Registrar, Alcohol and Gaming Commission Ontario v. Steve Paul Isowa, 2007 CanLII 47132

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-

Steve Paul Isowa intending to operate as Mantime Saloon Applicant

-and-

Scott Duvall Objector

DECISION

Panel: Allan Higdon, Board Member Brian J. Ford, 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 Steve Paul Isowa, Applicant ) Robert J. Plouffe, Representative Scott Duvall ) on his own behalf and ) on behalf of the Objectors

The Application

1. The Registrar of the Alcohol and Gaming Commission of Ontario ("AGCO") issued Notice of Proposal number 15455 dated July 23, 2007 to review an application for a liquor licence from Steve Paul Isowa, (the “Applicant”), for indoor capacity at MANTIME SALOON, 523 Upper Wellington Street, Hamilton, Ontario, L9A 3P7, establishment number 812719 (the “Premises”). A hearing of the Application was held on September 7, 2007 in the City of Windsor.

Decision

2. After considering all the evidence and submissions the Board APPROVES the Application made by Steve Paul Isowa for indoor capacity at MANTIME SALOON, 523 Upper Wellington Street, Hamilton, Ontario, L9A 3P7, establishment number 812719. Reasons for these findings follow.

Preliminary Matters

3. Ms. Kaplan advised the Board that the Registrar took no position on this matter.

4. Mr. Robert Plouffe noted that the Notice of Proposal indicated that Mr. Isowa applied for a liquor sales licence for a capacity of 24 persons and it is now amended to read a capacity of 19 persons.

5. Mr. Scott Duvall was made a party to the hearing, acting on behalf of the objectors.

6. A copy of a petition was entered as Exhibit 1, and copies of letters of objection were entered as Exhibit 2.

Resident Objectors’ Evidence

7. Mr. Greg Frontain lives approximately one hundred yards from the proposed establishment. He is concerned patrons will be smoking at the back outside the establishment and that this will lead to a noise problem. He is also concerned with traffic coming and going from the establishment noting that it could be a safety problem for children in the area when one considers that the drivers will have consumed alcohol. His daughter will have to walk by the establishment and he is concerned for her safety. The establishment was previously a hair saloon. He had no objection to a barber shop on the Premises, however he objected to liquor being sold. In cross examination, Mr. Frontain admitted the establishment is not open yet and he has not seen anyone smoking outside. He agreed Upper Wellington, where the establishment is located, has a high volume of traffic and there are other bars in the area.

8. Ms. Mary Chantrell lives on the other side of Wellington from the proposed establishment. She stated the area does not need another liquor establishment. Her concerns were additional noise, traffic and parking. During cross-examination, Ms. Chantrell admitted she had not lived close to a similar establishment but felt that people would be on the street smoking and causing noise late at night. Ms. Chantrell agreed there were other licensed establishments, including the Hamilton Police Association Club, in the immediate area. She was not aware of any that combine a barber shop and saloon.

9. Marilyn Hotrum lives one block away from the proposed establishment. She stated the residents did not expect to have a bar at this particular location and that it is out of context for the area. She is opposed to a liquor licence being issued. In cross-examination, Ms. Hotrum agreed there were other licensed establishments in the area. She noted her concern about parking.

10. Mr. Scott Duvall is the municipal councillor for the area. He advised the Board the Applicant had originally applied for a capacity of thirty people and then reduced it to nineteen. The establishment will consist of a saloon and barber shop. He advised the Board that, at present, the Applicant has not met all the municipal requirements and is in the process of applying for a minor variance. The minor variance had been turned down by the Hamilton Committee of Adjustment and that decision is under appeal to the Ontario Municipal Board. The Committee of Adjustment decision was entered as Exhibit 3.

11. He was of the opinion that food could not be served in the establishment as required for a liquor licence. As well, Mr. Duvall worried about the noise that may be generated by the establishment and parking issues. Under cross-examination Mr. Duvall admitted he was not aware that the barber shop and saloon were separate rooms divided by swinging doors. Mr. Duvall agreed that the establishment could open if all of the variances were met. He noted, however, that the Committee of Adjustment found that the establishment of a restaurant in the area was inconsistent with the general intent and purpose of the official plan for the area.

Applicant’s Evidence

12. Steve Isowa is the Applicant and owner of the establishment. Mr. Isowa advised the Board that the front area of the establishment was to be a restaurant serving a light meal menu and alcoholic drinks. There would be no alcohol in the barber shop. At present he does not have a municipal licence for a restaurant and therefore cannot sell food. There are a number of municipal regulations he still must satisfy before a liquor licence can be issued. He also confirmed that there are a number of matters under appeal to the Ontario Municipal Board and the date for the OMB hearing has not been set. Mr. Isowa stated that he would work with the residents of the area to address any concerns they might have.

13. Under cross-examination, Mr. Isowa admitted that he did not contact the City Councillor of the area noting that it was not his duty to do so. He also admitted that he cannot apply for a restaurant licence until all of the variances have been cleared. The Board noted Mr. Isowa had no experience working in or managing an establishment with a liquor licence. He stated he, and any staff hired, will take a Smart Serve course before they open.

Objector’s Submissions

14. Mr. Duval noted the residents’ concerns were primarily that they were unsure of what kind of establishment this will be. He had no objection to a barber shop but does oppose a liquor licence being issued. Mr. Duvall agreed with the witnesses that the location is not the right spot for a saloon. He also noted for the Board that he does not believe the appeal to the OMB will be successful and that a licence should not be issued until the issue is settled.

Applicant’s Submissions

15. Mr. Plouffe noted that the issue is confusing as to the use of the establishment and that everyone has to know that there are two separate businesses are being proposed. One is a barber shop and the other is a restaurant serving liquor. The use of the word "saloon" to describe the establishment has caught the attention of the neighbours. He believes there has been a lack of communication on both sides with regard to the type of business being proposed.

16. Although some residents stated they were afraid of drunks there are four other establishments of much higher capacity serving alcohol in the area. The Applicant is a young person who is trying to enter the business world. He will comply with all regulations and take the Smart Serve course before he opens. Mr. Isowa has to comply with all municipal regulations before a licence can be issued but, once in compliance, there is no reason why a liquor licence cannot be issued.

Reasons & Findings

17. The Board considered the residents’ evidence with respect to their concerns regarding problems with drunks, traffic and parking. These are based on conjecture rather than on fact. All witnesses admitted that Upper Wellington Street is a busy road with a high volume of traffic. The Board notes also that there are other establishments with higher capacities in the immediate area. As Mr. Plouffe submitted, there is no doubt that the use of the term "saloon" has been a cause of the residents’ concern. Mr. Duvall noted the confusion as to what type of business is going to be opened.

18. There was no evidence put before the Board to indicate that allowing this Application, provided all municipal approvals are obtained, would cause hardship or present a danger to residents of this neighbourhood such that it would not be in the public interest. There are other, much larger, licensed establishments in the area. None of those establishments have been a problem or source of the concerns alleged in opposition to the application. There is simply no reliable evidence before the Board to refuse this Application on the ground it would not be in the public interest having regard to the needs and wishes of the residents of the municipality.

Order

19. Therefore, the Board APPROVES the Application made by Steve Paul Isowa for indoor capacity at MANTIME SALOON, 523 Upper Wellington Street, Hamilton, Ontario, L9A 3P7, establishment number 812719 subject to all municipal licensing requirements of the Municipality of Hamilton and the requirements of the LLA..

DATED AT TORONTO THIS 16th DAY OF OCTOBER, 2007

BRIAN J. FORD, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER

BJF/sm