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-
1480724 Ontario Limited intending to O/A Palm Tree Restaurant & Bar
Applicant
-and-
City of Toronto
Intervener
DECISION
Panel: S. Grace Kerr, Board Member Allan Higdon, Board Member
Decision Date: March 25, 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 1480724 Ontario Limited, Applicant ) Alfred Green, on his own behalf and ) on behalf of the Corporation City of Toronto ) Kelly Matsumoto, Party to the Proceedings
The Application
- The Registrar of the Alcohol and Gaming Commission of Ontario issued Notice of Proposal number 16020 dated February 13, 2008 to review an application for a liquor licence for establishment number 808359 from 1480724 Ontario Limited (the “Applicant”) intending to operate as PALM TREE RESTAURANT & BAR, 1179 Weston Road, Toronto, Ontario M6M 4P5. A hearing of the Application was held on March 17, 2008 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board APPROVES the Application on the conditions set out below. Reasons for these findings follow.
Preliminary Matters
The Applicant, Alfred Green, stated he had not had time to engage a lawyer and would represent himself. The Chair noted the Applicant had a right to be represented and asked if the Applicant was seeking more time to engage counsel. The Applicant stated he was not seeking an adjournment but wished to represent himself and proceed with the hearing.
Registrar Counsel asked the panel to grant the City of Toronto party status at the hearing. He presented a Motion of Council stating that the granting of a licence was not in the public interest, having regard to the needs and wishes of the residents (Exhibit #1). There being no objection, the panel ordered that the City be made a party.
Mr. Kulis stated the Registrar was not taking a position on the application and consequently would be presenting no evidence.
Objector’s Evidence
Frances Nunziata has been a City Councillor in the area of the applicant premises for 20 years. Objector’s Counsel submitted Exhibit #2, which documented her testimony.
The witness described the area as a problematic, distressed neighbourhood. There are lots of vacant stores near Weston Road and Eglinton Avenue. The number of licensed premises in the area has become a real concern. Prior to this Applicant running the premises, previous renters had acquired a long list of liquor infractions going back to 1999. In addition, the area has been plagued by crime and drug dealers. The Councillor wants to clean up the area and expand the retail mix. Right now, there is little variety in retail outlets on Weston. She has spoken to the Applicant and suggested that he operate it as a family restaurant first and forget about obtaining a liquor licence for a while.
On cross-examination by the Applicant, the witness acknowledged the infractions and lawlessness she described did not take place when the premises were occupied by the Applicant. That happened when previous tenants were on site.
The witness stated she had no objection to this particular Applicant obtaining a licence. The problem was the sheer concentration of licensed premises already in the area.
In answer to a question from the Panel, the witness stated that if a licence is issued she would seek conditions such as closure at 11:00 p.m., no amplified music, and keeping the door to the rear laneway closed so noise from the establishment would not disturb nearby residents.
The witness stated she knew of no personal or professional reason why the Applicant would not be a suitable licensee. Again, the problem was the cumulative effect of so many premises. She knew of two nearby premises that were granted licences, but with restrictive conditions.
Stephen Nevill has been a Detective with the Toronto Police Services since 2000. The witness stated his Division is responsible for the area in which the Applicant premise is located. He knows the area well, but not the Applicant.
The witness stated he did a computer search of the subject premises located at 1179 Weston Road and found it cited 56 times for various liquor and criminal violations since 1996. The two biggest offenders were previous tenants “As You Wake” and “Second Chance”. Charges were laid for offences such as drunkenness, disorderly conduct, narcotic possession, firearm infractions, and gun use.
The witness said that licensees usually mean well when they start the business but financial pressures intervene and things are allowed to slide and get more permissive. Undesirable elements such as drug dealers and prostitutes end up frequenting the premises.
Of particular concern in the subject premises is the basement area which has been used as a bar by previous tenants but is not licensed. The basement has an exit door and people have been found behind the building, invisible from the street, drinking after hours. The witness spoke of a long series of police involvement with the premises dating from 1999 until March 2007, all occurring when the address was occupied by the prior two tenants.
The witness would prefer if the premises was used as a family restaurant. If a licence were to be granted, he would like to see a conditions imposed that would not permit the basement to be licensed, close the premises at either 10:00 p.m. or 11:00 p.m., and strengthen security provisions.
Responding to the Panel, the witness stated he knew of no reason why the character of the Applicant should disentitle him to a licence. No background checks have been done on the Applicant.
The witness stated he would like the Applicant to be successful and would be willing to liaise with the Applicant and other member of the Toronto Police Services to ensure the premises were operated without any problems if a licence were to be granted.
Applicant’s Evidence
Emmanuel Tolaniawo is the landlord of the subject premises. The Applicant has been a tenant since September 2007.
The witness purchased the property in 2000 and took a year to renovate it and bring it up to complete compliance standards. He applied for a liquor licence for the premises but the local Councillor objected, as she does to all liquor licence applications in the area.
The witness stated he knows of other licences that have been issued in the area without any restrictions.
The witness described some of his extensive professional experience related to the food and beverage trade, such as Chief Steward at the Metro Toronto Trade Centre for 12 years and at the CN Tower for 5 years.
The witness stated he was not aware of the extensive history of problems at his building as outlined by previous witnesses. He and his wife have lived in the building since 2003, have not had any problems, and are not aware of any police involvement. The building contains 4 two bedroom apartments, 1 three bedroom apartment, and three commercial storefronts, one of which is the subject premises.
Under cross-examination, the witness stated he knew of three noise complaints related to the “Second Chance” business but he spoke to the tenant and there were no more problems. He was certainly not aware of any allegations related to drug use or prostitution.
Responding to the Panel, the witness stated he has done only a very cursory background check on the current tenant of 1179 Weston Road.
Flora Tolaniawo is the wife of the previous witness, the landlord of 1179 Weston Avenue. The witness said the testimony of the City Councillor was not correct. The neighbourhood is full of families and there are all kinds of retail outlets in the area.
The Palm Tree Restaurant is clean and ready to operate as licensed premises. It is a Jamaican-Canadian restaurant with an older clientele who appreciate the peace and quiet from no live music.
Herlinda Robinson is the business partner of the Applicant. She read a statement prepared by the Applicant, Exhibit #3.
The witness stated the Applicant drives a truck and delivers furniture. He also has a limousine and drives a bus. Since opening their restaurant, the two of them have had to survive without a liquor licence for their restaurant and do not want to be further penalized for the bad conduct of previous tenants.
The witness said she has extensive business experience, having run a health food store for 19 years. She has Smart Serve. Now she is looking for her and the Applicant to have a chance to prove themselves.
The witness said the wiring for security cameras is in place and they will hook up cameras once they receive a licence.
The business currently has a licensed chef, a licensed server (herself) and kitchen help. The hours are currently 12 noon until 9:30 – 10:00 pm. She has experience in the restaurant business as she has worked as an assistant cook at a Holiday Inn, and been a cook at a Marriot Hotel for a year.
The witness stated she was not aware of the difficulties with previous tenants.
In response to cross-examination, the witness stated they would consider conditions on a licence if they were necessary for approval. None were specifically discussed.
Alfred Green is the Applicant. He is 63 years of age and has previously worked as a licensed bartender and chef, although it is many years since he had those occupations. He has applied to take his Smart Serve training.
The witness stated he wanted his business to be a bar and restaurant, not a nightclub. He has no intention of having live music.
The witness described how he would maintain order on the premises. He has had three panic buttons installed on the premises which are directly connected to the police.
The witness stated his present occupation involves frequent border crossings and dealings with custom officials. He would run his licensed premises strictly because any trouble with officials would imperil his livelihood with his other business.
The witness has done extensive renovations to the premises.
On cross-examination, the witness stated the capacity for the upstairs portion is 40 persons. He understands the concerns expressed about licensing the downstairs but it would be a great inconvenience not to licence it and have to pursue Special Occasion Permits every time he had an event in the basement. There is also the difficulty of having patrons go downstairs with alcohol into an unlicensed area every time they wanted to go to the washroom. This could lead to a lot of trouble with authorities.
The witness is willing to accept conditions such as no live music and to have shorter hours of operation than normal.
Since he opened his restaurant in December 2007, the Applicant has had no incidents or problems with the police
Registrar’s Counsel clarified that the capacity of the upstairs in 40 persons. Any additional capacity in the basement is dependent on numbers approved by the fire department. The capacity of 57 patrons noted on the Notice of Proposal is incorrect.
Submissions
City of Toronto
Counsel for the City of Toronto reviewed the troubled history of the location and expressed concern as to the number of licensed establishment in the area. She considers the number excessive.
Counsel noted the testimony of police in which it was stated the problems at 1179 Weston Road persisted despite different operators. There is also the fundamental problem of the awkward lay-out of the premises, including the basement.
Counsel asked the Panel to refuse to grant a liquor licence to the Applicant.
If the Panel were to grant a licence, counsel presented a list of conditions (Exhibit #4) which she asked the panel to consider attaching to the licence. Among them would be “no live music” and “all signs of service to be cleared by 12 midnight”. Counsel also asked for the basement area to be licensed only for special events.
Counsel presented case law Exhibit #5 in which a licence was denied to a basement and back patio area due top security concerns.
Applicant
- The Applicant stated he had reviewed the proposed conditions of the City of Toronto and was not in agreement with provision #8 requesting that the basement not be licensed or #7, requesting that the sale of liquor cease at 11:00 pm and all signs of service be cleared by midnight. The other conditions were acceptable.
Decision
The Panel considered the issues presented carefully, mindful of its responsibility to the neighbourhood at large and immediate residents. The Board finds that the objectors have failed to meet the onus on them under ss. 6(2)(h) that it would not be in the public interest to grant this licence having regard to the needs and wishes of the residents.
The Board does not doubt or minimize City Councillor Nunziata’s concerns or Detective Nevell’s information regarding past incidents involving the address of the Applicant establishment. However, it cannot make a decision based on conjecture and speculation about the potential negative impact of the Applicant’s business. None of these concerns or incidents relate directly to this application or the manner in which this establishment would be operated.
The Panel was impressed by the plans of the Applicant and his partner. Between them they have a great deal of business and service industry experience. The Applicant stressed how the careful operation of this proposed facility was essential to maintain the reputation he requires to operate his other businesses.
The Panel notes the installation of panic buttons and wiring installed for video cameras further demonstrate the commitment of the Applicant to run a safe, orderly licensed premises.
The Panel considered the numerous infractions that have previously taken place at this location under other operators. However, there is no record of any police problems since the Applicant opened his restaurant in December 2007.
Both witnesses objecting to the application stated they knew of no personal or professional reasons why the Applicant should be disqualified from his right to a liquor licence.
The Panel also took into consideration the modest capacity of the proposed establishment with upstairs capacity upstairs at 40 persons and a possible very modest increase if the fire department permits the addition of some basement capacity.
The Applicant has also taken measures to address concerns about the rear exit door in the basement. It is now wired to alert staff upstairs if it is opened.
Counsel for the City of Toronto, proposed a number of conditions to be attached to the licence if it was to be granted and the Applicant accepts all but two of them. The Panel considers most of them reasonable and capable of implementation without endangering the viability of the business.
The Panel is satisfied that the Applicant and his partner will be conscientious and diligent operators who will be considerate of the needs and wishes of the community.
Order
For the above reason the Board APPROVES the Application for liquor licence from 1480724 Ontario Limited intending to operate as PALM TREE RESTAURANT & BAR, 1179 Weston Road, Toronto, Ontario M6M 4P5, establishment number 808359, subject to all statutory conditions, municipal regulations and licensed capacity limitations.
Further, the Board ORDERS that the following conditions be attached to the licence:
Sale and service of beverage alcohol must cease at 11:15 p.m. each day and all signs of service shall be cleared by 12 midnight.
At all times while the premises are open for business, the Licensee shall ensure that there are clearly visible and functioning security cameras located inside the premises as well as at the front and back doors so as to view, monitor and record each entrance and exit of the premises.
The Licensee shall store and retain the video and digital records from each security camera for at least 30 days and make the recording available immediately to police officers or liquor inspectors upon request.
The Licensee shall post at the entrance to the premises a sign stating, “Premises Under Video Surveillance”.
The Licensee shall ensure that all windows on the premises are kept clear and clean so that it is possible to see directly into the premises from the street at all times.
The exterior door located in the basement of the premises shall only be used as an emergency exit and shall otherwise always be kept closed and locked.
The Licensee shall provide the local City Councillor’s office with a contact phone number to deal with complaints.
There shall be no application for a transfer of the liquor licence or a change of conditions without prior written notice by the Licensee to local City Councillor’s office.
DATED AT TORONTO THIS 25th DAY OF MARCH, 2008.
ALLAN HIGDON, BOARD MEMBER S. GRACE KERR, BOARD MEMBER
AH/sm