Registrar, Alcohol and Gaming Commission Ontario v. Santiago (Nelson) Joaquin-Ortega, 2008 CanLII 16829

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-

Santiago (Nelson) Joaquin-Ortega intending to operate as Casa Nova Bar & Dance Applicant

-and-

City of Cambridge Intervenor

-and-

Vula Kawalez Objector

DECISION

Panel: Patricia McQuaid, Vice-Chair Brian J. Ford, Board Member

Decision Date: March 12, 2008

Hearing Location: Cambridge, 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 Santiago (Nelson) Joaquin-Ortega, Applicant ) David Winer, Representative City of Cambridge ) John Cosman, Representative Vula Kawalez ) On her own behalf and on behalf of ) the objectors

Authorities

Juke Box Live, [2006] O.A.G.C.D. No. 222

The Application

1. The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 15807 (the “NOP”) dated November 27, 2007 to review/refuse an application for a liquor licence from Santiago (Nelson) Joaquin-Ortega (the “Applicant”), intending to operate as CASA NOVA BAR & DANCE, 1-5 Water Street North, Cambridge, Ontario, N1R 3B2, establishment number 805675. The Proposal alleges violations of subsections 6(2)(a),(d),(e) and (h) of the Liquor Licence Act (“LLA” or “Act”). A hearing of the Application was held on January 17 and February 25, 2008 in the City of Cambridge.

Decision

2. After considering all the evidence and submissions the Board APPROVES the Application made by Santiago (Nelson) Joaquin-Ortega (the “Applicant”), intending to operate as CASA NOVA BAR & DANCE, 1-5 Water Street North, Cambridge, Ontario, N1R 3B2, on the conditions set out below. Reasons follow.

Preliminary Matters

3. Both the City of Cambridge (the “City”) and Ms. Kawalez asked to be made parties to the proceedings. Mr. Winer had no objection to Ms. Kawalez’s request, and she was made a party to the proceedings on behalf of the objectors. The letters of objection were filed as Exhibit 4 to the proceedings.

4. Regarding the City’s request, Mr. Winer objected in that, pursuant to section 7.1(1) of the LLA, no resolution was passed by the City formally opposing this application despite the reports filed with the City as contained in Exhibit 1.

5. After hearing submissions from the parties, the Board ordered that the City be given status as a party to the proceedings. The absence of the resolution referred to in section 7.1(1) does not preclude the City’s participation as a party in order to lead evidence regarding its public interest concerns.

6. At the commencement of the hearing, Mr. Alton advised that the Registrar was not taking a position regarding the public interest issue, section 6(2)(h) of the LLA. However, the Registrar had made allegations pursuant to section 6(2)(a),(d) and (e) of the LLA. At the conclusion of evidence on January 17, 2008, and before the Board heard evidence from the Applicant’s witnesses, Mr. Alton and Mr. Winer advised the Board that an agreement in principle had been reached between the Applicant and the Registrar. That agreement was confirmed on February 25, 2008 when the hearing resumed and was filed as Exhibits 10 and 12. On the basis of the Applicant’s consent to the conditions outlined in Exhibits 10 and 12, the Registrar was prepared to withdraw the allegations set out in sections 6(2)(a),(d) and (e) of the LLA (recited in paragraphs 6(b),(c) and (d) of the NOP).

Resident Objectors’ Evidence

7. Vula Kawalez outlined the concerns of the residents and business owners in the area. She purchased a building, in February 2006, across the street from the Applicant’s premises. Her tenants complained to her about the noise emanating from the establishment. Both she and her tenants called police. Three tenants moved out because of the situation, in May and November 2006 and February 2007.

8. At the end of June 2006, she took a day to speak to other business owners in the area. They complained of loud music, noise and drunken behaviour at the location, with garbage and beer bottles on the street adjacent to it.

9. Having the prior licensed premises at the location at 1-5 Water Street was not at all conducive to people making a life, and a living. The premises are not open at the moment and there have been no noise complaints to her from tenants since it has closed. There has been no liquor licence at the location since the summer of 2007.

10. On cross-examination, Ms. Kawalez reiterated that she did not wish to have a licensed premise at the location if it was going to be run like the prior establishment, Stephanie’s Caribbean Cuisine. She does not know the Applicant, Mr. Ortega, nor how he intends to run the establishment nor has she been inside.

City of Cambridge’s Evidence

11. Alex Mitchell is the City Clerk and has been in that position for 18 months. In that role, he responds to the Municipal Information requests from the AGCO, receiving approximately 20 per year. Mr. Mitchell prepared a report (Ex 1) which was put before the General Committee of Council. In that report, he indicated that he was not prepared to sign the “Request for Municipal Information” form and that a letter would be sent to the AGCO specifying the City’s general objection to the application. On April 16th, at a City committee meeting, depositions were received from three people, including Mr. Ortega and Ms. Heron in support of the application (Ex 2). A letter of objection (dated April 12, 2007 (Ex 3)) was sent, by the City to the AGCO.

12. A business licence dated April 25, 2007 was issued to Casa Nova Bar & Dance. The licence type is a restaurant. All requirements of the municipal bylaws had been met to his satisfaction. Exhibit 9 is a lease agreement between the City and Stephanie’s Caribbean Cuisine, for the sidewalk patio, which area is owned by the City. That lease is signed by Anita Heron as the occupant. Mr. Mitchell explained that the lease is automatically renewed each year with payment of an annual fee. There are termination provisions in the agreement, but it has not been terminated as yet.

13. Mr. Mitchell explained that the City’s objections are based on the history of problems at the location, and the previous operators, Anita Heron and Ruby Wright, not on this particular applicant. In speaking with the former manager of bylaw enforcement, he was aware of the noise complaints, from loud music late at night to people congregating in the alleyway and at the front of the establishment where they would yell loudly and swear. Complaints were also received about cars idling out front, squealing tires, and physical altercations between patrons.

14. The City is concerned about the relationship between Mr. Ortega, Ruby Wright and Anita Heron. Mr Mitchell noted that Ms. Heron spoke in support before the Council committee. Should a liquor licence be granted, the City requests certain conditions be attached to the licence as set out in Exhibit 3.

15. On cross-examination, Mr. Mitchell was asked about Exhibit 9, the lease agreement. He acknowledged that section 16 of the agreement provides that it can be assigned by a party without consent of the other party. He did state, however, that the agreement has been red flagged, termination being a determination to be made by the City’s planning department. He was not aware of any reason not to renew the business licence.

16. Warren Ziegler has been a City of Cambridge bylaw enforcement officer for about one year. He was familiar with Stephanie’s Caribbean Cuisine having attended there on several occasions (see Ex 11). The first attendance was on January 3, 2007, while he was still in training. On that occasion, a ticket was issued for an alleged infraction of the noise bylaw. His second attendance was on March 10, 2007 in response to a noise complaint, at approximately 11:13 p.m. He parked about 1/2 block away. He could hear the music distinctly. The front door of the establishment was open. He could hear loud bass coming from the establishment. There was a man at the front door who said he was helping out though he was not security.

17. Mr. Ziegler saw Anita Heron and asked her if she would post someone at the front door to ensure people would not use that exit and if she would turn down the music. He left the premises; by the time he returned to his car, he could no longer hear the music.

18. His next attendance was on March 17th, first at 11:13 a.m. and then an hour later. When he first attended he spoke to the Applicant, “Nelson” who identified himself as a co-owner. Anita Heron was not present. He asked Nelson to post someone at the front door, again to ensure that patrons left by the side door. He also asked Nelson to turn down the music. He saw Nelson approach the d.j. The music was turned down.

19. Mr. Ziegler attended again that night and again spoke to Nelson about the noise. The music was, this time, turned down a lot.

20. The last attendance was on March 22, for another noise complaint. He did not think the music was too loud, and the front door was not open. Mr. Ziegler explained neighbours seem most disturbed by the music that escapes when the front door, on Water Street opens. If the door is kept closed, it seems to significantly reduce the noise emanating from the premises. Mr. Zeigler stated that he knew of no noise complaints since the liquor licence for Stephanie’s Caribbean has been revoked.

Applicant’s Evidence

21. Santiago Joaquin-Ortega is the sole proprietor of Casa Nova Bar & Dance. The business was originally to be run as a partnership with Mary Jane Frances Dietrich, however, she is not a partner. His bank account records, at Exhibit 7, indicated that he has sole signing authority.

22. Mr. Ortega stated that Anita Heron is the landlord; she is not related to him, in an relationship with him nor involved in the business. He explained that he attended at the premises twice, in March 2007, before signing the lease with Ms. Heron, at a rent of $3,000 per month. The lease began April 1, 2007.

23. He has been operating the business, a restaurant without a liquor licence, but it has been difficult as people will leave when they find out there is no liquor licence. Mr. Ortega stated that there is a need for a restaurant such as his, in Cambridge, to serve the Caribbean community. He has support of the local community and letters to support were included in Exhibit 7, the Applicant’s Book of Documents.

24. Regarding his attendances at the establishment, Stephanie’s Caribbean Cuisine, he was there on March 17, 2007 to find out for himself how the business was running, prior to signing the lease. He recalls telling Mr. Ziegler why he was there, however, he did not say that he was a co-owner with Ms. Heron. He must have been misunderstood by Mr. Ziegler. The noise complained of by neighbours will not, he asserts, be a problem.

25. Mr. Ortega would like the opportunity to run a business like the other licensed establishments, with patios, around him. He is prepared to accept conditions on his licence and in particular those negotiated with the Registrar’s representative at the hearing.

26. On cross-examination by Mr. Cosman, Mr. Ortega stated that since coming to Canada his only experience in hospitality was a job at a Holiday Inn in Alberta, in room service. In the Dominican Republic, from where he emigrated, he did work as a resort manager. He has worked for a contractor in Cambridge, and first attended at Stephanie’s Caribbean Cuisine with his boss.

27. Mr. Ortega explained that Ms. Dietrich was on the first lease he signed. He believes there is a second lease with only his name on it. Mr. Ortega stated that Ruby Wright is the landlord. Everything was included in the lease, all the kitchen equipment, tables, chairs and the prior telephone number. The landlord has not given him any free months of rent. He explained he pays rent to Ruby Wright and she gives him a receipt. He believes Ms. Wright signs the receipt although she does not always give him the receipt immediately upon payment.

28. In response to Mr. Cosman, Mr. Ortega denied knowing Anita Heron. He was referred Exhibit 7 Tab 9 which comprised eight rent receipts. It was noted that all the receipts were signed by Anita Heron.

29. The premises are now closed for renovations: installation of the second entry door, providing sound insulation, and some painting. He would like to open immediately with a licence. No staff have been hired yet. He will be the manager. He does not want to hire staff who worked there previously as he wants to give the location a new, his, personality.

30. On cross-examination by Ms. Kawalez, Mr. Ortega assured her that he did not want to have loud music at his establishment; there would be music, but it is not a dance bar. The menu, largely finger food, as shown in Exhibit 7, Tab 5 will not change. He himself has never worked in a kitchen though he does now have Smart Serve certification.

31. The Board questioned Mr. Ortega about his statement he did not know Ms. Heron as one of the proposed conditions was to exclude Ms. Heron from the premises. Mr. Ortega then admitted having met Ms. Heron once or twice and agreed he would recognize her and know her if she came in.

Decision/Analysis

32. The Applicant seeks a licence at the premises, formerly known as Stephanie’s Caribbean Cuisine. A hearing was held in 2006 in respect of that licensee. Several of the allegations involved Anita Heron, the landlord of the premises, directly. Findings were made, among them, findings in respect of s. 6(2)(a),(d) and (e) of the LLA. The licence was revoked in April, 2007. At this hearing, Ms. Kawalez testified that noise complaints have diminished since that time. She expressed concern that with a new liquor licence, problems would arise once again.

33. The City of Cambridge has objected to this application. It was made a party to these proceedings, though Mr. Winer objected both at the commencement of the hearing and in final submissions principally it seems, because there was no formal resolution by City Council. In making the City a party, the Board exercised its discretion, a determination to be made on the facts of each case. The resolution, Exhibit 3, indicated that residents in the area had complained and a liquor licence would not be conducive to harmonious relationships. The City Clerk was not, therefore, prepared to sign the “Request for Municipal Information” and a letter was to be sent to the AGCO specifying the City’s general objections. In considering this issue, the Board notes the resolution was only one piece of evidence among many reflective of public interest. Moreover, the “failure to pass a resolution is not determinative of the issue” of public interest. (Juke Box, supra)

34. This NOP initially included allegations concerning the Mr. Ortega’s conduct and his relationship with Ms. Heron. The Registrar and the Applicant settled those allegations on conditions. Mr. Winer submits the conditions satisfy all concerns with the establishment. He notes Mr. Mitchell’s email (Ex 7, Tab 22) states that if, in effect, the AGCO finds a non-associated relationship between Heron, Wright and Ortega the City of Cambridge agrees with the conditions (in Exhibit 10) and seeks some additional ones, as proposed in the e-mail.

35. Given the Registrar’s position on day two of the hearing that the Registrar is satisfied with the conditions barring Ms. Heron and Ms. Wright from any involvement or association in the business, and barring their presence on the premises with the exception of Ms. Heron’s presence as landlord outside of business hours, Mr. Winer’s argument is compelling. Had Mr. Ortega’s evidence been more persuasive, the Board would be much more confident accepting the conditions as a full and complete resolution of all the issues in dispute. The problem for the Board was Mr. Ortega’s inconsistent testimony about meeting and knowing Ms Heron, and insistence Ms Wright was his landlord in face of numerous receipts for rent issued by Ms Heron. The Board feels compelled to note these concerns on the record.

36. With respect to the remaining ss. 6(2)(h) public interest issue, the onus is on the objectors to establish, 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. The City’s evidence suggests that conditions may satisfy its concerns with respect to Mr. Ortega and Ms Heron. Ms. Kawalez’s concerns focus on noise, based on her experiences with the previous licensee, and she takes the position conditions cannot address those concerns. The Board notes Mr. Ortega has made efforts to respond to the noise issue by having double doors installed..

37. So, while the concerns of the local residents, and the City, are genuine, the Board must conclude that they are based largely on the historical experience with the previous operator at the location. Mr. Ortega has demonstrated bona fides by installing the double doors and agreement to the extensive conditions proposed by the Registrar being placed on his licence, conditions which respond to both the Registrar’s and public interest concerns. At the same time, the Board, in exercising its decision-making authority cannot ignore its broad responsibility to the public interest and safety. Where the Board concludes the parties’ agreement fails to fully achieve those goals, the Board may impose additional or further conditions on a Licensee.

38. Therefore, while the Board is prepared, in these circumstances, to accept the withdrawal of the ss.6 (2)(a),(d) and (e) allegations and to approve this application, with the conditions as agreed, based on its assessment of the evidence, the Board exercises its powers to add additional conditions to ensure the restrictions on involvement by either Ms Heron or Ms Wright are enforceable and the residents’ concerns are fully addressed.

Order

38. For the above reasons the Board APPROVES the Application for liquor licence made by Santiago (Nelson) Joaquin-Ortega (the “Applicant”), intending to operate as CASA NOVA BAR & DANCE, 1-5 Water Street North, Cambridge, Ontario, N1R 3B2, establishment number 805675, subject to the compliance with all statutory conditions and municipal regulations.

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

40. No live or amplified music on the patio;

41. The patio hours shall be limited such that the sale and service of alcohol shall cease at 10:00 p.m. daily and all signs of service and consumption cleared by 10:45 p.m. daily;

42. Only soft plastic cups shall be used on the patio;

43. All live or amplified music in the indoor licensed area shall cease on Sunday through Thursday at 12:00 a.m.;

44. Doors and windows shall remain closed. Doors may only be opened for the purposes of ingress and egress and must have automatic door closers installed and operating;

45. All staff will be trained by the licensee on how to advise patrons to be quiet and orderly upon leaving the premises. A staff person shall be designated on duty at the exit, to monitor patrons’ behaviour at closing and for 30 minutes thereafter;

46. The licensee shall post on each exit door a large notice requesting patrons be quiet and orderly upon leaving the premises;

47. The licensee shall install and maintain containers, for the deposit of litter, refuse and other debris situated adjacent to the doors of the establishment;

48. Anita Heron and Ruby Wright shall not be associated with the licensed premises as an officer, director, shareholder, partner, manager, or employee of the licensed premises;

49. Anita Heron and Ruby Wright are not permitted on the premises with the exception that Anita Heron is permitted on the licensed premises outside of business hours in the capacity of a landlord only;

50. A sign shall be posted which shall be no smaller than 8 x 11 inches in dimension, behind the bar area and in the kitchen, advising employees that Anita Heron and Ruby Wright are not permitted on the premises, with the exception that Anita Heron is permitted on the licensed premises outside of business hours in the capacity of landlord only;

51. The licensee shall provide a phone number which shall be answered by a staff member during hours of operation and be equipped with an answering machine when the establishment is closed for residents to register concerns or complaints;

52. In the event that the business is sold or comes under new management, written notice shall be given to the City of Cambridge; and

53. Notice of any application by the licensee to revise any conditions on the license shall be provided to the City of Cambridge.

DATED AT TORONTO THIS 12th DAY OF MARCH, 2008

PATRICIA MCQUAID, VICE-CHAIR BRIAN J. FORD, BOARD MEMBER

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