Registrar, Alcohol and Gaming Commission Ontario v. 1722094 Ontario Limited, 2007 CanLII 37810

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-

1722094 Ontario Limited intending to operate as FIONA’SCC Applicant

-and-

City of Toronto Intervener

DECISION

Panel: Bruce Monteith, Board Member Alex McCauley, Board Member

Decision Date: July 31, 2007 Hearing Location: Toronto, 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 ) Phillip Morris, Representative 1722094 Ontario Limited, Applicant ) Chun Bo Wang, appearing on her own behalf and Douglas Espinoza, assisting City of Toronto ) Jessica Braun, Representative

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued a Notice of Proposal dated March 23, 2007 to review an application for a liquor licence from 1722094 Ontario Limited (the “Applicant”), at FIONA’SCC, 99 Pape Avenue, Toronto, Ontario, M4M 2V7 (the “Premises). A hearing of the Application was held on May 17, 2007 in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board REFUSES the Application. Reasons for these findings follow.

Preliminary Matters

3Phillip Morris appeared on behalf of the Registrar. He advised the Registrar took no position on the public interest aspects of the hearing. He also asked for letters of objection to be entered as Exhibit 1.

4Chun Bo Wang is the Applicant. She appeared on behalf of the Corporation and waived the right to be represented by a barrister and solicitor or a licensed representative. She refused an interpreter. She was assisted by Douglas Espinoza, a friend.

5Jessica Braun appeared on behalf of the City of Toronto. The City opposes the Application. On consent of all parties, the Board ordered the City be made a party to the proceedings. The City entered a Book of Documents as Exhibit 2. A letter from residents outlining conditions should the Application be successful was entered as Exhibit 3.

6In the course of the City’s evidence Panel Chairman Alex McCauley realised he had been a member of the panel that revoked the licence for the bar, Dang Bar, which previously operated at this address. This was disclosed to the parties. There were no objections to Mr. McCauley remaining on the Panel.

City’s Evidence

7Paula Fletcher is the Councillor for the City of Toronto representing the area in question. She has been a Councillor for three and a half and was very familiar with the area in and around 99 Pape Avenue.

8The Premises are a “problem address”. There have been a number of arrests relating to drunkenness, drugs and the sale of drugs. There is a street car stop at Pape Avenue and Queen Street, very near to 99 Pape Avenue, which is used by local residents and school children who attend two nearby schools. The proximity of 99 Pape Avenue to the street car stop, given its history, is offensive to the public using the street car. Another concern is that the business next door to 99 Pape, and shares a connecting door, is a doughnut shop which is open 24 hours per day

9In the near vicinity, 1077 Queen Street, is the largest seniors’ residence in East Toronto with approximately 500 residents. The seniors’ concerns are that drunks sleep on the stairwells and use foul language when seniors and visitors attempt to pass.

10The previous owner of the Premises had the liquor licence revoked. Residents are concerned that this Application is by a numbered company and may bring the same problems. The Applicant purchased the property a few months ago, prior to this hearing, and it has been in limbo since then. The Applicant distributed a letter in the area, giving a brief history of her previous life and employment, and invited the residents to come in to meet her. On January 15th she completed a Municipal Liquor Licence Clearance Questionnaire for a new addition to the premises.

11At a Community meeting, objectors asked that Toronto City Council support the refusal of an Application. A motion, relating to arrests by police due to drug dealing and fighting in the vicinity of 99 Pape Avenue, was passed by Council in support of the request by the objectors. (Exhibit 2, Tab 1)

12Councillor Fletcher stated that she would not support the issuance of a liquor licence to the Applicant because of misinformation she gave to the community. It would not be in the public interest and the fact that it would be in a numbered company is of great concern.

13On cross examination, Ms. Fletcher agreed she had never been in the restaurant. She had no objection and had no complaints regarding the food. Councillor Fletcher noted the restaurant was advertising a liquor licence.

14Stephen Brooks testified he resides approximately 100 feet from 99 Pape Avenue. He has lived there since early 2006. He kept a log of events since moving into his house that were recorded as they happened. There has been reduced activity in the vicinity since the previous owner had his license revoked but prostitution, drug use and drug dealing were still a problem.

15The events noted in his log since the revocation were similar to that prior to the revocation and included 2 occurrences between August 24 and October 9, 2006 relating to arrests for drunkenness, fighting, drug transactions and prostitution (Tab 5 of Exhibit 2).

16Mr. Brooks is opposed to the issuance of a liquor licence at the Premises because of the bad history of violence. At a meeting on May 2, 2007 the community discussed conditions, should a liquor licence be granted (Exhibit 3).

17Ms. Wang asked Mr. Brooks if he would be in favour of the Application if conditions were applied. He said, "No, liquor in this location only attracts illegal activities". Other restaurants are not “problem free” but 99 Pape is the epicentre.

18Panel member Bruce Monteith asked why Mr. Brooks thought the transactions were drug related and was told he presumed this based on the presence of needles in the alleyway.

19Detective Constable Rod Benson stated that he was attached to the drug squad and had been a member of the Toronto Police Service for 8 years, serving in 55 Division. He said he had a number of dealings with 99 Pape Avenue which was the most problematic bar in 55 Division. The problems were over-service, serving minors, violence and it was the hub of the drug activity. This was of great concern to the residents in the area. Questioned about the impact of granting a liquor licence, he said that it would send a message to the community that their concerns were not being heeded

2099 Pape is on a corner with Queen and has plate glass windows on two sides, there is no rear entrance where unobserved entry can be made. Any illegal activity is stopped when police are seen. Persons are allowed to enter and deal in drugs and other activities, such as prostitution, when police are not around.

21Approximately 25 police officers took observations in the area once per month and prior to the revocation they had to enter once per week to combat drug dealing. Since the revocation there has been no safe haven for the drug dealers. The people from the community do not “hang out” there, only addicts and prostitutes. In closing, Constable Benson said the drug dealers enter the Premises, make themselves at home, intimidate the owners and staff and take control.

22On cross-examination, Ms. Wang asked how Constable Benson knew bad people would come. He responded other people had tried and failed with food only. If granted a licence, liquor would be your main source of revenue and the bad people would come back. Without a licence the drug dealers would not have the same base of operations. The normal in a restaurant is enter, order, eat, pay and leave. With a licence people can sit for hours, deal drugs and not be asked to leave.

23Panel member Alex McCauley asked about the connecting door from the doughnut shop next door. Constable Benson advised that the door used to be used by teenagers but now the bar only housed criminals and drug dealers.

24Gary Good is a resident at 5 Boston Avenue, near Pape. He objects to the issuance of a liquor licence. He works in a restaurant in the area and, when coming home, gets off the street car at 99 Pape has witnessed lots of people there dealing in drugs and prostitution. On one occasion he saw a woman assaulted, her underpants removed and cavity photographed. He has since seen the same woman "plying her trade" in the alley at 99 Pape. He has seen a marked reduction in drug dealing and prostitution since the revocation of the previous licence.

25Boris Mojovski resides at 105A Pape Avenue, first house next to the Applicant’s restaurant, and opposes the Application. He got to know the drunks and dealers and noticed there were no more problems and they were not around since the revocation. The through door from the doughnut shop to the restaurant is not a problem but could be if a liquor licence is granted. He feels the Applicant would have no control over the drug dealers and users.

26Phillipa Howell lives at 3 Bryson, 3 streets north of Pape, and opposes the Application. She said that since the revocation there had been a transformation for the better. She can now walk past the restaurant where, before the revocation, she was afraid to be there. Patrons were coming out of the licensed premises bleeding from wounds. Drugs and prostitute items have been reduced to zero where before there were many needles and condoms on the ground. Ms. Howell said that, from past experience, a restaurant would be okay without a licence.

27Patricia Abrams has resided at 50 Brooklyn Avenue, the next street to Pape Avenue, since 2004. She opposed granting a liquor licence to Ms. Wang. She had property stolen and her car broken into. She was constantly picking up used condoms and drug items. She said her daughter had been scared to walk there but not now. Ms. Abrams testified these problems would return if a liquor licence was granted.

Applicant’s Evidence

28Chun Bo Wang, the Applicant, said she took all her money from China and applied for a liquor licence on January 15, 2007. She then informed the community that she would open for business on February 8, 2007. She called the AGCO to say that she wanted to cancel the Application and get her money back but was told that the process would continue. She knew the last place was “bad”, but needed the liquor licence to keep her customers. She has already paid $3000 for rent and the application notices had been put up at the restaurant. She concluded by saying she should not be considered by the history of the Premises.

29Ms. Wang agreed that at an AGCO pre-hearing conference that she understood about disclosure of evidence that had to be produced to support her application and further agreed that her petition (Exhibit 5) contained only a list of names but did not state why the names had been gathered. She also did not know whether the people who wrote their names on the paper lived near the restaurant or not.

30Ms. Wang confirmed her experience in the restaurant business consisted of working as a waitress for 7 months in "London Dock" and at "Nicks Pizza Bar" for 8 months. Ms. Wang said that she would have a partner, Guo Shu Sheng, former owner of London Dock, who would cook Canadian type food, and a delivery person. Ms. Wang intimated that Guo Shu Sheng would be co-manager but not for a while until his wife came out of hospital.

31Asked how she would handle drunks Ms. Wang replied she would call police.

32She explained that she needed the licence to pay her bills. Her hours of business at present were 11. a.m. until 11.p.m. and she would keep the same hours with a licence. Ms. Wang reiterated that when she found out that the public were opposed, she wanted to withdraw her Application but was not allowed to do so.

33Panel Chair, Alex McCauley, asked Ms. Wang who had written the letter at Exhibit 1 Tab 4. She replied that she had written the letter in Mandarin and had it translated into English. She also informed the Panel that she had never dealt with drunks, drug dealers or prostitutes before.

34Yvon Carey gave evidence that he had used the restaurant before, but stopped going after it turned bad. He testified that Ms. Wang made the restaurant good and I came back but I do like a beer with my meal. It is a different atmosphere now.

35Doreen Clifford testified the place is clean and has good food. She felt Ms. Wang had spent a lot of money and deserved a liquor licence. She further stated that money must come in so she needs a licence. Ms. Clifford said she still went to the restaurant.

City’s Submissions

36Ms. Braun said that the residents had shown by their testimony and letters of opposition that a liquor licence should not be granted. Councillor Fletcher talked about the quality of life required by the people. Mr. Brooks saw what went on and documented events in a log book, he said that there was a threat to the public at large before the previous owner's licence was revoked but now the difference was like night and day and that granting a licence would bring back all the threats that had been before. Mr. Benson's testimony was very lucid and described what would happen if a licence was granted. He said that the drug dealers would take over and Ms. Wang would be unable to control the bar. All witnesses agreed that the quality of life had changed for the better since the revocation.

37Ms. Wang wants a restaurant but misrepresented herself in her letter to the community. She has no experience to run a bar and it is questionable that she could run a bar or deal with prostitutes and drug dealers that would come into the bar. There was no disclosure of a partner, Guo Sau Sheng. The supposed partner, Gua Sau Sheng was not called as a witness to testify that he would be a partner and he did not appear at the hearing.

38Both witnesses who appeared for the Applicant said that they still enjoyed going to the restaurant even without a liquor licence.

39Ms. Wang has put a lot of money into the restaurant and wants to put more in by allowing drug dealers and prostitutes to use her premises. Ms. Braun said that the issuance of a liquor licence to 1722094 Ontario Limited intending to operate as Fiona's was not in the public interest for a number of reasons.

i. The prior history of this particular location raises significant concerns about the clientele that will be attracted to this establishment. A clientele that, the objectors agree, have consistently caused problems in the past which will no doubt be resurrected, should a liquor licence be granted.

ii. The objectors have doubts that a young female, who has very limited knowledge of English, would adequately be able to control the patrons that would likely frequent the establishment and questions the ability of a young inexperienced owner/manager to have that control.

iii. The area is already adequately served by licensed premises and the objectors have experienced a number of social problems such as prostitution and littering from this act, drug abuse, drug dealing, noise and violence prior to the revocation of a liquor licence of the previous owner. These problems have all but disappeared and the community has no wish for their return.

Applicant’s Submissions

40Chun Bo Wang submitted that she wanted to do a good business, not for drugs or prostitutes. If she did not do good then take away her licence.

Conclusion

41The onus is on the objectors to prove, on a balance of probabilities, that the issuance of a liquor licence is against the public interest having regard to the needs and wishes of the residents in which the premises are situated. The Board does not make a decision on the number of residents in the area but rather on the evidence placed before it at the hearing.

42The bona fide concerns of the residents in the immediate area who are mostly affected by the establishment are given greater consideration than residents not in the immediate vicinity.

43The Board heard testimony from the residents, in the immediate vicinity, voicing their objections to this Application. There were also many letters of objection and a Resolution from City Council showing a strong opposition by the residents to this licence Application.

44The Board finds that the objections of the residents are substantial. This is an area which has significant problems related to prostitution, drug abuse, drug dealing and violence. This particular location appears to have been the hub of the problems which have now gone away with the licence revocation of the previous owner. The Applicant is unfamiliar with the area and has limited experience in dealing with the challenges operating a licensed establishment would present.

45Given the circumstances of this hearing and the evidence presented the Board finds that the objectors have satisfied the Board that it is not in the public interest to grant this licence having regard to the needs and wishes of the residents. The Board finds that the Applicant is disentitled from obtaining a sales licence by virtue of subsection 6(2)(h) of the LLA.

46Therefore, the Application for a liquor licence from 1722094 Ontario Limited, intending to operate as FIONA’SCC, 99 Pape Avenue, Toronto, Ontario, M4M 2V7, establishment number 281041 is REFUSED.

DATED AT TORONTO THIS 31st DAY OF JULY, 2007