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-
Jian Wang O/A Café Dong Phuong Restaurant Applicant
-and –
Sylvia Fernandez Resident Objector
DECISION
Panel: Eleanor Meslin, Board Member Beryl Ford, Board Member
Decision Date: December 20, 2007
Hearing Location: Toronto, 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 ) Richard Kulis, Representative Jian Wang, Applicant ) Yin Lu, Representative Sylvia Fernandez ) On her own behalf and on behalf of ) the Resident Objectors
The Application
- The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal 15669, dated September 26, 2007, to review an application for additional licensed area for liquor licence number 202916 issued to Jian Wang (the “Applicant”) operating as CAFÉ DONG PHUONG RESTAURANT, 1532 Dundas Street West, Toronto, Ontario, M6K 1T5 (the “Premises”). The Application was heard on November 26, 2007 in the City of Toronto.
Decision
- After considering all the evidence and submissions, the Board REFUSES to the Application. Reasons follow.
Preliminary Matters
The Applicant was represented by her son, Yin Lu, who also acted as translator. The Applicant waived her right to be represented by a licensed representative.
Ms. Sylvia Fernandez, an objector to the Application, was made a party to the proceedings on consent. She represented the other resident objectors in the hearing.
Mr. Kulis advised the Board that the Registrar did not take a position on the Application. A package of objection letters was made Exhibit 1.
Objectors’ Evidence
Mr. Tony Rainho owns and runs a business operating from the property next door to the Applicant. On a daily basis he hears profanity and observes drug and alcohol use from patrons of the Applicant. Fights often spill out onto the street from the Premises. Patrons are seen exiting the back door of the Premises to urinate. Groups of people often congregate in front of the entrance to buy and sell drugs, which he has observed from the cameras, front and back, which he installed.
There are 3 or 4 tables and a pool table inside, but Mr. Rainho has never seen any food being served. The outside of the Premises is in a very bad state of repair, including graffiti on the walls.
He believes that allowing a licensed patio would not benefit the community and would only increase the street problems.
On cross-examination, Mr. Rainho admitted that he had not been inside the Premises since sending his Objector letter. He agreed that the problems were partly the fault of the previous owner, but that the same people were still attending the bar, each day. Since the objections were made, things have quieted down.
Mr. Rainho did not agree that a patio would help control activity in front of the Premises. He believed it would encourage and facilitate the illegal activity.
In response to Ms. Fernandez’s questions regarding changes made by the new owners, Mr. Rainho replied that the interior was still dimly lit, the clientele is the same and, therefore, would not attract a normal type of clientele to the establishment.
Mr. Lubomir Brezina lives in the neighbourhood and regularly walks by the Premises. He always sees unpleasant-looking people loitering in front of the Premises, although illegal activities have calmed down, lately.
On cross-examination, Mr. Brezina admitted he had not been there recently. As an architect he has noticed no changes to the building and was not aware that the Licensee had applied to the City of Toronto for a renovation licence.
Mr. Brezina agreed that, since a meeting in August with the new owners, the place has been quieter.
In response to Ms. Fernandez’s questions, he indicated that the façade could be made more attractive, but he would still not be comfortable going into the bar, with the present clientele.
Mr. Joao Merli has a number of customers in the area and walks by the bar, often. He has never been inside. The patrons he sees go into the bar are not the normal type of clientele. They appear unruly and unkempt.
On cross-examination, Mr. Merli testified that over the past one to two years he had seen the same types of people outside, nothing has changed. He has seen no improvements to the outside since the new owners took over although, since the meeting in August, it seems to be quieter.
In response to Ms. Fernandez’s questions, Mr. Merli agreed that other bars in the area were different: people were well dressed, eating and talking, while those at this bar did not look or act like those at other bars.
Ms. Sylvia Fernandez operates a business across the street from the Premises. She observed that the people always in front of the establishment are not neighbourhood people and are there all day. Other restaurants and bars in the vicinity are full of residents of the neighbourhood.
She often sees fights and people yelling at each other in front of the Premises. There is graffiti on the walls and the windows are dark and dirty. There are panhandlers in front and she has seen people led away, in handcuffs. She has seen cars drive up to the front and people run into the establishment and out again in a few minutes and then drive off. They were not inside long enough to order anything.
Ms. Fernandez admitted it has been quieter since August, but believes it was due to the Toronto Transit Commission construction in the area.
She observed that the window blinds are broken, the graffiti remains and believes the addition of a pool table is not a welcoming sign for families.
In answer to questions on cross-examination, Ms. Fernandez stated that addicts and panhandlers were still congregating in front of the Premises and that other area bars control their clientele. The new owners should turn undesirables away. She has never seen the Applicant outside trying to disperse those people.
She believes that a patio would legitimize the bad behaviour. It would allow those people to sit on the patio to do their business.
At the meeting in August, people agreed to help the new owners, if asked. But she was never contacted. There are still no improvements to the front, the windows are still dirty and the broken blinds have not been repaired.
Applicant’s Evidence
Mr. Yin Lu is the Applicant’s son. He testified that his mother is trying to fix up the Premises. She has repaired damaged mirrors and added a television. She refuses to serve unruly patrons.
The Applicant feels a patio would help control smoking on the street and help the neighbourhood. She feels that she needs the patio to be able to compete with the other patios.
The Applicant believes the problems were caused by the previous owner and that many of their bad customers do not come anymore.
To Ms. Fernandez’s cross-examination questions, Mr. Lu stated that the Premises were closed for the month of October, which could account for the area being quieter.
Mr. Lu testified that the reason there were no physical changes to the front of the building was because they needed a building permit to do so, and are applying for one.
Objectors’ Submissions
Objectors had met with the new owners, offered to help, but the Applicant did not contact them. During the closing in October, they could have cleaned up the graffiti, but did not do so.
Granting the additions of a patio would only allow more undesirable people to hang out there. The issue is not smoking; it is the type of people who will use the patio.
The Objectors strongly oppose granting the patio addition.
Applicant’s Submissions
None of the witnesses have been inside the Premises. Their impressions are from the conduct of the previous owner.
The Applicant supports improvements in the neighbourhood and has made improvements in the Premises including painting the back wall.
The patio will help control patrons and the Applicant asks the panel to allow the patio addition.
Decision & Reasons
The Board has carefully considered all of the evidence and submissions.
The issue before the Board is whether to grant an additional liquor licence for the outdoor area of the Premises. The reason for not granting the licence is in the wording of subsection 6(2)(h) of the Liquor Licence Act (“LLA”) which reads:
Contrary to subsection 6(2)(h) of the LLA, licence is not in the public interest having regard to the needs and wishes of the residents of the municipality which the premises are located.
The onus is on the Objectors to prove that subsection 6(2)(h) applies to the Application.
The Board accepts the evidence of the Objectors that the Applicant has done nothing to significantly remove or control the unruly or undesirable people from the front of the establishment, or from entering it.
Additionally, the Applicant has not attempted to clean up the graffiti from the front façade, clean its windows, or generally improve the establishment’s appearance.
The Board accepts the Applicant’s evidence that it is in the process of applying for a building permit in order to make major changes inside and outside. To this end the Board, agrees with the Objectors, that before this is done and before efforts by the Applicant are successful in turning away undesirable patrons, both inside and outside, it would not be in the public interest to grant a liquor licence for the additional patio area.
The Board FINDS that the Objectors have met their onus that the issuance of a liquor licence for the outdoor area would not be in the public interest having regard to the needs and wishes of the residents, as outlined in subsection 6(2)(h) of the LLA.
Order
- Therefore, the Board DENIES the Application for the additional outdoor area for CAFÉ DONG PHUONG RESTAURANT, 1532 Dundas Street West, Toronto, Ontario, M6K 1T5, licence number 202916.
DATED AT TORONTO THIS 20th DAY OF DECEMBER, 2007
ELEANOR MESLIN, BOARD MEMBER BERYL FORD, BOARD MEMBER
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