Registrar, Alcohol and Gaming Commission of Ontario v. Grant Martin McEneny, 2009 CanLII 47499

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: [Liquor Licence Act, R.S.O. 1990, c. L.19](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html), as amended

B E T W E E N:

Registrar, Alcohol and Gaming Commission of Ontario

Registrar

-and-

Grant Martin McEneny intending to operate as Booze Runner Delivery (LDS)

Applicant

DECISION

Panel: David C. Gavsie, Chair, AGCO Guy Maurice, Board Member

Decision Date: June 23, 2009

Hearing Location: Burlington, 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 ) Phillip Morris, Representative

Grant Martin McEneny, Applicant ) On his own behalf

The Application

1. The Deputy Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 17117, dated March 25, 2009 (the “NOP”) to refuse to issue a liquor delivery service licence being applied for (the “application”) by Grant Martin McEneny (the “Applicant”), intending to operate as BOOZE RUNNER DELIVERY, 20 Anna Capri Drive, Unit #15, Hamilton, Ontario, L8W 1M6, organization no. 58551. A hearing of the NOP was held on May 19, 2009 in the City of Burlington.

Decision

2. After considering all of the evidence, the Board CONFIRMS the decision of the Deputy Registrar in the NOP, and DENIES the application for a liquor delivery service licence.

Preliminary Matters

3. The Applicant represented himself at the hearing. He waived his right to be represented by legal counsel or a licensed representative.

Registrar’s Evidence

4. Constable Scott Whitehorne, a member of the Niagara Falls Registration Unit of the Ontario Provincial Police, gave evidence.

5. Constable (Cst.) Whitehorne said he had been assigned to perform an investigation of the application.

6. A CPIC criminal record report for the Applicant was tabled as an exhibit (Exhibit #1). It showed a conviction for assault on June 12, 2008, for which the Applicant received a suspended sentence, and a conviction for two offences for fraud under and unlawful use of a credit card on September 26, 2008.

7. Cst. Whitehorne placed into evidence his report dated February 18, 2009 (Exhibit #2). Regarding the convictions against the Applicant, Cst. Whitehorne contacted Hamilton Police Services (“HPS”) requesting background information.

8. Cst. Whitehorne stated that on May 30, 2007, HPS had received a complaint regarding credit and bank cards being used unlawfully. Eight illegal withdrawals totalling $2,612.00 had been made between May 9 to 11, 2007 out of a complainant’s bank account. A complainant’s VISA card had been used unlawfully on seven occasions for a total of $564.35.

9. On June 1, 2007, HPS had received a second complaint that a Canadian Tire MasterCard had been used illegally to obtain cash advances of $2,640.00.

10. HPS had identified the Applicant as a suspect. He had been a tenant in the home of the complainants. According to HPS, the Applicant told them he used the cash obtained to feed his alcohol and “crack” addictions.

11. The charges had resulted in two convictions against the Applicant for fraud under. He had received a suspended sentence.

12. A further incident occurred on May 9, 2008, namely a domestic dispute. HPS had attended a variety store near the residence of a victim and her child. The victim was the Applicant’s ex-common-law spouse. Her child was their son. The Applicant had gone into the residence of his former spouse, and sat on a couch. The former spouse realized that the Applicant was under the influence of alcohol and asked him to leave. A verbal altercation which turned physical ensued.

13. The Applicant pushed a cabinet onto the victim, and as she called 911, he ripped the cord from the wall. The Applicant smashed several plates, and raised his fist to the victim but did not strike her. The Applicant grabbed his ex-spouse by the neck and only let go after repeated pleas from their son.

14. HPS could not locate the Applicant, so they took the former spouse and their son to a safe place as there was no phone for her to use if the Applicant returned.

15. On May 12, 2008, HPS had contact with the Applicant. He had taken 50 to 60 LORAZEPAM pills, which were unprescribed, and consumed 12 beers. The Applicant was depressed about being wanted by HPS and being separated from his former spouse and their son.

16. HPS apprehended the Applicant under the Mental Health Act, and took him to St. Joseph’s Hospital for a mental assessment.

17. Charges regarding the assault were heard on September 24, 2008. The Applicant was convicted and received a suspended sentence.

18. Conditions were imposed on the Applicant, one of which relates to alcohol. It reads:

“Do not attend any casinos or taverns or any location where gambling takes place, abstain from the purchase, possession, consumption of alcohol or other intoxicating substances. Not to enter any licensed premises where alcohol is sold or dispensed save and except family style restaurants and save and except for employment purposes, abstain from the purchase, possession, consumption of drugs narcotics controlled substances or marijuana, except in accordance with a medical prescription.”

19. The start date of the above condition was September 24, 2008. The condition expires on March 23, 2010.

20. In answer to a question from the Board, Cst. Whitehorne said HPS had told him the Applicant showed remorse regarding his use of the Canadian Tire MasterCard. He had admitted to the unauthorized use of the bank and credit card. The funds obtained were used to feed his alcohol and drug addictions. The Applicant took full responsibility for his actions, claiming he wished to pay compensation.

Applicant’s Evidence

21. Grant McEneny gave evidence. Mr. McEneny stated he is handicapped. He wants an opportunity to get a business going.

22. He knows he “screwed up big time” a year ago. Since then he has taken anger management counselling. Of the amount of approximately $5,800.00 he unlawfully took, he has paid back about $3,300.00 at the rate of $300.00 a month through the courts.

23. Mr. McEneny said what happened a year or so ago was an “isolated incident.” He was depressed and has since gotten rid of people around him because they were a bad influence on him.

24. Mr. McEneny said liquor delivery services in Hamilton are not hiring. He has a fused ankle and as a result, there are not a lot of things he can do. He wants to help out his “ex” and his son.

25. The Applicant stated he will not accept cards. His business with be strictly cash. He learned “big time” and will never do that again, i.e., take credit or bank cards. He needs a chance to start a business.

26. In answer to questions on cross-examination, Mr. McEneny said he is 42 and his son is 13. He crushed his ankle 20 years ago. He was an apprentice carpenter and fell off a roof. He had 10 surgeries for his ankle over 10 years. He is in pain and cannot bend his ankle.

27. The Applicant stated he worked for 18 years on and off driving a taxi. He stopped three years ago. Since then he has not worked except to drive for a delivery service. He was fired because he refused to work in a snowstorm.

28. Mr. McEneny reviewed the circumstances leading to the fraud convictions. He was charged in June 2007 and the case took a year to get to court.

29. He admitted he trashed his former spouse’s place. He pulled a wall unit down and it hit her arm. They are no longer together because of an infidelity on her part.

30. To counter his addictions, Mr. McEneny said he will be starting a five week course in June 2009 for drug and alcohol abuse through his probation officer. He has also finished a four month anger management course.

31. Mr. McEneny is in contact with his ex-spouse. On September 3, 2008, she called his probation officer to say he could start seeing his son again. He has done that and things are going well. He has not had alcohol or used drugs in over a year.

Registrar’s Submissions

32. Mr. Morris began his submissions by referring to the NOP, specifically, the Registrar’s position that the Application should be refused on the basis of paragraph 6(2)(d) of the LLA which reads:

“…an applicant is entitled to be issued a licence to sell liquor except if, the past or present conduct of the (applicant)… affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty;”

33. The Registrar has concerns because of the serious nature of the criminal charges and conviction, and they are recent. Also, the concerns arise because the application is for a liquor delivery service licence.

34. Mr. McEneny was involved with the fraudulent use of someone else’s bank card and credit card. This reached up to $6,000.00 of illegal use. There were two complaints from May and June 2007.

35. This was abuse related. When he was caught, he showed remorse and has made partial restitution. But, again, the breaches were recent.

36. The domestic assault is something different. Aside from this instance, Mr. McEneny does not show violence. But this shows a lack of self-control. The conviction for this assault only took place in September 2008.

37. The liquor delivery service will put Mr. McEneny in an isolated environment with alcohol. The Applicant will be there with it.

38. From the conditions imposed against the Applicant in September 2008, the judge was aware that he was working in an alcohol environment. Mr. Morris said this appears to be standard wording regarding alcohol. To give him a licence he is seeking will put him in breach of that condition. The Board should not do that.

Applicant’s Submissions

39. Mr. McEneny simply asked for a chance to start a business.

Board’s Reasons

40. The Board accepts the evidence of Cst. Whitehorne, his report (Exhibit #1) and the report of HPS (Exhibit #2), in their totality, as being completely credible.

41. In May and June of 2007, two years ago, Mr. McEneny committed crimes to gain money to feed alcohol and drug addiction problems. In May of 2008, one year ago, Mr. McEneny took 50 to 60 LORAZEPAM pills which were unprescribed, consumed 12 beers, and was taken to the hospital by police for a mental health assessment.

42. Several days before he took the unprescribed pills with alcohol, Mr. McEneny, while high, trashed the apartment of his former spouse and their son.

43. As a result of the foregoing, a condition was placed on Mr. McEneny to “abstain from the purchase, possession, consumption of alcohol” for a period commencing September 24, 2008 until March 23, 2010.

44. To Mr. McEneny’s credit, he indicated he has completed a four month anger management course and further, he will be commencing a five week course in June 2009 dealing with drug and alcohol abuse.

45. Mr. McEneny is asking for a chance to operate a liquor delivery business where people who have such a licence pick up alcohol products from the LCBO store and from The Beer Store. They then deliver the alcoholic product to customers and receive money for the product plus a delivery fee.

46. During the delivery time and possibly, during a time when storage to a limited extent may be permitted to a delivery service licensee, the licensee would have care, control and custody of alcoholic products.

47. In Mr. McEneny’s case, the Board does not believe the short passage of time from Mr. McEneny’s criminal charges and their disposition affords reasonable grounds for belief that Mr. McEneny’s business will be carried on in accordance with the law and with integrity and honesty.

48. Further, and even more important, the condition imposed on Mr. McEneny by the criminal court on September 24, 2008 that he “abstain from the purchase, possession of alcohol…” effectively precludes Mr. McEneny from working in an liquor delivery service business, which is his intent, until the condition is lifted, assuming it is, or until it expires on March 23, 2010.

Order

49. For the above reasons, the Board DENIES the application for a liquor delivery service licence by Grant Martin McEneny, intending to operate as BOOZE RUNNER DELIVERY (LDS), 20 Anna Capri Drive, Unit #5, Hamilton, Ontario, L8W 1M6, organization no. 58551.

DATED AT TORONTO, THIS 23rd day of June , 2009.

DAVID C. GAVSIE, CHAIR, AGCO GUY MAURICE, BOARD MEMBER