Registrar, Alcohol and Gaming Commission Ontario v. 1716856 Ontario Inc., 2007 CanLII 26958

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 Ontario

Registrar

-and-

1716856 Ontario Inc.

Applicant

-and-

Sam Silverstone

Objector

DECISION

Panel: Patricia McQuaid, Vice-Chair Beryl Ford, Member

Decision Date: July 5, 2007

Hearing Location: Hamilton, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone (416) 326-0366 Fax (416) 326-5566 Website: agco.gov.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Sujin Chan, Representative 1716856 Ontario Inc., Applicant ) Mark Tiley, Representative Sam Silverstone ) ) Sam Silverstone, on his own behalf and on behalf of the Resident Objectors

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario issued a Notice of Proposal dated April 16, 2007 to review an application for a liquor licence from 1716856 Ontario Inc., the “Applicant”, for indoor capacity at 1831 Main Street West, Unit C, Hamilton, Ontario, the “Premises”. A hearing of the Application was held on June 21, 2007 in the City of Hamilton.

Decision

2After considering all the evidence and submissions, the Board approves the Application on the condition set out below. Reasons follow.

Preliminary Matters

3Sujin Chan appeared on behalf of the Registrar. She advised the Registrar took no position on the Application.

4Sam Silverstone is a resident of the municipality and objects to the application for licence. He appeared before the Board on his own behalf and as the representative of the objectors whose names are appended to Exhibit 1, filed by Ms. Chan. On consent of all parties, the Board ordered that Mr. Silverstone be made a party to the proceedings.

Resident Objectors’ Evidence

5Mr. Sam Silverstone lives in a luxury condominium at 1770 Main St. W., directly opposite the location of the Premises. Mr. Silverstone recounted that over the past five years the condominium has experienced break-ins at the underground garage, with cars being stolen, as well as an occasion on which a car driven by a young man broke through their fence at 2 a.m. The young men in the vehicle were drunk and he concluded that they had come from a bar. Mr. Silverstone stated that there were 3 or 4 bars close by and he was concerned about the impact of another bar in their quiet residential neighbourhood.

6On cross-examination, Mr. Silverstone conceded that he did not know in fact that the young men had come from a bar. He believes that bars cause problems. He did not attend the meeting that the Applicant held to tell people in the area about the proposed establishment.

7Larry Nottarandrea is a barber in the strip mall which is about 50-75 feet from the proposed premises. He has been at that location for almost forty years. There is a billiard hall, with a liquor licence in the strip mall. Sometimes they experience problems with patrons going outside to drink and with garbage strewn about by patrons, though the billiard hall owner does his best to clean up. He anticipates, as well, that patrons from the Applicant’s premises might park in the strip mall lot causing a problem for his business and others. There are twelve businesses in the strip mall, with approximately 24 parking spots. He believes that most of these tenants are opposed to this Application.

8Mr. Nottarandrea stated that his hours of operation are Tuesday through Saturday from 9 a.m. to 5:30 p.m. His concerns about parking are during his hours of operation. He is not opposed to this applicant having a licence, only that this is the wrong location.

Applicant’s Evidence

9Vince Pronesti works for Acumen Insurance Group which provides insurance to liquor licence establishments. As such, he has provided insurance, for two years, to the Pheasant Plucker which is owned by Darlene Maggini, the principal of the Applicant. To his knowledge, they have had no claims or violations of the Liquor Licence Act (LLA). His experience is that the management is good there, with a capacity of about 120, much larger than the new establishment, to be called the Wee Dram.

10James Noble is the landlord of the premises at 1831 Main St. W. Ms. Maggini also leases Whitney Fish and Chips which is located in the same building. As an existing tenant, she has caused no problems. She pays the rent on time and the place is kept clean.

In terms of noise concerns, there is insulation in the building. There are four residential tenants in the apartments above the Premises and they have not expressed any concerns to him about the proposed licensed premises.

11As to parking, there are five parking spots at the front of the Premises and six at the rear of the building. This is separate from the strip mall parking area.

12He himself has attended the Pheasant Plucker, which sponsors a soccer team with which he is affiliated. An older crowd frequents that establishment.

13Jonathan Fischer is a co-owner, with Ms. Maggini, of Whitney Fish and Chips which will provide food to the Premises. Previous to this, he worked at the Pheasant Plucker, as a cook. There were no issues with the AGCO while he worked there.

14Darlene Maggini, as well as being an owner and operator of Whitney Fish and Chips and the Pheasant Plucker, is a registered nurse at McMaster Hospital. She has owned the Pheasant Plucker for two years. They have had no LLA infractions. The proposed capacity at the Premises is 24, whereas the capacity at the Pheasant Plucker is 120.

15Despite the difference in size, the same policies would be in place at the Wee Dram such as daily clean-up duties mandated around the exterior, her house policies and the policies and procedures as set out in Exhibits 6 and 7.

16Ms. Maggini indicated that the Pheasant Plucker is run in a community minded way with support and sponsorship to local groups such as the Hamilton Argylls, Bulldogs and Tiger Cats and the local firefighters. They also sponsor events for the local public school which her daughter attends. She anticipates a similar community approach at the Wee Dram. She expects an over-30 crowd at the Wee Dram and would follow the Safe Bars Inc. program, (Exhibit 2), which has been implemented at the Pheasant Plucker.

17Ms. Maggini stated that she did send out a letter (Exhibit 5) inviting area residents to an open house at the Wee Dram premises. Three people attended, two of whom were objectors. She felt that she had allayed most of their concerns.

Reasons

18At issue in this hearing is whether granting this application for liquor licence is in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located.

19Given the circumstances of this case and the evidence adduced, the Board finds that the objectors have failed to meet the onus on them that it would not be in the public interest to grant this licence having regard to the needs and wishes of the residents. The Board accepts the evidence that the Applicant has run another licensed establishment responsibly and with a focus on operating as a good neighbour within the community. Based on that evidence, and absent any contrary evidence, the Board concludes that the proposed establishment will be operated responsibly and in compliance with the Act and its regulations.

20Mr. Silverstone has expressed concerns about the impact of another licensed establishment in a quiet residential neighbourhood, speculating that problems with rowdyism, noise and garbage might result. The objection letters filed (Exhibit 1) echo those concerns. As well, Mr. Nottarandrea expressed concerns about parking problems in the strip mall parking lot, a concern also generally expressed in some of the letters of objection. Some of these issues, such as parking and garbage are the responsibility of either the municipality or their landlord and therefore fall outside matters which directly impact upon this Application for a liquor licence.

21Further, while the Board does not doubt the concerns expressed about the potential impact of this licensed establishment were heartfelt and genuine, the Board cannot make a decision based on conjecture and speculation about the potential negative impact of a licensed establishment. No one expressed concerns with this Applicant, or the manner in which this establishment would be operated.

22As indicated above, the Board accepts the evidence that the applicant will run the establishment responsibly and with a focus on operating as a good neighbour within the community. This is a relatively small establishment. Ms. Maggini has operated a much larger licensed establishment without problems. Her history there is one of community mindedness and responsibility.

23As indicated above, the Board notes that Ms. Maggini, in response to neighbourhood concerns, has indicated a willingness to meet regularly with the community to discuss concerns that may arise. Further, to respond to safety concerns expressed, she has proposed a condition that video surveillance be installed at the front of the building at 1831 Main St. W., at the side in the vicinity of the entrance to the Wee Dram and at the rear of the building. The Board, noting the Applicant’s consent to such a condition and recognizing the concerns expressed by the residents, through Mr. Silverstone, is prepared to impose such a condition on the licence.

Order

24Therefore, for the above reasons, the Board APPROVES the Application for liquor licence made by 1716836 Ontario Inc. for indoor licensed area at 1831 Main Street West, Unit C, Hamilton, Ontario, the “Premises”, subject to all municipal licensing requirements.

25The Board ORDERS that the following conditions be attached to the licence, to which the applicant has consented:

“Video surveillance equipment shall be installed and maintained at the licensed premises and specifically at the front, at the side near the entrance to the Premises and at the rear of 1831 Main St. W., Hamilton.”

DATED AT TORONTO THIS 5th DAY OF JULY 2007.