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 of Ontario
Registrar
-and-
Garry Charles Hirtle O/A Express Delivery (LDS)
Licensee
decision on findings
Panel: David C. Gavsie, Chair, AGCO
Brian J. Ford, Board Member
Decision Date: December 1, 2009
Hearing Location: Sudbury, Ontario
Alcohol and Gaming Commission of Ontario
90 Sheppard Avenue East, Suite 300
Toronto, Ontario 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 ) Richard Kulis, Representative
Garry Charles Hirtle, Licensee ) On his own behalf
Allegations
A hearing into a Notice of Proposal number 17522 (the “NOP”) dated September 3, 2009 to revoke a liquor licence, and an Order dated September 3, 2009 to immediately suspend on an interim basis, liquor licence number 58839 (the “licence”) issued to Garry Charles Hirtle (the “Licensee”) operating as EXPRESS DELIVERY (LDS), 460 Horobin Street, Unit A, Sudbury, Ontario, P3C 3S7, on the basis of alleged violations of section 6 and subsection 30(2) of the Liquor Licence Act (the “LLA”) and section 23.1, subsection 17(1) and paragraphs 15.3, 15.4, 15.5, and 15.6 of Ontario Regulation 718/90 (the “O.Reg”) made pursuant to the LLA, was held on September 14, 2009 in the City of Sudbury.
The Registrar issued an Interim Suspension of the Licensee’s licence in the public interest and subject to an Order by the Board of the Alcohol and Gaming Commission of Ontario (“AGCO”).
Garry Charles Hirtle is the Licensee. He appeared on his own behalf and waived the right to legal representation.
Preliminary Matters
The Board ordered that the Interim Suspension be continued until the Board indicates otherwise.
Mr. Morris submitted Exhibits #1, 2, 3, 4, 5, 6 and 7 which were accepted by the Board.
Registrar's Evidence
B. B., is 16 years of age, lives in Sudbury, and attends high school. His date of birth is July 14, 1993.
B.B. was shown an Express Delivery form with the address of “A1” Edna, phone “P1”. The form indicated that the order was for 24 Bud Light totalling $37.50 plus a delivery charge of $8.00.
B.B. was asked about the address and he stated it was the address of a friend of his, T.B. (not related). He also stated that the phone number was his cell phone number.
B.B. stated that on July 23, 2009, he ordered a case of 24 Bud light by calling Express Delivery at 705-674-2337. His friend's parents were away at the time. T.B. is also 16 years of age and T.B. looked to be 16 years of age.
When asked how he got the Express Delivery phone number, B.B. said he got it from a friend at school. B.B stated the beer (liquor) was delivered by a male person about 5'11" tall with a beard.
B.B. stated when the beer (liquor) was delivered he was not asked to produce identification or asked his age. He was also not asked to sign anything for receipt of the liquor. He did not do anything to make himself look older.
When asked how long he had been ordering from the delivery service, he stated not long but that he has known about it for four years. His brother’s friend had called there and got a case of beer. He saw him order the beer and saw it delivered and he signed for it at the time. The person was 13 or 14 then, but he looked 16.
B.B. stated on July 25, 2009 he went to D.M.'s house and while there, D.M. ordered a 26 oz. Smirnoff vodka from Express Delivery by calling 705-674-beer(2337). He saw and heard the order being placed. The bottle was delivered and no identification was asked for. D.M. is 17 and looks 17.
B.B. stated that on the night of July 25, 2009 there were three other people present and all were 15 to 16 years of age. There were no adults present at the time. He did not drink the Vodka but drank the beer he had previously ordered. He consumed between seven and eight beers that night.
B.B. stated after drinking he biked home. He was drunk at the time and had an accident on the way home. He hit a pot hole with the bike, was thrown off and smashed his face into the ground. He stated his injuries consisted of four broken teeth and two stitches to a minor cut.
B.B. stated that he had seen 10 or more other kids buy alcohol from Express Delivery and that they were all between the ages of 15 and 17. He added that they all looked their age or younger.
Under cross-examination, B.B. stated that there were no adults present on any occasion.
B.B. stated the delivery person was a male and had a beard that was trimmed.
When asked how he found about 705-674-BEER, which had not been advertised since 2008, he said from friends.
He was also asked if he knew any of the other witnesses and he stated he did.
On re-direct, he stated he knew C.H. and R. He did not know the last name of R.
J.H. is a resident of Sudbury, aged 15, and born April 27, 1994. Her sister is A.H., who is a student at Guelph University.
J.H. was shown a receipt from Express Delivery, Exhibit #4, in the name of M.G., dated July 24, 2009, to an address at “A2” Arnold, phone number ”P2”, for 24 Heineken. J.H. stated that the beer was ordered at 9:11 p.m. on July 24, 2009 from Express Delivery.
J.H. stated that a friend of hers living at “A2” Arnold called using a cell phone. There were no adults present at the time. There were approximately eight people at the residence including her and all were 15 years of age.
When asked why she used the name of M.G., J.H. stated she had ordered from her house previously and that was the name she thought they had used before so they used it again.
J.H. stated that she did not go to the door, one of her friends did. The friend who went to the door was 15 years of age and looked her age. While she did not go to the door, she knows that her friend was not asked for identification as her friend told her she was not asked.
J.H. was shown a receipt from Express Delivery dated July 21, 2009, with the phone number ”P2” for two Vex party packs in the amount of $43.90 and asked if she recognized it. She stated that she did recognize the order and that she had placed the order using the same name of M.G. at “A2” Arnold. She was asked whose signature was on the receipt and she stated it was the signature of her sister, A.H.
On the night in question, she ordered the alcohol and her sister who is 17 and looks 17 signed for the alcohol when it was delivered to the door.
Under cross-examination, J.H. stated that she did not see the delivery and that there were no adults present when the delivery was made.
R.G. is a resident of Lively and is 15, her date of birth being April 7, 1994.
R.G. stated on July 11, 2009, she was at “A2” Arnold with friends and she ordered liquor from Express Delivery using her cell phone number ”P3”. She phoned the delivery service and ordered one mickey of Smirnoff Vodka, one 26 oz. of Sourpuss, and four Smirnoff Ice.
R.G. stated the order was delivered and she signed for it using her sister’s name. She paid for it and signed the receipt “M.G.” She said that she did not try to make herself look older and that she was not asked for identification.
R.G. was shown a delivery receipt for July 23, 2009 to “A3” Wayne, apartment 28 with the phone number “P3” for 26 ounce of bottle Raspberry Vex, one mickey of Raspberry Sourpuss and one mickey of Raspberry Smirnoff Vodka. She ordered the alcohol by phoning 674-BEER(2337).
R.G. stated when she ordered the alcohol she advised the person on the phone to have the delivery person call when they got to the parking lot. She waited approximately 45 minutes and received a call and went down to the parking lot and took delivery of the alcohol.
R.G. was alone at the time she received the delivery of the alcohol in the parking lot and was not asked for identification. When asked what happened to the alcohol, she stated that she consumed it.
Under cross-examination, she stated she signed both receipts and she called both times. She stated the dispatcher confirmed the information both times.
In response to a Board question, R.G. said she tried on one other occasion and was asked for identification and she did not get the delivery. It was sometime in August but she could not remember the exact date.
R.G. also said she did not have permission to use her sister’s name. Her sister is 17.
B.A. is 16 years of age. His date of birth is June 28, 1993. He lives in Sudbury with his mother.
B.A. stated he is aware of Express Delivery and that “we call and they deliver to us”. He stated they deliver to whoever is at his house at the time and to any one of his friends who are all 16 years of age.
B.A. ordered liquor on a number of occasions; approximately 10 times. He started ordering in the past year.
B.A. was shown a receipt for March 27, 2009, for “A4” Gemini Crescent, phone “P4”, for a 26 oz. of Watermelon Smirnoff and 24 Brava beer. He was sure that he signed for the alcohol when it was delivered. He did not remember who else was present but that there were no adults present. He was not sure who called it in. He was not asked for identification.
B.A. was then shown a receipt for April 3, 2009, for two 26 oz. Smirnoff. He stated that it was his name and his address but that he did not recall it in particular. He was then shown a receipt for April 11, 2009 and stated it was his name on the receipt but that it was spelled wrong. He also stated he did not sign this particular receipt and did not remember this particular order which was for a 26 oz. of Smirnoff. He added that no one else would be in the house at the time.
B.A. was then shown a receipt for May 14, 2009 in the name of C.J. at “A4” Gemini Crescent. He stated he did not recall the receipt or order. He was also shown a receipt for June 13, 2009 in his name and for his address. His name was spelled wrong and that it was not his signature. The receipt was for a case of 24 Brava and a six pack of Brava.
B.A. was then shown a receipt for April 9, 2009 and stated it is address and his phone number but that it was not his signature. He was then shown a receipt for May 29, 2009, in the name of E.L., for his address. He stated that E.L. had never been in his house and the signature was not his.
B.A. stated E.L. is the same age as he is, 16 years of age, and looks his age.
B.A. was shown a receipt for June 13, 2009, to his address and with his name on it, for 24 Brava and one 6 pack of Brava. He noted that the signature was not his signature.
B.A. stated that there was a time in June 2009 that Express Delivery would not deliver. He had a conversation with a male person by phone who said they would not deliver to 15 and 16 year olds. He asked why not, they always did, and he had an argument with the person on the phone.
B.A. did order again in July and they delivered alcohol to his address. There were no deliveries in August.
B.A. was shown several more receipts and did not recall them particularly but did state they were for his home address and the phone number on them was his home phone. There is a group of friends who came to his house and phoned in for deliveries.
B.A. recognized the names of the persons on the receipts. He also said that if he was not home, the deliveries were made to his driveway and that he was aware that that was happening.
Under cross-examination, B.A. stated that he had ordered more than 10 times all together, clarifying it was he and his friends and that it occurred more in the summer months.
B.A. was asked about the heated discussion he had about not delivering to 15 and 16 year olds. He asked the person why not deliver, you did it before. He also said there were no adults present when deliveries were made. He also reiterated that he was not present for some of the deliveries made in his driveway.
The Board asked B.A. where he got the money to purchase the liquor. He stated everyone who was present usually pitched in and sometimes he got some money from his mom for doing things around the house. She was not aware that he was purchasing liquor.
He received liquor seven or so times. He signed one receipt and was never asked for identification. He has never taken the liquor directly from the person delivering it but he has been at the door when it was delivered to someone his age. He again stated that on one occasion he signed for the liquor.
B.A. stated in response to a question from the Board as to who answers the door, that one of his friends would answer the door. He was right there on most occasions.
On re-direct, Mr. Morris asked B.A. if he had ever been refused after he ordered alcohol and he stated he or his friends had never been refused at the door.
G.J. is 15 years old, date of birth of December 26, 1993, and lives in Sudbury with his father.
G.J. was asked if he knew B.A. and he said that he did.
G.J. stated he had ordered from Express Delivery on approximately 10 occasions. He and his friends used the Delivery Service. G.J. noted that his friends were between the ages of 14 and 16.
G.J. had taken delivery of Smirnoff Vodka and beer a couple of times and he had never been asked for identification. He is in grade 11 and has been using the delivery service since he was in grade 9.
G.J. was shown a receipt for May 14, 2009 from Express Delivery for a 26 oz. of Smirnoff. He stated that it was not his name and he did not know about the delivery.
G.J. knew that people regularly order alcohol from his friend’s address of “A4” Gemini and that it is delivered to the driveway at the front of the house. He stated that his friends know it is a place to order to. He had taken delivery there on one or two occasions. He also said that he had been present on quite a few occasions when his friends had taken delivery of alcohol in the driveway of “A4” Gemini.
G.J. was asked if his friend B.A. was there. He stated most of the time he was home but if he was not home people just ordered to his house (driveway). He also noted that he drank the alcohol he ordered.
Under cross-examination, he stated his father works at the jail and that he found out about the alcohol deliveries from friends. He stated that everyone knows about it at his school. He also said that there no adults present when the deliveries were made.
In response to a Board question, G.J. stated that he was not asked for identification when he took delivery but that he might have been asked to sign something.
C.H. is a 17 year old with a date of birth of April 29, 1992 and lives in Sudbury. C.H. advised the Board that he had ordered from Express Delivery on approximately 10 occasions. The orders were delivered to his house. When he ordered liquor he used his home phone.
The orders were delivered to his door; he paid for them and signed for them. He was never asked for identification. C.H. explained that if his mother was home he would meet the delivery person in the driveway or down the street in front of his neighbour’s home. He also used his friend’s name, C.T.
C.H. was shown a receipt for May 8, 2009 for C.T. The order was to be delivered to the back door and was for a 26 oz. bottle of Captain Morgan Rum. He said he guessed he ordered it and that he was not asked for identification.
He was also shown a receipt for May 12, 2009, and stated he ordered it and was not asked for identification. This was for Captain Morgan Rum and Polar Ice Vodka. He was then shown a receipt for July 13, 2009 for 40 oz. bottle of Old English Beer and stated that he ordered it and took delivery and was not asked for identification. A receipt for August 8, 2009 for Old English beer was also ordered by C.H. and no identification was asked for.
C.H. stated he did nothing to make himself look older.
Under cross-examination, C.H. stated his mother never knew of his ordering alcohol from Express Delivery. When he took delivery in the laneway she would not be able to see the transaction. When she was home he would order the alcohol and then go outside and wait for the delivery. When he saw the delivery vehicle he would wave it down.
On re-direct, C.H. stated he was not asked why he flagged the driver down and delivery was completed.
In response to a question from the Board, C.H. reiterated that he ordered alcohol on over 10 occasions and that he was never asked for I.D. He also admitted that he used a false name.
J.B. is 18 years old with a date of birth of April 23, 1991 and lives in Sudbury. J.B. stated she had ordered alcohol from Express Delivery for about a year. She ordered alcohol from the delivery service 10 or more times.
J.B. stated that she ordered Wiser's Whiskey and PC lager beer, however she ordered liquor most of the time. She stated she got the phone number for Express Delivery out of the phone book.
J.B. was shown a receipt for April 3, 2009, for a 26 oz. bottle of Wiser Special and asked if she recognized it. She stated that she ordered the alcohol and that it was delivered to her and she was not asked for identification.
She was then shown a receipt for April 23, 2009 for “A5” Lasalle, Unit “X”, and asked if she recognized it. She ordered the alcohol and it was delivered to a neighbour’s house. She took delivery and was not asked for identification. The order was for a case of 24 beer. She also stated that it was her signature on the receipt.
J.B. was asked for identification about a year ago and was denied on that one occasion but in the past year she has ordered alcohol from the delivery service on at least 10 occasions.
Under cross-examination, she stated there were no adults present when she took delivery of alcohol.
A.K. is 17 and looks 17. He ordered liquor from Express Delivery and he got the number from a friend at school. He was told to call and they will deliver the alcohol as they don't want to get stiffed for the alcohol as they already purchased it.
A.K. stated the liquor was delivered to his house, he received it and he was not asked for identification.
Under cross-examination, A.K. said there were no adults present when he took delivery.
Greg Bergeron is an inspector with the AGCO. Inspector Bergeron commenced an investigation into Express Delivery on August 5, 2009 as a result of information from the Sudbury police regarding an LLA complaint. The Sudbury police had responded to a complaint regarding a minor obtaining liquor from Express Delivery. August 5, 2009 is the date he received a copy of the police report.
Inspect. Bergeron stated he contacted Mr. Hirdle on August 13, 2009.
Inspector Bergeron spoke with B.B.'s mother and attended her home to obtain a witness statement from B.B.
Inspector Bergeron was shown a document (Exhibit #3) which shows a compilation of names and dates of delivery and the address delivered to, if a signature was obtained and the type of alcohol product delivered. It also shows the name of the delivery person and the date of birth of the individuals receiving the delivery. Inspector Bergeron was asked where he got the information and he stated from Express Delivery with the exception of the date of birth of the individuals. He got the dates of birth by interviewing the individuals. It is noted that all are under the age of 19 years.
Inspector Bergeron was asked about deliveries after July 1, 2009. He stated deliveries were made to the individuals mentioned below after July 1, 2009 including:
A.H. - July 24, 2009,
J.H. - July 24, 2009,
R.G. - July 11, 2009,
R.G. - July 23, 2009,
B.A. - July 23, 2009,
C.H. - August 8, 2009,
J.G. - July 15, 2009,
J.G. - August 15, 2009.
Inspector Bergeron noted that all of these individuals were under the age of 19 years. He also stated the information came from delivery receipts.
Inspector Bergeron obtained a statement (Exhibit # 7) on August 29, 2009 from J.P., whose date of birth is April 1991. J.P. does not live in the Sudbury area now.
Inspector Bergeron also obtained a statement from A.H. (Exhibit #6). She is presently attending Guelph University. A.H. admitted to ordering a pack of 12 Becks Beer on July 24, 2009 using the name of M.G. Inspector Bergeron stated that A. H. looked to be 15 years of age when she was in fact 17.
Inspector Bergeron was not able get a statement from J.G. as on the date set for the interview he was sick. He spoke to him by phone and obtained his date of birth as August 25, 1993. J.G. told Inspector Bergeron that he had ordered alcohol from Express Delivery and that he took possession of the liquor when delivered and signed for it.
When Inspector Bergeron spoke with J.P., J.P. stated he had ordered and received liquor from Express Delivery on two occasions April 23, 2009 and May 7, 2009. J.P. also stated he may have ordered liquor on more occasions.
Inspector Bergeron stated J.P. looked to be 18 and was definitely a person who should have been carded.
Inspector Bergeron was questioned about deficiencies in the receipts of Express Delivery in Exhibit #5. He stated the address of the Licensee is supposed to be on the receipt but was not on any of the receipts. On:
page 1 of Exhibit #5 there was no signature of the person who received the order, which is required,
page 2 of Exhibit #5 the date on two of the receipts shown is not complete, and the other two have no signature of recipient,
pages 3 to 5 of Exhibit 5 there are no signatures of who received the orders,
page 6 of Exhibit 5, the signature is a single squiggly line, the same as all three receipts on the page, which is common with a driver named Matt,
page 7 of Exhibit 5, there is no signature of recipient,
page 8 of Exhibit 5, three of the receipts have only the given name of a person and two have the squiggle mark, the driver being Matt in all four cases,
page 10 of Exhibit #5, there is no date and no driver information on the receipts,
page 45 of Exhibit 5, a receipt for C.M., had no product information and the quantity of alcohol was not shown,
page 50 of Exhibit #5, the address was of a local hotel but no room number was indicated.
A delivery can be made to a hotel but it must be to a specific room.
There were other cases where liquor was delivered to the Frood Hotel side door and another to an intersection and in one instance to a laundromat. Inspector Bergeron also noted there were in excess of 200 receipts between March 2009 and August 2009 that did not have a signature on them.
Inspector Bergeron stated that Mr. Hirtle, the operator (owner) of Express Delivery, did not have his Smart Serve certification at the time.
Inspector Bergeron stated it was very important for a delivery service that is licensed to deliver liquor to keep accurate and complete records due to the nature of the business and it is the only way that AGCO inspectors can ensure compliance with regulations.
Under cross-examination, Inspector Bergeron stated he was unsure if there were apartments in the Frood Hotel, however he noted that none was noted on the receipt. He was also unsure if there were apartments in the building where the laundromat was located.
Inspector Bergeron was asked who he initially received the complaint against Express Delivery from and he stated it came from the Greater Sudbury Police.
Inspector Bergeron advised under cross-examination that he advised the Licensee on August 19, 2009 and demanded records and receipts for the Delivery Service as it pertained to liquor deliveries. The records were given to him on August 20, 2009.
Inspector Bergeron was aware of the allegation against Express Delivery on August 13, 2009.
Inspector Bergeron stated he gave the Interim Suspension Order to the Licensee at 8:55 p.m. on September 3, 2009. He also gave a request for a hearing form and the NOP at that time.
On September 10, 2009, Inspector Bergeron gave disclosure documents to the brother of the Licensee.
On re-direct, Inspector Bergeron stated the address of Express Delivery had been added to the receipts on September 3, 2009.
Inspector Bergeron received the police report on August 5, 2009, spoke to B.B.’s mother on August 5, 2009 and contacted Express Delivery on August 13, 2009.
Licensee’s Evidence
Garry Hirtle is the owner and operator of Express Delivery. The business has been in operation for 15 years and he is the third owner. He took over the business on March 16, 2009 and acquired a liquor licence on March 27, 2009.
Mr. Hirtle was married to the previous owner. He advised the Board that they separated on March 7, 2009.
Mr. Hirtle stated since taking over he has tried to professionalize the business, giving drivers hats and t-shirts with company logos on them.
Mr. Hirtle stated after he received his liquor licence he continued to run the business in the same manner as it had been run before. He was the manager of the business under the previous owner, who was, at the time, his wife.
Mr. Hirtle was told of the allegations of serving alcohol to minors on August 20, 2009 and that since then he has changed a few things. He had his driver read their training manual which talked about serving minors.
Mr. Hirtle put the company address on his receipts on September 3, 2009. He met with his drivers and stressed the importance for all receipts to be accurately and completely filled out. He stated that his drivers did not understand the importance of the records.
Mr. Hirtle never knew there was a problem with serving minors. He was the dispatcher 90% of the time.
Mr. Hirtle created a policy on September 11, 2009 that required all of his drivers to have Smart Serve training. He started a new hands-on training program with his drivers, which included role playing to get the message of the rule across to them.
Mr. Hirtle stated again he was not aware his drivers were delivering to minors and feels betrayed by them.
On cross-examination, Mr. Hirtle stated he was not disputing the evidence of the Registrar. He agreed that all eight of the youths who testified looked very young and very much under age.
Mr. Hirtle stated that all of the drivers have been suspended including Matt, and S.K. has been fired.
Mr. Hirtle admitted that he failed to monitor receipts closely when the came in. He reiterated he is enforcing the completion of sheets now and doing a double-check.
The company's delivery manual instructs not to serve minors and to ask for identification after money for the product is collected and before the product is given to the customer.
In response to a Board question, Mr. Hirtle stated he was the dispatcher 90% of the time. He was also asked if he ever asked the age of a person making the order and he stated that he had not.
Registrar's Submission
The Registrar requests findings of a breach of section 6(2)(d) and subsection 30(2) of the LLA and section 23.1, subsection 17(1) and paragraphs 15.3, 15.4, 15.5, and 15.6 of the O.Reg.
B.B. is 16 years old and looks 16. He testified that on July 23, 2009, he was at the home of T.B., also 16 in age and looks 16. T.B.’s parents were working. He ordered 24 beers from Express Delivery. A tall delivery person delivered the beer and B.B. took possession. He was not asked to produce identification nor asked to sign the receipt. The squiggly signature line on the receipts (Exhibits 4 to 8) is not his signature. In fact, the squiggly signature line can be found on numerous receipts issued by a driver named Matt to C.H., A.K., J.P., B.A. and J.H.
B.B. drank seven to eight of these beers two days later, got drunk, rode his bicycle and had an accident. He “only” broke 4 teeth and got 2 stitches. It could have been much worse.
B.B. got the number from friends. Four years earlier, he saw his brother’s friend, a 13 to 14 year old who looked no more than 16 years old, obtain delivery of beer from Express Delivery.
On July 25, 2009, B.B. was at a friend’s house, D.M., who is and looks 17. D.M. ordered a 26 oz. Smirnoff from Express Delivery and it was delivered to him. D.M. could not have been asked for identification because he does not have photo identification. There were no adults present, only four 15 to 16 year olds.
B.B. has seen approximately 10 or more kids, who were and looked 15 to 17, purchase beer from Express Delivery.
J.H. is 15 and looks 15. On July 24, 2009 at 7:49 p.m. J.H. ordered 24 Vex alcoholic coolers from Express Delivery using her cell phone. Her 17 year old sister, A. H., who looks 17, took delivery and signed her name to a receipt bearing the name of M.G. No adults were present.
On July 24, 2009 at 9:11 p.m., a 15 year old friend who looks 15 ordered 24 beers from Express Delivery from J.H.’s house using J.H.’s cell phone. She used the name of 17 year old M.G. because that name had been used successfully before. No adults were present, only eight 15 year olds. A 15 year old male who looks 15 took delivery. He told J.H. he was not asked for identification. She thinks her friend signed a receipt. If he did, he used a generic signature. More than likely he didn’t.
R.G. is 15 and looks 15. On July 11, 2009, she was at J.H.’s house with J.H. and 15 year old F.O., who looks 16 to 17. R.G. had been told by a 17 year old friend that Express Delivery delivered liquor to your house and didn’t ask for identification. R.G. called in the order using her cell and her sister, N.G.’s, name. N.G. is 17 years old. R.G. dressed up to look like she was going out but didn’t do much to make herself look older. Express Delivery delivered an assortment of alcoholic drinks. She signed her sister’s name. The plump older delivery man did not ask her for identification.
On July 23, 2009, R.G. was at the apartment of F.O. She called using her cell phone and N.G.’s name. She ordered an assortment of alcoholic drinks. She asked the female dispatcher to call her when they reached the parking lot of the apartment building. The dispatcher didn’t ask her how old she was. She told the dispatcher she was not at her home. She met the bald, darker skinned delivery man in the parking lot and took delivery. She signed her sister’s first name. She was not asked for identification.
Express Delivery refused to deliver to her once when she indicated she didn’t have identification. This was in August, likely after Express Delivery was aware that Inspector Bergeron was looking at their records.
B.A. is 16 and looks 16. There are numerous deliveries to his house. He only admitted to one of them. On March 27, 2009 at night, his mom was working. There were a number of 16 year olds at his house. Someone called in for alcohol. Express Delivery delivered it to the front door. B.A. says that a 16 year old took delivery but that he took a case of beer from the friend in front of the delivery man. He is likely not telling the complete truth in front of his mother at the hearing, because he admitted that the signature on the receipt was his.
B.A. admitted that he ordered liquor from Express Delivery at least seven times. He claims others signed the receipt and took delivery and that he never took delivery directly but this seems dubious.
With respect to the receipts of April 3, April 4, April 9, April 11, May 14, May 29, and June 13, 2009, the address is his, but the name is either different or spelled incorrectly. B.A. says that they are not his orders, and on two of them, the signatures were not his. On others, there is no signature or the generic squiggly line. He admits the phone number (on the ones with a phone number) is his residence phone number and that no one can get into the house and use his phone if he is not there.
It is likely he is covering up his involvement on some of those dates, but at least on April 3, 2009, he believes that 16 year old friends had liquor delivered to his driveway. One of the receipts is for G.J., and one for E.L. who is B.A.’s age but has never been to his house. The signature for E.L. appears to have a “K”, that is, it is misspelled. It is likely liquor was being delivered to 16 year olds at this address, usually in the presence of B.A., and on occasion dropped off to a youth in the driveway.
B.A. testified that he was refused delivery by the dispatcher on Canada Day. There is no liquor delivery on Canada Day. It is possible that the conversation also occurred after the investigation started, but if not, he still was delivered alcohol after that conversation.
G.J. is 15 and looks 15. He testified that he and his friends, also 14 to 16 years old, ordered alcohol from Express Delivery more than 10 times. He admitted taking delivery one to two times and said he was not asked for identification. His name was misspelled on Receipt no. 8, delivered to B.A.’s address. It was common knowledge people ordered alcohol and received delivery on B.A.’s driveway. He has done so one to two times and seen others do so quite a few times.
C.H. is 17 and looks 17 or 18. He was quite candid with the Board, not downplaying his involvement. He admitted calling Express Delivery over 10 times. He orders from his house. He signs the receipt but has not been asked for identification. If his Mom is home, he meets the delivery person in the driveway, on the deck, in the outside yard or even on the street in front of his neighbour’s house. The driver never asked him why he was taking delivery outside. He is either alone or with friends of similar age. He has used the alias C.T.
On May 16, 2009, he received the order at the back door and signed the receipt. On May 12, 2009, he took delivery at the back door but the squiggly line on the receipt for delivery man “Matt” is not his. He was not asked for identification. On July 13, 2009, a 17 year old friend, A.C. made the order but C.H. took delivery at the back door and signed the receipt. He was not asked for identification.
On August 8, 2009, he took delivery at the back door, signed the receipt and was not asked for identification. His friends had told him you could get alcohol delivered to your door without being carded. It is obvious friends have ordered alcohol at other addresses using his name.
J.B. is 18 and looks her age. She didn’t know any of the other witnesses which is an indication of how widespread is the practice of underage purchase and delivery in Sudbury by Express Delivery. She has ordered liquor from Express Delivery more than 10 times in the last year. She received delivery eight to 10 times before this year going back to when she was 16, and was denied once when she must have been 16. When she took delivery, she signed for it and was not asked for identification. On April 3, 2009, she ordered liquor, received delivery from a skinny person with a shag haircut, signed for it and was not asked for identification. She was 17 at the time.
On April 23, 2009, she ordered liquor from her apartment but took delivery at her neighbour A.’s apartment. She signed for it but was not asked for identification.
A.K. is 17 and looks 17. He ordered liquor on one occasion and took delivery at his house. He was not asked for identification. He was with a number of 16 to 17 year olds. A big man with a shaved head delivered it. A.K. was not asked for a signature. The June 24, 2009 receipt has his first name and address. The last name is wrong. The signature on the “Matt” receipt is a squiggly line. He had heard from friends that Express Delivery would deliver and wouldn’t card you.
Inspector Bergeron obtained similar stories from J.P. (age 18), A.H. (age 17) and J.G. (age 16). Inspector Bergeron testified that J.P. was an apparent minor, and worth carding because of his skin, beard and clothing, and that A.H. looked 15. He didn’t meet J.G. but J.G. told him he had done nothing to look older.
Inspector Bergeron confirmed the above submissions about apparent age, saying the youths looked the ages they were, 15 to 16.
It is clear from the evidence of these very youthful looking witnesses that it is common knowledge among many youths in Sudbury that Express Delivery will deliver to apparent minors and won’t ask them for identification notwithstanding how young they look. In fact, the delivery persons seem oblivious to the fact they are often delivering to residences with a group of minors present and no adult. They seem not to care or question if the minors take delivery outside the house or even on the street. Nor do they seem to question if the person who orders is the same as the person who signs even where the person who signs or takes delivery is very young. In respect to the Matt invoices and the Lessard invoice, it seems clear the delivery person is filling out the signature himself.
Inspector Bergeron testified about the receipts in Exhibit #5. He identified numerous deficiencies in the receipts, including no address for Express Delivery (all of them), incomplete or no dates (pages 2, 8, and 10), questionable signatures (the squiggly lines on Matt’s invoices), incomplete names (page 7), no driver information (page 10), no signature (more than 200 invoices), no product information (page 45), and an incomplete purchaser’s address at commercial locations (Travelways, Frood Hotel, a laundromat, and Clubhouse). Also, Garry Hirtle did not have a Smart Serve certificate.
There is ample evidence of breaches of subsection 30(2) of the LLA and section 23.1, subsection 17(1) and paragraphs 15.3, 15.4, 15.5, and 15.6 of the O.Reg. Apparent minors were delivered liquor, no identification was checked out, no signatures were often asked for, and receipts were improperly kept. This was a delivery service out of control.
The Licensee is responsible for the actions of his delivery men. In this case, the breaches are so numerous and obvious that no competent or caring Licensee could fail to know what was going on. Although the case law on permit does not apply to the above breaches, and due diligence is not a defence at the liability stage, it is clear from the evidence that the Licensee either knew or was willfully blind, or at minimum ought to have know what was going on. Mr. Hirtle admitted he was the dispatcher 90% of the time and never asked for their ages. Indeed, Exhibit #3 indicates that the deliveries to minors occurred after the alleged refusal of July 1, 2009 and even after the Licensee was advised of the investigation.
Inspector Bergeron emphasized the importance of accurate receipts in this part of the regulated liquor industry. Liquor delivery services are in fact very difficult for the regulator to check up on. The delivery services are essentially self-regulating, unless there are complaints. The sector of the public the regulations are designed to ensure will not be served alcohol, minors home alone or partying with other minors, are precisely the ones who are least likely to complain, unless some serious incident or accident occurs and their parents find out. For this reason, the delivery services must be held to a high standard.
In the present case, it is clear from the state of the invoices that the Licensee simply did not care what his drivers were doing, as long as they were making money. Many of these kids were repeat purchasers.
Garry Hirtle testified that he has operated the business for more than three years and owned it since March 2009. He knew the importance of not serving minors yet he did virtually nothing to monitor his drivers prior to finding out he was being investigated. He knew the importance of accurate order sheets yet he accepted obviously deficient invoices. He admitted he was the one who hired the drivers who caused the problems, and the only reason they are not working for him is that he has closed the business because of the interim suspension. He only obtained Smart Serve after he was told to do so. He only held the August 16, 2009 staff meeting after he found out about the investigation.
Even then, all he has done has been to refer them to the AGCO website and the Training Manual. Both were available before the investigation, and indeed he claims to have told the drivers to read the Training Manual when they were hired. It is clear he has no idea how to monitor or otherwise control his drivers, and his past conduct indicates he likely didn’t care what they were doing until he faced a licence revocation. As a result, he put many minors in jeopardy and breached section 6(2)(d) of the LLA.
Licensee’s Submission
- In his written submissions, Mr. Hirtle submitted the following:
My name is Garry Hirtle, and I am the current owner and operator of Express Delivery, licence number as stated above.
I wish to make this submission in response to the Registrar’s Submissions on Findings which were sent to me, via Mail, on September 18, 2009. I fully accept responsibility for the actions of my drivers, and any negligence connected to the paper work, which gave rise to the investigation. Rather than focus on the past events and try to defend them, I would like the opportunity to demonstrate to the Board that all of the matters can be rectified, with the changes I am implementing, and with some direction provided by the board.
The company has been in existence for 15 years, initially as Spirits Express. My wife then owned and operated it as Express Delivery, and until she started a full time job, outside the company, in February 2006. At this point I started managing the business, for her, until the marriage breakdown in March 7, 2009.
It was hoped that the liquor licence would be transferred to me however she was not willing to do this, until the business was in my name. Only once her business licence expired (March 14/09), was I able to get the business licence in my name, as this was the only way I could retain the operating name. As the new owner, I felt that the name retention was important, for continuity and financial reasons, and for the good will that Express Delivery had established, as well as the lesser reasons such as the stationary, yellow page listings, and advertising which were already purchased.
I was advised by mail that the liquor licence had expired, as of March 3, 2009. Based on direction provided by Inspector Bergeron, there was no liquor deliveries made until my application for a liquor licence was approved as of March 27, 2009. I must stress at this point, that I received the Master Copy of the licence, but did not receive any additional information. This point is made only to point out that my training and experience was totally based on the previous owner’s experience.
CURRENTLY:
During the three years I was the manager, and since taking over as owner, I have implemented several positive changes, both to ensure Express Delivery was operating within the guidelines as set out by the AGCO, and to enhance the financial stability and business reputation of the company.
These changes included formulating and implementing a Drivers Training Manual/Agreement, which includes, as a priority, a section on “Dealing With Minors”, and the completion of the Order Sheets, to ensure compliance with AGCO regulations. There is also direct training by management that includes role playing and a test, to ensure the trainee has understood the information provided to them. Regular staff meetings were held to discuss and resolve issues.
Upon employment, a contract is required to be signed, which states that the driver understands their responsibility to comply with the LLA and regulations as well as the policies set out by the company’s training manual.
Completion of order sheets is monitored at shift end. If order sheets are not completed correctly, drivers will receive a verbal warning with the first incident, a written warning with the second incident, with the third incident resulting in termination.
At the hearing, there were several allegations and assumptions made. As I chose to represent myself at this hearing, I challenged what I could, at the time, for a clearer understanding of the named infractions. I will not challenge the allegations further, as it is my sincere wish to address each issue in the most positive, appropriate and effective manner. In this context, I am requesting that the AGCO assist me, in whatever manner possible in making any additional changes, with a view to retaining my licence. This is my sole source of income. If my licence is revoked, it would impose severe financial hardship on me.
REMEDIAL ACTIONS:
Before any person is hired to deliver/dispatch an alcohol order, he/she must:
Be 19 years of age
Have a valid driver’s licence
Complete Smart Serve Program or any other program suggested by AGCO
Read the “Drivers’ Training Manual/Agreement” which includes emphasis on information regarding DEALING WITH MINORS and completion of the “ORDER SHEETS, in compliance with AGCO. A test will be administered to the new trainees to ensure the information provided was comprehended.
Receive hands on training, including role playing, by management.
Upon employment, a contract will be signed which will state that they understand their responsibilities and comply with the LLA and regulations pertaining to the delivery of alcohol, and that they will comply with the rules and policies as set out in the company training manual.
Completion of order sheets will be monitored at shift end, before the driver leaves. If not completed satisfactorily, first an oral then a written warning will be issued, with a third incident resulting in termination.
Each driver is required to record the photo ID number supplied by the customer, if they appear to be under 30 years of age.
Every alcohol order customer will be asked if they are at least 19 years of age.
Customer will be asked what PHOTO ID will be supplied upon delivery.
Data base will be enhanced to include as much information as possible including previous orders, customer names and phone numbers relative to a particular address.
I accept full responsibility for the breaches of the LLA that have occurred, but wish to add that it was most certainly not my intention to allow minors to be served, nor to allow the other infractions to occur. I feel that I was, in fact monitoring the drivers, and was continually trying to ensure they were aware of, and following the regulations, through regular staff meetings. Now that I have been made aware, I am committed to maintaining a higher standard of vigilance.
Thank you for taking the time to review my submission. I am willing to work with the AGCO in any faculty, and to accept any suggestions and conditions, and to make the necessary changes to have my licence re-instated, so that I may run my business in the best manner possible, while protecting myself, my drivers, my customers and the public.
Registrar’s Reply Submissions on Findings
In his written Reply Submissions, Mr. Kulis wrote the following:
Re page 1 paragraph 5: Mr. Hirtle ran the business for three years before taking it over from his wife. He can hardly blame her for his running it in contravention of the regulations.
Re page 2 paragraph 2: The breaches occurred despite the Driver’s Training Manual, direct training, and regular staff meetings which Mr. Hirtle says he implemented.
Re page 3 paragraph 2: Mr. Hirtle’s submissions go to disposition rather than findings. The evidence clearly establishes that he had to have known what was going on, and that he cannot blame it on his drivers and negligent paper work. Nor is there any evidence that he was monitoring his drivers to prevent sales to minors.
Re Remedial Measures: Since there was no real attempt before to ensure compliance with the regulations, there is no reason to believe that these new measures will be enforced. Indeed, the measures still don’t deal with any hands on monitoring by Mr. Hirtle, nor is there any indication that any of the employees responsible for the breaches have been fired.
Decision
The Board has reviewed all of the evidence presented. The Board notes that Mr. Hirtle, in his submissions and evidence, did not dispute the evidence presented by the Registrar.
The Board notes Mr. Hirtle stated during his evidence-in-chief he did not know his drivers were supplying liquor to minors. He also stated he was the dispatcher in 90% of the time and that he did not asked the age of the person requesting the delivery of alcohol. Mr. Hirtle stated that there was a manual regarding the delivery of alcohol and that he gave it to each of his drivers when they started with the delivery service.
The Board accepts the evidence put forth by the Registrar that there were several minors to whom alcohol was delivered and they appeared to be under the age of 19. The Board also accepts that these minors were not asked for identification and that in many cases they were not asked to sign for receipt of the alcohol. The Board accepts that deliveries were made to persons other than at the residential address listed and proper receipts were not obtained at the time of delivery as required.
The Board also accepts the evidence of the Registrar with respect information missing from the receipts for the delivery of alcohol, such as;
the name and address of the licence holder,
the name and address of the person on whose behalf the purchase is made,
the kinds and quantities of liquor to be purchases,
the residential address where the liquor is to be delivered,
the date of the delivery,
the price paid for the liquor purchased,
the delivery fee, and
the name of the of the person making the delivery.
The Board also accepts the evidence that the drivers and Licensee of the Express Deliver did not take or successfully complete a Board approved server training course.
The Board therefore FINDS that the Licensee breached the following:
Subsection 30(2) of the LLA, having sold or supplied liquor to a person who appeared to be under the age of 19 years.
Paragraph 15.3 of Ontario Regulation 718/90 under the LLA.
A licence to deliver liquor for a fee is subject to the following conditions:
An order shall include and the licence holder shall record on an order form,
i. the name and address of the licence holder,
ii. the name and address of the person on whose behalf the purchase is made,
iii. the kinds and quantities of liquor to be purchased, and
iv. the residential address where the liquor is to be delivered.
Paragraph 15.4 of Ontario Regulation 718/90 under the LLA. The licence holder failed to deliver the liquor to a person at the residential address listed in the purchase order.
Paragraph 15.5 of Ontario Regulation 718/90 under the LLA,
The licence holder shall obtain a receipt at the time of delivery, signed by the person on whose behalf liquor was purchased or by another person who resides at the place of delivery and who is at least 19 years of age, which states:
i. the name and address of the person for whom the purchase was made,
ii. the date of delivery,
iii. the kinds and quantities of liquor delivered,
iv. the price paid for liquor purchased,
v. the delivery fee, and
vi. the name of the person making the delivery.
Paragraph 15.6 of Ontario Regulation 718/90 under the LLA. The licence holder completed the delivery of liquor without obtaining a sighed receipt.
Subsection 17 (1) of Ontario Regulation 718/90 under the LLA. The licence holder failed to inspect a piece of identification before delivering liquor to a person who appears to be under the age of 19 years.
Section 23.1 of Ontario Regulation 718/90 under the LLA. The managers and employees of the licence holder involved with taking orders from customers or in the service or supply of liquor to customers failed to successfully complete a Board approved server training course.
The Board also FINDS that the licensee breached section 6 (2)(d) of the LLA. The past or present conduct of the Licensee affords reasonable grounds for belief that he will not carry on business in accordance with the law and with integrity and honesty.
Based on the findings made by the Board, the Board also FINDS that it is in the public interest that the Interim Suspension currently in place on liquor licence number 58839 issued to Garry Charles Hirtle, operating as EXPRESS DELIVERY (LDS), 460 Horobin Street, Unit A, Sudbury, Ontario, P3C 3S7, remain in effect until the Board renders its final decision on sanction.
The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Licensee or his representative shall have seven (7) days to serve and file a written response. Registrar’s Representative may serve and file any reply within three (3) days of receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission at the address on the front page of this decision in accordance with the Board’s Rules of Practice.
DATED AT TORONTO THIS 1st DAY OF December , 2009.
DAVID C. GAVSIE, CHAIR, AGCO BRIAN J. FORD, BOARD MEMBER