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 of Ontario Registrar
-and-
2109889 Ontario Inc. O/A Harlem 1920 Applicant
-and-
Rosemary Ullyot Objector
-and-
Julie Buckareff Objector
DECISION
Panel: Patricia McQuaid, Vice-Chair Jacqueline Castel, Board Member
Decision Date: September 4, 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 ) Dan Alakas, Representative , Applicant 2109889 Ontario Inc., Applicant ) Carl Cassell, on behalf of the ) Corporation
Rosemary Ullyot ) Muriel Collins Housing ) Co-operative and Resident Objector ) on her behalf and on behalf of the ) Objectors
Julie Buckareff ) Resident Objector on her own behalf
The Application
1The Registrar of the Alcohol and Gaming Commission of Ontario issued a Notice of Proposal number 16376 dated June 18, 2008 to review an application for liquor licence for additional areas from 2109889 Ontario Inc. (the “Applicant”) operating as HARLEM 1920 (“Harlem” or the “establishment”), 67 Richmond Street East, Toronto, Ontario, M5C 1N9, liquor licence number 202544. A hearing of the application was held on August 13, 2008.
Decision
2After carefully considering the evidence and submissions, the Board APPROVES the Application subject to conditions on the licence set out below. Reasons follow.
Preliminary Matters
3Mr. Dan Alakas appeared on behalf of the Registrar. He advised that the Registrar takes no position on the Application.
4Ms Rosemary Ullyot is a resident of the municipality and the president of the Muriel Collins Housing Co-operative (the “Co-operative”), which is comprised of 108 unit, split between two buildings. One building is located on Richmond Street and the other building is located on Lombard Street. Approximately half of the units of the Co-operative are affected by Harlem’s application to licence the patio. Ms Ullyot appeared before the Board on her own behalf and as a representative of the Board of Directors of the Muriel Collins Housing Co-operative. On consent of all parties, the Board ORDERED Ms Ullyot be made a party to the proceedings.
5Ms Julie Buckareff is a resident of the municipality. She appeared before the Board on her own behalf. On consent of all parties, the Board ORDERED Ms Buckareff be made a party to the proceedings.
Resident Objectors’ Evidence
6Ms Nancy Glenn resides with her thirty year old handicapped son and her ten year old grand-daughter in the Richmond Street building of the Co-operative. Her two level unit is on the second and third floor directly adjacent to Harlem. She has lived in the Co-operative for fourteen years, but has only resided in this particular unit for a year. She did not know Harlem and its customers created such a noise disturbance until she moved into her current unit a year ago. She is constantly woken up at night by the noise. She has spoken to Mr. Cassell, the owner of Harlem, about the noise several times but the problem has not gone away.
7On cross-examination, Ms Glenn indicated that she moved into her current unit of the Co-operative because it is a bigger unit. The decision to move had nothing to do with the fact that her son plays the drums.
8Smoking is not permitted inside Harlem so customers stand in an alcove outside the premises smoking. The customers are loud and rowdy. Her grand-daughter sleeps in the room above the alcove and is constantly woken up by the noise from the people outside. Her son is also often woken up at night from the noise. The noise from people on the street is the worst on weekends at night and into the early morning.
9Ms Glenn’s concern about the patio is that the noise from people outside the establishment is already a problem. Licensing a patio would increase the number of people outside, thereby exacerbating the existing noise problem.
10Mr. Roy Leffell resides in the Co-operative in the unit next to Ms Glenn’s unit, facing Richmond Street. Harlem customers stand on the street to smoke, talk and laugh until 3 a.m. They are very loud and he can hear them clearly in his apartment. A photograph showing Harlem, the Co-operative and the laneway where the proposed patio would be located was introduced as Exhibit 1.
11Mr. Leffell suggested to Mr. Cassell that if he could make the laneway between his building and the Golden Thai restaurant more attractive, then smokers might be more inclined to stand in the laneway. He even suggested to Mr. Cassell that he put a bench in the laneway. If customers congregated in the laneway instead of in front of the building it would be less noisy for the residents of the Co-operative. He is opposed to licensing the patio because it will not eliminate the problem of people smoking in front of the establishment. Rather, it will exacerbate the existing noise, since there will be more people outside, some in front of the establishment and others on the patio. Because of the proximity of Harlem to the Co-operative, there would be additional noise issues if the patio was licensed.
12Mr. Leffell acknowledged that Mr. Cassell has hired a bouncer, but even with the bouncer, there can be as many as fifteen people smoking, talking and laughing in front of the establishment.
13Mr. Leffell would like Mr. Cassell to address the existing noise issues before creating new issues by licensing a patio. He acknowledged that he understands, from a business perspective, that Mr. Cassell would like to realize a return on any improvements he makes to the laneway, but he cannot support licensing the patio until he has an opportunity to see whether smokers would congregate in the laneway if it was more attractive. Mr. Cassell needs to demonstrate to the community that he will reduce the current noise problems before Harlem is permitted to expand.
14Ms Eileen Leishman resides in the Lombard Street building of the Co-operative. She is not affected by the noise personally. However, two individuals living in her building whose units face onto the back courtyard have complained to her about the noise coming from Harlem. Their complaints relate primarily to the music, not the noise from people congregating out front. A photograph of the laneway which also showed the location of the Lombard building in relation to Harlem was introduced as Exhibit 2.
15Ms Julie Buckareff owns the property 76 Richmond Street East directly across the street from Harlem. A floor plan of her building was introduced as Exhibit 3. She resides on the second floor of the building with her husband and three year old son. The rest of the building is occupied by commercial tenants.
16The commercial tenants do not complain about the noise from Harlem because they are only in the building during the day and the noise issues are late at night and early in the morning. The only exception is her tenant who is a lawyer. He often works very late and has complained about the noise.
17Ms Buckareff hears the noise from Harlem from her living room and bedroom. Sometimes her son, whose room is at the back of the building, is woken by the noise, although she acknowledged that this is a rare occurrence. Some Saturday evenings the dishes rattle from all the noise. There is not usually a noise problem Monday through Thursday. About every other Friday and every Saturday evening there is a noise problem. The noise issues are worse on Saturday night. Ms Buckareff clarified that the noise issues in her building are primarily from the music inside Harlem; however, they are also disturbed by people on the street.
18Ms Buckareff has had her front door smashed and the Golden Thai, the restaurant on the other side of the alleyway, has had its windows broken. Ms Buckareff acknowledged that she has no proof the customers of Harlem were responsible for this vandalism.
19Ms Buckareff told the Board she has a good relationship with Mr. Cassell. He even gave her his personal phone number so she could call him when she has a problem. He is not always there, however. His other employees and his DJ, who she believes is a part-owner, are not always as obliging as Mr. Cassell. Once the bouncer threatened her husband, when he went to Harlem late at night to complain about the noise. Ms Buckareff does not feel she should have to constantly call Mr. Cassell about the noise issues. Sometimes she does not call and simply sleeps with a pillow over her head. Mr. Cassell has made some efforts to address the noise problems but they have not been to her satisfaction. She has stopped keeping track of every time there is a noise issue because the disturbances are so frequent.
20Ms Buckareff said she wanted to make absolutely clear that her opposition to licensing the patio is entirely a noise issue. She believes the existing noise problems will get worse if the patio is licensed. Another photo of the alley way was introduced as Exhibit 4, and the floor plan which was submitted to the AGCO on behalf of Harlem for additional licensed space was introduced as Exhibit 5. Ms Buckareff believes the patio is intended for bar patrons. She would not be opposed to licensing the patio if it was intended to be part of the restaurant and only permitted to sell alcohol with meals. Other conditions she would like to see on the liquor license for the patio include: no music on the patio, the requirement of an 8 foot fence in front of the patio, and no alcoholic beverage service after 10 p.m.
Applicant’s Evidence
21Mr. Carl Cassell opened Harlem in December 2006. Harlem is a restaurant and has received glowing reviews from food critics. The idea behind Harlem was also to give young people in his community, who would not be able to perform at a larger venue, the opportunity to perform live music, give poetry readings, etc.
22Shortly after opening, he called the local city councillor, Ms Pam McConnell, to introduce himself and his new establishment. She told him residents had voiced concerns about the establishment. He believes some of the complaints were received by Ms McConnell’s office before the establishment even opened its doors. Since Harlem opened, it has been investigated by the municipality for noise complaints and by the police on multiple occasions. Mr. Cassell owns another restaurant on Queen West, but he has been investigated far more at the Harlem property.
23There are twelve homeless shelters, as well as a prostitution problem, in the neighbourhood. People use the alley way as a bedroom, a toilet, and to take drugs. It is not fair to attribute the noise problems on the street solely to his customers. He spoke to Roy Leffell and Julie Buckareff about addressing the noise problem out front, by making the alleyway more attractive, but it is not a simple or quick “fix”. The alleyway does not belong to him, and three other businesses have a registered right of way over the laneway. It has taken him a year to negotiate a license for the alleyway. A copy of the unsigned License Agreement for the laneway, dated June 1 2008, was introduced as Exhibit 6. Mr. Cassell will spend an additional $800 per month on rent under the agreement. If he is going to spend more on rent, he needs to be able to generate additional revenue to make the higher rent worthwhile. Mr Cassell’s plan is to move his customers off the sidewalk and onto the patio, which he intends to beautify. His plans for the patio, in addition to addressing the problem of customers congregating on the sidewalk, also makes excellent business sense. Restaurants in Toronto which do not have a patio “die” in the summer. His restaurant managed to do adequate business this summer because the rainy weather has not been conducive to patio dining.
24Mr. Cassell said he is committed to addressing the noise problems. Last November, Ms Buckareff invited him into her living room, and he acknowledged there was definitely a noise problem. Since then, he has added initially 5 inches, and subsequently another 3 inches, of sound insulation to Harlem’s walls. Windows have been sealed and caulked. To the best of his ability, the noise from within the premises has been contained. The municipal by-law inspectors have checked to confirm that he is not in violation of the noise by-law. If Ms Buckareff is still hearing music or a deep base sound, it must be from one of the other establishments in the area, such as Goodhandy’s. Further, Richmond Street itself is a busy street with constant noise from traffic.
25On cross-examination, Mr. Cassell indicated that the municipal by-law inspectors visited his property after 11 p.m. to confirm that there was no noise violation. He could not remember the exact date but it was after he added the sound insulation.
26Mr. Cassell plans to purchase a garage door, ten feet in height, to close the entrance of the alleyway. The door will be two inches thick and insulated. The insulation will help to reduce the noise. The door, and therefore the entranceway from the street, will be closed when the patio is open. The door will cover the entire entranceway of the patio which is 9 ½ feet wide. The door will prevent unauthorized entry to the laneway from Richmond Street. The patio will be 50 feet long and 4 feet wide. The tables are 28 inches wide. There will be no music on the patio. There will also be a fence around the patio. Access to the patio will be through a side door from the restaurant.
27In response to a question from Ms Ullyot, Mr. Cassell acknowledged that if the patio is filled to capacity, customers will still smoke in front of the establishment.
Resident Objectors’ Submissions
28Ms Ullyot stated that for the residents of her Co-operative, the noise from customers on the street in front of Harlem is the issue. The bass from the club is not as disturbing, and they have no concerns with the restaurant. In fact, Ms Ullyot was most complimentary of the restaurant. Mr. Cassell has made efforts to move people who are partying on the street in front of Harlem along, but his efforts have not been successful. The garage door will not be sound proof enough. The roof will be open and the noise from the patio will carry. Ms Ullyot, the residents of her Co-operative she represented, and the Board of the Co-operative are objecting to licensing the patio because of the street noise generated by customers of Harlem, which will only get worse if the patio is licensed.
29Ms Buckareff stated that her problem with the establishment is the noise, particularly late at night and into the early morning, on weekends. The other bars in the area do not create a noise problem for her. Harlem is directly in front of her building and this is where the noise is coming from. She would like more details on the proposed garage door. If the patio is licensed, she would also want there to be stipulations on capacity. She believes that a capacity of 28 for the patio is too high. In reply, Ms Buckareff also stated that if Mr. Cassell is truly committed to solving the noise problem, she would like to see him close at 11 p.m. and only operate as a restaurant, not a pub.
Applicant’s Submissions
30Mr. Cassell stated that he is committed to solving the issues on Richmond Street, including the problem of people congregating in front of the establishment. He believes the patio will help to address the noise problem from congregating in front of the establishment, as it will give them some place else to go. There will be twenty-four hour surveillance on the patio.
Reasons and Analysis
31The Board has carefully considered the evidence and submissions of the parties. At issue in this hearing is whether the granting of a license for the patio 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 the licence is not in the public interest. In determining whether the needs and wishes of the residents are bona fide, the Board will look at the totality of evidence to evaluate whether the subjective concerns and fears of the residents are supported on a valid and objective basis.
32Public interest hearings raise difficult issues which require a balancing of the interests of those who live in a community with those who would earn their living there. Ms Ullyott, and the residents from the Co-operative whom she represented at the hearing, are concerned that if the patio is licensed, it will aggravate the existing noise problems from customers outside the establishment, particularly late at night and into the early morning. Ms Buckareff and her family appear to be more affected from the bass noise coming from inside the establishment, which is not directly relevant to the issue before the Board in this hearing. She did mention that she and her family are also disturbed by the people on the street, but did not establish that the disturbances came from Harlem customers.
33The Board does not doubt that the concerns expressed about the potential impact of a licensed patio are genuine and real to resident objectors. However, the Board cannot make a decision based on conjecture and speculation about potential negative impacts of a licensed patio. There is no suggestion on the evidence that the Licensee will not comply with the Liquor Licence Act and regulations. Mr. Cassell has expressed a general willingness and desire to minimize the potential negative effects on the residents and to be a good neighbour. Given the circumstances of this case and the evidence adduced, the Board FINDS that the objectors have failed to meet the onus upon them. Nevertheless, responding to the concerns of noise, and acknowledging that noise can be very intrusive on neighbouring residents, the Board has concluded that it would be appropriate to attach conditions to this licence.
Order
34For the above reasons, the Board APPROVES the application to licence an additional outdoor area made by 2109889 Ontario Inc., operating as HARLEM 1920, 67 Richmond Street East, Toronto, licence number 202544, subject to all statutory conditions and municipal regulations.
35Further, the Board ORDERS that the following conditions be attached to the licence:
No music or other amplified sound shall be permitted on the patio.
A barrier at least eight feet high (or such height as permitted under municipal by-laws) shall be erected in front of the patio, to mitigate the noise from inside the patio coming out, and the patio shall also be surrounded by a fence.
Beverage alcohol service on the patio must cease at midnight each day and signs of service and consumption must be removed by 12:45 a.m.
Food service must be available at all times that beverage alcohol is being served on the patio.
The Licensee shall provide a telephone number for residents to register concerns or complaints. This line will normally be answered by a staff member during the Licensee’s published hours of operation. This line will be equipped with a functioning answering service for those periods when the Licensee’s staff are otherwise occupied and when the establishment is closed.
The Licensee shall ensure that a designated employee is on duty at all times to ensure that exiting patrons are not causing a disturbance that will affect nearby residents.
The Licensee shall post a prominent sign at each exit that reminds and/or encourages departing patrons to be considerate of the surrounding community.
At all times while the premises are open the Licensee shall ensure that there are clearly visible and functioning security cameras at every public entrance and exit including the patio. The Licensee shall make and retain all digital records from the security cameras for a minimum of 30 days.
DATED AT TORONTO THIS 4th DAY OF SEPTEMBER, 2008.
PATRICIA MCQUAID, VICE-CHAIR JACQUELINE CASTEL, BOARD MEMBER
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