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-
486897 Ontario Ltd. Intending to operate as Bistro at the River (The) Applicant
-and-
Gary Parent Resident Objector
DECISION
Panel: Eleanor Meslin, Board Member Guy Maurice, Board Member
Decision Date: August 15, 2007
Hearing Location: Windsor, 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 ) Brad Alton, Representative 486897 Ontario Ltd., Applicant ) Leon Paroian and Mark Skipper ) Representatives Gary Parent ) On his own behalf and on behalf of ) the Resident Objectors
The Application
- The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued a Notice of Proposal (“NOP”) dated June 22, 2007 to review an application for a liquor licence from Hasan (Tony) Bahcheli (the “Applicant”) for a liquor sales licence for the indoor and outdoor areas of the premises for BISTRO AT THE RIVER (THE), 74-78 Riverside Drive West, Windsor, Ontario, establishment number 812683 (the “premises”). A hearing of the application was held on July 31, 2007 in the City of Windsor.
Decision
- The Board approves the application for a liquor licence for the indoor and outdoor areas of the premises known as The Bistro at the River. Reasons for this decision follow.
Preliminary Matters
Mr. Gary Parent requested and received party status to appear on his own behalf and on behalf of the resident objectors.
The Registrar’s representative indicated that the Registrar would not be taking a position in this matter and submitted a package of letters from objectors (Exhibit #1).
Objectors’ Evidence
Nancy Battagallo presented a package of documents and drawings (Ex.2 A-E) including an illustration of the City’s 5 Beacons plan for the Riverfront. The Applicant’s restaurant is located in the Peace Beacon. This Beacon was to include a visitor’s centre, washrooms and shelters, but not a licensed restaurant. She indicated that the park was a family venue without alcohol served or sold there, and should remain that way.
If a licence was granted for the premises, it would draw underage drinkers from the downtown area, where there are many alcohol-related problems.
Although temporary licenses have been granted to serve alcohol in the park, they are for charitable fund-raisers and are well-controlled.
Mrs. Battagallo stated that she has no quarrel with the Applicant, only with the location of his restaurant.
Aside from an advertisement in the Windsor Star, few people were aware of the application and she saw no placards on the construction fence or elsewhere.
To allow this licence would be a private infringement on a public space and would set a precedent to allow commercialism on the waterfront that would not be in the public interest in accordance with subsection 6(2)(h).
In response to questions from Mr. Paroian, Ms. Battagallo indicated she was not aware of the 3 public meetings held by the City and did not agree with the editorial in the Windsor Star (Ex.3) supporting the application.
She acknowledged that the City owned the land where the restaurant was situated, that she had visited it and it was an upscale venue. She knew that there was also a snack bar at the location and that no request was made to issue a liquor licence to it.
Pat Noonan testified that there were already 62 licensed establishments within a 10 minute walk of the Applicant’s location (Ex.4).
She was opposed to any licensed establishment on the Riverfront and that by granting this licence it would set a precedent to allow alcohol on the waterfront.
Claire McAllister indicated that the Riverfront is a natural area that everyone can enjoy and no alcohol should be served there on a regular basis. She believed it would attract young people and would be contrary to the public interest.
Gary Parent is President of the Windsor District Labour Council and testified that the labour movement was against any commercialization on Riverside Drive. He did not know that there had been public meetings, if he had, alcohol in the park would have been rejected. He agreed with the other objectors that granting this liquor licence would set a precedent and would not be in the public interest.
Applicant’s Evidence
Julien Wolfe pointed out that the restaurant’s location is separated from the park by a roadway and does not interfere with walkers in the park. He believes it would bring more tourists to the park in the same way as restaurants such as Tavern-on-the-Green in New York’s Central Park.
The younger people that concern the objectors would not be interested in an upscale restaurant, since they don’t appear downtown until around 10:00 p.m. and could not afford it.
He believes that if the licence is not granted, because of the type of restaurant this is, it will not attract patrons and the restaurant will have to close. To grant the licence would be in the public interest.
Tony Bahcheli is the sole owner of the company. He has been in the restaurant business since he was 13 years old. He has 21 establishments in Windsor and London and had a licensed establishment in Tilbury, which he sold. The Bistro opened in early July and has two food service areas – the restaurant and a snack bar. He presented 7 Exhibits:
- Ex. 5 – 2 Menus from the restaurant
- Ex. 6 A&B – photos of the Bistro and parking lot
- Ex. 7 – City of Windsor Request for Proposal (RFP) for a Café/Licensed Beverage Service and Concession Service
- Ex. 8 - Letter from the Chief Administrative Officer (CAO) of the City of Windsor to the Bistro, dated July 30, 2007
- Ex. 9 – Agreement between the City and the Applicant
- Ex. 10 – Invoice from Williams Food Equipment dated July 12, 2007
Mr. Bahcheli pointed out that the City, in its RFP, was requiring applicants to provide “Liquor Beverage Service”. In addition, in the letter from the Windsor CAO, (Ex.7) that awarded The Bistro the contract, it indicated that the City would support The Bistro’s application for a liquor licence. Although the lease has not been finalized, negotiations between Mr. Bahcheli and the City have resulted in an Agreement document (Ex. 9).
Mr. Bahcheli testified that a placard notice had been posted on the construction fence as soon as he had been advised by the AGCO to do so.
He indicated that, to date, he had spent close to $400,000 (Ex. 10) in furnishing the premises, including all the AGCO requirements.
In response to Mr. Parent’s question, Mr. Bahcheli said he may have bid for the location if no alcohol was included, but he was doubtful. The hours are from 7:00 a.m. – 11:00 p.m. He said the City had built the structure.
Jim Yanchula is the Manager for Urban Design in the City Planning Department. He testified that The Bistro was properly zoned for liquor licence requirements. Construction for the Peace Beacon was approved by the City in July 2005. There had been 3 public consultations regarding the development plan.
Responding to Mr. Parent, Mr. Yanchula stated that the plan was to consolidate all public lands for the Riverfront and the consultations did not involve liquor licences.
Don Sadler is Executive Director of Parks for Windsor. He was involved in the RFP and testified that it included the provision of alcohol, and all subsequent negotiations with the successful bidder included provisions for alcohol.
He testified that the City owns the land and controls the operation. If there are any problems the City would terminate the lease. The City believes it would be desirable to have a restaurant serving alcohol on the Riverfront. The terms of this lease would not allow the restaurant to become a bar, the dining component is a requirement. The snack bar component is not permitted to sell or serve liquor.
Responding to Mr. Parent’s questions, Mr. Sadler indicated that the patio is included in the liquor licence Application and pointed out that the only entrance to the patio is through the restaurant, not from the street.
Objectors’ Submissions
- Mr. Parent submitted that granting the liquor licence would not be in the public interest. No other park within the City would be allowed to have a liquor licensed establishment and therefore neither should the Riverfront. He asked that the Board not grant the Application as it would not be in the public interest.
Applicant’s Submissions
Mr. Paroian pointed out that it was the City of Windsor which had the planning responsibilities and issued the RFP, which included the requirement that liquor be available in the premises. The City has clearly set out its support for this Application. Any objections are planning issues for the City Council and not within the jurisdiction of the Board. Objections to the plan were dealt with through 3 public meetings. The Board’s jurisdiction is only relevant if zoning by-laws do not allow it. The Board can only consider if the correct processes, regarding the issuing of the licence, have been followed. The objectors should have made their representations to City Council and can do so in regard to other future premises.
The City has included very strict terms in the lease and can terminate it if the terms are not followed. The liquor licence should be granted in the best interests of the City.
Decision and Reasons
The Board has carefully considered the evidence and submissions.
The issue before the Board is whether to grant a liquor licence for the indoor and outdoor areas of the establishment known as The Bistro at the River.
The jurisdictional issue raised by the Applicant deals with the fact that one of the requirements for the City approving an applicant’s proposal was that the establishment include licensed beverage service and that the objectors should more properly have come before City Council through the public meetings process to raise their concerns.
The process of this Board mandates that anyone objecting to the issuance of a liquor licence must come before the Board to establish that granting it would not be in the public interests in accordance with subsection 6(2)(h) of the Liquor Licence Act.
Unfortunately for Mr. Bahcheli, he is caught in the middle. In order to meet the requirements of the RFP he had to agree to provide liquor beverage service without knowing if a licence would be granted. If it is not issued he would be in breach of the City’s terms and could have his lease terminated. To have included this term in the RFP, before a licence is issued, would appear to be unfair to any RFP applicant.
However, the issue before the Board remains whether or not to grant this liquor licence. The burden of proof lies with the objectors regarding whether subsection 6(2)(h) of the Liquor Licence Act applies.
The Board understands the concerns of the objectors that the park, as it has been, would be changed by the introduction of a licensed establishment. Also, that it would be setting a precedent that would allow more licensed establishments in the park.
The concern that granting this licence would set a precedent is an issue that should be raised with City Council by the objectors.
The menus submitted indicated, through the meal prices, that this restaurant is an establishment for high-end clientele and, therefore, unlikely to attract teenagers. Also, its location is not directly on any walkway through the park.
To suggest that a licensed restaurant in this area would automatically attract problems, without proof of past experiences, is pure speculation. In addition, the City, through the evidence of its Executive Director of Parks, has assured the Board that if such problems occurred, it would terminate the lease, and that it fully supports this Application.
Accordingly, the Board FINDS that the objectors have failed to satisfy their onus that the issuance of the liquor licence is not in the public interest having regard to the needs and wishes of the residents as outlined in subsection 6(2)(h) of the Liquor Licence Act.
Therefore, the Board APPROVES the Application for a liquor licence for indoor and outdoor areas of Bistro at the River (The).
DATED AT TORONTO THIS 15th DAY OF AUGUST, 2007
ELEANOR MESLIN, BOARD MEMBER GUY MAURICE, BOARD MEMBER
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