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-
Norman Francis Earl Proctor intending to operate as Why Wait? Delivery Service Applicant
DECISION
Panel: S. Grace Kerr, Board Member Allan Higdon, Board Member
Decision Date: January 24, 2008 Hearing Location: London, 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 Norman Francis Earl Proctor, Applicant ) Ronald Trachy, Representative
The Application
- The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 15326 dated June 13, 2007 to review an application for a liquor delivery service licence from Norman Francis Earl Proctor (the “Applicant”), intending to operate as WHY WAIT? DELIVERY SERVICE (LDS), 159 Ross Street, St. Thomas, Ontario, N5R 3X9, organization number 39946. The Notice of Proposal alleges violations of subsections 6(2)(d), 6(2)(f) and 5(3) of the Liquor Licence Act (“LLA”). A hearing of the Application was held on October 11, 2007 in the City of London.
Decision
- After considering all the evidence and submissions the Board DENIES the Application. Reasons for these findings follow.
Preliminary Matters
- There were no preliminary issues.
Registrar’s Evidence
John Purvis has been an inspector for the AGCO since May 2001. He inspects licensed premises and also liquor delivery services.
On November 1, 2006 the witness investigated a complaint made against Why Wait? Delivery Service. He had been told the name of the business had changed and had no operating address. Upon investigation, the Inspector found there was no business operating under the name of Why Wait? Delivery Service at 481 Talbot Street, suite B, the address of record for the business. In addition, the phone number listed for the business was a residential phone number with no connection to the business. The Inspector was advised that Why Wait? Delivery Service was now operating under the name of On Time Delivery Service. The Inspector checked the Yellow Pages for On Time Delivery Service and found the business was listed as being on Talbot Street, with a phone number of 519-631-7889. The Inspector called the number and was told the price for delivery of a case of beer was $6.36 plus tax.
The Inspector had his next contact with the business on January 3, 2007 when he called the Why Wait? Delivery/On Time Delivery Service phone number and was again advised that the delivery charge for a case of beer was $6.36 plus tax. The Inspector noted that the liquor delivery license for Why Wait? Delivery had expired on December 18, 2006. At this point the Inspector decided to check all the liquor delivery services in the St. Thomas area. The date of January 24, 2007 was set for such an inspection.
On January 24, 2007 the Inspector met with two AGCO inspectors, Brian Johnston and Daniel Deslitpe, and St Thomas police officers Staff Sergeant Zehr, Sergeant Barns, and Constable Ainsworth to develop an operational plan to contact various liquor delivery services including Why Wait? Delivery that same day. $100 was provided in money with recorded serial numbers: four $5 bills and four $20 bills. The witness went with Inspector Johnson to a three-storey apartment building and gave him one $20 bill and two $5 bills. At 7:39 p.m. a call was made to Why Wait Delivery/On Time Delivery at 519-631-7889. A woman answered for On Time Delivery. A case of 12 Labatt Blue was ordered for 80 Confederation Drive, Apartment 307. The cost was $6.36 for delivery plus the cost of the beer. From a bus stop outside the apartment building the witness saw a red pick-up truck pull up, a case of beer removed and taken into the building. Inspector Johnson confirmed that he purchased the case of beer.
On cross-examination, the witness confirmed a driver in a red pick-up truck dropped off the beer. He stated a police cruiser followed close behind the truck and then pulled it over. He did not see that take place. The witness confirmed there were other delivery services in St. Thomas but On Time Delivery was selected for surveillance because of the witness’s contact with the company on January 3, 2007.
Brian Johnston has been an Inspector with the AGCO since 1988. The witness stated his first involvement with this case was on January 24, 2007 when he met with his AGCO colleagues and officers from the St. Thomas police. The purpose of the exercise was to check liquor delivery services in the St. Thomas area to see if they had proper valid licenses. At about 7:30 p.m. on that night he went with Inspector Purvis to an apartment building at 80 Confederation Street in St. Thomas. He received his “buy money”, one $20 bill and two $5 bills. The serial numbers were recorded.
The Inspector phoned On Time Delivery at approximately 7:38 p.m. and asked for one 12 pack of Labatt’s Blue and gave an address. He was told the delivery would take ten minutes. At approximately 8:05 p.m. a red truck drew up in front of the address and a person exited with a pack of 12 Labatt’s Blue. The driver was a female with short dark hair and a slim build. The witness had waited in the lobby but the driver said the beer had to be bought at the apartment address given. In front of the apartment door the witness paid for the beer and was presented a receipt. The driver said her name was Lynn. She presented the witness with an advertising card for On Time Delivery and then left.
The witness put his signature, time, and date on the case of purchased beer and placed it in the trunk of his vehicle. The case was given over to police that night.
Daniel Deslitpe has been an Inspector with the AGCO since 1994. On the night of January 24, 2007 he was working with his two colleagues from the AGCO and the St. Thomas police. At approximately 8:08 p.m. he received a call that beer had been purchased from a woman who had delivered beer in a red Ford pick-up truck, license number 497-IRJ. The witness and Constable Ainsworth intercepted the truck, asked for identification, and were given a Driver’s License for Margaret Hatch, known as “Lynn”. The driver was asked to produce her Liquor Delivery License. An expired license was presented. The woman then phoned her boss, Norm Proctor, on her cell. She was found to be in possession of the “buy money” whose serial numbers had been recorded. At 8:20 p.m., a man arrived and presented a Driver’s License identifying himself as Norman Francis Proctor of St. Thomas. Mr. Proctor was asked to produce a valid Liquor Delivery License. He did not produce the document. Proctor was told he would be charged with operating a delivery service without a license. He replied, “Whatever. I have beaten those charges before.”
Daniel Ainsworth has been a Constable with the St. Thomas police force since December 1990. On the night of January 24, 2007 he was part of the group investigating unlicensed delivery services in the area. He partnered with Inspector Deslitpe and stopped a red Ford pick-up that had delivered liquor. The driver presented her Driver’s License and insurance but did not have a valid Liquor Delivery Permit.
Lynda Clayton has been Manager of Manufacture and Special Licenses at the AGCO since 1998.
Ms. Clayton testified that Why Wait/On Time Delivery Service did not currently hold a valid Liquor Delivery Permit. The business had held a valid permit previously and a renewal reminder had been sent out on October 26, 2006 to Norman Francis Proctor at the address of his place of business, stating a license renewal was mandatory before December 1, 2006. An expiry notice was sent out on December 26, 2006 stating the license had expired on December 18, 2006 and was no longer valid. (Exhibit #2) The Registrar is not aware of any change of address although the regulations state the AGCO must be advised of any address change. An application for renewal was not received before the expiry date.
An application is on file for a new license for Why Wait? Delivery Service stamped as received January 26, 2007.
Registrar’s Counsel introduced Exhibit #3, an AGCO decision of July 27, 2004 in which the license for Why Wait? Delivery Service was suspended for fourteen days for improper documentation and not carrying a license.
Registrar’s Counsel introduced Exhibits #4 and 5, an AGCO decision of October 13, 2005 in which the license of Why Wait? Delivery Service was suspended for 21 days for providing liquor to minors and failing to keep proper records.
The witness stated the record of the Applicant offers ample grounds for believing that the Applicant would not carry on a business with honesty and integrity and in compliance with the law. The Applicant has had two suspensions under the Liquor Licence Act, and in addition, appears to have been operating a liquor delivery business without a license, a requirement he knows to be legally necessary. Furthermore, the witness stated no name or address change for the business has been submitted, as required under the Act.
Applicant’s Evidence
Norman Proctor is the owner of Why Wait? Delivery Service. The business was first located at 715 Talbot Street, later moving to 481 (B) Talbot Street, subsequently relocated to 361 (B) Talbot Street, and currently located at 159 Ross Street, all in St. Thomas. The business has been at its current address since February 2007.
The witness said he had sent a fax to the AGCO notifying of his move to 361 (B) Talbot Street. Proctor stated he had opened his business in March 2001 and received his delivery licence in December 2001 which he kept continuously until it expired on December 18, 2006. The witness provides a 24 hour comprehensive delivery service which includes flowers and food. Liquor deliveries make up about 40% of the business. The witness acknowledged the suspensions of 2004 and 2005.
The witness stated On Time Delivery and Courier is an incorporated company, part of 6329225 Canada Ltd. He incorporated the company in 2005 but did not notify the AGCO. He would set up Why Wait? Delivery Service only for the delivery of liquor.
The witness stated he had a liquor delivery license that expired on December 18, 2006. He had not received a reminder notice dated October 16, 2006 telling him his license was about to expire. He stated he did not receive the notice of December 26, 2006 as he was then at 481 Talbot Street.
The witness stated he applied for a new license on January 24, 2007 and received an acknowledgement dated January 29, 2007. He acknowledged he was late in applying due to the pressure of business but one of his drivers reminded him. He had not noticed his license had expired.
The witness stated he would give his drivers additional training, possibly Smart Serve, if he were to get his license renewed.
On cross-examination, the witness stated he was not aware until January 24, 2007 his delivery license had expired. He filled out his application for renewal prior to being charged. The witness stated he had no copies of any of the information he sent to the AGCO.
The witness acknowledged he delivered liquor for five months – until June 2007 – without a license. He is aware it was his responsibility to keep his license current and he deeply regrets not doing so.
The witness admitted he missed his license renewal date and stated he recognizes it was his responsibility to keep ahead of his expiry and get the appropriate documentation submitted.
The witness acknowledged he used On Time Delivery Service to deliver liquor, although the company had never applied for or received a liquor delivery license.
Registrar’s Submissions
The Applicant held a liquor delivery license for approximately six years and in that time was suspended for violations of the Liquor Licence Act on two occasions. The Applicant admitted he had no idea why his drivers would deliver liquor in violation of the law.
An undercover investigation found that the Applicant’s liquor delivery service was still operating although the business name, address, and phone number had been changed without notification to the AGCO as required by law. In addition, the liquor delivery license had expired. When confronted by AGCO Inspectors and police about delivering without a license, the Applicant yelled at them. The Registrar submits that all of the foregoing are not the behaviours of someone who can be trusted to operate with honesty and integrity.
The Applicant attempted to fudge the dates on which he applied for a license renewal. In any event, the Applicant knew either on January 22 or January 24, 2007 that his license had expired yet, by his own admission, he still continued to operate a liquor delivery service until June 2007.
The law also requires a delivery driver to have a valid copy of their liquor delivery license on them at all times. The driver for Why Wait, Margaret Hatch, did not have a valid permit on her when she was pulled over by police.
The Applicant claims he did not receive notices of renewal. However, it is clearly the Applicant’s responsibility to keep his license current. He did not notify the AGCO of his many address changes and company name change.
The Applicant not only operated Why Wait? as a liquor delivery service after its license had expired but used another company which had never received a liquor delivery permit, On Time Delivery Service, to deliver liquor. This is one of the most blatant cases of disrespect for the law ever seen at the AGCO.
Given the facts as stated above, the Registrar submits that findings should be made under subsection 6(2)(d) of the Liquor Licence Act, subsection 6(2)(f) of the Liquor Licence Act and subsection 5(3) of the Liquor Licence Act and should deny the licence to the Applicant.
Applicant’s Submissions
The Applicant has operated a liquor delivery service since March 2001 in the St. Thomas area. The Applicant has always had a driver training program in effect which included detailed instructions from the AGCO. His offer to secure Smart Serve training for his drivers is an indication of his genuine desire to operate with integrity and honesty and within the law. Employees who did not follow the rules were dismissed.
The Applicant cannot govern the actions of his employees on a minute-to-minute basis but once he became aware of a problem he took action.
The Applicant is aware of his two previous suspensions. Both drivers involved were dismissed. However, to put that in perspective, the Applicant stated that his company made some 50-60,000 deliveries of liquor in the six years he has been in the business.
There is no evidence the Applicant deliberately endeavored to operate a clandestine business. There were difficulties in notifying the Applicant of proceedings due to address changes but this should not be construed as trying to hide from the Board.
The Applicant acknowledged that his licence expired on December 18, 2006. He applied for a new licence on January 26, 2007. His explanation of an oversight is plausible.
With regard to his conduct when confronted by police, even Constable Ainsworth admitted the Applicant appeared frustrated, “understandably so.”
In summary, the Applicant has had two convictions in six years of business after some 50-60,000 liquor deliveries. This hardly constitutes a level of non-compliance rendering the Applicant unfit to hold a liquor delivery licence.
The failure by the Applicant to renew his licence was simply an oversight which he attempted to correct by submitting a renewal application on January 26, 2007
A permanent suspension would be severe but “a short, sharp suspension may be appropriate”
The Applicant has been without a delivery licence since December 18, 2006 and his business has suffered. The Board should issue a licence renewal to the Applicant who is willing to abide by some reasonable restrictions. One such restriction might be a limitation of only up to eight drivers.
Reply
The Applicant may have testified that he has a training program in place but it has obviously proven inadequate, given past infractions. Even the delivery monitored by AGCO Inspectors and police which took place on January 26, 2007 was not properly executed and documented as required by the Act.
Even more importantly, the Applicant admitted that he blatantly broke the law by delivering liquor until June 2007 without any liquor delivery licence whatsoever. The Applicant is trying to shift the responsibility for infractions on to individual drivers but through his own actions he demonstrated to his staff that he did not intend to operate within the law or with honesty and integrity.
The fact that the liquor delivery business is off-premises and can only be monitored by undercover investigations places a very high burden on the operator to conduct business with exceptionally high moral and ethical standards.
The Applicant continued to deliver liquor until June 2007 using Why Wait? Delivery Service even after its liquor delivery licence had expired. The Applicant also admitted that he used On Time Delivery Service to deliver liquor, even though it had never been granted a licence to do so.
The Registrar considers the infractions cited as among the most blatant ever considered. The only course of action should be to deny the application. No conditions attached to a licence would cause this Applicant to start adhering to the law.
Reasons & Findings
The Applicant has been in the liquor delivery business since March 2001. In approximately six years he has received two suspensions from the AGCO, one for fourteen days, and another for twenty-one days. Such suspensions have serious financial implications and are intended to be a very clear “wake-up call” to a licensee.
Given these sanctions, the Board would expect to find a rigorous protocol in place to ensure that no further infractions would occur that could endanger the survival of the business. In this instance, the Board would search in vain. The following examples of negligence are instructive:
- The Manager of Manufacture and Special Licenses at the AGCO testified that she did not receive notice of the four changes of business address of Why Wait? that took place between March 2001 and February 2007, according to testimony of the Applicant. It is the responsibility of the Applicant to keep the AGCO informed of any change in address, phone number, or Legal status (ie. incorporation) name of business;
- The Why Wait?/On Time Delivery driver stopped on the night of January 24, 2007 was not carrying a valid liquor delivery licence permit as required by law. It had expired over a month before. The licensee was operating without a current delivery permit; and,
- The Applicant testified that he continued using his Why Wait? Delivery Service to deliver liquor until June 2007, even though his licence to do so had expired on December 18, 2006. This was not done absent-mindedly or in error. The Applicant was clearly aware of the licence expiry as he had applied for a permit renewal in January 2007.
These infractions demonstrate a startling lack of the level of responsibility and professionalism required by the holder of a liquor delivery permit and convinces the Board to conclude the same.
Most egregiously, the Applicant testified that he used his other delivery business, On Time Delivery Service, to deliver liquor even though the business had never been granted a liquor delivery licence permit by the AGCO. This one infraction alone shows a sufficiently blatant disregard for the law to lead the Board to conclude that the Applicant clearly does not have the level of honesty and integrity required to operate a liquor delivery service within the law as defined by the Liquor Licence Act.
Based on the evidence cited above, the Board FINDS the Applicant is in contravention of subsection 6(2)(d), subsection 6(2)(f), and subsection 5(3) of the Liquor Licence Act.
Order
- The Board therefore DENIES the application by Norman Francis Earl Proctor, intending to operate as WHY WAIT? DELIVERY SERVICE (LDS), 159 Ross Street, St. Thomas, Ontario, N5R 3X9.
DATED AT TORONTO THIS 24th DAY OF JANUARY, 2008
ALLAN HIGDON, BOARD MEMBER S. GRACE KERR, BOARD MEMBER
AH/sm