Registrar, Alcohol and Gaming Commission of Ontario v. Garry Charles Hirtle O/A Express Delivery (LDS), 2010 CanLII 7633

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 SANCTION

Panel: David C. Gavsie, Chair, AGCO Brian J. Ford, Board Member

Decision Date: January 6, 2010

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 ) Phillip Morris, Representative Garry Charles Hirtle, Licensee ) On his own behalf

Allegations

1. 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.

2. In its decision dated December 1, 2009 the Board found the Licensee contravened section 6(2)(d), subsection 30(2) of the LLA, section 23.1, subsection 17(1) and paragraphs 15.3, 15.4, 15.5, 15.6 of the O.Reg. The Board also found that it is in the public interest that the Interim Suspension currently in place, remain in effect until the Board renders its final decision on sanction. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Registrar’s Submissions

3. In his written submissions, Mr. Morris submitted the following:

The Board has found that the licensee breached section 6(2) (d) and 30(2) of the LLA and paragraphs 15.3, 15.4, 15.5, 15.6, 17(1) and 23(1) of Ont. Reg. 718/90.

Apparent minors were delivered liquor, no identification was checked, 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 about what was going on. At minimum, if he didn’t know what was going on, he ought to have known. 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 continued even 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, the Registrar is unlikely to receive a complaint. 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 web sheet and the Training Manual, and make vague statements about doing role-playing. The web sheet and Training Manual both were available before the investigation, and indeed he claims to have told the drivers to read the Manual when they were hired. As for role-playing, no evidence was provided about it and no drivers called to substantiate it. More importantly, none of these measures address how he is going to monitor or otherwise control his drivers in the field. His track record suggests he won’t.

The Licensee has failed to fulfill even the most basic obligations of a delivery service under the LLA, thereby putting many minors in jeopardy. He has failed to show how he would effectively comply with the LLA in the future. His licence should be revoked as a matter of specific and general deterrence.

Licensee’s Submissions

3. In his written submissions, Mr. Hirtle submitted the following:

As you are aware, I have previously submitted my proposed “Remedial Actions” to the Board, in response to the “Notice of Proposal to Revoke a Licence No. 58339, Proposal No. 17522.”

To re-iterate my statement, I was clear in stating that I did not, and will not challenge the allegations further, as it is my sincere wish to address each issue in the most positive, appropriate and effective manner.

I am also re-iterating my request that the AGCO assist me, in whatever manner possible, in making any additional changes they deem necessary.

In your decision, under item # 160, you have stated that 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.”

Without malice, I did, albeit unsuccessfully, attempt to ensure compliance with the regulations, and can only state that now that I know better, I will do better. I am committed to more vigilant and “hands on” monitoring of the paperwork and the drivers, to ensure complete compliance with the regulations. And, the “employees responsible for the breaches” have, in fact, been fired, rather than retained for the food deliveries.

You have made the statement: “the past and 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.”

My response to this statement is that this is a heavy handed, blanket statement that does not afford any defense or remediation. It is absolutely and completely incorrect and does not fit the circumstances of my case. My past with the AGCO was limited to only the first six months of business, and the resultant 3+ months suspension and dealings with the Board.

My present is limited to only my dealings with the Board, while under conditions of extreme financial hardship and stress, due to the loss of business. For these reasons, I was, and still am, unable to afford the services of a lawyer, but have tried, to the best of my ability, to represent myself in the most truthful and honest manner, and to be actively involved in the remediation and ultimate outcome. It has always been my firm commitment to comply with all of the regulations of the AGCO, to co-operate with the inspectors and the Board and to accept and implement any and all recommendations, and to “do the right thing”. I have no prior record with the Commission. The AGCO does not provide training to new licensees, thus, any new licensee must learn and interpret the Liquor Licence Act, as it applies to delivery businesses, but, one must also rely on the previous owner’s experience and knowledge as a starting point.

What the Board has failed to realize or acknowledge, was that I was a new Licensee, within my first six months of operation, with little or no guidance or instruction from anyone, except my ex- wife. When Inspector Bergeron first contacted me, in August 2009, I was under the assumption he was coming, as a courtesy, to review my records and provide assistance and direction, based on that review. I cannot state emphatically enough, that I was absolutely unaware there were any issues concerning my drivers and my invoicing. And, again, the instant I was made aware there were infractions, I set about earnestly making changes, and taking the required corrective actions.

• When I was made aware the license (of my ex-wife) had expired, I immediately contacted the AGCO (Inspector Bergeron) to question the Liquor Delivery License Expiry notice, then being informed that I had to apply for a “new liquor delivery license”, which was then acquired as of March 27th, 2009.

• When I was aware I needed a CPIC (Criminal Police Check), I immediately acquired one.

• When I was made aware the address of the business (my home address) was supposed to be on the bills, I immediately corrected it. The address was previously printed on the invoices; however, it was only removed, as a safety measure, to avoid any possible criminal incidents or retaliation by customers.

• I took the initiative of creating the driver’s manual.

• I took the initiative of providing hats and uniforms for my drivers, both to increase their professionalism, and visibility.

• I took the initiative of conducting regular staff meetings.

• A regular staff meeting had been scheduled prior to my being advised by Inspector Bergeron on August 13, 2009 that he needed to pick up my order sheets. We had our staff meeting on August 16, 2009 and Inspector Bergeron came to my office/home to pick up the order sheets on August 20, 2009. This is when he told me that “one or more of my drivers might be serving minors”.

• I could not terminate anyone's employment at that point because I had no idea if anyone actually had delivered to minors. I did ensure that each driver re-read the manual and I stressed the importance of getting the proper ID when delivering to anyone appearing to be a minor.

• When it was suggested I should have the Smart Serve Certification, I complied.

So, contrary to the statement by the Board, concerning my “past and present conduct”, it is my opinion that my past and present conduct is strongly indicative that I have constantly displayed my willingness to take whatever action is necessary, in order to be in total compliance with the regulations governing my business.

In your decision, under item # 161, you stated that I did not dispute the evidence presented by the Registrar. I felt it more appropriate to accept responsibility for the infractions, without dispute, and to implement as many changes as possible, to address each and every one of the issues. I have not tried to explain away any of the testimony of the youths, nor have I attached blame to the drivers, who are, at best, difficult to monitor when off premises, however, I believe the comprehensive changes I am proposing will be effective in achieving the desired results.

I concur with item # 162, in its entirety.

Under item # 163, it is my intention to address the infractions, by personally committing to being more vigilant as the licensee, the dispatcher and the employer of the drivers. It is my intention to implement more rigorous controls, to ensure the business is conducted with high moral and ethical standards, and that no further infractions will occur.

To this end, I believe the new database I have implemented will be an excellent tool to assist me in this task. Further, I am currently Smart Serve Certified, and will make it mandatory, that all new drivers also get certified immediately.

Item # 164, I believe can be fully addressed with the implementation of the proposed upgrades to data base, as outlined in my previous submission. (Items # 7, 8, 9, 10, etc)

7. 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.

8. Each driver is required to record the photo ID # supplied by the customer, if they appear to be under 30 years of age.

9. Every alcohol order customer will be asked if they are at least 19 years of age. Customer will be asked for their year of birth, which will be recorded in the data base. Customer will be asked what PHOTO ID will be supplied upon delivery IF year of birth indicates customer is less than 30 years of age, driver will record the photo ID provided.

10. 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.

The data base will maintain a history, both by phone number and address, recording the number of orders received. In addition, accounts will be “red flagged” for any questionable activity, such as not providing proper ID, or clients requesting delivery to anything other than the door of the residence. This would serve as a warning to the dispatcher, before the order would even be relayed to the driver. Additionally, as time and manpower permits, I would hope to be able to make random follow up, customer service calls, to customers. This action could serve as a dual purpose, to possibly alert the parents of any potential underage customer calling from that number or address.

Item # 165, addressed in my response to item # 163

Again, it is my sincere intention to address every single issue that has been brought up, and to do better, now that I am aware. I have neither challenged the accusations, nor have I blamed the issues on any other person or circumstances.

In mentioning my ex-wife, it was merely a statement of fact that the business was run in the same manner as it had been run, before, and she also ran it in the same manner as the previous owner. There was neither malice, nor blame, nor innuendo attached to that statement.

As you are well aware, the nature of the job/industry makes it extremely difficult to monitor the drivers’ activities, when they are out on deliveries, but I believe, with more intensive training, the upgrades to the database, and monitoring of the invoices, it can be successfully accomplished.

In response to item # 167, I believe I have addressed this statement, in my response to Item # 160. I cannot concur that my past or present conduct affords reasonable grounds for belief that I will not carry on business in accordance with the law and with integrity and honesty. I am an honest and moral person, and have always tried to conduct my affairs accordingly.

While I realize the financial affairs of my business is not one of the factors that would be included as a distinguishing factor in the decision making process, I am sure you can appreciate the dire financial hardship that the suspension of my license has caused. I have been without my license, and thus the income derived from the business, for over three months now, and I feel that is and that has been, a sufficiently harsh penalty. Should the Board deem further restrictions and/or conditions on my license necessary, I will comply with them.

I would be willing, with the approval of both the AGCO and the local school Boards, to provide public service visits to the local high schools, to promote awareness of underage drinking, since it is, apparently, a prevalent problem among students.

In closing, I wish to express my regret and remorse for any harm that was caused both by my actions and lack of due diligence, in this matter. I am fully willing to co-operate and comply with the AGCO, in whatever manner it deems suitable, as it is my sincere desire to be in complete compliance with the regulations.

Registrar’s Reply Submissions

5. In his written reply submissions, Mr. Morris submitted the following:

It is disingenuous of Mr. Hirtle to say his past was limited to only six months, three of them under suspension. By his own admission, he ran the business for three years before he took it over from his wife.

It was not a question of learning about the LLA. He had to have known that a core requirement of his licence was not to deliver to minors. It is in this light that the Board should evaluate promises to comply in the future.

Decision on Sanction

6. Mr. Morris in his submissions noted that the Board made findings that the Licensee breached sections 6(2)(d) and 30(2) of the LLA and paragraphs 15.3, 15.4, 15.5, 15.6 and subsections 17(1) and 23(1) of the O.Reg.

7. Evidence at the hearing before the Board showed that liquor was delivered to apparent minors and that no identification was checked and often no signatures were obtained.

8. The Board also notes that the eight young witnesses who appeared before the Board testified that they were under the age of 19 and they had ordered and received delivery of alcohol from Express Delivery on several occasions.

9. The Registrar’s witnesses also testified to the fact that it was well known amongst youth in the local high schools that you could call Express Delivery and get alcohol with out showing identification. Each of the witnesses testified to the fact that they heard about Express Delivery through a friend at school. They just had to call (705) “674-beer (2337)”.

10. The Board also heard testimony that often such deliveries were made to minors in laneways of residences. It was also stated that at no time were adults present when the deliveries were made.

11. The Board notes that one of the witnesses (a minor) had consumed the alcohol that was delivered and, while riding home on his bicycle late at night, had an accident and was injured. The accident was the direct result of alcohol consumption delivered by the Licensee.

12. The Board also notes that AGCO Inspector Bergeron testified there were numerous breaches with respect to improper documentation and delivery of alcohol to locations that were not residences.

13. Mr. Hirtle, in his submission, is asking for the help of the AGCO to make changes so that he continue in business.

14. Mr. Hirtle also noted that he has no previous record of violation with the AGCO and that he had only been a licensee for six months. He also stated that there is no training for licensees thus new licensees must learn and interpret the LLA on their own.

15. Mr. Hirtle stated in his submission that the Board failed to realize or acknowledge he was a new licensee.

16. Mr. Hirtle stated that he is prepared to implement more rigorous controls on the delivery of alcohol.

17. The Board has in fact taken notice that Mr. Hirtle has been the licensee of this business for only six months. However the Board also took notice of the fact that during his testimony, Mr. Hirtle admitted to being a manager and dispatcher of the business for three years prior to taking over the business from his former wife.

18. The Board also notes the business had a comprehensive manual on how to deal with minors who tried to receive delivery of alcohol and the driver’s responsibility when delivering to someone who looked to be under age, such as requesting identification for proof of age.

19. Testimony before the Board also revealed that none of the drivers or the Licensee had taken the Board approved training for persons involved in the service and delivery of alcohol.

20. The Board also notes that during his testimony, the Licensee (Mr. Hirtle) stated he was the dispatcher for 90% of the time and that he did not asked the age of any of the persons who called in to determine if they were of age.

21. The Board notes that Mr. Hirtle did nothing to educate his drivers even though he had a manual outlining what to do with respect to the delivery of alcohol and in particular to minors. Based on the evidence, Mr. Hirtle did not follow provisions of his own manual, if, in fact, he did read it.

22. The incidents of violations of delivery to minors were numerous, and the knowledge of the easy access to alcohol by minors from Express Delivery was widespread.

23. Having considered the evidence, the submissions on sanction, the need to send a strong message that the sale of alcohol to minors is taken very seriously by the Board, and a need for both general and specific deterrence, the Board has determined that the revocation of the Licence is the appropriate sanction in the circumstances.

Order

24. Therefore, the Board ORDERS that liquor licence number 58839, issued to Garry Charles Hirtle, operating as EXPRESS DELIVERY (LDS), 460 Horobin Street, Unit A, Sudbury, Ontario, P3C 3S7, be REVOKED, effective immediately.

DATED AT TORONTO THIS 6th DAY OF January , 2010

DAVID C. GAVSIE, CHAIR, AGCO BRIAN J. FORD, BOARD MEMBER