Registrar, Alcohol and Gaming Commission of Ontario v. 2116784 Ontario Inc., 2008 CanLII 52575

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-

2116784 Ontario Inc. operating as Molly Bloom’s Irish Pub Applicant

-and-

Ted Read Objector

DECISION

Panel: Dianne Axmith, Board Member; Alex McCauley, Board Member Decision Date: September 15, 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 2116784 Ontario Inc., Applicant: Blair Ridsdale, on behalf of the Applicant Ted Read, Objector: On his own behalf and on behalf of the objectors

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario issued Notice of Proposal number 16446 dated July 8, 2008, to review an application from 211784 Ontario Inc. (the “Applicant”), operating as MOLLY BLOOM’S IRISH PUB, 191 College Street, Toronto, Ontario M5P 1P9 (the “Premises”), liquor licence number 810269, for additional licensed areas and to remove a condition on the licence, on the basis that the Alcohol and Gaming Commission of Ontario (“AGCO”) has received one or more written objections to the application from residents of the municipality, and there has been no change in circumstances to justify the removal of the condition. A hearing of the application was held on September 2, 2008, in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board APPROVES the Application on the condition set out below. Reasons follow.

Preliminary Matters

3Blair Ridsdale is the director, officer and owner of the Applicant. He appeared on behalf of the Corporation and waived the right to be represented by a barrister and solicitor or a licensed representative.

4Philip Morris appeared on behalf of the Registrar. He advised the Registrar was taking a position of refusing the Application to remove a condition, but that the Registrar took no position in regard to the public interest aspect of this matter.

5Ted Read is a resident of the municipality and objects to the Application. He appeared before the Board on his own behalf and as the representative of the objectors. On consent of all parties, the Board ORDERED Mr. Read be made party to the proceedings.

6Mr. Morris filed Exhibits #1 through #3 on behalf of the Registrar.

Evidence of the Applicant

7Cameron Ridsdale is an architect by trade. He is the Father of the Applicant. He produced a site plan map (Exhibit # 5) which outlined the area of the proposed extension of the patio. In addition he advised that persons on the Henry Street side of the patio would be moved to the College Street part of the patio at 10:00 p.m. There would be a gate built on the patio to keep the College Street and Henry Street sides separate after 10:00 p.m. It was his view that noise from the College Street side of the patio is virtually totally blocked by the building.

8In cross examination it was established that there would be slightly more noise on the College Street part of the patio after 10:00 p.m. because of the extra persons on the patio.

9In cross examination Mr. Morris suggested that the only aspect of the condition in question, which is number 5 on Exhibit #1, that is being changed is the number of people on the front patio prior to 10:00 p.m. The condition is to be modified not changed.

10Blair Ridsdale is the Applicant. He took over the business in 2006 and inherited the conditions imposed on the previous licence holder.

11Mr. Blair Ridsdale spoke of the concerns of the objectors:

• Rats: they are a problem but not one that is caused by his business. He controls the rat problem around his Premises and has no rat problems in the licensed premises.
• Mess: he has the garbage collected weekly as opposed to every two weeks and makes an effort to ensure that any untidiness in the neighbourhood caused by his establishment is cleaned up promptly.
• Snow clearance: he works very hard to keep the snow cleared. Last winter was an exceptional year.
• Noise and control: smoking prohibition is the cause for some patrons congregating in front of the licensed premises. Because of limited permitted space on the patio he cannot put these patrons there. It is his view that if he were permitted an increased capacity on the patio it would alleviate the spill over on to the street. In addition, he would then have control of those patrons. Now when they are outside control is difficult. He stated that there is no reason to blame street noise on Henry Street as emanating from his establishment simply because he is on the corner.

12He stated there are many other licensed premises in the area. The University Of Toronto Faculty Of Engineering is directly across the street and fully licensed. If there were to be any type of celebration from the university, the noise would be heard in the neighbourhood.

13He further stated that the patio is properly zoned and fits the City of Toronto’s bylaw.

14Mr. Read cross-examined the witness and introduced a number of photographs (Exhibits 6a) through 6d) and Exhibits 7a) and 7b)). The photographs depicted the area around the licensed premises and the patio in question.

15In cross examination the witness reasserted that Henry Street residents cannot currently hear noise from his patio. He further pointed out that the City of Toronto bylaws allow reasonable noise until 11:00 p.m.

16The witness further offered the opinion that 38 people on his patio would generate less noise than a passing streetcar or fire truck.

17In response to a question about what impact the additional numbers would have on the after crowd noise, Mr. Blair Ridsdale pointed to the fact that they have a licensed capacity now for 376 indoors, so an additional 22 will not make a significant difference.

18Mr. Morris, in cross examination, asked the witness what were the changes in circumstances that warranted changing the condition. The witness stated that the first change was in the way this establishment is operated compared to the original establishment which was Peel Pub. This Licensee inherited the conditions originally applied because of problems with the Peel Pub. His establishment is a much quieter and more refined establishment. They rarely have D.J music.

19The other change was that when the conditions on Peel Pub were put in place the smoking legislation was not a factor, today it is. This impacts the patio situation. He would like to permit more people on the patio to smoke, but the numbers in place restrict his ability to do so.

20He cited one other change and that was that he had to wait over a year before applying to change the condition for Henry Street.

21During the university year, the business has a student patronage. This is not so in the summer. The Licensee wants to encourage neighbourhood patronage in the summer.

22The Henry Street side for the patio is of advantage so he can encourage supper time dining patrons. In addition this area gets sunlight.

23The witness stated he has spoken to the objectors in attendance at the hearing, as well as two others who are not here, in an effort to resolve the outstanding issues and come to an agreement.

Evidence of the Objectors

24Glenn Kerr resides at 193 College Street, Apartment 300. He stated this is about five feet away from the licensed premises.

25He voiced his general concern that an increase in numbers would result in an increase in noise and anti-social behaviour such as fights, drug dealing, persons vomiting and an increase in taxis in the area.

26He stated that he has observed vomiting in a number of areas around Molly Bloom’s by patrons of Molly Bloom’s.

27He stated that although it is not a major problem, he has witnessed fights. The staff at the licensed premises had handled such outbreaks very well.

28He stated that cigarette butts and general litter are a problem. The smoking of marijuana is a problem with the odour from the “pot” smoke wafting down College Street. In cross examination the witness stated he never reported this problem to the police or to the Licensee or his staff.

29He stated he had health concerns about rats in the area and spoke of his own vermin problem, which could be unrelated to the Licensee.

30In cross examination, the witness could not provide direct evidence that the debris, broken glass and vomit emanated from the patrons of Molly Bloom’s.

31The witness stated he is often outside at the front of his building until 4:00 a.m. selling books.

32Philip Wharton resides at 70 Henry Street, three buildings south of College Street and 20 metres from Molly Bloom’s. He was concerned that the Licensee was not a good neighbour and that he had made certain undertakings in the past such as agreeing to the current conditions on his licence yet has not followed them. Mr. Wharton took exception to the condition of the Henry Street side of the Licensee’s premises.

33Mr. Wharton was critical of the fact that no one, it seems, was enforcing the conditions to limit the number of persons on the patio. It was his contention that it was set up to hold more patrons than the licence permitted. He stated he had made his concerns known to the AGCO.

34Ted Read has lived on Henry Street for 26 years. He described the neighbourhood as residential. His primary concerns seemed to be that the restrictions currently in place are not enforced. He asked if further changes were made to give the Licensee the ability to have more patrons, would that not only exacerbate a situation of poor regulatory oversight?

35In cross examination he advised Mr. Morris that he would support 38 persons on the patio, but not on Henry Street after 10:00 p.m.

36In further cross examination the witness admitted to noise occasionally from the University of Toronto campus across the street.

Submissions of the Applicant

37Mr. Blair Ridsdale submitted that he is a good neighbour. He is concerned about the well being of the neighbourhood and his business. He stated that his property is properly zoned and that he has met the requirements of the City of Toronto. He is not an absentee landlord; he is on site most of the time. He further submitted that an improved patio at his Premises would be beneficial to the community.

38He stated that there has been a change of circumstances. The ownership is a valid change along with the smoking issue.

Submissions of the Objectors and the Registrar

39Mr. Wharton was permitted to make submissions on behalf of the objectors because his position was now different than that expressed by Mr. Read, the objectors’ representative.

Mr. Wharton submitted that the conditions originally placed on the licence should remain.

40Mr. Read submitted that he is not opposed to some change to allow the Applicant to expand the patio capacity. He is willing to allow changes if the Applicant maintains the property in a good state. He also wants to see regular checks at the Premises to ensure compliance with conditions by the Licensee.

41Mr. Read wants the total occupancy of the entire patio to be no more than 38 persons.

42Mr. Morris stated the Board has two issues to contend with. The first being the issue of “change of circumstances”, and the second being that of the “public interest”.

43Mr. Morris submitted that the changes the Licensee referred to, the situation around smoking and the ownership change, were not valid changes of condition.

44He submitted that some change has occurred with some of the objectors agreeing to a modified change in the condition.

45The Registrar took no position in regard to the public interest.

Reasons and Findings

46The Board found all attendees at the hearing to be forthright and credible.

47The Board will deal with its requirements under the LLA. First, in regard to the “change in circumstances”, this is set out under subsection 14(2) of the LLA and states that “A member of the Board may, on the application of the licensee, remove a condition of a licence, other than a prescribed condition or a condition attached pursuant to section 8.1, subsection 10(4), 11(5), 11.1(4) or clause (1)(a), if there is a change in circumstances.” Further where the Registrar issues a proposal with respect to a refusal to remove a condition of a licence pursuant to clause 21(1)8 of the LLA, and there is a hearing to consider the proposal, the Board may, pursuant to subsection 23(11) of the LLA, decline to carry out the proposal or may carry out the proposal in whole or in part and with any changes that the Board considers appropriate.

48It should be noted that the change in circumstances need not be dramatic or of severe consequence. In the matter before us, the Applicant stated that in his view there has been a change in circumstances, including the change of ownership. The Applicant stated that he inherited the conditions which had originally been placed on the previous licence holder because of Peel Pub. The Applicant stated that his business is operated in a vastly different manner. They have a different, more moderate, clientele. They rarely, if ever, have D.J. music which was not the case with Peel Pub.

49The second change sited by the Applicant was the fact that smoking on the premises became an issue after the original conditions were placed on the licence. This limits the number of people he can allow on the patio and forces patrons onto the street outside, an area where he has little control over the patrons.

50The third change alluded to by the Registrar’s Representative was the change in attitude by some of the objectors to a modification of the patio occupancy and construction.

51In the view of the Board, these changes collectively amount to a change in circumstance and justify removal of the condition.

52In regard to the public interest component, it is the Board’s opinion that there must be a balance of interests between the residents and the commercial premises in the neighbourhood. The Board acknowledges that there is noise from the patio, but having said that, is the noise excessively loud and disruptive to the community? Evidence heard by the Board is that noise to the Henry Street area from the patio on College Street is virtually blocked by the building.

53This evidence was not refuted. The Licensee maintained that noise from his patio on College Street is less intrusive than a street car or fire truck. The new patio addition will be on the Henry Street side, but will not operate past 10:00 p.m. In the words of the Licensee, it is being created to attract the “supper time crowd”. With the exception of Mr. Kerr, there was no complaint of noise. The issues were varied but dealt primarily with a concern that Mr. Ridsdale is not a good neighbour and will not comply with the directions of the AGCO. It is the Board’s view that Mr. Ridsdale is in fact a good neighbour. He has attempted to take into consideration his neighbours’ concerns and to take all reasonable steps to accommodate those concerns. The insinuations that the Licensee has not abided by the conditions on the licence are entirely speculative. There is no direct evidence that the Licensee has not been completely responsible in ensuring that his establishment is being operated according to the law.

54It is this Board’s view that the public interest will not be negatively impacted by granting a proposed change of condition.

55It is the view of the Board that the agreement to have a barricade after 10:00 p.m., as agreed to, negates the need for the barricade indicated in the original condition.

56Having considered the requests of the objectors and the apparent consensus of the Licensee, the Board agrees that the total occupancy of the patio is to be no more than 38 persons.

Order

57For the above reasons, the Board APPROVES the Application made by 211784 Ontario Inc. operating as MOLLY BLOOM’S IRISH PUB, 191 College Street, Toronto, Ontario, M5P 1P9, for additional licensed areas with a maximum capacity of 38 persons.

58Further, the Board ORDERS that condition 5 on the licence be amended to read:

“The patio will be expanded to include a side patio on Henry Street. The Henry Street portion of the patio will be closed by 10:00 p.m. There shall be a barricade that will physically separate the Henry Street portion of the patio from the College Street portion of the patio after 10:00 p.m. The maximum seating on the patio at any time is 38 persons. The licensee shall not install or operate speakers on the patio, nor shall the licensee permit live music on the patio” and should be subject to all statutory conditions and municipal regulations.