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-
Joan Marie Brunette operating as 8 Ball Deliveries Licensee
REASONS FOR DECISION
Panel: David C. Gavsie, Chair, AGCO Patricia E. McQuaid, Vice-Chair, AGCO
Decision Date: December 9, 2010 Hearing Location: Kitchener, 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
Allegations
1A hearing into Notice of Proposal number 18153 dated June 21, 2010 to revoke liquor licence number 58743 (the “licence”) issued to Joan Marie Brunette (the “Licensee”) operating as 8 BALL DELIVERIES, 34 Fairgreen Close, Cambridge, Ontario, N1T 1T6 (the “establishment” or the “premises”), on the basis of alleged violations of sections 6(2) (d) and 6 (2)(e) of the Liquor Licence Act (the “LLA”) was held on November 2, 2010 in the City of Kitchener.
Preliminary Matters
2The licence holder, Joan Marie Brunette, did not attend the hearing although served with a Notice of Hearing on or about September 16, 2010. Further, Ms Brunette advised the Hearings Office by telephone on November 2, 2010 that she did not intend to appear at the hearing. In the circumstances, Mr. Morris requested that the matter proceed ex parte, which request was granted.
3The Board made an order for the exclusion of witnesses during the course of the evidence. At the conclusion of the evidence on November 2, 2010, the Board made an Oral Order revoking the liquor delivery service licence, confirmed by written Order dated November 5, 2010. The following is a summary of the evidence heard and the reasons for the Board’s decision.
Registrar’s Evidence
4Given the Licensee’s decision not to attend the hearing, the Board did confirm with Mr. Morris prior to each witness’ testimony, that any notes or documentation referred to by the witnesses was disclosed to the Licensee at the time of issuance of the NOP or subsequently.
5PC Bruce Cole of the Waterloo Regional Police stated that while working as a uniform patrol officer on June 22, 2009 at approximately 6 p.m., he observed two vehicles behind a commercial plaza at 200 Franklin Blvd. in Cambridge. He decided to investigate and so he activated the emergency lights on the police vehicle at which point a silver Nissan drove away and a Honda Civic remained. This car was registered to NS, and the driver identified himself as NS with his driver’s licence. NS was known to police for his association with guns and gangs.
6Upon questioning by PC Cole, NS stated he worked for 8 Ball Deliveries which delivers alcohol and other items at a cost of $6.04 per delivery. He gave the officer his business card. He stated that he was meeting with his boss, “Bob,” at the time.
7The Nissan was registered to Robert Brunette, and PC Cole assumed it was Mr. Brunette, “Bob” who was driving the vehicle.
8DC Graham Hawkins, also of the Waterloo Regional Police, stated that on August 18, 2009 he was involved in a drug investigation. At the time, he and his partner were looking for a wanted person known to be involved in the drug trade in Cambridge. When they located him, he was standing beside a vehicle, in conversation with its driver, CM. DC Hawkins’ partner, DC Murphy, asked CM for identification. When CM reached for his driver’s licence in the centre console of the car, she observed a large amount of marijuana located inside the console. When weighed, it measured 31.62 grams, a quantity which indicated to the officer an intent to distribute. CM was charged with possession of a controlled substance.
9CM has a lengthy criminal record including armed robbery and fraud. He was also known to associate with those in the drug trade. CM advised DC Murphy that he had purchased the marijuana for his boss, Joan Brunette. Ms Brunette was contacted and denied having CM purchase the marijuana for her.
10DC Hawkins, through his investigations, also discovered that on several occasions other officers had observed CM driving persons in his vehicle, who were known to be involved in the drug trade in the area. This was consistent with CM’s explanation on August 18, 2009 that he was giving a ride to the person who was the initial focus of their investigation, between his deliveries.
11Wayne Boudreau explained that in July 2010 he was looking for a job and responded to an ad by 8 Ball Deliveries for a driver to deliver alcohol and food. After exchanging several phone calls, he met the owner’s husband, Mr. Brunette, in a beer store parking lot. Mr. Brunette told him he owned the business, but Mr. Boudreau later found out that it was in fact, Mrs. Brunette’s business.
12He was hired and was to be paid in cash, $3 per delivery. He started work the day after the meeting with Mr. Brunette. He was issued a radio and receipt book as well as an instruction sheet by Mr. Brunette’s assistant. There was no sign on his car indicating that he was delivering for 8 Ball. He was told that they did not want drivers to be too conspicuous, to avoid harassment by police.
13Mr. Boudreau recalled a delivery, 24 beer, to a young man in a parking lot of an apartment building. He asked the male for identification. He produced an OHIP card, with photo, which indicated that the male was 21 years old, though he did not look it. Mr. Boudreau knew he was supposed to deliver to a dwelling and when he told the dispatcher what he had done she told him that the male was a regular and that he was to “let it go”.
14When he finished his deliveries for the day, he again met the assistant in the beer store parking lot. He was told that he had cost them some customers by wasting time asking for identification and calling the dispatcher about his concerns about a delivery to a parking lot. This was his only day of work for 8 Ball.
15DC Michael Pierzchalski, an OPP Officer with the AGCO, conducted an investigation of 8 Ball Deliveries as a result of the incident report by PC Cole and the email sent to the AGCO by Mr.Boudreau detailing his concerns with 8 Ball Delivery practices. He reviewed the application for licence (Exhibit 6) filed by Joan Brunette. The application indicates that the business is a sole proprietorship and that she, Joan Brunette, would manage the business. There is no mention on the application of involvement by her husband, Robert Brunette.
16DC Pierzchalski’s investigation focused in two areas: whether 8 Ball Deliveries was operating within the terms and conditions of the liquor delivery licence and determining the true ownership of the business. As part of that investigation, he determined that Joan Brunette has no criminal record, nor does she have a driver’s licence. A credit check revealed derogatory information, and a rating between R4 – R9, with R1 being favourable and R9 being very unfavourable. One collection item is registered against her.
17An investigation of Mr. Brunette showed 56 criminal convictions, four arrest warrants, 26 Highway Traffic Act convictions and 8 driver licence suspensions. A civil suit against Mr. Brunette has been resolved. A credit check was derogatory; a “warning” is noted on his Equifax report, something which DC Pierzchalski had not seen before. Mr Brunette owes a substantial amount of money in collections and he is in significant arrears in child support.
18DC Pierzchalski interviewed Wayne Boudreau (Exhibit 3) and subsequently interviewed both Joan and Robert Brunette on November 17, 2009. At the time of that interview, Mrs. Brunette provided the documentation that he had requested from her in August. He had not required Mr. Brunette’s attendance at the interview. They were generally forthright in their answers, though DC Pierzchalski noted that it was Mr. Brunette who responded first to the questions; Mrs. Brunette would defer to him.
19DC Pierzchalski advised the Board that at the time of an application, only a criminal records check is done. With the information provided by Waterloo Regional Police and by Mr. Boudreau (initiated through his unsolicited email to the AGCO), he became concerned about how the business was operated and whether it would be done with honesty and integrity. DC. Pierzchalski believes that Mr. Brunette is the true owner of the business; Joan Brunette is an owner in name only, or at best a co-owner. When asked during the interview, Mr. Brunette stated that he was a co-owner, which Mrs. Brunette confirmed. Had Mr. Brunette’s involvement been disclosed on the application, a more extensive background check would have been conducted. PC Pierzchalski stated that in his nine years working with the AGCO, and on licence applications, Mr. Brunette’s background information is one of the worst records he has encountered.
Reasons and Analysis
20The Board, at the conclusion of the evidence and submissions from Mr. Morris on November 2, 2010, made its oral order revoking the licence, having made findings under s.6(2)(d) and (e)of the LLA and indicated that reasons would follow.
21Focusing first on Ms Brunette, she clearly stated on the application form that the business was a sole proprietorship with herself as manager. A routine criminal records check was done which raised no concerns and hence, as appears to be the practice according to DC Pierzchalski, no further investigation was deemed necessary. Without question, a financial check would have caused the Registrar to investigate further. The fact that Ms Brunette is not a driver would not itself be an impediment to successful ownership and management of the business. But the evidence of the Waterloo Police Services officers and Mr. Boudreau strongly suggest that Mr. Brunette is very much involved in the operation of 8 Ball Deliveries. He was described by NS and CM as the boss and it was he with whom Mr. Boudreau discussed employment. And, of course, Mr. and Mrs. Brunette themselves candidly described him as co-owner.
22All of this evidence leads to the inevitable conclusion that Mrs. Brunette made a false statement on her application, in violation of S.6 (2)(e) of the LLA. The Board is not, however, prepared to infer as suggested by Mr. Morris, that she made those statements deliberately, to hide the fact of Mr. Brunette’s involvement. From DC Pierzchalski’s evidence, it is clear that while Mrs. Brunette may not have been the most talkative, neither was she in any way evasive. Indeed, the Brunettes might be described as naïve, offering up information which in fact was to their detriment. Had a further investigation been conducted at the time of the initial application, the financial information alone would surely have raised a red flag for the Registrar.
23As Mr. Morris has stated in submissions, a liquor delivery service is a challenging business to monitor for compliance. There is no fixed place of business per se. Transactions are on the road with individual drivers making deliveries with little oversight. Therefore, it is especially critical that the Registrar, and the public, must have confidence in the operator of the business, that he or she will conduct the business with honesty, integrity and in accordance with the law. The Board agrees with Mr. Morris. Had Mr. Brunette applied for the licence, even as co-owner, it is likely that the Registrar would have refused the application. The routine criminal record check would have revealed an extensive criminal record including arrest warrants. This would have triggered further investigation which would then have revealed a highly unfavourable credit rating, collections and significant outstanding child support arrears. All this would provide grounds for refusal to grant a licence.
24Compounding these facts is the evidence heard in oral testimony. Mr. Brunette employed drivers with criminal records and/or known association with the drug trade in the Waterloo Region. Mr. Boudreau’s evidence strongly suggests a business in which the number of deliveries made trumps compliance with the legal requirements for such a business.
25For these reasons, the Board FINDS that there are reasonable grounds for the belief that the business will not be carried on in accordance with the law and with honesty and integrity (s. 6(2)(d) of the LLA).
26Therefore the Board REVOKES liquor delivery service licence number 58743 issued to Joan Marie Brunette operating as 8 BALL DELIVERIES, 34 Fairgreen Close, Cambridge, Ontario, N1T 1T6, pursuant to subsections 6(2)(d) and 6(2)(e) of the LLA.
DATED AT TORONTO THIS 9th DAY OF DECEMBER, 2010
DAVID C. GAVSIE, CHAIR, AGCO PATRICIA E. McQUAID, VICE-CHAIR, AGCO