Registrar, Alcohol and Gaming Commission Ontario v. 1752193 Ontario Inc., 2008 CanLII 16823

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-

1752193 Ontario Inc. intending to operate as Bar 244 Applicant

-and-

King Spadina Residents’ Association Objector

DECISION

Panel: Patricia McQuaid, Vice-Chair Allan Higdon, Board Member

Decision Date: March 3, 2008 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 1752193 Ontario Inc., Applicant ) David Winer, Representative King Spadina Residents’ Association, Objector ) Wayne Scott, Representative

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued a Notice of Proposal number 15947 dated January 31, 2008 to review an application for a liquor licence from 1752193 Ontario Inc. (the “Applicant”), intending to operate as BAR 244, 244 Adelaide Street West, Toronto, Ontario, M5H 1X6, establishment number 200515. The Commission has received one or more written objections to the application from residents of the municipality. A hearing of the Application was held on February 20, 2008 in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board APPROVES the Application made by BAR 244, 244 Adelaide Street West, Toronto, Ontario, M5H 1X6 on the conditions set out below. Reasons for these findings follow.

Preliminary Matters

3Mr. Kulis stated the Registrar was not taking a position on this application.

4Mr. Wayne Scott sought status as a party to the proceedings on behalf of the King/Spadina Residents Association who objected to the application. After discussion, all parties agreed to the request and party status was granted.

Resident Objectors’ Evidence

5Donald Rodbard has been a resident of the entertainment district since 1990. He stated the area has approximately 200 licensed establishments with a total capacity of 80,000 patrons. The proposed premises are in the centre of the entertainment district.

6The witness presented exhibits outlining the history of violence in the area and the efforts made to address the problem. He stated the exhibits outline merely the “tip of the iceberg” regarding antisocial behaviour common in the neighbourhood.

7The witness stated that he did not object to the Applicant being issued a licence. However, he wanted the licence issued with conditions that would protect the community and govern the behaviour of the establishment’s patrons.

8The witness stated that discussions were held with the Applicant on January 23, 2008 in an attempt to come to a mutual agreement on conditions. No agreement was reached as the Applicant did not want to be encumbered by any conditions.

9The witness presented Exhibit #7 which outlines a template of proposed conditions and a later version of the same, Exhibit #8. Mr. Rodbard stated that the King Spadina Residents’ Association is by and large accepting of new licenses, with effective conditions governing the behaviour of the licensee and patrons.

10On cross-examination, the witness acknowledged he has no expertise in planning. His Association is an association of various groups and condominium boards. None of them have passed resolutions opposing this licence. The King /Spadina Association itself does not have an elected board.

11The witness acknowledged that local clubs have been bought out and are no longer operating. Condominium developers are also buying up licensed premises for residential development.

12The witness stated he has no concerns that the Applicant will not conform to the requirements of the Liquor Licence Act.

Applicant’s Evidence

13Christopher White is the principal of the Applicant and is authorized to represent the corporation. He is a businessman, aged 43 years.

14The witness stated he previously owned, with his brother, a licensed fish and chip store from 2002-2006 with a capacity of 30 patrons. He signed a lease for the proposed premises on December 1, 2007. By the time he has finished renovations and paid rent he will have put $160, 000 into his new business. It will have a capacity of 320 patrons and he anticipates liquor sales to account for 50-65% of his sales. He had expected to open on March 1, 2008, but with the delays in the application process that opening date does not appear possible.

15The witness stated he did research on the area of his proposed business and would like two adjacent clubs to cease operation as they do not enhance the tone of the area. He has two silent partners and intends to have his premises operate like “Crocodile Rock” or “Grace O’Malley’s”, two well known pub-like venues in the area.

16The witness anticipates opening hours initially to be Wednesday, Thursday, Fridays from 4:00 pm until 2:00 a.m., and Saturday 7:00 pm until 2:00 a.m. He would be closed Sunday, Monday and Tuesday. These hours might change in future.

17The Applicant stated he did not want conditions placed on his licence as this would impose constraints his competitors did not have to observe. His intention is to operate a long standing business.

18The witness confirmed that he was not seeking a licence for any outdoor patio area.

19On cross-examination, Mr. White stated that the success of the establishment rests on his experience. He acknowledged that this venture is substantially different in nature from his previous one.

20Mr. White reiterated that he objects to having more conditions placed on his licence than those of competitors. As well, restrictions on a licence make it less of a saleable asset in the future.

Resident Objectors’ Submissions

21Mr. Scott stated he had no reason to believe this Applicant will create a higher a level of risk than normal in operating licensed premises. However, the community is looking for a level of comfort that establishments will be run properly.

22The objectors are not taking the position that this licence should be refused. It is helpful that the Applicant has applied for a business licence using the designation “restaurant” as opposed to “nightclub”. However, there are risks triggered by the environment in which the Applicant is situated, and by the patrons, particularly between midnight and 2 a.m. on club nights.

23The objectors have presented some conditions they consider reasonable and Mr. Scott asked the Board to impose the conditions noted on Exhibit #8.

Applicant’s Submissions

24Counsel stated the Applicant has a right to a licence unless it is not in the public interest. The onus is on the objectors to demonstrate this.

25The objectors have stated they do not oppose the granting of a licence. Consequently, there is no evidence that would justify the denial of a liquor licence.

26At issue is the imposition of conditions. No conditions have been agreed to by the parties and it is not clear the King Spadina Residents Association is even a bona fide representative of the community as no resolutions have been presented regarding this particular application. Speculative concerns should not be dealt with by imposing conditions.

27Counsel stated that a breach of conditions can lead to the loss of a licence. This could result in a far more serious sanction than would be received if the same condition was the subject of a municipal bylaw. It is a prospect to be avoided if at all possible. In this, case no credible evidence has been presented to justify either denying a licence or imposing any conditions.

Reply

28Mr. Scott stated that the Board is entitled to asses risk and any conditions that could mitigate risk would be entirely appropriate.

Analysis & Reasons

29The Board notes that no witness at the hearing was opposed to the granting of a liquor licence for Bar 244.

30The Board did consider the form letter signed by residents describing the deteriorating conditions in the entertainment district and opposing the granting of a licence. One of these letters, dated December 24, 2007, was signed by Mr. Don Rodbard, who indicated in his testimony before the Board that he was not opposed to the granting of a licence. The letters of the other objectors do not address specific concerns about this particular Applicant or his plans for this location as required by the Act. Instead, they seek a blanket prohibition on the granting of any new licence, citing “no need for additional licensed capacity in this community…”

31The King/Spadina Residents Association was made a party to the proceedings on behalf of the objectors and its representatives stated they did not oppose the granting of a licence.

32The Board therefore finds no evidence to support denial of a liquor licence. Only the consideration of conditions on the licence remains in dispute.

33The community is seeking some comfort regarding the impact of the proposed premises. However, the Applicant does not wish to be unnecessarily restricted. The objectors submitted proposed conditions in Exhibit #8, several of which the Board considers as being entirely reasonable and would result in little inconvenience to the Applicant and would be responsive to concerns expressed though Mr. Rodbard and the exhibits filed. Furthermore, the Board has considered Mr. White’s lack of experience in operating an establishment such as the one proposed, and in an area which has posed various challenges for municipal officials, the police, the AGCO, the public and licensees themselves as suggested by the closures of some licensed establishments referred to in the evidence. In these circumstances, certain conditions may serve to counter those challenges, both to the Applicant and to the neighbouring residents, alleviating the public interest concerns.

34Some of the conditions proposed in Exhibit 8 are already covered by existing regulatory regimes, some more stringently and all more appropriately enforced by another regulatory body.

Order

35The Board therefore APPROVES a liquor licence to 1752193 Ontario Inc., intending to operate as BAR 244, 244 Adelaide Street West, Toronto, Ontario, M5H 1X6, establishment number 200515.

36Further, the Board ORDERS that the following conditions be attached to the licence:

1. The Licensee shall provide a telephone number equipped with an answering machine for residents to register concerns or complaints;
2. Windows must be kept shut and doors equipped with a self closing device in order to contain noise within the building;
3. The Licensee shall ensure that a designated employee is on duty at all times to ensure that exiting patrons are not causing a disturbance for nearby residents;
4. The Licensee shall post a prominent sign at each exit that reminds departing patrons to be considerate of the surrounding community;
5. The Licensee shall use best efforts to ensure all areas immediately adjacent to the establishment are clean and free of litter, refuse, and other debris and shall install and maintain containers for the deposit of same; and
6. Any garbage or recycling pick-up service shall be scheduled strictly between 7:30 a.m. and 9:00 p.m.

DATED AT TORONTO THIS 3rd DAY OF MARCH, 2008