Registrar, Alcohol and Gaming Commission of Ontario v. Troubadour Bar Inc., 2008 CanLII 52594

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-

Troubadour Bar Inc. operating as Troubadour Bar (The) Applicant

-and-

Philip Kosow Resident Objector

DECISION

Panel: Guy Maurice, Board Member Alex McCauley, Board Member

Decision Date: September 8, 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 Troubadour Bar Inc., Applicant ) Kristy Hollidge and Alain Richer Philip Kosow ) On his own behalf and on behalf of the resident objectors

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario issued Notice of Proposal number 16374 dated June 18, 2008, to review an application from Troubadour Bar Inc., (the "Applicant"), operating as TROUBADOUR BAR (THE), 3071 Dundas Street West, Toronto, Ontario, M6P 1Z5, (the "premises"), liquor licence number 812054, to remove a condition on 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 August 22, 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

3Kristy Hollidge and Alain Richer are the directors, officers and shareholders of the Applicant. They appeared on behalf of the Corporation and waived the right to be represented by a barrister and solicitor or a licensed representative.

4Philip Kosow is a resident of the municipality and objects to the application. He appeared before the Board on behalf of the resident objectors. On consent of all parties, the Board ordered that Mr. Kosow be made a party to the proceedings.

Applicant's Evidence

5The Applicant is seeking to have condition 3 on the licence removed, which states, "Sale and service of alcohol on the patio shall cease at 11 p.m. Sunday to Thursday and 12 a.m. on Friday and Saturday," (Exhibit #1). The condition now restricts the hours of service on the patio. This condition has been in place since the Applicant took possession of the licence.

6Kristy Hollidge, in her evidence-in-chief, stated that there has been a change in circumstances since she and her partner took possession of the premises. She stated that the licensed premises are very much improved since they have taken possession from the previous Licensee. It is now an establishment that is respectable not only in the local community but also in the community at large.

7Ms. Hollidge stated that they were desperate when they received the licence originally as they were paying rent for the premises and further delays would have been too costly. She stated that she did not realize how much the financial impact would be on their business by closing the patio early. When their patio is forced to close early, patrons cross the street to a neighboring facility with a full patio licence, which is about 40 feet away.

8Ms. Hollidge addressed the concerns of the objectors, that being noise. She engaged a sound engineer who did extensive testing (Exhibit #3). The tests were conducted in various locations around the premises at various times. All sound tests were well within the acceptable limits and there were no contradictory tests submitted by the objectors.

9Ms. Hollidge agreed to keep doors and windows closed at all times when music is being played in the premises if it would help to alleviate the situation.

10Ms. Hollidge has attempted to contact objectors and set up a line of positive communication with them.

11Mr. J.R. Grassby gave evidence in support of the Applicant. He stated that he is a business person in the community and a patron of the licensed premises. He stated that the premises is well run and caters to a young urban crowd, mostly professionals. The premises is not rowdy and in his view adds to the community.

12Mr. Jesse Orriss also gave evidence in support of the Applicant. He is a resident in the area and a patron. He was very positive of the premises and the conduct of the Applicant. His address is 487 Quebec Avenue and he stated he has no negative experiences with noise from this licensed premises.

13He and his teaching colleagues from a technical school in the area, often attend at the licensed premises.

14Ms. Hollidge had letters of support from her local MPP and the area Municipal Councillor (Exhibit #3). She also had several letters of support from area residents and local business persons (Exhibit #3).

15Ms. Hollidge advised she received one noise complaint approximately two weeks before the hearing from a woman named Andrea. She gave Andrea her personal cell phone number and has not heard from her since.

16In conclusion Ms. Hollidge stated that the community is changing, the economics of the community are changing. She and her partner have put a different face on the business. It is vibrant and properly managed. The change she requests is in keeping with that growth.

Resident Objectors' Evidence

17Philip Kosow attended on behalf of the objectors and presented a petition with 16 names on it from area residents who objected to the change of condition. None of the other petitioners attended the hearing.

18Mr. Kosow stated that the noise both from the music inside the premises when the patio door is open and the noise from patrons on the patio is disturbing. The noise disrupts his sleep and as a result, the enjoyment of his property. Mr. Kosow stated he has declined to call Ms. Hollidge directly even after she gave him her personal phone number and invited him to call her directly if there was a problem. He cited the reason he did not call her directly is that he did not want to disturb her personal time.

19Mr. Kosow admitted under cross-examination that he has never called the police with his concerns about noise.

20Sal D'Angelo was a witness for the objectors, but it was very difficult to establish if he was an objector or a supporter. His evidence was that his tenants who live close to the licensed premises were moving out and in doing so cited noise as a problem. In cross-examination it was established that the two were moving out in part because they had separated. Mr. D'Angelo was not critical of the licensed premises.

21Mr. Kosow concludes that it is about the noise. He needs peace and quiet.

Registrar's Submissions

22Mr. Morris, on behalf of the Registrar, stated that the Board has two tests. First, is there a change in circumstances which would warrant changing the condition and secondly, is it in the public interest to make the change of condition? Noise is the problem experienced by some residents. Would the noise from the patio be so loud as to disrupt the peace of the neighbourhood?

Reasons/Analysis/Findings

23The Board found all witnesses who appeared to be forthright and credible.

24The Board was very impressed by the efforts of the Applicant in developing the business and their attempts to be as proactive as possible in dealing with their neighbours.

25The Board will deal with its requirements under the Act. First we will deal with the "change in circumstances." That is covered under section 14(2) of the LLA. The Act states, "A member of the Board may, on the application of a 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, subsection 23(11) of the LLA states, "Following a hearing to consider any other proposal referred to in subsection 21 (1), (2) or (3), the Board may 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, and the Board may approve an application to which the proposal relates."

26The Board must decide if there was a change in circumstances. It should be noted that this change in circumstances need not be dramatic or of severe consequence. The Applicant submitted that the primary change in circumstances is how the business is being operated now, compared to how the premises was operated in the past. The Applicant, by agreement, inherited the condition which was originally imposed on the previous Licensee. Although not detailed, the evidence received by the Board was that the previous Licensee did not conduct its business to the same high degree as the Applicant. Secondly the Applicant contends that the financial impact on their business was not anticipated at the time they agreed to the condition affecting the hours for sale of alcohol on the patio.

27The Board agrees that there has been a sufficient change in circumstances as expressed by the Licensee that satisfies the statutory obligation of the Board in removing the condition.

28The Board will now deal with the second test and that is the public interest. The Board is of the opinion that there must be a balance of interests between the residents and the commercial premises in the neighborhood. The Board concedes that there is noise from the patio, but having said that, is the noise excessively loud and disruptive to the community? Mr. Kosow is of the view that the noise is excessive, and has presented a petition by area residents in support of his position. The evidence of the objectors consisted of the petition circulated by Mr. Kosow and signed by some area residents, Mr. Kosow's evidence, and the evidence of Mr. D'Angelo. Beyond that there was no substantive evidence to support the objections of Mr. Kosow. On the other hand Ms. Hollidge had letters of support from the elected representatives of her area, technical evidence to establish there was no excessive noise and several letters of support from residents. In addition, there were no complaints about the premises from the police, city by-law officials or the AGCO.

29Ms. Hollidge has attempted to be proactive in her dealings with her neighbours, providing direct access to her, which it is noted was never used. Ms. Hollidge has agreed to mitigate noise from music in the licensed premises by keeping the doors and windows closed while music is being played in the premises.

30It is the Board's opinion that the public interest will not be negatively impacted by granting the proposed change of condition.

Order

31For the above reasons the Board APPROVES the Application made by Troubadour Bar Inc., operating as TROUBADOUR BAR (THE), 3071 Dundas Street West, Toronto, Ontario, M6P 1Z5, to remove condition 3 from the licence that states: "Sale and Service of alcohol on the patio shall cease at 11 P.M. Sunday to Thursday and 12 A.M. on Friday and Saturday," subject to all statutory conditions and municipal regulations.

32Further, the Board orders that the following condition be attached to the licence, in addition to the remaining conditions.

"The doors and windows of the inside licensed premises shall be kept closed at all times when music is being played inside, except for normal entry and exit."

DATED AT TORONTO, THIS 8th day of September, 2008.