Registrar, Alcohol and Gaming Commission Ontario v. Cock & Tail Inc. (The), 2008 CanLII 16833

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-

Cock & Tail Inc. (The) intending to operate as Cock & Tail (The) Applicant

DECISION

Panel: David C. Gavsie, Chair Allan Higdon, Board Member

Decision Date: February 28, 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: Daniel Alakas, Representative Cock & Tail Inc. (The), Applicant: Patricia Mutch, Principal Party to the Proceedings: Misha Glouberman, on behalf of the objectors

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 15819 dated November 29, 2007 to review an application for a liquor licence from Cock & Tail Inc. (The) (the “Applicant”), intending to operate as COCK & TAIL (THE), 1168 Queen Street West, Toronto, Ontario, M6J 1J5, establishment number 812991. The AGCO has received one or more written objections to the application from residents of the municipality, the hearing took place in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board APPROVES the Application for a liquor licence made by Cock & Tail Inc. (The), intending to operate as COCK & TAIL (THE), 1168 Queen Street West, Toronto, Ontario, M6J 1J5, with conditions as set out below. Reasons for these findings follow.

Preliminary Matters

3Mr. Misha Glouberman requested party status on behalf of the objectors. There being no objection from the other parties he was granted status as a party to the proceedings.

4Registrar’s Counsel stated the Registrar was not taking a position on this application and would present no evidence.

5The Applicant was represented by Ms. Patricia Mutch, a principal of the Applicant Corporation. She waived the Applicant’s right to legal representation.

6The Chair of the Panel reminded parties that the Applicant had a qualified right to a liquor licence unless it was deemed not to be in the public interest with regard to the needs and wishes of the community. Consequently, the onus was on the objectors to show why a licence should not be granted.

Resident Objectors’ Evidence

7Randall Kerr has been a resident of the local community for over 50 years and has lived near the proposed premises for over 29 years.

8The witness stated that this section of Queen Street has been inundated with the granting new liquor licences in the last 5-6 years. He is against another licence because it will attract additional people in the area and they cannot absorb more. There have been crowds on the street yelling at midnight, car doors slamming at 2:00 a.m., garage break-ins, people sleeping and urinating in doorways and other disturbances.

9The witness stated he was particularly concerned that the proposed bar would back on to a laneway running parallel to Queen Street behind the buildings that front on Queen Street. A further laneway runs north from Queen Street. The laneways provide access to approximately 80 adjacent residences. He could envisage a great deal of distress for the residents if patrons accessed the laneway and continued disruptive behaviour at night. Already it is impossible to sleep in the front of a residential unit fronting on Queen Street because of noise. With drunken patrons milling about in the laneway, it would be impossible to sleep in a back room also.

10The adjacent laneway would be blocked for residents if delivery trucks were used in the rear of the proposed premises. Graffiti and drug use would be a problem in a sheltered unlit area such as the laneway, particularly in summer. This is the first licensed premises that would back on the laneway.

11The witness testified that the Queen Street Residents Association and Active 18, a group representing hundreds of people in Ward 18, oppose further licences in the area. The neighbourhood is going downhill. Thursday, Friday, and Saturday nights are a particular concern as those are nights when the crowds are largest.

12The witness stated the principal objection to the proposed premises is the licensing of an outdoor patio. The noise from such an area would be very disruptive.

13On cross-examination, the witness stated lighting and security cameras in the laneway would help. Particularly important would be a provision that there be no egress from the rear patio into the laneway.

14Misha Glouberman stated he has no problems with the applicants and no specific concerns related to their proposed management of the premises. The problem is the over-concentration of bars in the area and the resultant bad behaviour. One more bar is simply going to add to the problems.

15The witness stated he has an apartment on Queen Street and is frequently woken by yelling and screaming from 11:30 to 3:30 a.m. He has encountered vomit on his doorstep, scattered empty beer bottles, and inappropriate sexual behaviour. These problems began four years ago when two bars moved into the area. There are 8 or 9 licensed premises now. Vandalism and petty crime is up.

16The witness stated local residents met the Applicant on one occasion to discuss conditions. The meeting on February 7, 2008 was attended by the Applicant, a member of the City Councillor’s office, and several residents. The big concern was noise from the proposed patio. The residents want no music on the patio and sought assurances that doors and windows from the premises would be shut and not propped open. Other conditions proposed included a security person on the patio, 20 person patio capacity, no entrance into the laneway from the patio, and a contact person. Mr. Glouberman said that security cameras on the patio, lights, music ending at midnight on Friday and Saturday nights and 11:00 pm on weekdays, were also suggested.

17On re-examination, the witness stated the Applicant did not agree to any conditions. There were expressions of goodwill, but no agreement was reached with the residents.

Applicant’s Evidence

18Patricia Mutch is the owner/operator of New Digs renovating company and the Applicant licensee. She is a general contractor.

19The witness and her partner have the skills required to run a licensed premises. Her partner is Smart Serve trained and has worked in licensed establishments.

20The witness lives in the local neighbourhood. She has a massive support network and wants to use all her talents to make her premises interesting. The Applicant intends to run a restaurant, not a nightclub. The premises are small, less than 600 square feet inside and around 425 square feet for the patio.

21On cross-examination, the witness stated she would like to have live music.

22In response to a question from the Panel, the witness noted she would consider acceptable a condition to limit the patio to a 40 patron capacity, as well as a provision to have no access to the laneway. Her proposed patio is bounded on three sides by a 6 foot fence and on the remaining side by a 12 foot brick wall.

Resident Objector’s Submissions

23Mr. Globerman stated the neighbourhood was saturated by establishments and it was not in the public interest to approve another. He agreed the applicants are good people but the problem was controlling patrons. The Applicant stated she would like her premises to be like a traditional local English pub. Those pubs used to close at 11:00 p.m. The situation here is very different with later closing hours and residences so very close to the proposed premises. The law requires that nobody be disturbed by a licensed premises, but that is simply not possible in this case.

Applicant’s Submissions

24Ms. Mutch stated she has a security plan for her premises and its operation will be supervised by herself and her partner who will be on site every day. She intends to abide by the law but cannot be responsible for the operation of other licensees in the area. She has a lot of local support for her venture.

Analysis & Order

25The evidence presented indicates the community has no objection to this particular Applicant, nor with Ms. Mutch and her partner operating with a liquor licence. No concerns were expressed as to their character or relevant experience. Concerns were expressed about the actual operation of the premises with the noise and disruption that might ensue, particularly given its very close proximity to neighbouring residents and the laneways.

26Evidence was presented by both parties suggesting conditions that might enable the business to operate without interfering with the quality of the neighbourhood and the need to control noise, particularly at night. Understandably, concern was focused principally on the operation of the outdoor patio.

27Given the lack of any specific evidence that would disallow the issuance of a licence to this Applicant, the Board APPROVES the Application for a liquor licence made by Cock & Tail Inc. (The), intending to operate as COCK & TAIL (THE), 1168 Queen Street West, Toronto, Ontario, M6J 1J5, subject to the compliance with all statutory conditions and municipal regulations.

28Further, the Board ORDERS that the following conditions, designed to specifically address the concern expressed by local residents concerning noise, particularly noise that may result from the proposed outdoor patio be attached to the licence:

1. There shall be no live, recorded, or transmitted music permitted on the rear patio;
2. No egress or ingress shall be permitted from the rear patio to the adjacent laneway or rear area except for emergency purposes;
3. The patio shall be completely surrounded by a fence or structure at least 6 ft. in height;
4. Alcohol service on the patio shall cease at 10:15 p.m., except for Friday and Saturday nights when it shall cease at 11:15 p.m. All signs of alcohol service are to be cleared within 45 minutes:
5. Capacity on the patio shall be limited to 40 persons or as directed by municipal authorities, whichever is less; and
6. Windows must be kept shut and doors equipped with a self closing device in order to contain noise within the building.

DATED AT TORONTO THIS 28th DAY OF FEBRUARY, 2008