ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission of Ontario Registrar
-and-
Farbod Saberian Boroujeni operating as or intending to operate as Aron Beer and Liquor Delivery Applicant
DECISION
Panel: Patricia McQuaid, Vice-Chair, AGCO Jacqueline Castel, Board Member
Decision Date: September 21, 2009 Hearing Location: Toronto, 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 Farbod Saberian Boroujeni, Applicant: On his own behalf
Allegations
- A hearing into Notice of Proposed (“NOP”) number 17316 dated July 15, 2009 to refuse to issue a liquor delivery service licence to FARBOD SABERIAN BOROUJENI (the “Applicant”), intending to operate as ARON BEER AND LIQUOR DELIVERY, 995 Willowdale Avenue, Toronto, Ontario, M2M 3C8, on the basis that he is not entitled to a licence under clause 6(2)(d) of the Liquor Licence Act (“LLA” or the “Act”), was held on September 11, 2009 in the City of Toronto.
Decision
- After considering all of the evidence and submissions, the Board UPHOLDS the Registrar’s NOP refusing the liquor delivery service licence of Mr. Boroujeni. Reasons follow.
Preliminary Matters
- Mr. Boroujeni, the Applicant, appeared on his own behalf and waived his right to legal representation.
Registrar’s Evidence
Ms Linda Clayton is the Manager of Manufacturing and Special Licensing. She has over 20 years of experience in this area.
Ms Clayton explained that a liquor delivery service license allows the licensee to deliver liquor to someone’s home. It is a transient business and difficult to monitor, since licensees are on the road and do not operate out of a fixed establishment. Liquor inspectors often do not know where the holder of a liquor delivery service licence is at any given time. Given that liquor delivery service licensees operate with a lot of independence, it is important that they satisfy high standards of honesty and integrity.
Mr. Morris filed an investigation report on the Applicant, which included a criminal record report. The Board entered the investigation report as Exhibit 1. The report indicated that Mr. Boroujeni was charged with theft of a credit card, two counts of credit card fraud under $5,000, and one count of attempted fraud under $5,000, contrary to subsections 342(1)(a) and 380(1) of the Criminal Code. He pled guilty to credit card theft and one count of credit card fraud under $5,000 and was given a conditional discharge with 18 months probation in respect of these two offenses. The other two charges were dropped as a result of a plea bargain.
The conduct which resulted in the aforementioned charges occurred on Saturday, July 26, 2008 while Mr. Boroujeni was employed by a liquor delivery service company. When delivering a case of beer to a customer at her residence, the Applicant observed her PIN number when she entered it in the wireless transaction terminal and failed to return her credit card to her after swiping it through the terminal (theft of credit card). Later the same day the Applicant used the customer’s card at the Toronto-Dominion Bank on Danforth Avenue to withdraw $100 from the customer’s account (fraud under). Approximately ten minutes later, at a different location, the Applicant attempted to withdraw $500 from the bank machine using the customer’s card, but the transaction was denied (attempted fraud under). While at the same location, the Applicant used the bank card to withdraw $380 (fraud under).
Prior to the Applicant’s court date, he attended Toronto Police Service 55 Division with the victim and gave her $750 in cash as restitution in the presence of the police.
The Registrar is concerned that given the Applicant’s recent criminal history, members of the public, particularly seniors and shut-ins who rely on liquor delivery services, would be at risk.
Mr. Boroujeni declined his right to ask Ms Clayton any questions.
Licensee’s Evidence
Mr. Boroujeni stated that he knows what he did was wrong, but he was going through a very bad time in his life. His mother, who resides in Iran, required heart surgery and he did not have enough money to pay for it. The doctors would not perform the surgery unless the full cost was paid for up front.
He realized what he did was not a good way of helping his mother. He explained what he did to the customer, apologized to her, paid her $750, which exceeded what he took, and performed 100 hours of community service for Meals on Wheels. He was also put on probation for 18 months. He does not have a prior record, knows he made a big mistake and will not do it again.
Instead of refusing the licence, he requested that it be approved with the condition that it be immediately suspended or revoked if he is charged of any offence in the future.
On cross-examination, he indicated that he first found out that his mother required heart surgery in May 2008. The cost of the surgery was approximately $20,000. He was short approximately $3,000. His mother had the surgery in September 2008. He borrowed the outstanding money he needed to cover the cost of the surgery from his friends.
He works full-time six days a week and earns approximately $4,000 to $5,000 per month. After expenses, he makes approximately $2,500 to $3,000 per month.
The owner of the company he works for now, Aaron Beer and Liquor Delivery Service, is going out of business and he is proposing to buy the business. The owner is a friend. The owner employs two other part-time drivers. He is the only full-time employee.
He has been employed as a full-time driver at Aaron Beer and Liquor Delivery Service for 5 ½ years. Since the incident of June 2008, he has continued to be employed as a full-time driver for the same company.
Most of Aaron Beer and Liquor Delivery Service’s customers are regular or repeat customers. The victim in the incident in June 2008 was a regular customer and continues to be a customer.
Submissions
In his submissions, Mr. Morris stated that liquor delivery services are very difficult for the Alcohol and Gaming Commission of Ontario (AGCO) to regulate since they are not at a fixed location. They also deal with vulnerable members of the public, such as senior citizens and shut-ins. Therefore, the Registrar needs to be very careful about who it licenses in this category.
The Applicant’s story does not hold together well. It was not necessary for him to steal the money, as he would have been able to save the money based on his evidence about earnings and expenses. His behavior, after he was charged, sounds more like an attempt to avoid being convicted, rather than remorse.
The Applicant has a recent criminal history for precisely the type of offenses which are a concern in this type of business.
The Applicant’s proposed condition is not possible under the Act. Once the licence is granted, a Licensee is entitled to a hearing if the Registrar issues a Notice of Proposal to suspend or revoke the licence.
Mr. Boroujeni denied that he was making up the story about his mother. He knows it was wrong, but he stole the money to help his mother. He had been working for the company for 4 ½ years before the incident, and for a year since the incident, and this is the only time he has ever done something like this.
Reasons and Analysis
For a finding under clause 6(2)(d), the past or present conduct of the applicant must afford reasonable grounds for the belief that the applicant will not carry on business in accordance with the law and with integrity and honesty.
Mr. Boroujeni appeared to be forthright at the hearing, although he did not provide any corroborating evidence or call any character witnesses.
The Board acknowledges that Mr. Boroujeni made restitution without being ordered to do so by the court (but after he was charged), admitted what he did was wrong and performed 100 hours of community service. He has also worked as an employee in a liquor delivery service for over five years, including for a year after the incident, and this appears to be an isolated occurrence. According to Mr. Boroujeni’s testimony, the customer from whom he stole the credit card and committed the fraud continues to do business with the delivery service company in which Mr. Boroujeni is the only full-time employee.
Nevertheless, Mr. Boroujeni committed serious criminal offenses – credit card theft and fraud under $5,000 – a little over 13 months ago in the course of his duties in the very business he is seeking a licence. These types of offences, as Mr. Morris noted, are precisely the types of offences which present a risk in the liquor delivery service business, a business which by nature is subject to little regulatory oversight. The fact that the offences are recent and Mr. Boroujeni used his position as a liquor delivery service employee to commit them is of particular concern to the Board.
Mr. Boroujeni testified that he understands what he did was wrong, regardless of the circumstances, and will not repeat the same mistake. The test under clause 6(2)(d) is whether the Applicant’s present or past conduct affords reasonable grounds to believe the business will not be conducted in accordance with the law and with honesty and integrity. As such, future intentions, however sincere they may be, have little relevance under clause 6(2)(d) and, in any case, cannot override his recent actions, while employed for a liquor delivery service company.
As Mr. Morris noted, it is not an option for the Board to grant the licence subject to the condition that the Applicant agree to surrender it if he is charged or found guilty of a criminal offense in the future, since all licensees are entitled to a hearing before their licence is revoked. The condition that he immediately discloses to the Registrar all charges, convictions and findings of guilt does not go far enough in protecting the public, in the circumstances of recent criminal conduct while a liquor delivery service employee.
If the Board had evidence of the Applicant’s good behavior over a longer period of time subsequent to the criminal conduct, including some character witnesses, the extenuating circumstances and the isolated nature of the occurrence, might afford the Board reasonable grounds for believing he will carry on his business in accordance with the law and with integrity and honesty. However, there has not been enough time since the offences occurred for the Board to make such an assessment, particularly given the nature of the offences and the type of licence the Applicant is seeking.
Accordingly, the Board FINDS, pursuant to clause 6(2)(d) of the LLA that the past conduct of the Applicant affords reasonable grounds for the belief that the Applicant will not carry on business in accordance with the law and with integrity and honesty.
Conclusion
- In light of the finding under clause 6(2)(d) of the LLA, the Board UPHOLDS Notice of Proposal number 17316 REFUSING to issue a liquor delivery service licence to Farbod Saberian Boroujeni intending to operate as ARON BEER AND LIQUOR DELIVERY, 995 Willowdale Avenue, Toronto, Ontario, M2M 3C8, organization number 57490.
DATED AT TORONTO THIS 21st DAY OF September, 2009
PATRICIA MCQUAID, VICE-CHAIR JACQUELINE CASTEL, BOARD MEMBER