Registrar, Alcohol and Gaming Commission Ontario v. 1710658 Ontario Inc. O/A Escape Café on the River, 2007 CanLII 47120

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-

1710658 Ontario Inc. O/A Escape Café on the River Applicant

-and-

Carmila Duarte Objector

DECISION

Panel: Guy Maurice, Chair of Panel David C. Gavsie, Chair of AGCO

Decision Date: October 17, 2007 Hearing Location: Windsor, 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 1710658 Ontario Inc., Applicant ) Marianna Arpino, Representative Carmila Duarte ) on her own behalf and representing the Objectors

The Application

1A hearing of the Alcohol and Gaming Commission of Ontario ("AGCO") was held in Windsor on September 18, 2007 regarding Notice of Proposal number 15331 to Review an Application for a Licence issued by the Deputy Registrar on June 4, 2007 (the "NOP") in the application made by 1710658 Ontario Inc. (the "Applicant") operating or intending to operate as ESCAPE CAFÉ ON THE RIVER (the "Application") 152 Riverside Drive West, Windsor, Ontario, N9B 1A4 (the "Premises"), establishment number 202849.

Preliminary Matters

2At the outset of the hearing, Registrar's representative advised the Registrar was not taking a position.

[3] Registrar's representative placed into evidence: a) written material (Ex.1) from Objectors including a petition signed by approximately 54 people opposing the issue of a liquor licence to the Applicant; and b) written material (Ex.2) from supporters including a petition signed by over 150 people supporting the issue of a liquor licence to the Applicant.

4On consent, Ms. Carmila Duarte was made a party representing the Objectors.

Decision

5The Board ORDERS that a liquor licence be issued to the Applicant, with the special conditions set out below to be added to the licence.

Evidence

6Ms. Carmial Duarte gave evidence on behalf of the Objectors. She stated that the prior history of the Premises when owned and operated by previous licensees was not good. She acknowledged that the Applicant may have a wonderful family restaurant, but she and the other Objectors are concerned about the neighbourhood and what might happen to it if a licence is granted. The Objectors are further concerned as to what might happen if the principal person of the corporate Applicant, Mr. Chahine, wants to transfer the licence to someone else or to change the present concept for a family restaurant into a bar or nightclub. Ms. Duarte produced a letter from Windsor Police dated January 17, 2006 (Ex.3) expressing concern of having a licensed establishment at 1521 Riverside Drive West.

7Evidence in support of the Application was given by several people. Sister Jane Ducharme lives in a house close to the Premises with 2 other Sisters as tenants. She testified that the property housing the Premises is well kept. She has never heard loud noises. The staff are friendly and kind.

8Also giving evidence in support of the Application was Fred Bruelle who is the manager of an apartment building across the street from the Premises. He described the bad history prior to the current Applicant taking over the Premises. The new owners have been open for about 7 months and were described as "watchful". He described the inside of the Premises as being a very upscale restaurant, not a bar. He also stated that the noise from ships passing in the Detroit River made more noise from the neighbourhood than that coming from the Premises and its parking.

9Barry Rumball, a neighbour, gave evidence in support of the Application. Originally, he had signed the petition opposing it, part of Ex.1. He had opposed it because of the prior history of the Premises when owned by former licensees. He stated that, while he was in support, he would like to see conditions dealing with security outside of the Premises as well. He felt that security cameras outside would resolve any concerns he and a lot of other objectors had. Mr. Rumball stated that he would like to see an early closing condition attached to the licence, if issued, so that the Premises would cease to serve alcohol at 11 p.m. on all nights other than Friday and Saturday, and at midnight on Friday and Saturday.

10Mr. Namir Chahine, the principal of the Applicant. gave evidence. He stated that he had invested about $160,000 to change a dilapidated building into a fine family restaurant. The restaurant opened on February 3, 2007. He has a security plan and has been dealing with the concerns of the neighbours. He placed into evidence a letter from the Windsor Police dated September 7, 2007 (Ex.4) indicating no concerns or objections to the Application, but making some suggestions to minimize possible problems. Mr. Chahine said the closing hours suggested by Mr. Rumball were fine with him. He described his patrons as families with parents in their 50's, The Premises are not a place for teens to hang out. Mr. Chahine placed into evidence a hand drawn location map of the area (Ex.5).

11Previously, Mr. Chahine had obtained special occasion permits ("SOP's) for various events, and he never had any problems. Under the SOP's, sometimes he served alcohol until 2 a.m.

12He has put a waiting room inside the building so that there will not be a line-up outside. He stated that he will have 1 employee in the parking lot and he will post signs inside the Premises near the exit asking patrons to respect the neighbours and the neighbourhood.

13Jacquie Brunetto, the landlord of the Premises, gave evidence in support of the application. She stated that, given the bad history of the Premises in the hands of previous tenants, she was careful who she leased the Premises to. It is now a family restaurant. Her own family enjoys it.

14She stated she understood where the Objectors were coming from, but she said this is a good place.

Submissions

15Ms. Duarte said the Objectors do not want a liquor licence back in the neighbourhood. Everyone has spent money fixing up their property. This neighbourhood is not a place for a licensed establishment. The location of the Premises is in the middle of a residential area with no other commercial establishments.

16However, if a licence is granted, there should be conditions regarding sufficient security being in place, early ceasing to sell alcohol, security cameras in place in the front and back of the premises with tapes being kept for a minimum of a week.

17In her submissions on behalf of the Applicant, Ms. Arpino stated the Objectors are basing their fear on what happened in the past. The evidence showed that the Applicant is quite different. Immediate neighbours who came to the hearing support the Application. In addition, there is the recent letter from Windsor Police (Ex.4) indicating no concerns or objections with the Application.

18Any complaints raised by the Objectors are hypothetical. As for the future possibility of a sale of the Premises and liquor licence, that is also hypothetical and should not be taken into account when assessing public interest.

19Ms. Arpino also said that the earlier letter from Windsor Police (Ex.3) was addressed to a municipal committee of adjustments for some other purpose and had nothing to do with the Application.

Reasons and Conditions

20Subsection 6(2) of the Liquor Licence Act ("LLA") provides:

"6(2)…, an applicant is entitled to be issued a licence to sell liquor except if,"

21There follows a number of exceptions. The exception relevant to this case is found in subparagraph (h) which reads:

"the licence is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located."

22The onus for establishing that the exception applies and that a licence should not be issued falls on those objecting because subparagraph (h) is an exception to the preamble of subsection 6(2) which provides entitlement to a licence.

23Evidence of past problems at the same location while a licence had been issued to a previous person or licensee does not establish that the Applicant should not be granted a licence. Similarly, conjecture about might happen by means of a future sale or transfer of the licence or the Premises by the Applicant does not give grounds for refusing the Applicant a licence.

24Based on the evidence, the Board has determined that the Applicant has invested a significant amount of money to make the inside and outside of the Premises very respectable, that a fine family restaurant business is being conducted in the Premises and has been since it opened in February, 2007.

Order

25During the evidence and submissions, it was made clear to that if conditions dealing with security, outside lighting, early ceasing of sale of alcohol and the posting of signs to respect the neighbours and neighbourhood were placed on the licence, this would satisfy a substantial number of those objecting to the issue of the licence. Based on the evidence, the Board DECLINES to make a finding that the Objectors have proven that it is not in the public interest for the issue of a licence to the Applicant, as is required by paragraph 6(2)(h) under the LLA.

26Therefore, in approving the Application, the Board ORDERS that the following conditions be placed on the licence:

1. the serving of alcohol cease at 11 p.m. on Monday through Thursday nights and at 11:59 p.m. on Friday and Saturday nights, and that all signs of service of alcohol be removed by 45 minutes thereafter;
2. a security person be located in such a way outside the Premises to oversee parking by patrons and to ensure there are no issues caused by patrons of the Applicant/Licensee who park vehicles in a parking lot at or near the Premises;
3. adequate lighting be in place in any parking lot used by patrons of the Premises, but not to cause nuisance glare to any other neighbouring property;
4. the building in which the Premises are located be illuminated appropriately in such a way so as not to cause any nuisance glare to any neighbouring property; and
5. signs be posted inside and outside any door by which patrons enter or leave the Premises asking patrons to respect the residential nature of the neighbourhood and keep the noise level to a minimum.

DATED AT TORONTO THIS 17th DAY OF OCTOBER, 2007