LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: MAPLE LEAF SPORTS BAR & GRILL 826 Danforth Ave., Toronto, Ontario M4J 1L6
Licensee: 1329946 Ontario Inc. Licence Number: 22540 Notice of Proposal: To REFUSE to remove condition Dated June 7, 2006.
The Applicant corporation has applied to the Commission to remove a condition on the licence that says:
"The hours for sale and service of liquor on the patio are 11:00 a.m. to 11:00 p.m. Monday to Saturday and 12:00 p.m. to 11:00 p.m. on Sunday."
Hearing: Alcohol & Gaming Commission of Ontario 90 Sheppard Ave. E., 3rd Floor Toronto, Ontario M2N 0A4 April 5, 2007
Presiding
Board Members: David C. Gavsie, Chair Patricia McQuaid, Vice-Chair
Counsel for the Registrar: Bryna Kaplan Counsel for the Licensee: Adam Vassos
Attendance: Penelope Maroulis, principal of the applicant corporation George Karamitsos, for the applicant Jennifer McKay, for the applicant
Exhibits: Ex #1 – Notice to Objectors re: date and time of hearing Ex #2 – Objectors letter dated March 22, 2006 Ex #3 – Photograph of front of Premises Ex #4A-Diagram showing neighbourhood licensed Premises Ex #4B–List of neighbourhood licensed premises and closing times Ex #5A- Consent by previous owner dated April 27, 1984 Ex #5B- Letter from City of Toronto to previous owner dated May 29, 1984 Ex #6 – Letter to AGCO from Toronto Councillor Ootes dated March 12, 2007 Ex #7A- Petition in support Ex #7B- Further petition in support Ex #8 - Map showing residence of supports and attached list of supporters Ex #9 - Letter to AGCO from supporter dated April 3, 2007 Ex #10- Decision of AGCO re: Licence dated August 21, 2006
Case Law Presented: Broom & Stone Two (Re) [2000] O.A.G.C.D. No. 342 "Q" Restaurant (Re) [1999] O.A.G.C.D. No. 71 Proposed Restaurant (Re) [1998] OA.G.C.D. No. 56
A hearing of the Alcohol and Gaming Commission of Ontario ("AGCO") was held on Thursday, April 4, 2007 in Toronto regarding a Notice of Proposal to refuse to remove conditions issued by the Deputy Registrar on June 7, 2006 (the "NOP") in the matter of the liquor licence of 1329946 Ontario Inc. (the "Licensee") operating as Maple Leaf Sports Bar & Grill, 826 Danforth Ave., Toronto, Ontario (the "Premises"), licence no. 22540 (the "Licence").
1. Preliminary Matters
Ms. Kaplan advised the Board that no objectors to the removal of the condition were present, it being 10 a.m. with the hearing having been scheduled for 9:30 a.m. The Hearings Department called the phone number provided by the objectors this morning after 9:30 a.m., but there was no answer. Ms. Kaplan filed the February 26, 2007 letter from the AGCO to the objectors advising them that the hearing would be held at 9:30 a.m. on Thursday, April 15, 2007 at the AGCO hearing room in Toronto (Ex. 1). Under the circumstances, Ms. Kaplan asked the Board to proceed with the hearing. She filed the objectors' letter dated March 22, 2006 (Ex. 2). Only one letter of objection was received.
Ms. Kaplan stated that the Registrar would present no evidence on the issue of past or present conduct. Those breaches have been resolved, and there is no longer an active proposal to revoke the Licence. Accordingly, the burden of proof is on the Licensee to show that there has been a change of circumstances to support the application for removal of the condition (the "Application").
2. Oral Decision of the Board
At the conclusion of the evidence and submissions, the Board made the following Order:
The application to remove conditions is granted. There has been a change of circumstances, and the public interest clearly is in support of the application. Written reasons to follow.
3. Licensee's Evidence
PENELOPE MAROULIS
Ms. Maroulis is the owner of the licensed establishment and has been such for 7 years. The Premises are about 900 square feet inside with a capacity of 40 and the outside patio is about 240 square feet with a capacity of 21 patrons. The patio is in front of the Premises on the sidewalk of Danforth Avenue. A picture of the front of the Premises was put into evidence (Ex. 3). The patio was constructed in 1984. All appropriate approvals were received. There is one small speaker on the patio. Ms. Maroulis said if the Application were to be granted, no additional speakers would be put on to the patio nor would there be live music. Their business is family-oriented with a traditional menu of entrees, sandwiches and salads.
Ms. Maroulis stated that the present condition on the Licence is that sale and service of alcohol on the patio must cease at 11 p.m. and the Application is to remove this condition so they can serve until 2 a.m. She said there are 9 other licensed establishments with patios within 3 blocks on either side of the Premises. All of them can serve alcohol until 2 a.m. The witness produced a diagram showing the Premises and the 9 other establishments (Ex. 4A) and a description of them (Ex. 4B).
Ms. Maroulis stated that the 11 p.m. closing condition was put on the Licence in 1984. At that time, the City of Toronto had a law that alcohol could not be served after 11 p.m. The Premises had the only licensed patio in the area. There was no public support for the condition; City Council of the time requested it. The original licensee, Adamos Ellinos, consented to the condition. Ms. Maroulis put into evidence a consent from Adamos Ellinos dated April 27, 1984 (Ex. 5A) and a letter to him from a Toronto liquor inspector dated May 29, 1984 (Ex. 5B).
Ms. Maroulis, through the Licensee, bought the Premises 7 years ago with the condition on the Licence. She spoke to a number of residents and to Councillor Case Ootes about removing the condition. She had to advertise for the removal, and 1 objection was received. Other licensed establishments have recently gained patio licences without conditions.
Ms. Maroulis placed into evidence a letter dated March 12, 2007 from Councillor Case Ootes (Ex.6). It confirmed that the City does not object to a 2:00 a.m. extension for service of alcohol on the patio of the Premises. She further stated that she has spoken to a number of area residents, and asked them to sign a petition in support of the Application. The petition was tabled as an exhibit (Ex. 7A and 7B). No one even hesitated to sign the petition. Also placed into evidence was a map of where some of the supporting residents lived (Ex. 8), all within a 1 kilometre radius from the Premises. There was also tabled a letter in support dated April 3, 2007 from Stephanie Cini, an area resident who did not sign the petition (Ex. 9).
Ms. Maroulis referred to the objection letter, Ex. 2, which came from the owners of an adjacent business to hers. She retold a story that occurred in August, 2005 during the Taste of the Danforth festival. Ms. Maroulis had to register a complaint due to loud music being played in front of the other place which housed a music business. Since then, the owners of that business - objectors to the lifting of the condition attached to the Licence – and Ms. Maroulis have not spoken and have remained unfriendly.
Ms. Maroulis reiterated that she wants the condition removed from her licence because there are 9 other patios near her Premises on Danforth Avenue, and none have to close early.
GEORGE KARAMITSOS
Mr. Karamitsos is a realtor. He has had an office at 834 Danforth Ave., 2 doors down from the Premises, since 1976. He can see the patio and has witnessed the Licensee's business for a long time. There are never any problems with patrons or noise. He and his agents are sometimes in the office until midnight. He fully supports the Application. He knows Ms. Maroulis who he said was very well behaved and respected. Mr. Karamitsos is pleased to have lunch or meet clients at the Premises.
JENNIFER MCKAY
Ms. McKay lives at 828 Danforth in an apartment right above the Premises. She has lived there since September, 2005. She supports the Application. She has not been bothered by anything. One would almost never know there was a bar at the premises. Extended hours would not have a negative impact on her, said Ms. McKay.
At the end of the evidence, an AGCO Board decision dated August 21, 2006 was tabled (Ex. 10). This decision resolved the discipline issues between the Registrar and the Licensee.
4. Licensee's Submissions
Mr. Vassos stated that to remove the limitation on hours of service, the Licensee must show that there has been a change of circumstances – subsection 14 (2) of the LLA.
Dealing with the change of circumstances, Mr. Vassos stated that the early closing condition was imposed in 1984. It was requested by the City and consented to by the then licence holder. At that time, there were very few, if any, licensed patios. The City clearly wanted to maintain restrictions on the number of patios. That has changed today. First, several patios have been licensed close to the Premises without restricting hours of operation. Second, looking at Councillor Ootes' letter of March 12, 2007 (Ex. 6), the City now does not object to the application for normal hours by the Licensee. Third, there is overwhelming public support for the Licensee's application. Back in 1984, Mr. Vassos stated there was a public meeting which led to the condition being requested by the City. Now, there are petitions and letters in support (Ex. 7A, 7B, and 9). Now there is almost complete public support behind the Licensee's application to have the restrictive condition removed.
Mr. Vassos cited 2 cases in support:
a) Broom and Stone Two – an AGCO decision dated November 6, 2000 removing conditions from a licence. The Board stated at page 5 of that decision:
"We accept this submission and find that the change in support for a removal of the Condition is a change of circumstances sufficient to remove the Conditions"; and
b) "Q" Restaurant – an AGCO decision dated March 15, 1999. In paragraph 24 on page 5 of that decision, the Board stated;
"…a "change of circumstances" for the purposes of section 14 (2) need not be significant; however, it must be meaningful, such that the original conditions might not have been imposed or consented to, had the current circumstances existed at that time."
Mr. Vassos said had the 10 currently licensed patios in the area been so licensed in 1984 and if there had been no request for an early closing condition from the City, the condition would never have been consented to.
With regard to the public interest in this case, there is only one objector (Ex. 2). Broad accusations are contained in it. Mr. Vassos submits that the letter reeks of out and out sensationalism. It was probably motivated by bad blood between individuals going back to the incident during the summer of 2005. The objector did not attend the hearing which further damages his case. Mr. Vassos said that the other evidence presented at the hearing in writing and in viva voce testimony overrides the one objection letter. It could be considered, Mr. Vassos stated, as frivolous and vexatious. There were no other objectors to the Licensee's application.
Mr. Vassos also cited the decision of Proposed Restaurant, a decision of the AGCO dated November 17, 1998. Mr. Vassos drew a comparison between that case and the present one due to the Licensee only having licensed capacity for 21 on the patio, which is not huge.
5. Registrar's Submissions
Ms. Kaplan, for the Registrar, stated that the question then is clear regarding the application to remove a condition because there is only one question, namely, has there been a change of circumstance. The Board, in answering this question, has to look at why the condition was imposed in the first place. If that has changed, then the Board should look at the current public interest taking into account past conduct of the Licensee. Here, the Board should take into account any recent past conduct.
6. Findings
Based on the evidence at the conclusion of the hearing, the Board made a finding that there has been a change of circumstances from the time the early closing condition was imposed in 1984. That change has been the issuance of 9 other licences for patios on the same street and in the same neighbourhood as the Licensee, all of which can remain open for service of alcohol until the normal closing time of 2 a.m.
The Board also made a finding that based on the evidence submitted as exhibits and heard by the Board, the public interest is clearly in support of the application to remove the early closing condition.
As a result of its findings, the Board rendered its decision as above set out.
DATED AT TORONTO THIS 30th DAY OF APRIL 2007.
DAVID C. GAVSIE, CHAIR PATRICIA MCQUAID, VICE-CHAIR
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