Registrar, Alcohol and Gaming Commission Ontario v. Royal Canadian Legion – Branch 15, 2007 CanLII 37834

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

BETWEEN:

Registrar, Alcohol and Gaming Commission Ontario (Registrar)

-and-

Royal Canadian Legion – Branch 15 (Applicant)

-and-

Dennis A. Trinaistich (Resident Objectors)

DECISION

Panel: Alex McCauley, Board Member Guy Maurice, Board Member

Decision Date: July 25, 2007 Hearing Location: Brampton, 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: Bryna Kaplan, Representative Royal Canadian Legion – Branch 15, Applicant: Chris Tonks, Representative Dennis A. Trinaistich: On his own behalf and on behalf of the resident objectors

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“Registrar”) issued a Notice of Proposal dated April 24, 2007 to review an Application (the “Application”) for a liquor licence from Royal Canadian Legion – Branch 15, (the “Applicant”), for indoor and outdoor areas at ROYAL CANADIAN LEGION – BRANCH 15, 80 Mary Street, Brampton, Ontario, L6W 2R3, establishment number 812499 (the “Premises”). A hearing of the Application was held on June 4 and 5, 2007 in the City of Brampton.

Decision

2After considering all the evidence and submissions the Board APPROVES the Application on the conditions set out below. Reasons for these findings follow.

Preliminary Matters

3Bryna Kaplan appeared on behalf of the Registrar. She advised the Registrar took no position on the public interest aspects of the hearing.

4Dennis Trinaistich 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. On consent of all parties, the Board ordered Mr. Trinaistich be made a party to the proceedings.

Resident Objectors’ Evidence

5Mr. John VanDusen presented his written objections, filed as Exhibit 1, and stated that he resides at 63 Mary Street across from the Premises. In his view the Application is an improper use in the neighbourhood and is not in the public interest. He is concerned that if the Application was granted it would create a safety concern, excessive noise, extra traffic where children play and seniors use the street.

6He stated that this residential community is comprised of many families with young children under the age of 10 years as well as many senior citizens. St. Mary’s primary school and St. Mary’s Roman Catholic Church are approximately 1000 feet from the front door of the Premises. Cardinal Leger Secondary school and a senior residence are 500 feet from the Premises. All other buildings in the neighbourhood are residential.

7There are no other businesses or licensed drinking establishments within the boundaries of Clarence Street, Main Street, Wellington Street and Mary Street. He furthers stated that the building at 80 Mary Street is completely within a public park and this park is used by pedestrians of all ages.

8A petition signed by 57 residents of the area forms part of Exhibit 1. All the signers object on the grounds mentioned by Mr. VanDusen.

9Mr. Ralph Van Dusen resides at 65 Mary Street and objects to a liquor licence being granted for the Premises. Exhibit 5, a letter of objection, and Exhibit 5B, a copy of a scroll of the Carroll Arboretum and Agrologist, were filed. Mr. Van Dusen also provided the Board with the definition of public interest included in Exhibit 5B. Exhibit 6 is an abstract of the Zoning By-law of the City of Brampton. He is concerned that the proposal does not conform to the Zoning and Official Plan of the City. He has no ill feelings toward the Legion Members but feels that the proposal is an inappropriate location for the proposed use.

10Thomas Hogan resides at 71 Mary Street and is concerned that, if the Applicant is granted a liquor licence, students will be allowed to drink on school days if they are permitted in the Legion. He is opposed to a licensed patio.

11Earl Robinson has lived for 40 years on Mary Street and opposes the Application on the same basis as the previous objectors. He is also concerned about past problems such as excessive speed and cars left on private property.

12Eleven other persons also objected to Application on the same grounds identified in Exhibit 1. Some have added concerns such as the environment, the proposed outdoor patio, and disturbing the wild life that now exists in the open zone. The proposed location of the establishment borders land reserved for park land. Some residents were concerned that granting the Application may adversely affect the park land.

Applicant’s Evidence

13Mr. Bert O’Hearn is the building committee’s Chairperson and has been a member of the Royal Canadian Legion since 1975. In his capacity as Chair he was delegated to look for another location after the old Legion Building was condemned by City officials. He described the purpose of the Canadian Legion, the services that they provide, and their community involvement.

14Branch 15 has between 600 and 700 members who all participate in fund raising projects, such the Poppy Fund, and other fund raising activities. Branch 15 recently provided financial assistance to the Fire Department and the Police Department toward purchasing life saving equipment as well as providing financial assistance to the Sea Cadets, Army Cadets and Veterans.

15The City directed the Legion to leave their previous premises because of mould found in the building. The old premises were larger than 80 Mary Street and had a separate banquet hall, rooms for members, and a kitchen facility. The old premises were located closer to residential homes than the proposed location and there were no complaints. They never received any complaints about the previous establishment from the residents, the police or the AGCO.

1680 Mary Street, Exhibit 3, is a smaller building surrounded by park land, a creek, green belt and residential homes. Tab 14 of Exhibit 4 shows the proposed layout of the Premises showing washrooms to be renovated, a club room, a meeting room, snooker tables, an office and, possibly, a ladies auxiliary room. 80 Mary Street does not have a hall for rent. The club house is to be used by members only. The proposed patio is for a smoking area for Legion members and would be out of sight of the general public. During the day, bar staff would be in charge of the operation. The Legion restricts entry only to members and determines who is allowed in the Legion building. Other patrons can be signed in by a member up to 3 times, following which they must become members in order to be allowed in. Access to the Legion is controlled and no one can enter unless a mechanical lock device is activated by the staff. The proposed hours of operation would be from noon to 1:00 a.m. The terms were all approved by Council resolution dated May 22, 2007, Tab 2 of Exhibit 4. The resolution states, in part, that the City has no objection to the Application. The resolution was passed unanimously. No one from the schools, church, or seniors groups objected to the proposal.

17Don Kirby is the head steward. There are 6 bar stewards, all are Smart Serve trained and must present a certificate before being allowed to work at the Bar. From noon until 4:30 there may be 15 older members, most of whom do not consume alcohol, in the legion playing games. Between 4:30 and 10:00 p.m. most members do not consume alcohol. The busiest time is on Saturdays. Members of the Legion police themselves. Those who appear to have reached their limit are not served and he will attempt to remove car keys and call members of his or her family. No person is allowed on the Premises unless he is a card carrying member or a guest signed in by a member.

18Peter Murphy supports the application by the Legion and feels that the Legion is a responsible organization capable of operating a bar at 80 Mary Street. There were additional letters of support.

19Registrar’s representative asked the Board to order the Applicant to provide a certified true copy of the City’s Zoning By-law in order to be satisfied that the land and premises meet the requirements of the By-law.

Resident Objector’s Submissions

20On behalf of the objectors Dennis Trinaistich stated that an applicant can be disentitled if the Licence is not in the public interest when objections filed do not reflect the needs and wishes of residents. He referred to the Van Dusens’ objections plus the others who spoke against the Application. The residents have nothing against the Legion as an institution but contend the location is not a proper place for a drinking establishment.

21The Board must consider all aspects of the objections supported by properly documented written briefs and not subject to challenge or cross-examination. Zoning is a matter of concern and the Board must look at Mr. Ralph Van Dusen’s dictionary definition of what is public interest. None of the objectors was coerced into attending or opposing. The evidence of the objectors meets their onus. The case for the objectors has been made out and 80 Mary Street is the wrong location.

Applicant’s Submissions

22The Board should consider that this is not a bar that plays loud music. The Legion is prepared to work with the community to provide overnight parking so as to induce drivers to leave their vehicles if necessary. The Board should look at the track record of Branch 15 which operated for many years. Social and safety concerns are something that bar staff and others take seriously. All bar staff are Smart Serve certified. The Legion is caring and has proven so at its previous location. None of the schools in the area objected to the application, nor did the seniors centre or Church.

23The patio is to be located in the back of the building so that it will not be seen by the public. The patio is required in order to permit Legion members a place to smoke.

24The reasons for leaving the previous premises because it was mould infected and the City ordered them out. If zoning is an issue the Legion will have to deal with it. However, by Council resolution the City confirms its support for the Application. The licence is not being granted to a new applicant, the Legion has proved itself over the past 40 years.

Registrar’s Submission

25Ms. Kaplan notes the Legion is willing to co-operate with the community and would accept some of the conditions suggested. The schools, the Church and others did not object. Environmental issues are not greater than in the past and there is no evidence to those concerns. The patio does not appear to be a concern however there is no evidence to provide assurance of such and there is no site plan available.

Reasons

26The Board has considered all the issues concerning the proximity to the park area. The evidence on this point is largely speculative. The Board further notes the City has expressed no concern in this connection. The Board is satisfied the Premises do not pose any threat to the park or wildlife.

27The Board is impressed with the Applicant’s past record as a licensee. There is no record of infractions, noise complaints or policing issues. The Legion’s rules are more onerous than other licensed premises, patrons are well known to the bar staff and that the Legion is not a commercial bar. The Legion is not going to allow the operation of a tavern. The Board is satisfied that the Legion is committed to being a responsible licence holder. The Board notes the absence of any concerns or objections raised by the local schools, the Church or the seniors groups. Further, the Board considers to the City’s strong support. In the circumstances, there is no evidence to cause the Board to believe that noise or other anti-social behaviour will take place as the result of the licence being issued to the Legion in this location.

28Having considered all the evidence and submissions, the Board is satisfied that the Application is in the public interest subject to conditions being attached to the Licence.

Order

29For the above reasons the Board APPROVES the Application for liquor licence made by the Royal Canadian Legion – Branch 15, for indoor and outdoor areas at ROYAL CANADIAN LEGION – BRANCH 15, 80 Mary Street, Brampton, Ontario, L6W 2R3, establishment number 812499, subject to the filing of all usual and required clearance letters and application requirements. In this connection the licence shall not be issued until the Registrar is advised the property in question meets all City zoning requirements.

30The Board orders the following conditions be attached to the Licence:

1. No live or amplified music on the patio.
2. Doors and windows to remain closed at all times.
3. All staff will be trained by Licensee to advise patrons to be quiet and orderly upon leaving the Premises.
4. Licensee will post a large notice requesting patrons to be quiet and orderly upon leaving the Premises on each exit door.