Registrar, Alcohol and Gaming Commission Ontario v. Robert Sexton Allen, 2007 CanLII 47086

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-

Robert Sexton Allen intending to operate Pierside Pub Applicant

-and-

Municipality of Central Elgin Intervener

-and –

Rita Veel and Dawn Bossenberry Objector

DECISION

Panel: Kirsti Hunt, Vice-Chair S. Grace Kerr, Board Member

Decision Date: October 24, 2007

Hearing Location: Port Stanley, 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 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Brad Alton, Representative Robert Sexton Allen, Applicant ) Lisa Gunn, Representative Municipality of Central Elgin ) Stephen Gibson, Representative Rita Veel and Dawn Bossenberry ) on behalf of the Objectors

The Application

1. A hearing into a Notice of Proposal number 15473 dated July 31, 2007, to review an application by Robert Sexton Allen for a liquor sales licence for the PIERSIDE PUB, 158 William Street, Port Stanley, Ontario, N5L 1E4, establishment number 805472 was held on September 12, 2007 in the village of Port Stanley.

Decision

2. After considering all the evidence and submissions, the Board APPROVES the application on the condition set out below. Reasons for this finding follow.

Preliminary Matters

3. Brad Alton appeared on behalf of the Registrar. He advised that the Registrar took no position on the public interest aspects of the hearing and that he would act as facilitator for the parties.

4. Mr. Alton advised that no letters of objection were received from the general public.

5. On consent of all parties, the Board initially granted Mrs. Rita Veel party status on behalf of the resident objectors. Following an afternoon recess when Mrs. Veel needed to leave, and again, with the consent of all parties, Ms. Dawn Bossenberry was also made a party on behalf of the resident objectors.

6. Mr. Stephen Gibson sought party status on behalf of the Corporation of the Municipality of Central Elgin, which includes the Village of Port Stanley, (“the Corporation”) which the Board granted on consent of all parties. Prior to the hearing, the Corporation had submitted a letter of ‘concern’ to the Registrar as regards the application. The Board ruled that such letters are ‘objections’ and, thus, that the Notice of Proposal had properly issued. The 7.

Corporation indicated that, in that case, it was satisfied that the application be granted with the condition that had been proposed by the Registrar prior to the hearing.

7. Ms. Gunn advised that the Applicant was not objecting to attaching the below-described condition (see paragraph 9) to the licence.

8. Mr. Alton filed a Resolution of the Corporation of the Municipality of Central Elgin, with letters to the Alcohol and Gaming Commission of Ontario (“AGCO”) dated June 28, 2007 and June 1, 2007, attached. This document was made Exhibit 1 on consent of all parties.

9. Conditions of Approval regarding Liquor Licence No. 805472, Robert Seaton (sic) Allen (only), the Applicant, were made Exhibit 2 on consent of all parties. The proposed condition reads as follows:

That Brad Donald Allen and Jacqueline Amber Allen shall have no involvement with the operation of this establishment as an owner, an officer, director, shareholder and manager or staff member, or be allowed on the premises.

Resident Objectors’ Evidence

10. Five resident objectors gave evidence. The resident objectors advised that they were not satisfied with the liquor licence issuing subject to the condition proposed by the Registrar and the Applicant.

11. Exhibit 3, which was provided by the Corporation, was entered into evidence on consent of all parties. This Exhibit was marked in two parts: Exhibit 3A is a mapping of the area (and the subject lands in particular); Exhibit 3B is a zoning map. The resident objectors’ residences (in relation to the subject lands) were marked on this Exhibit.

12. Ms. Suzan Roy lives a few doors from the Applicant premises. She expressed concerns about noise, rowdiness and bar fights that kept her awake into the late of the night and disrupted her enjoyment of her property. These problems occurred in the several years when the Applicant premises were operated by the current Applicant’s son and daughter-in-law, Brad and Jacqueline Allen. However, as she had seen the Applicant on site on numerous occasions in 2006, she was worried that the operation was not going to change as she believed that the establishment had essentially been run by him in the past.

13. On cross-examination, Ms. Roy acknowledged that Mr. Allen, the Applicant, attended in the mornings and afternoons, and that her stated concerns did not occur during those hours. She also agreed that she has called the police with noise complaints on two occasions with respect to another bar located on the same street.

14. Ms. Roy asked the Board to consider imposing the following conditions, in addition to the one described in paragraph 9 above, to the licence:

a) That there be no amplified noise on the establishment’s patio after 7:00 p.m.; and

b) That the establishment’s windows and doors be closed from 7:00 p.m. onwards.

16. Ms. Dawn Bossenberry has lived close to the subject establishment for about 10 years. In contrast to the past 5-6 years, the last one (i.e. 2007) has been most enjoyable since there was no noise. In contrast to other bars/establishments in the area, she doesn’t understand why (previously) the music had to be so loud and to continue so late as to require her to keep her windows and blinds closed and to turn on their central air conditioning unit in order to hear her television or go to sleep.

17. Ms. Bossenberry stated that she does not have a concern so much with the new Applicant taking over the establishment. She asked the Board to consider imposing the same two conditions suggested by Ms. Roy, but asks that the ‘no amplified music’ condition apply to both the inside and outside areas.

18. Mrs. Rita Veel opined that the establishment has a history of not being a good neighbour or corporate resident of Port Stanley. More specifically, she said that until this past year when the establishment was not operating the noise from it has been ‘incredible’ and that its patrons were disrespectful, rude, and rowdy. Ms. Veel’s second concern is safety-related, that is, that beer bottles could be dropped on pedestrians walking underneath the establishment’s second floor balcony; as a result of this fear, she crosses to walk on the other side of the street if she needs to walk past the establishment. (Exhibit 4, a sketch from a 2004 site plan agreement when the second floor was added, was introduced to show where the balcony subject to Mrs. Veel’s concern is located relative to the street. By accepting this Exhibit, the Board notes that there is no implication that the establishment breached this agreement.) Mrs. Veel is asking for a condition that the establishment patrons who use the second floor balcony be required to use soft plastic cups. On cross-examination, Mrs. Veel acknowledged that she has not been hit by glass when walking past this establishment.

19. Ms. Valerie Miller, who lives next door to the establishment, reiterated the resident objectors’ concern regarding the noise emanating from the establishment which, she testified, occurred during the time when the former licence holder, Brad Allen, ran it. She described the noise as “terrible, just terrible” and that it required her to close her windows, gave her trouble sleeping, and forced her to move her TV to the other side of the room in order to hear it. As she had purchased her place anticipating that there would be ‘some noise’, Ms. Miller had not complained to the Corporation about the noise in the past because she understood that “others” had complained to them, seeking enforcement of the Municipality’s noise bylaws. One time she complained directly to the establishment’s former owners about a speaker being turned on, and it was turned off immediately. Ms. Miller does not believe that Mr. Robert Allen should be “held accountable for his son’s mistakes”.

20. On cross-examination, Ms. Miller testified that she has never seen any bottles dropping from the establishment’s second floor balcony. She believed that Mr. Robert Allen, as new owner, would comply with the municipal noise bylaws. She acknowledged that she is not familiar with the contents of the noise bylaws.

21. Mr. Ben Veel, the final witness for the resident objectors, confirmed the safety-related concerns raised by his wife, Rita, and stated that “prevention” of injury or accident was the issue to him.

Corporation of the County of Elgin’s Evidence

22. Mr. Donald Leitch, who is the Chief Administrative Officer of the Corporation, gave evidence on its behalf, detailing the background to the Corporation’s ‘concerns’ as follows.

23. Pierside Pub Inc. is the registered owner of the subject lands as confirmed by a title search (see Tab 7A in Exhibit 5. The officers and directors of Pierside Pub Inc., are Brad Allen and Jacqueline Allen (see Tab 7B in Exhibit 5. Until the subject application was made, the Corporation dealt with Brad Allen and Jacqueline Allen as the operators of The Pierside Pub and understood that the liquor licence was held by them. Over the years that Brad Allen and Jacqueline Allen were the business’s operators, the Corporation received various noise complaints from neighbouring properties (see Tabs 2B and 4 of Exhibit 5. As a result of these concerns and some police reports it had received, the Corporation gave direction to the (local) OPP that it was prepared to proceed with charges against Brad Allen, Jacqueline Allen and the corporate owner of the subject lands and business in Provincial Offences Court and did, in fact, do so. (Tabs 5C through 5G of Exhibit V detail the charges brought and their outcomes.) None of the convictions or resulting Prohibition Orders involve Mr. Robert Allen.

24. More specifically, the Corporation expressed ‘concerns’, as extracted from the Corporation’s letter to the AGCO dated June 1, 2007 (see Exhibit 1), that:

25. “the Municipality of Central Elgin has received neighbour complaints as to activities at the Pierside Pub, in particular relating to noise”, which resulted in a series of charges alleging violation of the municipalities’ noise bylaws being laid against Brad Allen and Jacqueline Allen, as managers and persons in charge of the establishment at relevant times;

26. “Brad Allen has made no payment of fines in respect of his personal convictions for Noise By-Law violations” and is “now subject to both a Probation Order pursuant to the Provincial Offences Act in respect of the most recent conviction and two (2) Prohibition Orders against continued or repeated offences contrary to the Noise By-law ;

27. “Jacqueline Allen has not made payment of the one (1) fine levied as against her” and that “she is subject to both a probation Order and Prohibition Order similar to that made as against Brad Allen”;

28. Pierside Pub Inc. (owned by Brad Allen and Jacqueline Allen) is subject to a Prohibition Order”;

29. “…Brad Allen, Jacqueline Allen, and the Pierside Pub Inc. have also been convicted of multiple charges pursuant to the Liquor License Act”…(and believes) “that levied fines for such convictions are outstanding”;

30. “Brad Allen is currently charged with offences contrary to the Controlled Drugs and Substances Act in respect of activities at the Pierside Pub Inc.”;

31. “given the history and nature of violations and non-compliance at the subject location, (the Corporation) and its council are very concerned as to activities therein and, more particularly, the apparent inability of the corporate entity and its managers to adequately control behaviour of its patrons”; and,

32. “as the summer approaches, (the Corporation) seeks to avoid any further incidents of non-compliance which would interfere with the rights of its other rate payers to full enjoyment of their properties.”

33. In May, 2007, the Corporation received notice from Mr. Robert Allen regarding his intention to apply for a new liquor licence (see Tab 1 of Exhibit 5). The matter was added the Corporation’s May 14, 2007 council meeting as an agenda item, and resulted in a resolution by the Corporation to send a letter to the AGCO expressing its concerns (that is, the June 1st, 2007 letter, above).

34. Thereafter, Mr. Allen requested an opportunity to speak to council and was scheduled to do so at its June 18, 2007 meeting. Following that meeting, a further resolution was passed by council and resulted in the Corporation’s second letter to the AGCO (appended to Exhibit 1 and dated June 28, 2007), expressing the following or further concerns, that:

35. “the municipal concerns as reflected in (Mr. Leitch’s) previous letter of June 1, 2007 remain unresolved. Indeed, the Municipality’s concerns have been heightened in light of vagueness associated with the business plan disclosed by the proponent to Council”; and,

36. “the proponent licensee has delivered communications to administration complaining as to alleged unfair treatment by the Municipality resulting in corporate and personal financial loss and, perhaps more significantly, implying the representatives of the Commission have suggested that municipal concerns were or should be resolved on the basis of a simple change in management personnel at the Pierside Pub”.

37. This letter ends by asking the AGCO and its Registrar to account for the Municipality’s unresolved concerns with consideration of the application of the proponent for any licence to sell liquor.

38. On consent, a ‘Production Brief’ (“the Brief”), compiled for the Corporation, was made Exhibit 5. Tab 3A of the Brief contains the Corporation’s noise bylaw (amended at Tab 3B). The noise bylaw controls noise levels based on the zoning designation of where the person lives who is hearing the sound, not from its source. The zoning classifications are ‘quiet’, ‘residential’, ‘open-space’ and ‘business’. Amplified sound is prohibited ‘at all times’ with respect to ‘quiet’ zones; between the hours of 7:00 p.m. – 7:00 a.m. with respect to ‘residential’ and ‘open-space’ areas; and between the hours of midnight – 9:00 a.m. with respect to ‘business’ areas. Ms. Roy and Ms. Miller live in areas zoned ‘business’, Mr. and Mrs. Veel in an area zoned ‘open space’, and Ms. Bossenberry in an area zoned ‘residential’.

39. On cross-examination by Ms. Gunn, Mr. Leitch stated that the Corporation does not object to the issuance of a liquor licence to Mr. Robert Allen, subject to the condition (as is ordered and set out) below. Rather, its ‘concerns’ relate primarily to historical ‘noise’ complaints with respect to the establishment, that is, with respect to the previous managers and owners of the subject lands, and it wants the AGCO to be aware of those concerns and to take them into consideration in the application by Mr. Robert Allen. He further confirmed that there is nothing to indicate to the Corporation that Mr. Robert Allen was the cause of the noise violations, that he was there when they arose, or that he is an officer or director of the corporation, Pierside Pub Inc. He understands that Mr. Allen is a second mortgagee who has gone into possession of the subject lands and is attempting to build the business up (and is applying for a licence as part of that process), but is concerned whether Mr. Allen will operate the business any differently than Brad Allen and Jacqueline Allen. He stated that the Corporation was aware from early July, 2007 that Mr. Robert Allen was suggesting that the Corporation’s concerns be addressed by adding the condition (as ordered below) to the liquor licence.

40. On cross-examination, Mr. Leitch also acknowledged that the Corporation has received noise complaints about other licensed establishments in the Village of Port Stanley, that noise violations are addressed by the Corporation’s bylaws (as enforced by bylaw officers with the assistance of the OPP). Also, the Corporation is not suggesting special rules or any special noise conditions with respect to the establishment Mr. Robert Allen is proposing to operate.

41. Mr. Leitch testified that the Corporation is not seeking a condition that the licence holder use soft plastic cups as it is not aware of any of the concerns raised by the resident objectors or any incidents involving the dropping of beer bottles off of the establishment’s second floor balcony.

Applicant’s Evidence

32. Mr. Robert Allen testified that he is a second mortgagee in possession of the subject lands. He stepped into the business and is trying to make a go of it because his son, Brad Allen, and daughter-in-law, Jacqueline Allen defaulted on a total of about $120,000 - $122,000 of his savings that he had advanced to the business, Pierside Pub Inc., and had secured against the lands it owns. (This sum includes money that he advanced to save Ms. Allen’s mother’s home from being taken from her, as she had also advanced monies to her son-in-law’s and daughter’s business.)

33. If granted a liquor licence, Mr. Allen intends to focus on the establishment’s kitchen, and more generally, to have it function as a type of neighbourhood sports bar, like a “Bernie’s Roadhouse” or “Casey’s” type restaurant/bar. He agrees that in the past the business suffered from noise issues, resulting in convictions under municipal noise bylaws. He hopes to change the ‘stigma’ that has attached to the business. He testified that he is familiar with the noise bylaws, will have the business abide by them, and will generally act as a good business citizen.

34. Mr. Allen had retired after working for 34 years in various managerial and responsible capacities with Suncor, which included buying and running various businesses for his employer. Since Mr. Allen has no experience in the food services industry, he intends to hire someone with experience in it to help him run the business and hire its staff.

35. On cross-examination by Mr. Gibson, Mr. Allen stated that he advanced monies to his son and daughter-in-law for their business over a 2-3 year period, starting in 2003. Mr. Allen testified that, during that time, he was not involved with the business in any way because his son seemed “to know where he was going” with it. On November 11, 2005, however, his lawyer registered a second mortgage for those monies because Mr. Allen was “getting nervous” about his loan. Mr. Allen testified that he didn’t know exactly when things started to go wrong with the business, but in the latter years of their business, he became aware that his son and daughter-in-law were experiencing domestic difficulties, that his son has spent “too much money” on renovations for and expansion of the business, and that (according to Mr. Allen) two charges (which he believed were “minor in nature”) had been laid for noise violations.

36. About the same time as the second mortgage in his favour was registered, Mr. Allen testified that he thought he needed to become more involved with the business and that by doing so he “could get them (i.e. his son and daughter-in-law and their business) back on the straight and narrow”. His involvement was during “day hours” and included doing such things as keeping change in the till, paying the business’s bills as well as its staff, and ensuring the business was properly stocked. Mr. Allen told the Board that his son “lied to him” about all of the noise bylaw convictions (and their seriousness) and other matters related to the business. By the fall of 2006 the business had hit bottom and closed.

37. Mr. Allen confirmed that as second mortgagee in possession he has not foreclosed his son and daughter-in-law’s interest in the corporation, Pierside Pub Inc., such that they could regain possession by paying up the second mortgage; however, he believes the chances of their doing so are a small possibility at best.

38. Mr. Allen agrees that the condition sought by the Registrar should be imposed, but he does not agree that his business should be singled out with a(n) (additional) noise restriction condition. He asks that he be judged on his own character, and not that of his son or daughter-in-law. In approaching the Corporation with his plans, by proposing to meet with its Council, and in offering that a condition be imposed on his licence to address their concerns regarding the business’s prior owners, he was trying “to do it right”, although he “knew it wouldn’t be easy” because his son and daughter-in-law had “screwed up”. In answer to questions as to what he would do if his son or daughter-in-law were to show up at the business or to seek to re-possess it from him), he said that he would either simply not allow them on the premises and call the authorities to remove them, if necessary, in the first instance, or would cease his business operations in the latter.

Resident Objectors’ Submissions

39. The resident objectors ask that Mr. Allen take their noise and safety concerns into consideration, and that he abide by the municipalities’ noise bylaws. By the end of the hearing, they acknowledged that some of their concerns might be of a “guilt by association” nature, and that they were ready to give Mr. Allen the benefit of the doubt. Their continuing concern, however, is that if Mr. Allen’s son and daughter-in-law were to regain possession of the property then, they fear, history would “repeat itself”.

40. The resident objectors agree that the Registrar’s proposed condition be attached to the licence.

Corporation of the County of Elgin’s Submissions

41. Mr. Gibson re-iterated the Corporation’s concerns relating to the prior owner’s multiple noise violations and asked that the Board take that history into consideration in making its decision. The Corporation’s further concern is that Mr. Allen, as second mortgagee in possession, has not precluded his son and daughter-in-law from re-establishing possession in the future, even if that is a distant possibility.

42. The Corporation is not asking that more conditions be imposed on the licence than the one proposed by the Registrar as it does not want to create noise-related time constraints that are inconsistent with municipal bylaw restrictions, with which Mr. Allen must comply in any event.

Applicant’s Submissions

43. Ms. Gunn submits that no one is objecting to a licence being issued to the Applicant, thus one must issue, subject to the one condition agreed upon by all parties. She argues that the resident objectors’ concerns relate to a time when Mr. Allen’s son and daughter-in-law ran the business, urged that the condition her client agrees to would alleviate those concerns, and indicated that there was no evidence that Mr. Allen was involved in the business in any way when the complaints and concerns arose. Mr. Allen is someone, she submits, who is used to following rules, knows what is required to run a business, and should not have his son’s ‘sins’ imposed upon him.

44. Ms. Gunn agrees that a further condition imposing noise amplification time constraints would be redundant to existing municipal noise bylaws, particularly when the evidence before the Board is that the bylaw officers (and police) have been instructed by the Corporation to enforce those bylaws. She further submits that the evidence does not support the imposition of a condition requiring the use of soft plastic cups.

Reply

45. Mr. Alton, on behalf of the Registrar, advised the Board that the liquor licence for Pierside Pub Inc. was revoked by the Registrar on May 28, 2007.

Reasons

46. At issue in this hearing is whether granting this application for a liquor licence is in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located.

47. In making its decision, the Board notes that Mr. Allen has a responsible, respectable and long-standing work history which he will bring to the business he is endeavouring to build, and that he has reasonable plans to deal with his newness to the food service/bar industry.

48. The concerns raised by the objectors to this Application, while numerous and serious, are historical in nature and relate to the business’s operations by its prior owners, Mr. Allen’s son and daughter-in-law, in which Mr. Allen was not involved. Neither could Mr. Allen have reasonably been expected to have known about or acted to deal with those concerns. And, while the Board does not doubt the apprehensions expressed by the objectors were genuine, the Board cannot make its decision using the past history of a previous owner to conjecture and speculate as to the business’s future under a different, new owner. In other words, none of the concerns raised in the objectors’ evidence relate directly to this Application, or the manner in which this establishment will be operated.

49. Rather, Mr. Allen now finds himself in a position where he is trying to, in essence, make the best of a bad situation; he is trying to salvage his investment, and rebuild a business as well as its reputation. The Board accepts the Applicant’s evidence that he will plans to re-establish the business as a neighbourhood restaurant and that he is likely to run it respectfully and responsibly and in compliance with all municipal (and other) laws.

50. To address the historical concerns, the Applicant offered that a condition attach to his liquor licence that would preclude his son and daughter-in-law from having any involvement with his (new) business operation in any way and/or from attending at the premises. The Board accepts Mr. Allen’s testimony that he will comply with this condition.

51. The Board does not believe that more conditions should be imposed on the licence than the one that had been proposed by the Registrar. On the facts of this case, noise-related time constraints are unnecessary; they are also inconsistent with the municipal bylaw restrictions with which, the evidence confirms, he is likely to comply. Furthermore, no specific documented incidents support the imposition of a condition so as to require the Applicant’s patrons to use of soft plastic cups while on the second floor balcony.

Conclusion

52. Given the circumstances of this case and the evidence adduced, the Board finds that the objectors have failed to meet the onus on them that it would not be in the public interest to grant this licence having regard to the needs and wishes of the residents.

Order

53. For the above reasons the Board APPROVES the Application for liquor licence made by Robert Sexton Allen for a liquor sales licence at PIERSIDE PUB, 158 William Street, Port Stanley, Ontario, N5L 1E4, establishment number 805472.

54. The Board ORDERS that the following condition be attached to the licence:

Brad Donald Allen and Jacqueline Amber Allen shall have no involvement with the operation of this establishment as an owner, an officer, director, shareholder and manager or staff member, or be allowed on the premises.

DATED AT TORONTO THIS 24th DAY OF OCTOBER, 2007.

S. GRACE KERR, BOARD MEMBER KIRSTI HUNT, VICE-CHAIR

SGK/sm