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-
Serbian Orthodox Centre "Holy Trinity" Applicant
-and-
Elinor Linda Teplin Resident Objector
DECISION
Panel: David C. Gavsie, Chair of AGCO Alex McCauley, Chair of Panel
Decision Date: September 27, 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: Bryna Kaplan, Representative Serbian Orthodox Centre "Holy Trinity", Applicant: Emil Fedak, Representative Elinor Linda Teplin: on behalf of the Resident Objectors
The Application
- The Board of the Alcohol and Gaming Commission of Ontario ("AGCO") held a hearing in Hamilton on August 7, 2007 pursuant to a Notice of Proposal to Review an Application for Licence dated June 4, 2007 (the "NOP") with respect to an application for a liquor licence (the "Application") by the Serbian Orthodox Centre "Holy Trinity", operating or intending to operate as SERBIAN ORTHODOX CENTRE "HOLY TRINITY", 2545 Guyatt Road, Binbrook, Hamilton, (the "Premises"), establishment number 812633.
Decision
- After considering the evidence and submissions made to it, the Board ORDERS that the licence be issued to the Applicant but that the conditions set out below be attached to the licence.
Preliminary Matters
As a preliminary matter, on consent of the parties, Elinor Linda Teplin was made a party to the proceedings on behalf of the objectors. Ms. Teplin said that no representative from the City of Hamilton being present at the hearing was disappointing.
Ms. Kaplan indicated the Registrar was not taking a position regarding the Application. Ms. Kaplan did introduce into evidence letters and e-mails opposing the Application (Ex. 1).
Resident Objectors' Evidence
Denise Duvall has lived on Guyatt Road for 50 years. Her property borders that of the Applicant. It is beside a picnic ground on the land owned by the Applicant.
Ms. Duvall has several concerns. There is a lot of garbage and empty bottles from events held on the Applicant's grounds. She said that just this past Sunday, while working in her orchard, she found 21 beer bottles, a brandy bottle, plastic cups for beer and liquor, and other garbage.
At other times, Ms. Duvall has found soiled underwear along the fence separating her property from the Applicant's. Diapers have been thrown over the fence on to her property.
Ms. Duvall stated that there is also a noise problem. People honk horns when they are leaving the Applicant's property. They also play amplified music on the grounds. She said that on St. George's day, amplified music started at 9 a.m. and continued on all-day.
Ms. Duvall's house is a century building. All of her windows are closed and her bathroom is in the middle of the house. She can still hear music playing outside when her shower is running in the bathroom.
Ms. Duvall also has safety concerns. Motorcycles are being driven on the Applicant's laneway. Cars do circles in the field. A couple of years ago, a driver of a motorcycle was injured on the Applicant's property. Also a drunken person fell out of a tree and was hurt. An ambulance had to be called.
Ms. Duvall explained the roads and laneways near and on her property. The major road, is Regional Road 56 runs north and south. Guyatt Road intersects 56 and runs east and west. Her property and the Applicant's property are on the south side of Guyatt Road, east of 56 by 2 houses. Their laneways are about 500 feet long and are parallel.
Ms. Duvall said that from her back veranda to the Applicant's fence line, the distance is 38 ½ feet. One of the buildings on the Applicant's property is about 10 feet from their common fence line. Her driveway is 50 to 60 feet from the fence line. Theirs is about 100 feet from the fence.
Cars exiting the Applicant's property turn west on Guyatt away from Ms. Duvall's house, but the honk their horns all the way down the driveway, and all the way to 56.
Ms. Duvall spoke about the sound system being loud, being set up at times close to her property and being on until 1:30 a.m. Police have been called and have come to order the music be shut down.
Ms. Duvall spoke of a trespass incident. Representatives of the Applicant came to see her with letters to be signed by her stating that all of her concerns had been addressed and she had no further objections. The following Sunday she was working behind her house with a helper. She was going to put a hose on to water the shrubs. 10 women had gone through the fence from the Applicant's side to her side and were in her orchard trampling things.
A guest at the Applicant's property parked on the street blocking her driveway. She has now spent money on "no parking" signs.
Ms. Duvall talked of an altercation on the Applicant's property about 10 years ago at a pig roast. The fire department was called to put out a bonfire, and the people threw bottles at the firemen who then sprayed the people with water. Police came too.
Regarding parking, Ms. Duvall said on Serbian Day, people parked indiscriminately on the street, ignoring no parking signs. Guests at the Applicant's property have no respect for the environment or for neighbours.
In cross-examination, Ms. Duvall expressed her concern that with the increased consumption of alcohol in the Premises, there would be increased noise and garbage issues. She said the owners (the Applicant) do not have full control.
She said there is a park on the land owned by the Applicant which was created in 1972. Groups use the park for picnics but have alcohol.
She testified that the incident regarding the man she talked about who fell out the tree happened 8 years ago. The fire she mentioned happened 14 years ago.
Mr. Doug Duval is Ms. Duvall's cousin. He helps her with the land maintenance. He confirmed that he has cleaned up bottles, full diapers, and other garbage on her property.
Mr. Duval said he has talked with the groundskeeper of the Applicant who said he had no control over the people using the Applicant's park.
Mr. Raymond Duvall is Ms. Duvall's brother. He confirmed her evidence. He said that 3 or 4 years ago cars exiting the Applicant's property almost struck him. He now exits to the east and goes 2 to 3 miles out of his way.
Ms. Eleanor Linda Teplin lives on the opposite of Guyatt Street from Denise Duvall, almost diagonally across the street.
Ms. Teplin said that weekends during the summer, spring and fall are a horror story. She has complained to the City of Hamilton about music amplification and she has complained to the councillor for the area, Mr. Mitchell. She has been told the City is going to do something.
Ms. Teplin has complained to the Applicants. She has talked to people at the gate collecting money for parking. They have told her they have no control. Larger parties post signs. One person escorted Ms. Teplin up the drive way and told her he would turn down the sound. He did but after 15 minutes it was loud again.
Ms. Teplin recounted how 3 weeks ago, as she was driving towards her home on Guyatt Street, a car came out of the Applicant's driveway, without stopping, missed its turn onto Guyatt Street, and teetered over a gully on the side of the street.
Ms. Teplin said there are significant safety issues to neighbours of the Applicant. There is also no pleasure for the neighbours when a group is having a gathering on the Applicant's property. The Applicant has no control over the groups. She also confirmed the noise is loud all day.
Applicant's Evidence
Mr. Mane Srdic is a director of the Applicant which is a not-for-profit corporation. The Applicant is connected to the Church. The Applicant's property is a gathering place for friends. It is mostly used for one day, Serbian Day, which occurs in the first week of July.
Mr. Srdic stated that he agrees the amplification of music is an issue, but nothing else is correct.
The drinking is social drinking, the people there are families with children. The people are responsible types.
The Applicant used to place portable toilets on the land, but now they have inside bathrooms in their building.
Crowds have fallen off. There are not as many people as there used to be.
The Applicant rents out the property to try to keep up the property i.e. for maintenance, property taxes. There is no profit. They need donations to make ends meet. They would be happy if they did not have to rent out the property.
Regarding the music, the Applicant does not have its own sound system. So groups bring their own and it is amplified. The Applicant tries to control the sound level, but cannot. The Applicant is trying to forbid amplifiers and have normal level sounding music played at group events.
Mr. Srdic said that if the Applicant gains the license applied for, it will have a person to control the loudness of music. The area outside the patio will be fenced.
Ms. Srdic stated that their hours of operation will be from noon to 9 p.m., and they will only operate on Thursday, Friday, Saturday and Sundays.
In answer to questions on cross-examination, Mr. Srdic said he envisioned the Applicant's business being carried on similar to a branch of the Canadian Legion.
Mr. Srdic acknowledged that the Applicant has been visited by City officials, some times by the police. At one point, the Applicant had a person measuring the noise level.
Regarding the amplifiers blaring loud music, Mr. Srdic said while he can try to forbid them, the groups who rent the park bring them. The Applicant does not own amplifiers. Nothing is mounted on the buildings on the Applicant's property.
Mr. Srdic said that the licensed premises would be open to the public.
Ms. Teplin asked Mr. Srdic about the signs with the name of the property at the foot of the driveway. When the gates are closed, the area on which the signs are hung is dark. According to Ms. Teplin when the gates are open, the signs cannot be read. Mr. Srdic disagreed.
Objector's Submissions
- Ms. Teplin said the Objectors have 5 concerns about the Application in opposition to it:
a) personal safety of the neighbours;
b) the loud noise from the amplification system;
c) control of consumption of alcohol;
d) the clean up of the Applicant's land, and adjoining land; and
e) noise emanating from people on the Applicant's land.
- Ms. Teplin continued that while the Objectors would prefer to have the AGCO refuse to issue a licence to the Applicant, if the AGCO does decide to issue a licence, then the Objectors would like the following conditions place on it so that the Objectors could enjoy their homes:
(i) a name of a contact person with a cell phone number should be given to the neighbours so that, in the event of a problem, this person be called to resolve the problem;
(ii) no amplification sound system be permitted on the property;
(iii) Special Occasion Permit groups would be monitored and a person from the Applicant would be designated to be on the property at all times that alcohol may be served;
(iv) clear signage should be place at the foot of the driveway, clearly visible from the road whether the gates are open or closed, indicating in English and the language of the group holding an event, the name and address of the property;
(v) if the park is rented, a person from the Applicant be present;
(vi) there be appropriate disposal of garbage so as not to inconvenience the neighbours; and
(vii) a stop sign be place at the foot of the driveway facing up the driveway so that exiting cars must stop before exiting the Applicant's property on to Guyatt Street.
Applicant's Submissions
Mr. Fedak in his submissions stated that there was little evidence presented by the Objectors about safety issues.
Regarding music amplification, Mr. Fedak said the Applicant wants to cut it out too.
The Applicants do have a janitorial system and garbage receptacles in place.
Mr. Fedak said that with a licence, the controls on the Applicant will be stricter than having Special Occasion Permits obtained by a group using the park renting it from the Applicant.
Mr. Fedak said that the Application indicates only member and guests will be able to use the licensed premises, not the public. The Board notes that Mr. Srdic, in answer to a question on cross-examination, said that the licensed premises would be open to the public.
He added that the Applicant has taken many steps to cut down on the problems. He concluded by saying that there were good suggestions by Ms. Teplin, and their implementation could make for better neighbourhood relations.
A copy of the Application was entered into evidence (Ex 2) with the consent of all the parties.
Reasons for Decision
- Section 6 of the LLA deals with the issue of a liquor licence. Subsection 6(2) of the LLA provides that a licence shall be issued unless 1 of the following 6 exceptions is met. The exception applicable in this case is that:
"(h) the license is not in the public interest having regard to the needs and wisher of the residents of the municipality in which the premises are located."
Having heard the evidence and the submissions of the parties, the Board finds there is no compelling evidence of any serious safety issues, and that the rest of the problems can be addressed through conditions to be attached to the licence, quite a few of which were agreed to by the Applicant at the hearing.
The Board finds that the objectors have failed to meet the onus on them in order that the license not be issued to the Applicant.
We note that the absence of any City of Hamilton officials or a council resolution suggests to us that the police and other municipal authorities do not share the objectors concerns, at least not to the same extent.
The Board therefore ORDERS that a liquor licence be issued to the Applicant subject to the receipt of all municipal compliance letters and licensing requirements, with the following conditions:
no amplification system shall be located in or about the licensed premises;
the name of a contact person who has supervisory responsibility of the licensed premises and his or her cell telephone number shall be given at all times to Ms. Denise Duvall and Ms. Eleanor Teplin. That cellular telephone shall be turned on and be able to receive calls at all times alcohol is permitted to be served in or on the licensed premises;
the Applicant/Licensee shall ensure that there is a responsible person in charge of the licensed premises at all times the premises are open;
subject to any municipal or Highway Traffic Act approvals, a stop sign shall be placed at the end of the Applicant's/Licensee's driveway where it meets Guyatt Road;
a sign or signs clearly identifying the Applicant's/Licensee's name and municipal address shall be place at all times and must be visible, whether the driveway gates are open or closed, to anyone approaching the Applicant's/Licensee's property from Guyatt Road;
alcohol shall only be permitted to be sold in the licensed premises from noon to 9 p.m. on Thursday, Friday, Saturday and Sunday, and all signs of service of alcohol shall be cleared by 9:45 p.m. on those days;
only members of the Applicant/Licensee or their guests shall be permitted in the licensed premises;
subject to any municipal requirements, the outside licensed area shall be fenced and ingress to and egress from the outside licensed area shall be through doors to the inside area;
where the Applicant/Licensee leases or permits a group or gathering to lease or occupy its land and that group or gathering applies for a Special Occasion Permit, then a condition of the Permit shall be that there is a signed agreement between the Applicant/Licensee and the person in charge of the particular group or gathering not to use a sound amplification system, not to leave refuse on the ground or elsewhere other than in refuse containers pre-ordered by the Applicant/Licensee, not to throw refuse over the property line, and not to permit trespass on any neighbour's property; and
where such an event takes place referred to in condition 9 above, the Applicant/Licensee will ensure that its property, especially near all property lines and Guyatt Road, is cleaned up within 24 hours of the completion of the event of such group or gathering.
DATED AT TORONTO THIS 27th DAY OF SEPTEMBER, 2007
DAVID C. GAVSIE, CHAIR OF AGCO ALEX MCCAULEY, CHAIR OF PANEL
DCG/sm