1419082 Ontario Inc. O/A Hobby Horse Arms v. Registrar, Alcohol and Gaming Commission of Ontario, 2008 CanLII 52563

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 of Ontario Registrar

-and-

1419082 Ontario Inc. O/A Hobby Horse Arms Applicant

DECISION

Panel: Dianne Axmith, Board Member Alex McCauley, Board Member

Decision Date: September 9, 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 ) Phillip Morris, Representative 1419082 Ontario Inc., Applicant ) Jerry Levitan, Representative

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (AGCO) issued Notice of Proposal number 16457 dated July 9, 2008 to review an application from 1419082 Ontario Inc. (the “Applicant”), operating as HOBBY HORSE ARMS, 37 Main Street North, Uxbridge Township, Uxbridge, Ontario, L8P 1J7, to remove two conditions on liquor licence number 200540 on the basis that the AGCO has received one or more written objections to the application from residents of the municipality. A hearing to consider the application was held on September 3, 2008 in the City of Toronto.

2The Licensee has applied to the AGCO to remove two of the four conditions on the licence which states:

2. The patio shall close for business no later than 9:30 p.m. each day; and

3. There shall be no advertising on the umbrellas outside on the patio.

Decision

3After reviewing all the evidence and submissions, the Board APPROVES the application. Reasons follow.

Preliminary Matters

4In a hearing to consider an application for removal of conditions on a license, it is customary for the Applicant to present evidence first. In this case, there was only one objector, Mr. Kevin Feeney, who was out of town and requested that he be allowed to provide testimony via teleconference. Because of his limited availability and on consent of the Applicant’s representative, the Board heard his testimony first.

Evidence from the Objector

5Mr. Kevin Feeney resides at 42 Main Street North in Uxbridge and was an objector to the issuance of a patio license when the matter was previously heard before a panel of the AGCO. The hearing resulted in the decision dated November 17, 2000 (Exhibit #1). Mr. Feeney did not attend that hearing.

6Mr. Feeney described the character of the neighbourhood and other commercial establishments nearby. He provided his impression of the interior and exterior of the Hobby Horse Arms, but stated he has only been at the establishment once since the present owner took over.

7The witness described the patrons of this establishment as “well behaved” but expressed his concern that service after 9:30 p.m. might interfere with his and other residents’ sleep. He has been disturbed on occasion since the patio was built and licensed, but could not say how often that has happened nor could he describe any specifics of the incidents. He thinks it might be more than 2 or 3 times but less than 50 or 100.

8Mr. Feeney’s home is presently for sale and he will be moving from the neighbourhood in one week.

9On cross examination, Mr. Feeney stated he has known since June, 2008 that he will be moving. He is single with no family and lives alone. It was his testimony that he did not know if other neighbours were supporting the application to remove conditions on the license. He also did not know that the Mayor and seven Counsellors were supporting the Application.

10When asked about a licensed establishment (Tin Mill Restaurant) that is immediately adjacent to his property, Mr. Feeney stated that he is never bothered by noise from their patrons and he did not object to the granting of that license. He does not recall being notified about a hearing to consider it. He did not know that Tin Mill has an unrestricted patio license but does not believe it should be open until 2 a.m. He has patronized that establishment on a few occasions.

11Mr. Feeney stated that he is unable to see what people are eating or drinking on the Hobby Horse Arms patio because of a fence and trees that obstruct the view from his property. He can only see one small corner of the property. He has never heard any music coming from the establishment and has never been disturbed enough to complain to either Hobby Horse personnel or to the police.

12On re-direct, Mr. Feeney stated that he walks by the Hobby Horse Arms about twice a week. He cannot see the patio of Tin Mill from his property.

Evidence for the Applicant

13Mr. James Byers owns the Hobby Horse Arms property and is the establishment’s General Manager. His residence is on the third floor of the property. He described his patrons as mostly families and 40 years old plus/credit card customers.

14The establishment consists of a pub in the basement and two dining rooms on the main floor. Both the pub food and fine dining menus are available and served to patio patrons.

15Mr. Byers applied for the removal of two of the conditions on his license because of requests from his customers who do not like being moved indoors at 9:30 p.m. Other nearby establishments operate with unrestricted licenses.

16Mr. Byers canvassed his neighbours about removing the conditions and has received endorsements from several of them including two who previously objected to the patio license in 2000. Those individuals are Brad Morgan and Merv Armstrong (Exhibit #3).

17Eight photographs were entered as Exhibits #4a to 4h and Mr. Byers used them to show the close proximity of the individuals who are now supporting his application. Mr. Armstrong and Lynne George and Barry Lackie whose properties are immediately adjacent to either side of the Hobby Horse Arms, all support this application (Exhibit #3).

18Mr. Byers also testified that the Mayor and Counsellors of the Township of Uxbridge are supportive of his application to remove the two conditions as evidenced by a motion passed on May 5, 2008 (Exhibit #3).

19Mr. Byers believes the change in attitude of the nearby residents and the Township of Uxbridge is a result of the type of patrons he attracts and the confidence people have because of his track record in operating a good establishment. He has never been charged with any liquor infraction nor has he ever been visited by the police because of a noise complaint.

20On cross examination, Mr. Byers explained the proximity of other establishments to his own and elaborated on the types of food available at the Hobby Horse Arms. The pub food is “English style” and the fine dining rooms offer a “bistro” style menu. Both menus are available for consumption on the patio.

21Mr. Byers agreed that Brock Street is the primary commercial area, but pointed out that Main Street is also zoned “commercial” despite the fact that there are still many private residences there.

22Mr. Byers also explained that the Hobby Horse Arms usually closes at 11:30 p.m. from Sunday to Wednesday and around 1:00 a.m. Thursday to Saturday. The establishment is closed on Mondays.

23Mr. Roger Plouffe resides at 19 Main Street which is four houses away from the Hobby Horse Arms. He has lived there for a year and visits the establishment at least twice weekly to dine with friends or his daughters. He enjoys spending time there and supports the removal of conditions. On many occasions he has been asked to move indoors at 9:30 p.m. and believes there would be no noise problem with extended service hours.

24On cross-examination, Mr. Plouffe agreed that Main Street is quieter in the evenings but he has never been disturbed by any noise from the Hobby Horse Arms.

Applicant’s Submissions

25On behalf of the Applicant, Mr. Levitan reiterates that the application is for the removal of only two of the existing conditions on this license.

1. The condition that patio service of alcohol must cease at 9:30 p.m.; and
2. The condition prohibiting advertising on the outdoor umbrellas.

26He submits there have been four changes in circumstances since the conditions on the patio license were first imposed. These changes are:

1. The new Municipal Resolution endorsing the removal of the conditions;
2. Two of the original objectors now endorse removing the conditions;
3. There are new establishments in the area with no license restrictions; and
4. The establishment now has an unblemished track record with no problems.

27Further, Mr. Levitan submitted that Mr. Feeney, the lone objector, knows nothing at all about the atmosphere or culture of the establishment. Despite the fact that he testified he has been disturbed on occasion, those disturbances did not prompt a complaint either to the establishment or the police.

28Mr. Levitan submitted the photographs demonstrate that Mr. Feeney can barely see the establishment because of the location of his house and the abundant foliage on both his and the Hobby Horse Arms properties.

29Mr. Levitan stated that Mr. Feeney is moving and none of the other residents on the street are objecting.

30Mr. Levitan believes the Applicant has met the onus of proof that there have been sufficient and significant changes in circumstances and urges the Board to approve removal of the two conditions sought by the licence holder.

Registrar’s Submissions

31On behalf of the Registrar, Mr. Morris concedes there has been a change in circumstances in two of the four points made by Mr. Levitan. The Township of Uxbridge endorsement was not part of the evidence at the last hearing but he urges the Board to consider how much weight should be accorded that resolution. Second, Mr. Morris agrees that two of the original objectors are now endorsing extended service hours.

32The fact that there are now two new bars in the area does not, in his opinion, constitute real change and he believes the establishment’s track record is irrelevant. It is expected that an establishment will operate in accordance with the Liquor Licence Act (LLA).

33As for the public interest element in this case, it matters not what Mr. Feeney can or cannot see from his property. Mr. Feeney believes the establishment is well run with good patrons but his concern is that this will change if the service hours are extended.

Reasons

34The Board has considered the totality of the evidence and carefully reviewed the exhibits provided in this case.

35It is clear from the letters in Exhibit #3 that Mr. Byers now has the support of the majority of the residents on Main Street for removal of the condition requiring a 9:30 p.m. cessation of service on the patio. In the Board’s view, it is most significant that the two residents immediately adjacent to the establishment and who would presumably be affected most by any escalation in noise have both endorsed this application. This, in our view, represents substantial change particularly since one of the individuals (Mr. Armstrong) testified as an objector at the previous hearing when the conditions were imposed.

36The fact that Mr. Feeney, the lone objector in this matter, will not continue to reside on Main Street after next week is also a consideration.

37As for the endorsement from the Township of Uxbridge, a review of the decision dated November 17, 2000 (Exhibit #1), indicates there was a meeting of Town Counsellors and local resident objectors to discuss the proposed patio license. The Township apparently was not supportive of a licensed patio then or at least was silent on the matter. Their support to remove the conditions now, constitutes a change in circumstances.

38The Board also agrees with Mr. Levitan that the new establishments operating in close proximity with unrestricted licenses represents a change. More importantly, one of those establishments is adjacent to the only objector in this matter and it was his testimony that he is never disturbed by patio patrons. In fact, he stated he was not even aware that the Tin Mill is allowed to serve alcohol until 2:00 a.m. despite the fact that he has been a patron there.

39The Board does agree with Mr. Morris that an unblemished operating record is expected and while we do not consider this a change, it does demonstrate to this panel that Mr. Byers is a responsible manager who can be expected to continue to operate the establishment without disturbance to the nearby residents.

40In his submissions, Mr. Morris concedes that two of the changes described by Mr. Levitan are legitimate but suggests that the Board give less weight to one. It is this Board’s opinion, that only one change is necessary for the Applicant to have met the onus of proof as described in the LLA. In this case, it concludes that the Applicant has provided three.

41No evidence was presented regarding condition number four relating to advertising on the outdoor umbrellas. This Board concludes the Registrar has no objection to the removal of this condition.

42For these reasons, the Board APPROVES the Application made by 1419082 Ontario Inc., operating as HOBBY HORSE ARMS, 37 Main Street North, Uxbridge Township, Uxbridge, Ontario, L9P 1J7, to remove conditions 2 and 4 from licence number 200540, which state:

2. The patio shall close for business no later than 9:30 p.m. each day; and

3. There shall be no advertising on the umbrellas outside on the patio.

43Further, the Board CONFIRMS the two remaining conditions on the licence state:

1. There shall be no additional lighting on the patio.
2. There shall be no music outside on the patio.

DATED AT TORONTO THIS 9th DAY OF SEPTEMBER, 2008