Registrar, Alcohol and Gaming Commission Ontario v. Daewon House-Club Plus Ltd., 2008 CanLII 35196

Alcohol and Gaming Commission of Ontario

In the Matter of The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

Between:

Registrar, Alcohol and Gaming Commission Ontario Registrar

-and-

Daewon House-Club Plus Ltd. intending to operate as Champions on the Danforth Applicant

-and-

City of Toronto Intervenor

-and-

Ahmad Bhaiyat Objector

Decision

Panel: Beryl Ford, Board Member Patricia McQuaid, Vice-Chair, AGCO

Decision Date: June 6, 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 Website: agco.gov.on.ca

Appearances

Registrar, Alcohol and Gaming Commission: Brad Alton, Representative Daewon House-Club Plus Ltd., Applicant: Robert Plouffe, Representative City of Toronto: Jessica Braun, Representative Ahmed Bhaiyat: On his own behalf and on behalf of the objectors

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario ("AGCO") issued Notice of Proposal number 16152 dated April 2, 2008 to review an application (the "Application") for a liquor licence made by Daewon House-Club Plus Ltd., (the "Applicant"), intending to operate as CHAMPIONS ON THE DANFORTH, 1075 Danforth Avenue, Toronto, Ontario, M4K 1M1, (the "Establishment" or the "Premises"), establishment number 25502. A hearing of the Application was held on May 14, 2008 in the City of Toronto.

Decision

2After considering all the evidence and submissions, the Board APPROVES the Application with conditions to be attached to the licence as set out below. Reasons follow.

Preliminary Matters

3Brad Alton appeared on behalf of the Registrar. He advised the Registrar took no position on the Application.

4Ahmad Bhaiyat is a resident of the municipality and objects to the Application for licence. He appeared before the Board on his own behalf and as the representative of the objectors whose names appeared on the petition (Exhibit 1(c)). On consent of all parties, the Board ORDERED Mr. Bhaiyat be made party to the proceedings.

5The City of Toronto (the "City") also requested party status. On consent of all parties, the Board ORDERED that the City be given party status.

6Ms. Braun, the City's representative advised the Board that City Council had originally opposed a liquor licence at this location on the basis of public interest concerns (Exhibit 3), however, the local councillor, Ms. Fletcher, subsequently met with the Applicant, specifically its principal, Mr. Kang. After lengthy discussions, they agreed to a list of conditions, to attach to the liquor licence, which would alleviate the City's concerns, and on the basis of which, the City would support this Application. These conditions are set out in Exhibit 5 – Schedule A. These conditions were adopted by City Council on April 28 and 29, 2008.

7Mr. Bhaiyat, having been made a party, requested an adjournment of the hearing, the reason being that a member of their community had died and that many people who would have otherwise attended the hearing, could not as they were attending prayers at the Mosque. In addition, he wished to file with the Board a further petition with hundreds of names, signed by those who attended prayers at the Mosque, in opposition to this establishment. He indicated that the City had a copy of that petition, but acknowledged that neither the Registrar nor the Applicant had a copy of the petition. Mr. Plouffe opposed both requests.

8The Board noted that the hearing was scheduled on or about April 10, 2008. Further, the Board had recognized Mr. Bhaiyat as representing the interests of his community. In addition, there were others present at the hearing from whom the Board would hear evidence reflective of their wider community's concerns. The Board was not therefore prepared to grant an adjournment. The Board was prepared, in the circumstances, however, to consider accepting the petition in evidence and requested a copy so that it could be reviewed by the panel. Ms. Braun provided a copy of that petition to the Board. Upon review it was noted that the petition was addressed to the Ontario Racing Commission, not the AGCO, in opposition to the off-track gaming licence. As this Board has no jurisdiction in such matters, the Board advised that it could not accept the petition into evidence.

Resident Objectors' Evidence

9Mr. Ahmed Bhaiyat lives at 145 Chatham Avenue which runs parallel to Danforth Avenue and is close to the proposed establishment. He stated that he was speaking on behalf of himself and many residents. They strongly object to the issuance of a liquor licence for the establishment. Their Mosque, a place of worship and a religious school with approximately 350 children enrolled, is located a short walking distance away. Children must walk past the establishment to get to the Mosque and to the local public schools in the area.

10The neighbourhood is considered a safe and peaceful area, vehicles can be left unlocked without fear of problems, and people, a large Indian, Pakistani and Sri Lankan community, can walk around with respect. The area has a relatively low crime rate. Alcohol is considered an evil and both alcohol and gaming are completely prohibited by their religion.

11He stated that a business like the one proposed is teaching and creating an environment that is harmful to society and the future of children in the area. Gaming and liquor are bad and unhealthy habits which are costing the City. He stated that there will be harm to the children by being exposed to a business that sells alcohol, as well as to the people that consume it.

12Mr. Bhaiyat emphasized that he strongly objects to the issuance of a liquor licence for the premises because of its proximity to the Mosque which is located at 1015 Danforth Avenue. He stated that he would support any other business, and there are many, that Mr. Kang could operate, but not a business that sells alcohol or involves gambling.

13On cross-examination, Mr. Bhaiyat stated that prayers start at the Mosque at 5:30 a.m. and continue until sunset. They have approximately 5,000 people who attend from many different areas of the city.

14In response to questions from Mr. Plouffe, Mr. Bhaiyat said there was one licensed establishment across the street on the north side. It has not affected them so they have not objected to the liquor licence.

15Mr. Bhaiyat emphasized that he has no concerns with Mr. Kang, just that his business would serve liquor.

16Mr. Mohamed Vadia lives at 25 Byron Avenue. He can see the proposed establishment from his house. He testified that there is a parking problem in the area. Approximately 500 people attend the Mosque daily for prayers and there is often 3,000 people attending on Fridays.

17Mr. Vadia expressed his concern for the children in the area. He stated that exposure to liquor and gambling is bad for children. There are many schools in the area and children must walk past the establishment to get to school.

18Mr. Vadia testified that the community would support any other business that Mr. Kang proposes, but the "business of alcohol is dangerous to their daily life".

19On cross-examination, Mr. Vadia stated that the many people who attend the Mosque arrive by car or subway. Parking was a serious problem in the area.

20Mr. Rana Siddiqui testified that since 2005 he has lived at 11 Byron Avenue. He previously lived in an area where there was a Mosque but there were also many bars. He searched around until he found his home on Byron Avenue. It was perfect for his family, there was a nice Mosque, no bars and he thought he had found paradise.

21Now his children will have to walk past the proposed establishment to get to school and their Mosque. Parking is a problem in the area and there are often 3,000 people at the Mosque. Currently they can park at the local schools for special events. Street parking is also a problem.

22On cross-examination, Mr. Siddiqui said he was aware of a bar west of the area on Greenwood Avenue and that he had seen drunks around that establishment.

23Mr. Yakub Hansa testified that he lives at 560 Greenwood Avenue. He previously lived for approximately 13 years at 1067 Danforth Avenue, where he resided in the upstairs portion of the building and operated a business downstairs.

24His two children attend local public schools in the area and attend evening prayer and religious school at the Mosque. Both he and his children will have to walk past the establishment to get to school and the Mosque. He stated that if the AGCO issues a liquor licence to the proposed Applicant it would cause environmental problems for the children.

25His sons attend evening prayer at the Mosque from 5:30 p.m. to about 7:30 p.m. In the summer, the last prayer may be at 10:30 p.m. or 11:00 p.m.

26The Mosque is currently under renovation and parking is a problem; it is worse now because of the construction at the Mosque. He believes that the proposed premises was previously a food store and then it became a restaurant. When it became a restaurant, there were problems every day with people arguing, he didn't know what caused the arguing and didn't know if they had a liquor licence.

Applicant's Evidence

27Mr. James Kang, the principal of the Applicant, testified that he has operated Champions on the Danforth at 437 Danforth Avenue, approximately 1.2 km west of the proposed location, since November 2001. He has held a liquor licence at that establishment for seven years without incident.

28The business at 437 Danforth Avenue operated with a liquor licence and a licence from the Ontario Racing Commission for off-track wagering. On May 8, 2008, the licence was granted for the new premises at 1075 Danforth Avenue, also to be known as Champions on the Danforth.

29The business opens at 11:30 a.m. daily. It mainly serves patrons that enjoy horse racing and off-track wagering activities. Everyone has left the premises by 2:00 a.m.

30He stated that his business caters to an older clientele, many of whom are in their early sixties. People come in to place bets on horse races, and food and drinks are available to patrons. He estimated only 15% to 20% of his revenue is from alcohol sales.

31Mr. Kang testified that the rent at 437 Danforth Avenue was increasing considerably. He was paying $7,000 monthly and was informed by the owners that when his lease expired in October, 2007, his rent would increase to $8,200 monthly so he decided to relocate. He continued to rent on a month by month basis until he found the new location

32He purchased the building at 1075 Danforth Avenue in December, 2007, with the intention of relocating his business from 437 Danforth Avenue.

33Mr. Kang testified that he did not anticipate any problems with his licence. The new building was zoned commercial and he had applied for and received all compliance letters required with respect to city permits and fire marshal approval.

34He closed his old business on May 5, 2008 and surrendered his liquor licence to the AGCO. He has not opened the new premises because of the issues with acquiring the liquor licence.

35Mr. Kang made it clear that he respects the religious rights of others but did not anticipate this problem. He spoke to Mr. Pirzada (Ex. 6) who had objected to the Application. Mr. Kang assured Mr. Pirzada that there would be no patio; Mr. Pirzada then withdrew his objection (Ex. 6). Mr. Kang said it was his intention to place flowers in containers outside the front entrance. The windows would have clear glass in accordance with a city requirement and he would place vertical blinds on the windows to ensure that people could not look directly inside.

36At the conclusion of the evidence, at approximately 1:00 p.m., and as the Board was preparing to hear submissions, two more members of the public arrived. One of the two, Mustafa Makhatari, had filed a letter of complaint with respect to this application. He was accompanied by Mr. Dorani who, though there was no letter of objection from him, wished to tell the Board of his concerns, and speak on behalf of, or translate for, Mr. Makhatari who has limited fluency in English. The Board indicated that it was not prepared to hear further oral evidence at this stage of the proceedings, especially given that neither the Board nor any of the parties had a letter of objection from Mr. Dorani. Mr. Makhatari's letter would be given appropriate weight together with all letters of objection that had been filed.

Submissions – City of Toronto

37Ms. Braun stated that the City had heard the concerns of residents and taken them very seriously. The Applicant had agreed to extensive conditions that would attach to the liquor licence.

38It is the position of the City that if there is full compliance with the conditions attached to the liquor licence, public interest issues would be addressed. Therefore, a liquor licence should be issued to the Applicant.

Submissions - Objectors

39Mr. Bhaiyat submitted that alcohol is the source of problems for both society and families. He asked that the Board consider the views of the citizens of his community as genuine and deeply felt and on that basis refuse this application.

Submissions – Applicant

40Mr. Plouffe submitted it is a typical case of 'the tail wagging the dog'. If Mr. Kang controls and operates a different business it is acceptable to the objectors.

41The purpose of this liquor licence is to complement the business of off-track wagering. Mr. Kang has proven that he is a professional businessperson, who has operated a business with a liquor licence for the past seven years without incident.

42Mr. Kang honours and respects the religious beliefs of the objectors, but they are seeking geographic control and exclusivity over the area. He noted that no representatives from the local public schools attended the hearing to oppose the Application.

43Mr. Kang has done everything he possibly can to meet the requirements and satisfy public interest issues. He has agreed to conditions that will be attached to the liquor licence. He has secured all letters of compliance from building, health and fire department authorities. He has fulfilled all the licensing requirements and is, therefore, entitled to a liquor licence.

Analysis and Decision

44The Board has carefully considered the evidence and submissions presented by all parties. At issue in this hearing is whether the granting of this liquor licence is in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located. The onus is on the objectors to establish, on a balance of probabilities that the issuance of this licence is not in the public interest. The Board looks at letters and petitions of support and objection and carefully considers the testimony of those present at the hearing as well as exhibits and submissions. In determining whether the needs and wishes of the residents are bona fide, the Board will look at the totality of the evidence to evaluate whether the subjective concerns and fears of the residents are supported by a valid and objective basis. Further, the Board will give greater consideration to those residents in the immediate area who may be most affected by the establishment than to other residents of the municipality who are less directly affected.

45There is no question that public interest hearings often raise very difficult issues which require a delicate balancing of the interest of those who live in a community with those who would earn their living there.

46The objectors have raised concerns about the potential impact of this establishment, the main concern being its close proximity to the Mosque. Some of them will have to walk by it, with their children, to attend the Mosque whether it is for prayers or school. Some live in the area, others will walk by it as they make their way to it from different parts of the city. The concern is not with the Applicant, in fact, they quite candidly stated that they would support Mr. Kang in a different business endeavour which might be more acceptable to them from a moral and social perspective.

47To the objectors, the negative impact of gaming and alcohol on their community, and society at large, is significant. The objectors presented themselves as persons for whom their community is important, a group with laudable high moral standards and social concern, but these standards may not be shared by the wider community. The impact on them is speculative as are concerns raised in a letter of objection that drug dealing would be a consequence of this establishment. The Board, despite the heartfelt and genuine concerns of the objectors, cannot make a decision based on conjecture and speculation about the potential negative impact of a licensed establishment.

48The City of Toronto had initially expressed public interest concerns about a licensed establishment at this location, but upon meeting with Mr. Kang, Councillor Fletcher has satisfied herself that the imposition of mutually agreed conditions will alleviate the City's concerns. Concerns were expressed about a shortage of parking. Parking issues are generally an area of municipal regulation. In this instance it was not a concern voiced by the City.

49Mr. Kang himself has expressed a genuine willingness to attempt to minimize any potential negative effects on this community from his business and there is no evidence to suggest that he will be anything less than a good operator with focus on being a good neighbour within the community. There is no suggestion on the evidence that this Applicant will not comply with the LLA and its regulations.

50Though the Board has respect for the religious beliefs of the objectors and understands their concerns are very real to them, given the circumstances of this case and the evidence adduced, the Board finds that the objectors have failed to meet the onus upon them that it would not be in the public interest to grant this licence. However, conditions on the licence as agreed between the City and Mr. Kang will attach to the licence and, in addition, recognizing the concern about the visibility of alcohol consumption within the community, it is appropriate that a condition attach prohibiting an outdoor licensed patio.

Order

51For the above reason the Board APPROVES the Application for liquor licence made by Daewon House-Club Plus Ltd., intending to operate as CHAMPIONS ON THE DANFORTH, 1075 Danforth Avenue, Toronto, Ontario, M4J 1M1, subject to all statutory conditions and municipal regulations.

52Further, on consent, the Board ORDERS that the following conditions be attached to the licence:

1. There shall be no outdoor licensed patio.
2. The Premises shall close no later than 2:30 a.m. each day and no patrons will be allowed to enter or remain on the Premises after 2:30 a.m.
3. A sign shall be posted at each entrance of the Premises which states "Management Reserves the Right to Refuse Entry or Service".
4. There shall be no loitering in and around the entranceway to the Premises.
5. Washrooms of the Premises shall be kept locked at all times and access to the washrooms shall be granted to patrons of the Premises only and via a key kept behind the bar and monitored by an employee. A sign stating "Washrooms are for Patron Use Only" shall be posted at each entrance.
6. A current telephone number of the License Holder shall be provided to the local Residents Association, the local City Councillor and the 55 Division of the Toronto Police Services.
7. Before applying to change any of the conditions contained herein, the Licensee shall provide written notice to the Ward Councillor.
8. Before transferring the liquor licence to any other corporation or individual, the Licensee shall provide written notice to the Ward Councillor and shall meet with local residents to discuss the matter prior to any such transfer.
9. The Licensee shall ensure that all areas immediately adjacent to the establishment are clean and free of litter, refuse and other debris.