Registrar, Alcohol and Gaming Commission Ontario v. 1619303 Ontario Inc. O/A Sheila’s Place, 2007 CanLII 47091

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

Registrar, Alcohol and Gaming Commission Ontario Registrar

-and-

1619303 Ontario Inc. O/A Sheila’s Place Applicant

DECISION

Panel: Eleanor Meslin, Board Member S. Grace Kerr, Board Member

Decision Date: October 16, 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 Toll Free in Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Bryna Kaplan, Representative 1619303 Ontario Inc., Applicant ) Robert J. Plouffe, Representative

The Application

The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 15472 dated July 23, 2007 to review an application from 1619303 Ontario Inc., the (the “Applicant”), for additional indoor and outdoor areas at Sheila’s Place, 457 King Street East, Hamilton, Ontario, L8N 1C7 (the “Premises”), licence number 40784. A hearing of the Application was held on September 6, 2007 in the City of Hamilton.

Decision

After considering all of the evidence and submissions, the Board APPROVES the Application. Reasons follow.

Preliminary Matters

The Board delayed the commencement of the hearing by 15 minutes to allow a representative of the City of Hamilton to arrive. No one from the City appeared.
Ms. Bryna Kaplan appeared on behalf of the Registrar. She filed a letter of objection sent by the City of Hamilton, dated May 18, 2007 (with Minutes of City Council Meeting, dated May 16, 2007, attached). This document was made Exhibit 1.
The Registrar took no position with respect to this application.
Mr. Mario Polsinnelli, who had not submitted a Notice of Objection with the AGCO’s office, attended the hearing and sought the Board’s permission to make his objections known. With the consent of counsel for the Applicant, the Registrar taking no position on this request, the Board allowed Mr. Polsinnelli to testify.
The principal of the corporate applicant, Ms. Udine Anglin, also gave evidence at this hearing.

Evidence & Reasons

At issue in this hearing is whether granting this application for additional licensed areas is in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises are located. The onus rests with the Objectors to convince the Board.
In Exhibit 1, the City of Hamilton’s Municipal Council passed a motion objecting to the application on the grounds that “it will be negative to an already fragile neighbourhood”. No other specifics or details were provided nor did anyone from Council appear to provide such evidence to the Board.
In his evidence, Mr. Polsinnelli spoke of a situation, which occurred about two weeks before the hearing, where some people, who were standing right in front of Sheila’s Place and whom (he thought) were inebriated, spoke to him rudely and encircled him, not allowing him to pass. He felt intimidated by this behaviour and was concerned that he should not be allowed to walk the sidewalk freely.
In cross-examination, he acknowledged that he had not seen these particular people come out of the applicant’s establishment.
Ms. Udine, in her evidence on behalf of the corporate Applicant, indicated that her hours of business are from 9:00 a.m. until 11:00 p.m., six days per week. She describes her business as a ‘restaurant’ and not a ‘bar’; she states that she will operate the same type of facility if granted the additional licensed space she is seeking. Ms. Udine testified that she has applied for increased capacity because, after working hard at building her business for the past four years, sales are increasing. Also she indicated that her business has never received any complaints, nor has it ever been charged by police since her business has been in operation.
Ms. Udine testified that no member of Hamilton’s City Council (nor her local municipal representative, in particular) has come to speak to her about any concerns. Mr. Polsinnelli did not speak with her about the incident described in paragraph 11 above.
The City of Hamilton has raised a non-specific and generalized potential ‘negative’ impact if licensed spaces were added to a going-concern establishment in a neighbourhood that the City Council’s resolution describes as ‘fragile’. The Board cannot give any weight to this allegation when, in fact, the evidence before the Board indicates the contrary: that the Applicant small business is one that has never been charged with an offence or received any complaints, and that it is both thriving and growing. These are all, presumably, good things for the neighbourhood.
Furthermore, while the City had the time, the opportunity, and the resources to have a representative attend at the hearing to provide the particulars of its concerns, it either chose not or neglected to do so, despite having been properly served with notice of the hearing date by the AGCO’s office.
As regards Mr. Polsinnelli’s evidence, which the Board appreciated receiving, it notes that none of his concerns are or can be related directly to this application, nor to the manner in which the additional licensed space sought would be operated by this particular licensed establishment.
The Board accepts the evidence in support of the application indicating that this establishment has been operated in a manner conducive to the best interests of the public as well as the needs and wishes of the neighbourhood’s residents since its inception. It also finds that the Applicant is likely to continue to be run its business in the future in a similar fashion if granted the additional licensed space it has requested.
Given the circumstances of this case and the evidence adduced, the Board finds that the objectors have failed to meet their onus that it would not be in the public interest to grant this licence having regard to the needs and wishes of the residents.

Order

Therefore, and for the above reasons, the Board APPROVES the Application for a liquor licence for additional licensed areas from 1619303 Ontario Inc., operating as Sheila’s Place, 457 King Street East, Hamilton, Ontario, L8N 1C7, licence number 40784.

DATED AT TORONTO THIS 16th DAY OF OCTOBER, 2007.

S. GRACE KERR, BOARD MEMBER ELEANOR MESLIN. BOARD MEMBER

SGK/sm