LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: CUE’S WHOLE 9 YARDS
1642 Merivale Rd
Merivale Mall
Nepean, Ontario
K2G 4A1
Applicant: 2103274 Ontario Inc.
Establishment
Number: 806003
Notice of Proposal: To REVIEW Application for licence
Dated November 9, 2006
Hearing: Marriott Ottawa
100 Kent Street
Ottawa, Ontario
January 17, 2007
Presiding
Board Members: David C. Gavsie, Chair
Guy Maurice, Member
Agent for the
Registrar: Sujin Chan, Student at Law
Agent for the
Licensee: Ainsley Dunstone
Party to the
Proceedings: Pamela Pestaluky, for the objectors
Attendance: Donald Maule, principal of the Applicant
Tanya Chayavetbumrung, objector
Jean Mulligan, objector
Peter Gray, objector
Peter Williamson, objector
Exhibits: #1 – Objectors letters and photographs
#2 - Applicant’s photograph, artistic renderings, floor
plans, etc.
Case Law
Presented: Juke Box Live [2006] O.A.G.C.D. No. 222
Club Energy [1995] O.L.L.B.D. No. 291
Major Mack [1994] O.J. No. 2943 (Div. Ct.), and
[1999] O.J. No. 1418 (CA)
Luxor [1996] O.L.L.B.D. No. 230
A hearing of the Alcohol & Gaming Commission of Ontario (“AGCO”) was held in Ottawa on January 17, 2007, to consider a Notice of Proposal to review an Application for a licence dated November 9, 2006 (the “NOP”) in the matter of an Application (the “Application”) by 2103274 Ontario Inc. operating or intending to operate as Cue’s Whole 9 Yards (the “Applicant”) at 1642 Merivale Road, Store Unit No. 2050, Nepean, Ottawa (the “Premises”), establishment no. 806003.
1. Preliminary Matters
At the outset, Sujin Chan, agent for the Registrar, indicated that the Registrar would not be taking a position regarding the Application. Ms. Chan did file as an exhibit (Ex. 1) letters and other material from people objecting to the Application. It was proposed that Ms. Pamela Pestaluky be added as a party representing the objectors. This was agreed to and the Board ORDERED that Ms. Pestaluky be made a party to the proceedings. Ms. Pestaluky explained that some photographs in Ex. 1 were taken to show another business location of Applicant located on Greenbank Road in Ottawa.
2. Objectors’ Evidence
a) Tanya Chayavetbumrung
Ms. Chayavetbumrung is one of the persons most affected by the Application. She lives in a 2 storey split level home that backs onto the parking lot of Merivale Mall (“the Mall”), close to the Premises. She described problems with the previous licensed operator in the Premises- people on the patio made noise, she found broken bottles, syringes, ladies underwear in her backyard, there were fights in the parking lot, there was swearing by the people on the patio. Ms. Chayavetbumrung would not let her children in her back yard at night as a result of what had happened. She suggested that the patio not be licensed or used, that the entrance to the Premises be moved to the Viewmount side of the Mall, and that the parking for the Premises in the Mall’s parking lot be moved away from the dividing line of her property and the Mall. When barbecuing behind her house, she can hear everything.
When she moved into her home, she knew the previous licensed operator, Skratch Billiards (“Skratch”), was there. Police were called 3 times a week for various matters. The operator was fined $20,000 in December 2005 because of excessive noise. There had been numerous noise complaints, the operator was fined, and ultimately the operator went out of business and closed its premises.
Ms. Chayavetbumrung spoke of difficulty in sleeping and having that impacting her work. She also mentioned that when the Skratch premises closed in the evening, she could see and hear cars racing in the Mall’s parking lot.
b) Jean Mulligan
Ms. Mulligan has been a resident of the area for 30 years. When Skratch moved into its premises, trouble started. The Premises are at the south end of the Mall. Her house is further up but backs onto the Mall’s property. When Skratch was operating, she would be woken up at 2 or 3 in the morning by yelling, tires screeching and other noises. There was loitering by people at the back of the Mall. She called the police but it would take forever for them to come. When the patio was licensed, the music sound would be booming if the doors to the inside were opened.
c) Peter Gray
Mr. Gray is a long time resident of the area. He said when Skratch was operating with a bar, it was a nightmare. He constantly picked up bottles. The Mall’s parking lot was full of bottles. When people left the bar, there was loud noise and cars raced. He recalled that he attended hearings in 1997 re patio and liquor licenses for Skratch. Great promises were made by those owners about the plans they had, but the noise outside increased and the business went downhill. There were incidents in the Mall. They got their licence and forgot their promises. Skratch closed down before last summer, and there were no noise or garbage issues during the summer. Mr. Gray said he does not know if the Applicant or the owners had anything to do with the operation or ownership of Skratch.
d) Peter Williamson
Mr. Williamson owns and lives in a house which abuts the back of the Mall. His house has no air conditioning so he leaves the windows open in the summer. He stated that 2 days after he moved in he was awakened by noise from Skratch during the night. He complained to the City by-law department. A by-law officer came. He had had discussions about the problems caused by Skratch with the area councillor and his neighbours. There were liquor and beer bottles, crack pipes, needles in his back yard and in the Mall’s parking lot. He and his family cannot enjoy their back yard.
At times, Mr. Williamson has called the police who are fully aware of the situation. Finally a by-law officer prosecuted a case against Skratch and the City won a noise conviction. Skratch was fined $20,000, and shortly thereafter, Skratch closed up. Mr. Williamson stated that the fine has not been paid.
Mr. Williamson said that the same type of business at the same address will result in the same problems. He does not believe the Mall owners when they say they will do something. A man was beaten to death inside the premises and died outside. The premises were open for business again the next day.
Mr. Williamson has been awakened by noise during the night 3 or 4 times a week. He has called by-law officers to complain. He is a carpenter and uses power tools. He cannot go to work if he is up during the night.
In answer to questions on cross-examination, Mr. Williamson stated that the music was loud one time from Skratch and he called to complain, but they did nothing. Things were 100 % different - and better - this past summer when Skratch was closed. He said there was a wooden fence at his property line abutting the Mall and that it was 10 to 12 feet tall. He has a direct line of sight from his kitchen window to the patio of the Premises. His bedroom window to the patio is under 200 feet. Things come over the back fence from the Mall area. There is loud noise from the Mall’s parking lot. He recalled one Saturday afternoon in particular when a sports team was on the patio of the premises singing songs.
In Mr. Williamson’s view, it is the wrong place for a bar.
e) Pamela Pestaluky
Ms. Pestaluky has been a resident of the area for 22 years. The Mall was there but initially there were no problems. Initially the stores in the Mall were not open on Sunday, and closed at a reasonable hour on other days. When Woolco moved out of their 2 floors in the Mall, this caused major problems. A YMCA moved in and put windows in the back wall of the Mall facing houses of the neighbours. The residents put up drapes. There is even a 24 hour telemarketing service on the second floor of the Mall, but there no problems caused by that.
Skratch started as a billiards hall. They applied for a patio licence. The residents objected but Skratch did get the licence granted. At that point, the residents were having major problems. All of the residents’ fears and concerns came true. Noise carries from the patio which is on the second floor. The noise fans out. Ms. Pestaluky can sit in her living room with the doors and windows closed, and yet the noise from the patio still comes in. When she gets out of her car at her home, she can smell pot from the Mall’s parking lot. There were problems in the Mall’s parking lot because of Skratch and its patrons. Security guards yelling at patrons caused as much noise as the patrons.
Ms. Pestaluky recalled meeting with the owners of Skratch before it opened. She raised her concerns, and they assured her no problems would occur because they were going to run an upscale billiards business targeting the business crowd and they would not have bad clientele.
A young man was murdered there. There was also a rape. A nearby Pizza Pizza store had $2,000 worth of damage caused by people who had left Skratch.
The noise from the Skratch premises was heard all year, not just the summer. There is smoking, there are fights. She has been woken up 2 or 3 times a week, but since Skratch has closed down, Ms. Pestaluky has been able to sleep through the night.
In answer to questions on cross-examination, Ms. Pestaluky stated that she had dealt with the owner of Skratch when there were problems. The owners assured her he would make the manager aware of issues. However the manager would not take her calls. She spoke to security and asked them to control noise by closing the doors. They said it was too hot and stuffy for that. Having security did not improve the situation. Closing off the balcony did not address the other issues in the parking lot.
Ms. Pestaluky stated she had met with the Applicant to discuss solutions to previous problems encountered. The suggestions included moving the outside stair entrance or possibly making the entrance from inside the Mall. These were found to be too expensive to implement by the Applicant and by the Mall owners.
3. Applicant’s Evidence
(a) Donald Maule
Mr. Maule is one of 3 directors and shareholders of the Applicant. Neither he, the Applicant, nor anyone connected with it had any involvement with Skratch. Mr. Maule placed in evidence 8 photographs and other documents (Ex. 2). He described the Premises as being a rectangular room on the second floor of the Mall, containing roughly 23,000 square feet of space. A raised platform in the middle contains a horseshoe-shaped service bar with tables and chairs. There are 42 pool tables around the room. There is a second smaller service bar adjacent to the entranceway. The previous tenant had a dance floor with a stage and speakers which were used for disco music. There are a couple of small rooms with a pool table in each. There is also a kitchen and washrooms.
Mr. Maule stated the Applicant’s plan is to remove 12 tables so there will be 30 billiard tables in operation. The Applicant will add golf simulators to take up approximately 20% of the floor space. The stage area will be removed, and a wall will be put in to segregate it into a space for 100 to attend corporate – style events. Entertainment acts will also be explored.
Mr. Maule described the various entrances into the Premises including an elevator which opens into the main room. He stated that the Applicant is unable due to construction concerns and cost to create a direct front entrance into the Premises from the front of the Mall facing Merivale Road.
He said that there is a 12 foot high solid wood fence along the west property line of the Mall abutting the back yards of the residences to the west, but because the Premises are on the second floor of the Mall, people in the residences can see the Premises. The fence reduces to a height of 8 feet as it approaches Viewmount to the south.
Mr. Maule said he has been the operator of the Greenbank Road Broken Cue for 8 years. He is a partner there and has worked there for a total of 11 years. The only violation there has been against the no smoking by-law. They paid a fine. There have been no LLA infractions. The AGCO inspects the premises there 4 or 5 times a year and there have never been any LLA violations.
Mr. Maule then outlined the recent history of the billiards business in Ottawa. When the no smoking by-law became effective in 2003, there was a severe drop off in business and operators. The remaining operators changed to league dominated ventures like bowling leagues had done previously. This proved to be successful at stemming the flow. Customers who had left and went to Quebec venues are now drifting back because Quebec had enacted smoking restrictions.
The Applicant wishes to do business in the Premises because Merivale Road, where the Mall is located, is a high traffic area. The Applicant can use the facilities, and the space is relatively inexpensive being on the second floor of a Mall. At the Greenbank Road premises, Mr. Maule said they have a large residential audience. He said there are issues in the parking lot as the mall there is an attraction for young people. Mr. Maule stated that the budget the Applicant has for opening the Premises is $400,000, with 50% of that to be spent on construction and refurbishing the Premises.
On July 26, 2006, the Applicant held an open house at the Premises for the neighbours. The previous tenant, Skratch, tried to cater to the disco market – cheap beer, a loud sound system, a young crowd. Skratch degenerated into a youth hangout. The music was too loud inside. Their focus was on disco using large speakers and amplifiers. The Applicant will use heavy drapery over the windows. Both doors in the vestibule will be closed except when being open and shut as people go through them. The patio doors will be closed. The sound inside will be normal, as opposed to as loud as possible by the previous tenant.
Mr. Maule said that with regard to the external noise, people on the patio used to talk loudly and yell to others in the parking lot of the Mall. The Applicant plans to put solid glass to a height of 6 feet from the floor around the patio at a cost of $12,000. The Applicant will also post signs at all exits from the Premises for patrons to respect the neighbours and their rights, and as well have staff say the same to exiting patrons.
Mr. Maule said he had talked to the Mall owners about putting more speed bumps along the lane behind the Mall. In the parking lot, where parking abuts the back fence, parking could be restricted to employees who work in the Mall. The Applicant is also thinking about offering incentives for patrons to use an east exit and entrance, and not enter by coming from the parking lot up the stairs to the patio and then into the Premises.
Mr. Maule said there will be no entertainment or music on the patio. There will be a person on duty at all times as the manager, and people will be able to call that person.
In answer to questions on cross-examination, Mr. Maule said the billiards hall on Greenbank Road is in the basement level of a mall, and that no sound travels out of the facility. That mall is horseshoe-shaped, so the noise from its parking lot is somewhat contained, but there is also a roadway around that mall like the Merivale Mall. Mr. Maule said there is only limited control that a tenant has over the Mall’s parking lot. He also acknowledged that there is a police station across Greenbank Road from the mall there. He said that the sound of that mall does not reach neighbouring residents as they are several hundred feet away.
Mr. Maule also said that the average age of league patrons at the Greenbank Road billiards hall is 30 to 35, and they have jobs to go to.
4. Objectors’ Submissions
Ms. Pestaluky presented submissions on behalf of the objectors. The neighbouring residential community has had 10 years of negative experience with this type of licensed business – billiards. Noise travels to reach the homes 200 feet away. The residents know that monitoring and patrolling the Mall parking lot is expensive and difficult. The Applicant plans to put a lot of money into the Premises. But the neighbouring homeowners have put a lot of money into their homes and property too. Ms. Pestaluky asked if the bulk of the Applicant’s patrons will be playing in league format, why does the Applicant need regular bar hours.
Ms. Pestaluky stated that if the Board did feel that a licence should be issued to the Applicant, she would ask that the following conditions be placed on the licence:
a) the main entrance to the Premises should be from the Merivale Road side of the Mall, taking the bulk of the people away from the south side of the parking lot;
b) the existing main entrance should be turned into an emergency exit;
c) the balcony/patio should not be licensed;
d) a 6 foot glass wall should be installed on the balcony/patio to contain noise from people using it;
e) staff or security should be hired to control potential problems in the Mall parking lot until 3 a.m. every night/morning;
f) no parking should be permitted in the Mall parking lot adjacent to the fence abutting the residential properties to the west of the fence; and
g) if noise by-laws continue to be broken, the licence should be revoked or reviewed.
5. Applicant’s Submissions
Mr. Dunstone presented the Applicant’s submissions. The neighbours have raised objections because of the poor conduct of the past licence-holder, and its permissiveness and non-compliance. It is not fair to penalize the Applicant for the prior licensee’s poor management, especially in light of the Applicant’s compliance record at its establishment on Greenbank Road. The Applicant has proven that it deserves a pool hall business at this location with indoor and outdoor capacity and liquor service. Whereas the former licensee ignored any control measures, the Applicant is confident that its measures will preserve the peace and propriety of the residential neighbours. The Applicant looks forward to working with the neighbouring residents on these measures.
6. Decision
The scheme of the LLA contained in section 6 is entitlement to a liquor licence by an applicant EXCEPT IF one of the 6 paragraphs of subsection 6(2) applies. The only paragraph that could have application to this case is that found in (h) which reads:
“6(2)(h) 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.”
In its decision of Juke Box Live, the Board’s position regarding public interest hearings is well expressed:
“Public interest hearings often raise very difficult issues which require a delicate balance of the interest of those who live in the community with those who would earn their living there. Under the Liquor Licence Act, there is a qualified right to a liquor licence, subject to the considerations of the “public interest”’ The Act thus recognizes the very real impact that a licensed premises may have on the surrounding community, and the local residents are provided with a forum in which their concerns can be voiced.
The Board is guided in its considerations by the principles of Club Energy, Major Mack and Luxor. The onus is on the objectors to provide, on a balance of probabilities, that the issuance of the licence is against the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises are situated. The bona fide concerns of the residents in the immediate area who are most affected by the establishment are given greater consideration than those of other residents in the municipality who are less directly affected. In determining whether the needs and wishes of the residents is bona fide, the Board will look to the totality of the evidence, to determine if the subjective fears of the residents are supported by a valid objective basis.” [2006] O.A.G.C.D. No. 222
As has often been said by other panels of the Board, very difficult issues are raised and have to be objectively dealt with where a commercial property such as the Merivale Mall abuts a residential neighbourhood such as the rear property line of homes on Wolmsley Crescent.
The Board understands the heartfelt and candid evidence presented by residents in expressing their opposition to the Application, all of which was based on events and issues which occurred and arose when Skratch occupied the Premises. Based on the unrefuted evidence presented to it by Mr. Maule, the Board is satisfied that the Applicant has no connection with Skratch, and that no principal of the Applicant had any relationship with the ownership or operation of Skratch.
The Board was also impressed with the Applicant’s operation at its Greenbank Road premises where it has operated a billiard business with a liquor licence for quite a few years with no infractions under the LLA. According to the evidence, the AGCO has inspected those premises several times a year, and the Board presumes that the AGCO will monitor the Premises for breaches or violations of the LLA and conditions on a licence to be issued to the Applicant, if the Board decides that a licence should be issued.
While the evidence of the objectors was very clear that they do not want another licensed business in the Premises based on fears and concerns caused by the previous licensee, the issue for the Board to decide is whether or not such fears and concerns are in fact valid and objective. The Board will not make a decision to issue or not issue a licence based on what a completely unrelated prior licensee did in the Premises and what may have happened outside in the Mall parking lot. The Board can, however, impose conditions to be attached to a licence to be issued which will, in the Board’s view, potentially significantly reduce the factors giving rise to the objectors’ fears and concerns.
Further, the Board is satisfied that the enforcement system of the AGCO in ensuring that a licensee complies with the LLA and regulations enacted under the LLA is working. If the Applicant does not live up to its responsibility under the LLA and any conditions on its licence, should one be issued, proper action will be taken at that time.
The Board is satisfied that the objectors have not proven on a balance of probabilities, and on a valid and objective basis, that the public interest should negate the issue of a liquor licence to the Applicant. However, the evidence does indicate to the Board that conditions must be imposed on the licence to deal with possible noise emanating from the Premises and the patio, and to deal in a reasonable way with patrons who have exited the Premises, making as little noise and creating as little disturbance as possible in the Mall parking lot.
Therefore, the Board ORDERS that a liquor licence is APPROVED for and should be ISSUED to 2103274 Ontario Inc. operating or intending to operate as Cue’s Whole 9 Yards at 1642 Merivale Road, Merivale Mall, Store Unit No. 2050, Nepean, Ottawa establishment no. 806003, with the following CONDITIONS ATTACHED to the licence:
heavy drapery cover the inside of all windows of the Premises being on an exterior wall;
all doors into and out of the Premises will only be used to permit ingress and egress and will not be held or propped open;
there will be no music nor any sound system, nor any entertainment on the patio;
the level of sound inside the Premises will be constantly monitored by staff who will ensure that it is not at a level that can be heard more than 100 feet outside of the Premises;
a solid glass wall to a height of 6 feet from floor level will be erected completely around the patio, and any doors permitting entrance or exit from the patio to the Mall parking lot will be subject to the same condition as set out in condition 2 above;
a sign visible to all patrons shall be posted at any exit from the Premises cautioning patrons to respect the neighbours and the neighbouring residential community;
policies shall be in place and all reasonable efforts shall be made to ensure that patrons do not create noise or disturbances in the Mall parking lot. A staff person shall be designated to respond to complaints or concerns during operating hours. That person shall answer the telephone live and deal directly with complaints, and shall call security, Mall security or the police or by-law enforcement as may be required, or otherwise deal with the complaint or concern;
sale of alcohol on the patio shall cease at 10 p.m.;
signs of service of alcohol shall be cleared from the patio by and the patio is to be closed by 10:45 p.m.;
parking adjacent to the fence along the westerly property line of the Mall shall, using all reasonable efforts, be restricted for only employees of tenants of the Mall including those working in the Premises; and
a security staff person shall be posted outside the main door of the Premises leading to the Mall parking lot from midnight to one hour after closing to monitor patrons in the parking lot on Friday, Saturday, and Sunday early mornings, or the early morning of any statutory holiday, when the Premises have been in operation.
DATED AT TORONTO THIS 20th DAY OF FEBRUARY, 2007.
DAVID C. GAVSIE, CHAIR GUY MAURICE, BOARD MEMBER
DCG/mw