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-
Safari Bar and Grill Inc., operating as Safari Bar and Grill
Applicant
-and-
Dotti O’Neill-Wilson
Objector
DECISION
Panel:, Brian J. Ford, Board Member
Eleanor Meslin, Board Member
Joan Lougheed, Board Member
Decision Date: August 25, 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 ) Richard Kulis, Representative
Safari Bar and Grill Inc., Applicant ) Daniel Ferracuti
Dotti O’Neill-Wilson ) On behalf of the Resident Objectors
The Application
1. The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 16158 dated April 9, 2008, to review an application to remove a condition on the licence from Safari Bar & Grill Inc., (the “Applicant”) operating as SAFARI BAR & GRILL, 1749 Avenue Road, North York, Ontario, M5M 3Y8, (the “Establishment”), licence number 804218, (the “Licence”), on the basis that the AGCO has received one or more written objections to the application from residents of the municipality. A hearing of the Application was held on May 20, 2008 in the City of Toronto.
Decision
2. After considering all the evidence and submissions, the Board APPROVES the Application. Reasons for these findings follow.
Preliminary Matters
3. Richard Kulis, Registrar’s representative, advised the Board that the Registrar was not taking a position in this matter.
4. Ms Dotti O’Neill-Wilson was made a party to the hearing on behalf of the objectors on consent of the parties.
5. Mr. Kulis entered into evidence a package of objection letters from residents as Exhibit #1. He also entered an e-mail from Ms Donna Pimentel regarding her objection and that of Mr. Peter Inglis as Exhibit #2.
6. Mr. Daniel Ferracuti, director, officer and shareholder of the licensee, submitted a series of photographs, which were entered as Exhibits 3, 4, 5, 6, and 7.
Licensee’s Evidence
7. Daniel Ferracuti has been the owner operator of the Safari Bar and Grill since 1995.
8. Mr. Ferracuti told the Board that he made the application to remove the conditions from his licence to protect the livelihood of his business. He said that the patio is crucial to his business success and makes up two-thirds of his gross sales for one-third of the year.
9. Mr. Ferracuti stated that he has no adverse record with the AGCO, the Toronto Police Service or the Toronto Health Department; in fact his establishment has a number of Toronto Police officers who are regular patrons.
10. Mr. Ferracuti stated that he has never had a noise violation and reiterated that he has had no liquor infractions either.
11. Mr. Ferracuti stated that removal of the conditions would level the playing field for his establishment with other establishments in the area. His establishment has presently the most severely restricted patio in the neighbourhood.
12. Mr. Ferracuti believes that twelve years of responsible operation should stand on its own with regard to the application.
13. Mr. Ferracuti pointed out for the Board on a Google photomap, Exhibit #5, showing the location of his establishment at the corner of Avenue Road and St. Germain Avenue, noting the distance from the nearest residences on St. Germain Street.
14. Mr. Ferracuti notes that on the north side of St. Germain the nearest residence is fifty-six metres. The nearest resident on the south side of the street is forty-six metres. Both measurements were taken from the closest point on the patio to the residences.
15. Mr. Ferracuti also pointed out for the Board on, a Google photo map, Exhibit # 6, the Pheasant and Firkin which is located at the corner of Avenue Road and Haddington Avenue pointing out that its patio is located twenty-seven metres from the nearest residence on the north side of Haddington and thirty metres from the nearest residence on the south side of Haddington.
16. Mr. Ferracuti also stated that the Pheasant and Firkin does not have any restrictions on their patio and can have live music and amplified music if they choose until 2:00 a.m.
17. Mr. Ferracuti then pointed out for the Board on a Google photo map, Exhibit #7, the Casa Mia located at the corner of Avenue Road and Melrose Avenue pointing out that their patio is fifty-eight metres from the nearest residence on the north side of Melrose and twenty-six metres from the nearest residence on the south side of Melrose Avenue. He noted that they have no restrictions on their patio either.
18. Mr. Ferracuti again reiterated that he should have his restrictions removed so that he can compete under the same rules with the other establishments in the area. They should, in his belief, operate under the same rules. He also noted that the other establishments are in fact closer to residences than his establishment is by as much as half the distance.
19. When he initially opened in 1995 and then opened the patio in 1996, he mediated the hours of operation and noise on the patio with the residents on St. Germain Avenue.
20. He points out that his establishment is not going to be a rowdy beer garden and his record proves that it is not. His operation is seventy percent food and thirty percent alcohol. He stated that his business is primarily a restaurant. There is no outdoor bar and it is a full service restaurant.
21. Mr. Ferracuti noted that the business climate in North Toronto is changing drastically. He notes as an example a project going in at 1770 Avenue Road which will be six stories high with the first floor being retail. He is concerned that the construction of the building will impact his business negatively.
22. He would like the conditions removed so he can compete fairly for business with other establishments. That would help him cover losses he expects during the time of the construction of the new building. He estimates that the construction will take two to three years.
23. Mr. Ferracuti stated that after making his application for removal of the conditions he received e-mails from the AGCO about objectors and he replied to each person and made himself available to explain what he was doing and why.
24. On March 25, 2008, Mr. Ferracuti held a meeting involving the neighbourhood. He gave each person a document about who and what Safari was and explaining the reason for his application. He stated that he did not recognize anyone in the audience at the hearing as being there on that particular night, except Ms O’Neill-Wilson.
25. Mr. Ferracuti stated that Mr. Paul Baker, who is president of South Avenue Heights Residence Association, formally withdrew their opposition to the application.
26. Mr. Ferracuti also stated that Mr. Robert Amason, president of the Bedford Park Residents Association also withdrew their objection. He noted that this association is the one in which his establishment is located. Mr. Ferracuti stated that the few residents from St. Germain Street who attended withdrew their objections as well.
27. Mr. Ferracuti stated that there were thirty people at the meeting on March 25, 2008.
28. He further stated that there were a number of people in attendance at the meeting who were in support of his application. He did not ask to have them attend the hearing as he did not want to inconvenience them.
29. He stated, “My intention is to protect my business,” noting that “ninety-nine percent comes from the immediate neighbourhood.” He also stated that his establishment has tried hard to be a part of the neighbourhood and a positive member of the Bedford Park area.
30. Mr. Ferracuti stated he would agree to two conditions: “no canned music and no live music on the patio.”
31. The goal of the establishment is to recoup sales loss as a result of the conditions. Mr. Ferracuti explained that he believes that his establishment has proven itself.
32. During cross-examination, Mr. Ferracuti reiterated that he is trying to level the playing field for his establishments with other establishments in the area. He did admit that Casa Mia is mainly open from 5:00 p.m. until 10:00 p.m., which, he noted are self imposed hours.
33. He stated, when questioned about the building next to his on St. Germain Avenue, that it is occupied by eight priests who support his application.
Objectors’ Evidence
34. Dotti O’Neill-Wilson is a resident of St. Germain Avenue and she entered into evidence Exhibit #8, a folder containing fourteen documents. Ms Wilson read her evidence from a blue sheet, which was part of Exhibit #8.
35. She stated that she is a retired Toronto Star crime reporter and that she has lived at 406 St. Germain Avenue since 1997. She notes that there are dozens of young children on the block. She also stated that the nature of the area is changing and that there are a number of young families moving into it.
36. Ms O’Neill-Wilson stated that there is a junior public school within a block of St. Germain Avenue. There are also seventeen children in the ten homes closest to the Safari, most of whom are of elementary school age, however there are a few teenagers.
37. She stated that she, on behalf of the residents, agrees with the letter from Mr. McKee who is in opposition to the removal of the conditions. Mr. McKee, she notes, stated that he is a supporter and patron of Safari but opposes the application.
38. Ms O’Neill-Wilson stated that she takes issue with Mr. Ferracuti’s claim that he trying to level the playing field. She noted that the Casa Mia is a small family restaurant, which operates from 5:00 p.m. to 10:00 p.m., and the patio has an estimated thirty seats. There is no music on the patio and no alcohol.
39. Starbucks, also in the area, she stated, is a coffee shop and serves no alcohol. The Pheasant and Firkin has a large number of patio seats on Avenue Road and a small number on Haddington. She stated that the Firkin has no music on the patio and encourages patrons to sit on the Avenue Road side of the patio at night.
40. Ms Wilson referred to several letters which were written in 2000 regarding Safari noting that eighteen of the people who signed the petition in 2000 signed again this year. She stated that if residents are required to abide by the noise by-law then bars should be required as well.
41. Under cross-examination Ms. Wilson was asked what the establishment had done to make her think that they were irresponsible. She replied that she never said they were not responsible.
42. When asked if she had ever been woken up by the establishment, she replied that her bedroom was at the back of the house.
43. Ms Wilson stated that there are parking problems related to Safari.
44. Daveral Prins is a resident who lives on St. Germain Avenue and had lived there since 1997. His home is within one hundred metres of the establishment.
45. Mr. Prins stated that he generally has no problem with Safari but he opposes the lifting of the condition with respect to the hours of operation. He stated that people getting into their cars and saying loud goodbyes to each other routinely wake him up. He noted that he sleeps with his bedroom window open for the fresh air.
46. Under cross-examination he admitted that some of the people parking on the street could come from other places. He still objected to the application.
47. Mark Carli stated that he moved to St. Germain Street in 2005 and that he has two young children. His concerns are the hours of operation and pedestrian and vehicle traffic because of the establishment.
48. He noted that there is some vandalism later at night but admitted that he could not say the persons responsible came from Safari. He also said that he has never been disturbed by noise.
49. Elliott Gwusdy stated that he moved to 414 St. Germain Avenue in 2007 and is the first home, which is 56 metres from the Safari. Mr. Gwusdy is concerned about loud music and live bands being on the patio at night.
50. He said that people leaving the patio late at night could be rowdy and parking would be a problem. He noted that a couple of beer bottles were on the lawn in September a couple of times.
51. Under cross-examination he admitted that when he moved into his home in September 2007 he knew there was a patio at Safari. He also admitted that he did not hear noise from the patio.
52. Mr. Gwusdy also stated that drinking outside is different from drinking inside.
53. Mr. Gwusdy admitted that it was possible that problems could have come from other sources.
54. Duane Margolese will be moving onto St. Germain Ave. on June 27, 2008. He is moving there because he perceives it to be a family oriented street. He stated that he knew the patio was there before he purchased the house.
55. Mr. Margolese has concerns about parking on the street and drunks and beer bottles on his property.
56. Under cross-examination Mr. Margolese said that he talked to neighbours about the Safari. He also said he could hear noise from Avenue Road.
Applicant’s Submissions
57. Mr. Ferracuti stated that he listened to the objections and said that the parking issue is not related only to Safari Bar and Grill. The area in question is densely populated and parking is an issue all the time.
58. He also stated that he has made every effort to respond to all the issues and his establishment has been an excellent neighbour for twelve years.
59. He noted that there are two major issues, one is the hours of operation on the patio, which he feels are not reasonable and should be removed. His is not an irresponsible operation and there is no evidence that it is.
60. This is not merely a business choice; it is an important change that speaks to the very existence of the business.
Objectors’ Submissions
61. Ms O’Neill-Wilson stated that the quality of life in the neighbourhood is at issue and that customers do affect it. She noted that noise, illegal parking, beer bottles, and vomit all affect the quality of life.
Applicant’s Reply
62. Mr. Ferracuti stated in reply that his establishment does not have a negative impact on children. He also stated that he has a major commitment to the neighbourhood.
63. He is not asking for an extension of hours of service, only for removal of the condition.
64. Mr. Ferracuti does not believe that removal of the conditions will negatively impact the neighbourhood.
Analysis / Findings
65. The Board heard evidence from the Applicant as to the reasons for wanting the removal of the conditions attached to his liquor licence as they pertain to the patio and carefully considered the concerns of the objectors.
66. The Applicant had previously agreed to accepting conditions that there be no canned music, speakers or live entertainment on the patio and the service of alcohol is to cease at 11:00 p.m. Sunday to Thursday and at 12:00 a.m. Friday and Saturday.
67. The evidence before the Board is that Safari Bar and Grill has been, since it commenced operation, a reputable establishment, which has not in any way violated any municipal or provincial statute, in particular the Liquor Licence Act.
68. Mr. Ferracuti has been positively involved in the community. He has met with the objectors and tried to address their concerns. Two of the community associations have withdrawn their objections.
69. Mr. Ferracuti also pointed out that other establishments in the area have no conditions pertaining to the operation of their patios.
70. While there was municipal opposition in 2000, there does not appear to be any at this date. It is also noted that circumstances of neighbourhoods do change and it has in this neighbourhood. There are now other businesses not there before, and they do not have restrictions on their patios.
71. Mr. Ferracuti stated that he just wants to be on a level playing field with the other establishments in the area so as to be able to compete for business.
72. The objectors to the removal of the conditions have cited that they are worried about the quality of their neighbourhood. They are concerned about parking, noise, and drunks in particular.
73. Those who gave testimony at the hearing were generally supportive of the Safari Bar and Grill but not supportive of the removal of the conditions.
74. The Board notes that there was no evidence that linked any unwarranted behaviour to the Safari Bar and Grill and that the matter of parking was one that related not only to customers of the establishment.
75. There was no evidence of drunkenness coming from the Safari Bar and Grill.
Order
76. Therefore, the Board finds that there has been a change in circumstances that justify the removal of the part of the condition on the licence as it pertains to the sale and service on the patio and APPROVES the Application made by Safari Bar & Grill Inc., operating as SAFARI BAR & GRILL, 1749 Avenue Road, North York, Ontario, M5M 3Y8, licence number 804218.
77. Further, the Board ORDERS that the following conditions remain attached to the licence:
No speakers or canned music on the patio; and
No live entertainment on the patio.
DATED AT TORONTO, THIS 25th day of August , 2008.
BRIAN J. FORD, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER
JOAN LOUGHEED, BOARD MEMBER
BJF/ee