Registrar, Alcohol and Gaming Commission Ontario v. Polson Pier Entertainment Inc., 2008 CanLII 35235

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-

Polson Pier Entertainment Inc. operating or intending to

operate as Polson Pier

Applicant

-and-

City of Toronto

Intervenor

-and-

Toronto Island Noise Committee

Resident Objectors

DECISION

Panel: Alex McCauley, Board Member

Brian Ford, Board Member

Decision Date: April 16, 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 Toll Free In Ontario: 1-800-522-2876

Fax: (416) 326-5566

Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Richard Kulis, Representative

Polson Pier Entertainment Inc., Applicant ) Nicholas Macos, Representative

City of Toronto ) Mark Crawford, Representative

Toronto Island Noise Committee ) Vivian Pitcher and Lynn Robinson, on

their own behalf and on the behalf of the objectors

The Application

1. The Deputy Registrar of the Alcohol and Gaming Commission of Ontario issued Notice of Proposal number 15896 dated January 9, 2008 to review an application for liquor licence from Polson Pier Entertainment Inc. (the “Applicant”) operating or intending to operate as POLSON PIER, 11 Polson Street, Toronto, Ontario, M5A 1A4 (the “Premises”), establishment number 804501. A hearing of the Application was held on April 3, 4 and 7, 2008 in the City of Toronto.

Decision

2. After considering all the exhibits files and submissions from the parties, the Board APPROVES the Application on the conditions set out below. Reasons follow.

Preliminary Matters

3. The City of Toronto (the “City”) and Vivian Pitcher, assisted by Lynn Robinson, were granted party status at a pre-hearing conference held on January 23, 2008.

Reasons

5. At the commencement of the Hearing, the parties informed the Board that they had agreed on a settlement with regard to the issuance of a licence to the Applicant with conditions, and had withdrawn their objections. At the request of the Board, the parties perfected the conditions which they requested be placed upon the licence.

6. There were two objectors, Nikki Gershbain and Dr. Jen Gilbert, whose stated objections are a part of the record (Exhibit #1), and who had not withdrawn their objections. Their objections were regarding anticipated noise disturbances based upon past experience with the licensed premise. Neither objector appeared at any of the hearing dates.

7. The Board’s concerns in this matter have been addressed and resolved. Further, the Board is satisfied, based on submissions from the parties, that any outstanding litigation with the former licensee of the premises will have no impact on this application. The Board has considered the two remaining outstanding objections. The Board is satisfied that the agreement by the parties adequately addresses the concerns of the outstanding objectors.

Order

8. For the above reasons, the Board APPROVES the Application for liquor licence made by Polson Pier Entertainment Inc. operating or intending to operate as POLSON PIER, 11 Polson Street, Toronto, Ontario, M5A 1A4, establishment number 804501, subject to all usually and statutory conditions and municipal regulations.

9. Further, the Board ORDERS that upon issuance of a liquor licence to the Applicant for the premises at 11 Polson Street, the Registrar will reduce the area licensed for the sale of liquor of the current licence holder 1132165 Ontario Ltd. Operating as Docks by Cherry, by the area licensed in favour of Polson Pier Entertainment Inc. (Exhibit #7).

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

11. No sound amplified by mechanical, electronic or other means (“Sound”) emanating from the Premises shall be audible on Ward’s Island or Algonquin Island (the “Community”) at any time. “Audible” shall mean audible to the human ear of any person, unassisted by any mechanical, electronic or other means.

12. Polson Pier Entertainment Inc. (“PPE”) shall, during all hours when PPE is making Sound (other than by the current patio speakers or similar replacement or a private client event), have present in the Community an individual (the “Monitor”) equipped with a cell phone. The Monitor shall:

(a) continuously monitor from various locations through out the Community whether Sound for the Lands is audible in the Community;

(b) report any Sound audible in the Community immediately to PPE;

(c) respond to any complaint (the “Complaint”) by any person (a “Complainant”) in the Community (including but not limited to residents, members of the Queen City Yacht Club, their respective guests and any other visitors to the Community) that Sound is audible in the Community at which the complaint arose and reporting by telephone to PPE, in the presence of the Complainant, the details of the complaint and the Monitor’s findings with respect to the audibility of Sound and the source(s) thereof and providing to the complainant a reference number with respect to the complaint.

3. Upon receipt of a Complaint, PPE shall:

(a) provide to the Complainant a reference number for the Complaint;

(b) if the Sound is emanating from the Premises, immediately reduce the volume thereof by every means possible (including, without limitation, reduction or elimination of amplification of any music, announcements or other Sound, closure of outdoor facilities or all facilities, as may be appropriate);

(c) if the Sound is emanating from that portion of the lands or premises now or formerly known as “The Docks By Cherry” excluding the Premises (the “Adjoining Lands”), immediately terminate direct access to the Premises from the Adjoining Lands, and, upon a Complaint being made in respect of a third occasion of such Sound, PPE shall permanently terminate such direct access by constructing a permanent physical barrier to prevent such access;

(d) enter details of the Complaint, and all steps taken in response thereto, on a permanent record to be maintained by PPE.

4. PPE shall provide to the Toronto Island Noise Committee (“TINC”);

(a) monthly, a schedule of all events when there will be the operation of an electronic device or devices incorporating one or more loudspeakers (other than the current patio speakers or similar replacement or a private client event) scheduled to take place at the Premises for the coming month’ including, as far as possible, a brief description of the nature of the music or other Sounds which such event might generate;

(b) the cell-phone number for the Monitor;

(c) a telephone number for the General Manager of PPE, or his designate to be answered by a live individual having authority to take or direct all reasonable steps to comply with the terms of this Schedule A at all times during which PPE is open for business;

(d) monthly (and at any time upon request), a copy of the record referred to at paragraph 3(d) above.

5. There shall be no amplified outdoor music, disc jockey, amplified voices or loudspeaker at the outdoor facilities at the Premises between the hours of 11:00pm and 11:00am.

6. There shall be no outdoor musical events, including concerts, taking place at the outdoor facilities at the Premises.

7. PPE shall comply with the Docks Noise Containment Proposal, dated July 25, 2006, attached as Schedule “A”, and maintain a record of any alerts relating to excess noise under the proposal.

8. All windows and doors located on the Premises shall remain closed, except for normal entrance and exit purposes, while music is playing indoors at the Premises.

9. All operations on the Premises shall comply with City of Toronto Municipal Code section 591-4 and with Section 46 of Regulation 719 to the Liquor Licence Act.

10. PPE shall apply for a valid business licence issued by the City of Toronto to operate a business of the class: “Entertainment Facility – Night Club”.

11. No caterer’s licence shall be used by PPE on any of the Adjoining Lands except in compliance with the terms of this Agreement as though its use was upon the Premises.

12. TINC and the City of Toronto shall receive timely notice of any application to transfer or vary the terms of the Licence.

13. PPE shall not request that paid-duty police officers be specifically assigned from 51 Division (being the Division required to respond to complaints regarding the Lands). TINC acknowledges that PPE requires paid-duty police officers to conduct its business and that PPE does not control the assignment of police officers for this purpose.

14. PPE shall take all reasonable steps to assure that lighting of the Premises is adjusted and limited in such a way as to minimize exposure to the Island Community.

15. PPE (or any assignee of the License) is not and shall not be controlled in whole or in part or managed directly or indirectly by 11321165 Ontario Limited, Jerome (“Jerry”) Sprackman or any person who has or had an interest in the business formerly known as “The Docks by Cherry”.

SCHEDULE “A”

Docks Noise Containment Proposal

Recognizing that the City or anyone else has had great difficulty in demonstrating which sources of sound around the harbour are the ones audible at the Island community, partly due to the delays in getting from the Mainland to the Islands and partly due to the large number of sound sources in the area, The Docks is suggesting the following Noise Containment Strategy:

TECHNICAL

1. The Docks will maintain a noise measurement point between the Docks facility and the Wards Island Residences positioned such that it measures all sound from the Docks facility heading southward (the “Point Microphone”). Assuming that this location is the southwest corner of the current operations, the maximum sound level to which the Docks commits after 2300 hours is 52 dB Leq (the “Point Maximum”). The maximum sound level at that position has been demonstrated to relate to the maximum of 38 dBA hourly Leq at Wards Island at the Island Community. The measurement will be restricted to the 63 and 125 Hz octave bands which are represented to be the sound bands complained of. Any adjustments to the location of measurement required to improve operational accuracy of the system would be made in conjunction with an agreement with the City and would include adjustments in the required sound levels at that location to achieve 38 dB Leq at Wards Island.

2. The Docks will also operate an internal sound measurement system in its three main interior halls plus the unit at the southwest corner of the property with the readouts of the devices brought back to the security office which is fully attended during nightclub operations. The outdoor metering point nearest the Island will have an alarm function which will alert the security officer of any excesses (the “Noise Containment System” or “NCS”).

3. The Docks shall set up the compressor limiting devices of its sound systems so that when all doors are closed, the Point Maximum shall not be exceeded.

4. During the first season of operation of the Noise Containment System, the Docks shall continue to perform manual sound level measurements around the perimeter of the facility during all hours of the Docks Nightclub operations.

5. 2^nd FLOOR

a) Sound will be monitored by the NCS.

b) If music is played (live or recorded) than all doors to the south patio will be locked except one vestibule door.

c) Roof is closed at 11:00 p.m. and will be treated similarly to the ground level roll-up doors.

SECURITY POLICIES & PROCEDURES

1. NCS shall be monitored live by the closed circuit tv operator (“CCTV Operator”) during all hours of the Docks Nightclub operation.

2. NCS shall be tested before doors open to the public:

a) Security Supervisor shall go to location of Point Microphone, (with radio to CCTV Operator).

b) CCTV Operator shall indicate to Security Supervisor any influx in the NCS readings.

c) Security Supervisor shall make noise next to Point Microphone via vocals.

d) CCTV Operator will record in the CCTV book the results of the test system responding or non-responding (refer to non-responsive procedures).

3. If NCS reads above 52 dB Leq, CCTV Operator shall:

a) Inform Security Supervisor and the Docks Duty Manager immediately.

b) Put headphones on to try and identify source of noise, i.e. plane, party boat, or the Docks itself.

c) Send a security officer (“S/O”) out to the Point Microphone to visually identify the noise source.

d) Log findings in the CCTV log book.

e) Notify the Security Supervisor and the Docks Duty Manager of findings.

4. If the source of noise is possibly the Docks, the CCTV Operator shall inform the Security Supervisor and the Docks Duty Manager. The Security Supervisor shall then:

a) Accompany the Docks Duty Manager to the master controls of the sound system.

b) Send an S/O around the property to ensure that all the doors are closed.

c) Send an S/O to the point microphone, with a portable sound level meter, for live verification of sound levels.

d) Co-ordinate radio contact among the CCTV Operator, Security Supervisor, Docks Duty Manager, and the S/O in order to confirm the lowering of the sound back down to 52 dB Leq on the NCS.

e) Ensure that the CCTV Operator has logged the cause and reaction time of all parties with regards to bringing the levels back in line with the NCS.

5. If after testing the NCS it is found to be non-responsive, the CCTV Operator shall:

a) Notify the Docks Duty Manager.

b) Record it in the CCTV log book.

c) Put an S/O into place, (for live portable dB readings,) until NCS is repaired and tested as responsive. The live dB portable readings must be taken from the Point Microphone location, in intervals, not to exceed 15 minutes.

d) Arrange for expedient repair of NCS.

ENFORCEMENT

The Docks will permit access to City staff to its property to check for itself that the Point Maximum at the southwest corner of the property is being complied with any time the facility is operating with its sound system on. The City agrees that compliance with the Noise Containment Strategy will be satisfactory due diligence with respect to liquor licence conditions and the City Noise By-law.

COMMUNICATION

In order to avoid a build-up of frustration and to address potential sound concerns on a timely basis, the Docks proposes regular meetings among the Island Noise Committee, City Officials and Docks representatives. The meetings should occur on a regular basis with the interval to be determined by the participants having regard seasonal variations of activity and level of concern. Initially the meetings could be held every second week. The Docks will provide the group with notice of its activity schedule.

DATED AT TORONTO THIS 16^th DAY OF APRIL, 2008.

ALEX MCCAULEY, BOARD MEMBER BRIAN J. FORD, BOARD MEMBER

AM/cp

Attached