports regarding his past convictions and his bankruptcies. His reasons for not doing so are not acceptable. Operating a liquor delivery service requires a high degree of honesty and integrity. By making false statements he has shown that he cannot do so. Therefore, the Board FINDS a violation of section 6(2)(e) of the Liquor Licence Act..

47. In addition to the above violations, while in jail, Mr. Campsall allowed his wife to operate the business, even though, as a sole proprietor, he cannot do this. He also failed to inform the AGCO of his incarceration.

Order

48. For all the above reasons, the Board REFUSES to renew Liquor Delivery Licence number 39619 of Daniel Campsall, operating as D.C. SERVICES, 55 Cashel Crescent, Brantford, Ontario, N3T 6L5.

DATED AT TORONTO THIS 18th DAY OF OCTOBER, 2007

ELEANOR MESLIN, BOARD MEMBER BRUCE MONEITH, BOARD MEMBER

S. GRACE KERR, BOARD MEMBER

EM/sm