Registrar, Alcohol and Gaming Commission Ontario v. Northwood Inn (2005) Inc., 2007 CanLII 41532

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-

Northwood Inn (2005) Inc. o/a Northwood Inn Applicant

-and-

Gerald Irish Resident Objector

DECISION

Panel: Beryl Ford, Board Member Allan Higdon, Board Member

Decision Date: September 6, 2007 Hearing Location: Haliburton, 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 Northwood Inn (2005) Inc., Applicant ) Jerry Levitan, Representative Gerald Irish ) On his own behalf and on behalf of the Resident Objectors

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 15402 dated June 27, 2007 to review an application for additional licensed area for a liquor licence from Northwood Inn (2005) Inc., (the “Applicant”), for indoor additional capacity at NORTHWOOD INN, Highway 118, Dysart Township, Haliburton, Ontario, K0M 1S0 (the “Premises”), licence number 10816. A hearing of the Application was held on August 17, 2007 in the City of Kawartha Lakes.

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

3Ms. Kaplan requested that Mr. Gerald Irish be made a party to the hearing as a representative of the objectors. Both parties agreed to this request and the Board so ordered.

4Ms. Kaplan stated the Registrar was not taking a position on the Application.

Resident Objectors’ Evidence

5Jane Selbie is an artist who lives on 2.5 acres of land next door to the Premises. She has been a resident of the area since 1974.

6The witness stated her principal objection to the Application was the noise originating from the Inn. It consists of two elements: music, in which the bass is cranked up and results in a perpetual throbbing sound next door; and the shouting, screaming, tire squealing, and honking that comes when the patrons depart the Premises late at night. The noise invades all nearby homes and has been a longstanding complaint against the Premises.

7In May, two residents visited the Premises on a fact-finding tour and told the proprietor about the inconvenience caused by its operation. She did not appear to be concerned about the noise and unruly crowds outside the Premises. The residents suggested that a police officer be hired to control the crowds outside.

8The witness stated the Inn used to be a family dining facility. The focus and clientele has changed. The Township has not responded to complaints from residents; the AGCO is their only hope. A man was sent by the Township to check noise levels but nothing happened.

9On cross-examination, the witness stated the front entrance of the club faces her home, which is about .3 km. away behind the parking lot and some trees. The witness confirmed the establishment has been a bar/restaurant with live music for the past twenty years. She had presumed the Application was for a licensed outdoor patio.

10Joan Irish in 1998 moved into a house close to the establishment. Her concern is noise from people, cars, and music. She has repeatedly complained to police and municipal authorities about noise. The authorities said they did not have noise meters. A by-law officer came one night at 11:30 pm and stood in front of her house and said he could not believe how she had put up with so much noise. Once when the witness phoned to ask the club to close its doors and windows, the phone was slammed down in her ear.

11The witness stated she is a former President of the local Legion so she understands the issues involved in running a licensed premise. The Legion never had the problems associated with the Inn. Just last week, people were out on the front steps of the Inn screaming and yelling profanities. There appears to be no control whatever at the Inn: people spill out on the lawn, the thump, thump of music rattles windows and drowns out the T.V., and there is no effort to keep the noise down.

12On cross-examination, the witness acknowledged the Inn operated as a bar before she bought an adjacent house. She originally objected to the Application because she thought it was for an outdoor licensed patio.

13The panel sought clarification on the total requested additional capacity for the entire premises and the figure of an additional sixty-one (61) patrons was agreed upon.

14Doreen Cowen has been a resident of the area for 54 years. Her concern is about noise, particularly the inconvenience for the people living in the 12 apartments opposite the premises. She stated she has put up with noise for many years. It is hard for her to sleep and the foul language from the Inn is very disturbing. Last January she called police when someone threw snowballs at her windows and broke some of the screws on the window. She takes sleeping pills at night and has had to install central air conditioning as she cannot open her windows due to noise.

15Jack Neville lives next door to the previous witness, across the highway and directly opposite the Premises.

16One day somebody kicked in his front door. He followed the tracks in the snow and they lead to the Northwood Inn. A week or two ago, the noise level of the bass music from the bar penetrated right into his house despite double paned windows and new insulation.

17On cross-examination, the witness stated the current proprietor was not in place when the incident took place involving his front door. Drunken behaviour after hours at the Inn has long been a problem.

18Gerald Irish stated the noise level in their home (spouse: Joan Irish) due to the club operation is unbearable. An increase in patrons would lead to further noise. There appears to be no volume control on the live band speakers. The bass in particular reverberates through everything. Their bedroom is at the front of their house, facing away from the Inn, but guests staying in the back bedroom are bombarded by noise. Sitting in the sunroom at the back of the house it is almost impossible to hear the T.V. When patrons leave the Inn at 2:00 a.m. there is yelling, fighting, and foul language coming from the parking lot. The witness said he has spoken to the proprietor but she stated she was unable to control behaviour outside the club. She should accept that responsibility.

Applicant’s Evidence

19Bonnie Maxwell has been the owner of the Northwood Inn since January 31, 2006. The smoking ban introduced on June 1, 2006 has made it tough to deal with noise as smokers are tempted to go in and out of the building to have a cigarette.

20The witness stated she has increased door staff to boost security and has had discussions with residents since May 2007 to look at ways to reduce the number of patrons out front and people waiting to get in. As for the music noise, these days the kids want hip/hop, which has a lot more bass. It is very hard to reduce the music levels when live bands play because they bring their own equipment and it is set a certain levels. Different bands have different levels of bass.

21The crowds in front of the Inn are a difficult issue. There are very few taxis in the county and people wait a long time outside or fight over cabs when they arrive. The witness stated she has not personally seen fights at the Inn. With the proposed additional licensed space, people would be able to wait inside instead of outside. This will reduce noise complaints from neighbours.

22The witness testified that she has a “no re-entry” policy at the Inn. This has reduced noise escaping out into the neighbourhood. There are three main exits – one is not used, another is exit only, and the main door is double-door with a vestibule to act as a sound lock to the outside. The windows are sealed to reduce noise.

23The witness stated the proposed rear licensed area would not adversely affect the apartment residents. In fact, people in the nearby subdivision would be helped by the premises having a rear smoking area.

24The witness stated she has never been visited by Township noise by-law officers.

25Heather Lecraw is a correctional officer who has known the Premises for over 30 years. There has been a bar/restaurant on the site for many years. The place has been improved both inside and outside by the new proprietor. The no re-entry policy has made a big improvement in crowd control and security has improved immensely. The proposed interior re-arrangement is certainly for the better. The witness was last at the Inn two to three weeks ago and the music was loud. However, the increased capacity would make no difference to the noise levels.

26Darlene Wilcox lives about two miles from the Premises. Previously, she lived for a year in the subdivision behind the club. She is a faithful patron of the Premises, having visited every weekend for the past 25 years. The witness stated that there has been a 100% improvement in the place since the new proprietor took over. Previously it was crowded and chaotic but it is not now. There are now different bands playing blues and jazz. It is now possible to have a conversation in the bar. It is clearly in the public interest to put some of the crowd in a back room to cut down on noise to the neighbours.

27In response to a question from the panel, the witness stated the no re-entry policy has greatly improved crowd and noise control.

Resident Objectors’ Submission

28Mr. Irish stated the increase of an additional 61 patrons would add to the noise level created by shouting and yelling and waiting for taxis. The proprietor has problems controlling the current capacity of patrons, any increase will only make her problems even more unmanageable.

Applicant’s Submission

29Mr. Levitan stated the onus is on the objectors to demonstrate the issuance of a licence is not in the public interest having regard to the needs and wishes of the community. Otherwise, the Applicant has a qualified right to obtain approval for the additional licensed area.

30The establishment in question has been active in the area for generations. Whether the capacity is increased or not will not affect the primary complaint of noise.

31The Premises have a clean record. There have been no police charges or proceedings made by the Township or the AGCO against the Northwood Inn.

32The new proprietor has taken measures to strengthen security procedures through such initiatives as a wristband policy and a “no re-entry” policy. She has hired better staff and gone to considerable expense to reconfigure the premises. The placement of the pool table in a separate room is a good idea. If the pool table room were not to be licensed it would subject the proprietor to unnecessary infractions.

33The Application is not for an outdoor licence patio as initially thought by several of the objectors. The bar itself is a pre-existing condition. The proprietor is a good operator whose attempts to amicably resolve outstanding issues have been rebuffed by some residents. Other residents have testified that the Premises are being operated in a more responsible manner than before by the new owner.

34In summary, the residents have not met their onus to show the Application for additional licensed areas is not in the public interest. Therefore, the licence should be issued.

Reply

35In reply, Mr. Irish noted that the objectors were not aware the hearing would be such a formal affair and that they could have been represented by a lawyer.

Decision

36The Board has carefully considered all the testimony from residents and the Applicant. It appears that many residents initially thought the Application was for a licensed outdoor patio. However, the proprietor testified that the additional indoor licensed space was being sought to address noise complaints, not increase them. The proprietor stated she is attempting to remove patrons from loitering outside the front door by providing a room for them in the rear where they can congregate without disturbing neighbours.

37Based on the evidence provided, the Board considers the additional licensed space to be a responsible attempt by the current operator to reconfigure indoor space and thereby reduce noise complaints. The additional capacity gives the operator an opportunity to reduce outdoor rowdiness and be less of an irritation to the neighbours.

Order

38For the above reasons the Board APPROVES the Application made by Northwood Inn (2005) Inc., for indoor additional capacity at NORTHWOOD INN, Highway 118, Dysart Township, Haliburton, Ontario, K0M 1S0, licence number 10816.

39The Board recognizes noise from bands is a pre-existing condition and that measures have been taken recently to contain noise within the building. However, in order to address resident complaints about outdoor late night misbehaviour, the Boards ORDERS that the following condition be attached to the licence:

Two security persons shall be stationed outside the building to maintain order from 12:00 midnight to 3:00 am on Friday and Saturday nights when the Premises is in operation.

DATED AT TORONTO THIS 6th DAY OF SEPTEMBER, 2007