Registrar, Alcohol and Gaming Commission of Ontario v. Andy Poolhall Inc., 2008 CanLII 91745

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-

Andy Poolhall Inc. operating as Andy Poolhall Applicant

-and-

Clifford Ottaway Objector

DECISION

Panel: Dianne Axmith, Board Member Allan Higdon, Board Member

Decision Date: October 30, 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 Andy Poolhall Inc., Applicant ) David Winer, Representative Clifford Ottaway, Objector & Resident Objectors ) Joanne Birenbaum, Representative ) Craig Colraine, Representative

Authorities

1752193 Ontario Inc., [2008] O.A.G.C.D. No. 57 Arena Intertainment Inc. (c.o.b. Circa), [2007] O.A.G.C.D. No. 309 Cue’s Whole 9 Yards, [2007] O.A.G.C.D. No. 60 Juke Box Live, [2006] O.A.G.C.D. No. 222 Living Spring Restaurant & Bar, [2006] O.A.G.C.D. No. 393 Rasanen v. Rosemount Instruments Ltd., 1994 CanLII 608 (ON CA), [1994] O.J. No. 200 Revival Restaurant-Bar, [2006] O.A.G.C.D. No. 398

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued a Notice of Proposal number 16130 dated March 20, 2008 to review an application for an additional licensed area from Andy Poolhall Inc. (the “Applicant”) operating as ANDY POOLHALL, 489 College Street, Units 1 & 2, Toronto, Ontario, M6G 1A5 (the “Premises”), licence number 802979 (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 16 and July 9, 2008, in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board APPROVES the Application made by Andy Poolhall Inc. for an additional outdoor area for 48 persons at ANDY POOLHALL, 489 College Street, Units 1 & 2, Toronto, Ontario, M6G 1A5, on the conditions set out below. Reasons follow.

Preliminary Matters

3Richard Kulis appeared on behalf of the Registrar. He advised the Registrar took no position on the public interest aspects of the hearing.

4Joanna Birenbaum is a barrister and solicitor. She appeared before the Board on behalf of Dr. Clifford Ottaway and the Toronto Standard Condominium Corporation 1455 (“TSCC”) and Palmerston Area Residents Association (“PARA”). Licensee's Counsel, David Winer, opposed the application by Ms. Birenbaum to represent Dr. Clifford Ottaway on behalf of objectors in the TSCC and PARA.

5Licensee's Counsel consented to permit party status to the objectors after extensive discussion regarding the principle of issue estoppel and previous AGCO decisions related to the property.

6On consent, the panel ORDERED party status to be granted to Dr. Clifford Ottaway on behalf of the objectors, represented by Ms. Joanne Birenbaum. On the second day of the hearing, Craig Colraine appeared on behalf of Ms. Birenbaum.

Resident Objectors’ Evidence

7Ms. Birenbaum submitted the Letters of Objection (Exhibit #3).

8Linda Lapointe is a member of the PARA. Ms. Lapointe referred to a letter of objection from Tom Churchill, Chair of PARA, dated February 4, 2008. The letter was sent on behalf of the Association’s membership.

9The witness drew attention to Exhibit #3, page 2, paragraph 3:

“The recent application by Andy Poolhall to merge the two adjacent facilities did not include an application for a licensed outdoor area. Furthermore, the addition of an outdoor patio would result in the exact opposite of what (a previous) settlement was designed to achieve – that is, to keep noise inside the premises of Andy Poolhall and to prevent noise and rowdy behaviour outside the building.”

10Ms. Lapointe referred to the letter of February 7, 2008 (Exhibit #3) written by her and her husband to the AGCO.

11The witness notes in the letter she lives almost opposite the proposed patio and states she would be exposed to a considerable amount of noise. She objected to a previous application by Andy Poolhall and Ciao Edie’s to operate an outdoor patio. They would often hear yelling and shouting from the patio of Ciao Edie’s even with the windows closed in summer resulting in lack of sleep.

12Ms. Lapointe’s letter states the owners of Andy Poolhall agreed at a recent AGCO hearing to a number of conditions designed to reduce noise and disruptive behaviour coming from Andy Poolhall. A new licence increased the indoor capacity of the Premises to 457 persons. A licensed outdoor patio would run contrary to the intent of the minutes of settlement.

13On cross examination, Licensee's Counsel reviewed a number of premises in the area (Exhibit #4, tab 14). The witness stated 95% of the premises noted are principally restaurants with patios.

14Clifford Ottaway is a doctor at a nearby hospital. He is Vice-President of the condominium corporation located at the same intersection as the Premises. There are over 60 units in the building with 200 residents. Some 16 units face Markham Street.

15The witness referred to his letter of objection on behalf of his condo corporation (Exhibit #5, Tab 1) in which he states,

“...The application to amalgamate the licences of two facilities (Andy Poolhall, Ciao Edie) specifically excluded outdoor facilities and included the elimination of the outdoor facility associated with the Ciao Edie licence. Furthermore, during the negotiations the proprietors denied that they intended to establish a patio.”

16Dr. Ottaway stated he took ownership of his condominium in January 2002 and occupied it in March. The condominium corporation was incorporated in August 2002. When the witness moved into the area it was much quieter than it is now.

17The witness referred to Exhibit #2, a decision of the AGCO dated December 15, 2004. The summary of evidence for the objectors, tab 11, paragraph 13, gives some background history of the site. It states:

“At that time, the premises at 489 College Street was operating as Clear Spot and there was no problem with noise or any disruption of their sleep. This all changed in the summer of 2003 when renovations to the establishment were made and it re-opened as Andy Poolhall with weekend musical events featuring DJs and attracting a new and different clientele.”

18The witness testified the noise consists of two components – heavy, bass music that reverberates at night, and crowd noise outside the Premises, such as loud talk and yelling, that takes place on a regular basis.

19The witness said management stated they had controlled the noise by insulating windows. However, the results were not good enough.

20Further changes were made in 2007. The club was closed for renovations in the summer – a blissful interlude for the residents – and a substantial improvement was made in controlling noise from the Premises.

21Despite this improvement, Dr. Ottaway does not open his windows at night, leaves his fan on, and uses surf recordings to help mask the street noise.

22There is no contact telephone number at Andy Poolhall for residents to call if they have noise complaints.

23Dr. Ottaway stated noise would get substantially worse if a patio were allowed to operate.

24The witness referred to a letter from a consulting engineer in acoustics, noise and vibration (Exhibit #5, tab 6A) who had been engaged by the condominium corporation to conduct a noise study.

25An investigation was done on November 31, 2007 at 1:00 a.m. and found that elevated voices and shouting were “annoyingly loud” from Andy Poolhall patrons standing outside. The report concluded that, “the residents’ concern about the potential for the noise that a 50 seat patio could create next to them is justified.”

26The witness stated that in the previous week some 30 people were gathered at the corner of the Premises yelling at each other late at night. Some of them were staggering.

27Dr. Ottaway referred to various letters from condominium residents some of whom found the noise from the Premises more disturbing than others, depending on the location of their unit.

28The witness stated he attended a meeting with Michael Sweeney, principal of the corporate licensee, in which the problem of noise from the Premises and crowds out front was discussed. Mr. Sweeney was asked about the prospect of a patio and the witness was assured there was no intention to have a patio operation.

29The witness made reference to a Boulevard Cafe Agreement between the City of Toronto and Andy Poolhall dated September 2, 2004 (Exhibit #4, tab 1). A section entitled, “Terms Applicable to Boulevard Cafes Located on Residential Flankages” is on page 5. The witness stated he was not informed of this Agreement.

30The witness referenced a letter from Mr. Winer on behalf of the Applicant dated September 12, 2007 (Exhibit #5, tab 9, page 4, paragraph 2) in which Mr. Winer writes:

“The previous application and the current application bear some striking differences. As advised during the conference call, in the present application, the applicant no longer seeks a licence for the out-door patio. This is significant as a major part of the concern at the hearing revolved around the concern for the potential noise from the patio.”

31The witness referred to a letter to the Chair of the AGCO from Joe Pantalone, Deputy Mayor of the City of Toronto (the “City”), dated April 23, 2008 (Exhibit 5, tab 2). In his letter Mr. Pantalone describes measures taken by the City to address the bar related concerns of residents. Regarding this application Mr. Pantalone wrote:

‘With the support of the residents, I would like to recommend the following:

1. That the hours of service be restricted to 10:00 pm on weekdays (Monday to Thursday) and 11:00 pm on weekends (Friday to Saturday);

2. That the patio area be restricted to the 18 westernmost meters of Andy Poolhall’s College Street flank (as opposed to the entire 26.75 possible meters (please see attached diagram) and;

3. That a review be done after one year that the liquor licence is granted and if there are problems at the time of the review to restrict hours further.

These restrictions are necessary in order to reduce noise and other impacts on the nearby residential areas such as the Ideal Condos (301 Markham St) or the homes on Markham north of College.”

32In conclusion, Dr. Ottaway stated he has no objection to business in general. However, the residents of the condominium building were there before Andy Poolhall and deserve consideration. They are very concerned the area is changing for the worse due to the impact of bars and clubs.

33On cross examination, the witness confirmed he signed an agreement on behalf of his condominium corporation withdrawing the objection to an interior licence, capacity 457 patrons, for the Premises - subject to 11 conditions designed to mitigate any noise impact (Exhibit #2, tab 5, undated).

34The witness confirmed he was notified by email of the intention to apply for a patio licence.

35The witness confirmed he had been advised by HGC Engineering that the noise mitigation measures recommended by them in their letter of January 16, 2008 to Michael Sweeney had been complied with (Exhibit #2, tab 6).

36The witness confirmed he was not aware of any charges having been laid against the establishment. He stated he had not called the police or by-law enforcement officers regarding any noise problem.

37Dr. Ottaway stated he was grateful for the progress made to date to deal with noise. For instance, efforts are made to ensure patrons do not congregate outside the Premises late at night. The windows of the Premises are shut at all times. The soundproofing measures outlined in the agreement are proving effective (Exhibit #2, tab 5, paragraphs 2,3,4,5).

38On redirect, the witness said the restricted hours suggested by Councillor Pantalone would deal with the concerns of residents.

39Gregory Chan is a resident of the condominium complex, his unit is directly across the street from Andy Poolhall. He has been a resident since 2001 and objects to the issuing of a patio licence.

40The witness stated Dr. Ottaway reflected the views of many of the condominium residents, including his. Residents are concerned the patio will add further disturbances. He hears crowd noise and music at night in his unit.

41Gopal Bhattacharyya is a resident of the condominium complex. His unit faces Andy Poolhall.

42The witness stated he hears noise from the Premises every day. Even with his windows closed he can still hear noise at 2:00 a.m.

43On the day of the hearing Mr. Bhattacharyya was woken up at 1:30 a.m. by people standing on the corner smoking and talking. He often hears foul language.

44There was no cross examination.

45Replying to a question from the panel, the witness said he did notice a tremendous improvement in noise from inside the Premises due to sound attenuation renovations.

46John Coulter is a consulting engineer dealing in acoustics, noise and vibration. On consent, he was acknowledged as an expert witness.

47The witness conducted a sound study on November 30/December 1, 2007 for the condominium corporation. Soundings were taken from the 6th floor balcony of the complex on the west side of the northwest corner.

48The report notes sound levels “in excess of at least 3db above the City and provincial standards for stationary sources (NPC 305) and there was no question about the sound being ‘clearly audible’, exceeding the City requirement...”

49Mr. Coulter stated he conducted a tour of the area and found the back door of the club had been propped open.

50Mr. Coulter said music was fairly muted until midnight when the volume increased. As traffic noise died down, music from inside the building became more pronounced. He concluded noise from the Premise’s windows was a problem.

51The witness was in front of the Premises at about 1:00 a.m. when a dozen people congregated outside the Premises and in a friendly, boisterous way shouted at each other for about 15 minutes.

52This incident violates the agreement signed by all parties (Exhibit #2, tab 5, page 2, paragraph 9 b, undated) that patrons would be asked to stop making noise outside the Premises if they were loud and boisterous.

53Mr. Coulter stated shouting results in noise levels of about 82 dB. Many people would have trouble sleeping with noise at that level, especially as shouting tends to startle.

54The witness addressed sound studies commissioned by the Applicant and outlined perceived inadequacies in methodology.

55Mr. Coulter concluded by stating additional noise problems resulted from noise leakage as people moved from inside to outside, from the northeast door being propped open, and smokers congregating outside.

56On cross examination Mr. Coulter acknowledged that traffic at times can generate as much noise as the Premises.

57The witness stated a server bar on the east end of a patio would help to reduce noise from patrons.

Applicant’s Evidence

58Brian Howe is an engineer with HGC engineering and has provided expert testimony on sound before provincial tribunals.

59His report to the Licensee (Exhibit #2, tab 6, dated January 16, 2008 confirms the observations of the objectors’ sound engineer, John Coulter, “that low frequency sound emanating through the windows of the club is audible at the 6th floor balcony of the condominium and suggests that the acoustic performance of the transmission path be upgraded.”

60The witness recommended several construction solutions to the club to deal with the problem of excessive noise.

61Mr. Howe spoke to his report of May 6, 2008 prepared for the Licensee (Exhibit #2, tab 14). The report is based on the understanding that the outdoor food and beverage area will be directly in front of the venue on College Street, have a maximum capacity of 48 people, and the area will be monitored for unruly behaviour. It also assumes only 24 people will be speaking at any one time.

62The witness’s report concludes the noise impact from the proposed patio area “will not be discernible at the facades of neighbouring residential buildings, and the overall impact will be acceptable.”

63Mr. Howe agreed any doors into the Premises should not be propped open.

64On cross examination Mr. Howe stated he did not dispute the noise measurements of the objectors’ sound engineer.

65The witness agreed his estimate of 66 dB for 24 people would be exceeded if all the patrons were talking or if people were yelling.

Witnesses for the Applicant

66L. Scott Lane is the co-owner with Michael Sweeney of Andy Poolhall. The witness stated he has been involved with Andy Poolhall since late 2002. Previously, he had been with Ciao Edie since June 1998.

67The witness said Andy Poolhall has never been charged with a liquor offence or had their licence suspended. It has a completely clean record.

68Mr. Lane recounted measures taken to alleviate the impact of noise and acknowledged some efforts to dampen sound coming from the windows had not been professional.

69The witness referred to a decision of the AGCO dated December 15, 2004 in which the Board agreed to the consolidation of two premises into one and granted a patio license for 56 people (Exhibit #2, tab 11).

70Mr. Lane stated the recommendations for noise abatement suggested by Mr. Coulter were implemented at significant expense. Over $200,000 was spent on renovations.

71The witness stated the patio would be on College Street. It is not a “flanking” establishment subject to stricter rules.

72On cross examination, Mr. Lane stated the compromise conditions suggested by Councillor Pantalone would not be acceptable to him.

73In response to the panel, the witness stated he had never felt the need to hire police to secure peace outside his premises. He indicated he would consider installing surveillance cameras.

74Counsel for the Applicant said he would forward clarification on the “flanking issue” to clarify if it had any bearing on this application.

75Charles Veysey is the manager of Andy Poolhall. He has been with the establishment for 10 years and manager for 3.5 years. He works 7:00 p.m. to 4:00 a.m., five days a week. It is his sole source of employment.

76Mr. Veysey referred to the Boulevard Cafe Agreement signed with the City of Toronto on September 2, 2004 (Exhibit #2, tab 1, page 5).

77Mr. Veysey stated the provisions listed under the title, “Terms Applicable to Boulevard Cafes Located on Residential Flankages” do not apply to this application as the proposed patio would be on College Street only, not Markham Street which flanks the premises.

78Mr. Veysey stated there were approximately 52 patios within a ten minute walk of the premises. There is a high volume of pedestrian traffic, lots of tourists, and a very vibrant and diverse night life.

79With reference to the recommendations of Councillor Pantalone, particularly the restrictions on service hours, no other patio has such restrictions. The suggestion that the patio be only 18 metres and not 26.75 metres appears arbitrary.

80Mr. Veysey stated doors to the Premises would not be propped open. The Markham Street doors in particular would remain closed.

81The witness stated he constantly monitors for noise and goes around the building every 45 minutes.

82Mr. Veysey stated every establishment on College Street has a patio – except Andy Poolhall. The absence of a patio in summer is marked. Business is off by 40% because people want to be outside.

83The witness said the previous premises on this site had a patio in operation before the condominium complex was even built.

84Mr. Veysey stated the acoustic report commissioned by the club shows if the main doors are closed there is no increase in ambient noise on the street. The problem with sound leakages at the windows has been resolved.

85On cross examination Mr. Veysey stated his opposition to the imposition of conditions is basically economic.

86The witness agreed bursts of noise from the street could be disturbing to residents.

87The witness stated the Ciao Edie patio had a capacity of 22 patrons.

88Mr. Veysey said from 10:00 pm until 3:00 am the Premises has five security staff on duty, from Tuesday to Saturday night.

Issue

89At this point Counsel for the Objectors requested the return of a witness due to new information that could affect possible conditions. The Board has wide discretion and could decide if this testimony should be given weight.

90Applicant’s Counsel stated he was dubious as to the probative value of the witness’s testimony but it is up to the Board to rule if the process might be prejudicial to his client.

91The Board agreed to hear the witness on the understanding the manager may need to be recalled to address contentious points.

92Linda Lapointe described an incident the previous night. Around 2:00 a.m. in the morning she saw a crowd of approximately 20-25 people in front of the entrance of Andy Poolhall.

93Ms. Lapointe heard what sounded like a shot. Later police cars, an ambulance, and a fire truck arrived. Someone had been shot and was taken away in an ambulance.

94The witness saw no sign of Andy Poolhall security at any time before or after the incident.

95The crowd dispersed after 3:00 a.m. The witness did not know if the people were patrons of Andy Poolhall.

96On cross examination, Ms. Lapointe stated she did not notice if people were on the southeast corner of the intersection.

97Charles Veysey, manager of Andy Poolhall, stated he was not at the Premises the previous night as he rested for his appearance at this hearing.

98Mr. Veysey stated he consulted the Assistant Manager and was informed a person had been shot but not on the Andy Poolhall premises. In fact, the shooting happened on Markham Street around the corner.

99Mr. Veysey stated there has never been a shooting at Andy Poolhall in his ten years of employment there.

100Mr. Veysey had no information on the origin of the crowd.

101On a question from the panel, Mr. Veysey stated shirts for security staff are available but not required. Staff members have headsets to keep in touch with each other.

Resident Objectors’ Submissions

102The objectors oppose the application of Andy Poolhall for a licensed patio area of 590 square feet with a capacity of 48 patrons to be added to the existing licence.

103The objectors maintain such a facility would exacerbate the serious noise problems experienced by local residents, in particular the residents of the condominium building at 310 Markham Street.

104The objectors note Andy Poolhall made an application in 2004 to merge with the adjacent Ciao Edie and increase the overall capacity to 450 patrons, plus a patio of approximately 50 people. The application was granted with conditions on December 14, 2004. Due to restrictions on the Markham/College Street door the Applicant has been unable to operate the patio.

105Andy Poolhall made an application in June 2007 which, with the significant omission of an application for a patio licence, was the same as the 2004 application. The application was granted in accordance with an agreement made between Andy Poolhall and objectors.

106The agreement of 2007 and the resulting AGCO decision of December 13, 2007 was negotiated in part on the understanding that Andy Poolhall was not seeking a patio licence. The Board should consider whether it is appropriate to grant a patio application after a decision based upon an agreement that did not provide for such a licence.

107The submission of the objectors reviews the testimony of the objectors, letters of objection, and the difficulties related to noise from the Premises.

108The submission reviews testimony on behalf of the Applicant and discusses the issue of “residential flankages” and the status of many of the neighbouring premises.

109An acoustic expert, J. Coulter, conducted a study on site and experienced elevated voices and loud shouting at 1:00 am. He concluded that concern for potential noise from a 50 seat patio was justified.

110The acoustic expert employed by the Applicant admitted noise from the patio could disturb residents and stated he had not been on site in the late night hours when noise is most prominent.

111The objectors state they do not suggest Andy Poolhall is a poorly run establishment. They do not want to put the establishment out of business.

112The objectors are faced with a very serious problem of noise from a business that is not a restaurant but a nightclub.

113The establishment hosts numerous music events and conducts extensive advertising campaigns to attract patrons. The operation of a patio will greatly increase the potential for noise.

114Given all the adverse effects on local residents the objectors seek to have the application denied.

115If a patio licence regrettably were to be granted the objectors seek the imposition of conditions attached as Schedule “A”. The objectors set out nine conditions for the Board to consider, as it is within its power to impose.

116Given the potential for serious noise problems, the objectors maintain a patio licence should not be granted.

Applicant’s Submissions

117The Applicant is seeking a licence for an outdoor patio on a major arterial road. No part of the patio will front on to the residential flanking street.

118The proposed patio is modest with a proposed capacity of 48 persons.

119An outdoor licensed patio operated at this location from 1994 until January 2008 without any complaint or infraction. The patio had a clean record with the AGCO despite this being one of the most heavily patrolled streets in the city.

120In 2004 the Applicant was granted a patio licence combining both the initial premises and adjacent premises, with a capacity of 57 people.

121The 2004 licence was granted with conditions of no music on the patio and Monday to Friday closure at 1:00 a.m., Saturday and Sunday closing at 2:00 a.m.

122The Premises was not permitted to operate under the condition which limited the use of the Markham/College Street doors and therefore the indoor spaces were not consolidated.

123The current application seeks a reduced capacity of 48 people for the outdoor patio, with no restrictions.

124In October 2007 an engineering report demonstrated there was no significant leakage of noise from the Markham/College Street doors.

125The Objectors also commissioned a noise report. This report confirmed the previous conclusion that noise problems were not emanating from the doors. The new report stated the problem was bass sound or vibrations leaking from the large windows on the east side of the Premises fronting on to Markham Street.

126The Objectors agreed not to oppose the 2007 indoor consolidation on the understanding that remedial soundproofing measure would be taken with the eastern windows.

127The Applicant did all remedial work to the satisfaction of the Objectors.

128The Objectors state they agreed to the 2007 consolidation because they were assured there would be no application for a patio licence. This is untrue.

129No assurances were given or documents signed affirming this. The Applicant merely agreed to notify the Objectors if he were to apply for a licence.

130On September 27, 2007 counsel did notify the Objectors his client had no patio licence and was not seeking a patio licence “in this application”. The application referred to was the consolidation of the premises. It did not imply no licence would be applied for in the future.

131The Objectors must demonstrate on the balance of probabilities that the granting of a patio licence is not in the public interest. They have failed to do so.

132The testimony given by Objectors confirmed remedial sound measures had taken place. One stated the situation had markedly improved. Only just over 10% of the nearby condominium residents submitted letters of objection.

133Testimony was given regarding incidents on the street in front of the Premises. None of them related to the operation of the establishment.

134Scott Lane, a co-owner, gave testimony on behalf of the Applicant. He reviewed the measures the Applicant had taken to address the concerns of local residents.

135The manager of the Premises testified and spoke to the operational procedures and hours of service which the patio intended to offer. A review of neighbouring patios and their status was given by the witness.

136In conclusion, the Applicant is aware of only three establishments that have any conditions on their patios and, of those, two are backyard patios. The third has large garage doors which open to the patio.

137No other similar patios on College Street have any conditions in relation to hours of operation.

138There is no ground swell of opposition. The City of Toronto took no position on the application and a minority of the nearby condominium residents attended a meeting to protest the application.

139The patio licence should be granted without conditions other than those consented to by the Applicant.

Reply

140The reply of the Objectors stated the 2007 agreement resolved all issues between the two parties and did not provide for a patio licence. There were no outstanding issues.

141Andy Poolhall made application for a patio licence only one day after the AGCO decision to approve the combining of the two premises. It was a transparently tactical decision intended to sidestep the 2007 agreement.

142The submission affirmed the credibility of Dr. Ottaway’s testimony and that of John Coulter, sound expert.

143The Objectors refute the statement that opposition is limited. A large group of people opposed the patio application. They include the condominium residents at 310 Markham Street and the Palmerston Area Residents Association – together a substantial and vocal group.

144The letter of Councillor Pantalone should be given weight. He represents the area and has not amended or withdrawn his letter.

145The email of September 27, 2007 referred to in the Applicant’s submission was not placed in evidence and should not be given any weight.

146No evidence has been submitted that the landlord restricted the use of the Markham/College Street doors.

147The proposed patio would contain almost 50 people drinking outdoors into the small hours of the morning and would clearly exacerbate the noise difficulties experienced by residents, particularly late at night.

148The Applicant has failed to address concerns the application is in the public interest.

Analysis and Reasons

149The conflict between Andy Poolhall and local residents has been difficult and expensive for both parties.

150The Board has carefully reviewed all the testimony and extensive documentation submitted.

151There is clearly concern from local residents that an additional facility will negatively affect their quality of life. The owners of the proposed Premises maintain their facility would enhance, not detract, from the character of the neighbourhood.

152Much of the evidence presented related to the operation of the indoor establishment. A great deal of time was spent on testimony related to sound studies and improvements taken to address noise leakage from the indoor Premises.

153Although this information was not related directly to the operation of a patio, the Board considered it gave insight into the history of attempted accommodation between the two parties.

154Residents complained about noise and the owners of the establishment took measures to address these concerns at considerable expense. Although the relationship between parties has been stressful, both appear to have worked diligently to find a sustainable compromise for co-existence.

155However, the operation of an indoor establishment with a capacity of 457 patrons presents a completely different challenge to that of running a patio with a capacity of 48 patrons.

156At this hearing, the Board is confined to dealing solely with the issues related to a licensed patio operation.

157The Board is aware some Objectors maintain they had been assured no patio licence would be applied for following the Agreement of 2007. The timing of the application may be suspect, however, no evidence was presented of any signed undertaking by the Applicant to assent to this restriction. The issue is therefore moot to the Board.

158Andy Poolhall applied to the AGCO in May 2004 to licence additional indoor and outdoor areas for capacities of 457 and 56 patrons respectively. The application was approved, with conditions to address the concerns of local residents.

159The conditions imposed were:

“ 1. All doors and windows shall remain closed at all times.

2. There shall be no live, recorded or amplified music allowed on the patio.

3. The operation shall cease operation at 1:00 am Monday to Friday and 2:00 am on Saturday and Sunday.

4. Patrons shall not use the Markham/College Street doors for any purpose other than emergency or public safety situations.

5. Line-ups to enter the establishment must run west from the western-most door and be monitored by establishment security personnel at all times.

6. Establishment security personnel must be indentified as such, i.e. T-shirts and I.D. tags.”

160The Agreement reached by objectors and Applicant and accepted by the AGCO in December 2007 confirmed the interior capacity of 457 patrons. No mention was made of any outdoor capacity.

161The Board acknowledges the establishment has a valid Boulevard Cafe Agreement with the City of Toronto dated August 2, 2004 still in force for a cafe operation of 42.80 square metres. (Exhibit #4, tab 1)

162The Board asked for and received written clarification from the City that the provisions related to Residential Flankages (section 11) do not apply to this application, in particular the restrictions on hours of operation. (Exhibit #11, letter of Kimberley Belshaw, June 28, 2008).

163The Applicant indicated at the hearing that he was agreeable to certain conditions if he were to be granted a license.

164In his Responding Submission dated July 28, 2008, (Tab 1, page 31) the Applicant agreed to the following conditions:

• No live, recorded or amplified music on the patio;

• Patio supervision by Andy Poolhall staff and the eviction of noisy patrons;

• The placement of a server station at the eastern most end of the patio.

165The Applicant did not accept any restrictions on the hours of service for the patio.

166The Applicant stated the establishment had a completely clear record with the AGCO for liquor infractions. No evidence was introduced to the contrary.

167The Board also notes the current patio application is for a maximum of 48 patrons, a reduction from the capacity of 56 patrons granted in 2004.

168It is clear to the Board the main concern for local residents lies in the late night operation of a patio. The Board is not aware of any opposition specifically directed to the daytime or early evening operation of a patio.

169The Board notes the Authorities presented at the hearing by the objectors - Juke Box Live, Cue’s Whole 9 Yards, Revival Restaurant Bar – all resulted in the granting of a licence, two of them with patios. However, conditions were attached to the licences.

170The Board notes the Application is for a patio on a major arterial road. Evidence was given that 52 outdoor patios are within a ten minute walk. A detailed examination of many of these patios and their locations was conducted in the hearing. The Board, however, notes that many of these are restaurants serving full course meals unlike Andy Poolhall.

171Given the above, the Board FINDS the objectors have not met their onus to demonstrate the issuance of a licence, even with limiting conditions, would not be in the public interest, having regard for the needs and wishes of the residents.

172Consequently, the Board views the issue to be decided not as to whether a patio should be licensed at all but under what conditions, including hours of operation, it should be allowed to operate with a licence.

173The objectors stated they did not consider the existing indoor Premises to be run in an irresponsible manner. The owners stated they have spent approximately $200,000 to renovate and soundproof their establishment to eliminate noise problems.

174Given the excellent record of the Licensee to date, the reasonable size and location of the proposed patio, and the existence of similar facilities throughout the neighbouring district, the Board FINDS there is insufficient reason to deny the Applicant’s qualified right to a licence for the patio.

175The Board noted the recommendations of Councillor Joe Pantalone in his letter of April 23, 2008 to the Chair of the AGCO. (Exhibit #5, tab 2) The restrictions proposed by him were outlined earlier in the testimony of Dr. Ottaway. They would severely restrict the time of operation and the extent of the patio.

176The Board considers the restrictions suggested by the Councillor as being too limiting and severely prejudicial to the Applicant, given the proximity to nearby establishments with significantly longer operating hours.

177The Board is aware a patio operated on part of this site previously. It is also aware of the conditions imposed in December 2004. These conditions provide a partial but useful reference point for conditions to be appropriately imposed on the new licence.

Decision and Order

178For the above reasons the Board APPROVES the Application for liquor licence made by Andy Poolhall Inc. for an outdoor patio fronting on College Street for ANDY POOLHALL, 489 College Street, Units 1 & 2, Toronto, Ontario, M6G 1A5, licence number 802979, with a maximum capacity of 48 persons.

179Further, the Board ORDERS that the following conditions, intended to ensure an orderly and responsible operation for the benefit of local residents and some of which were agreed on consent by the Applicant, be attached to the licence. These conditions are in addition to the conditions currently imposed on the Licensee:

1. There shall be no live, recorded, transmitted or amplified music allowed on the patio;

2. Security personnel shall be present on the patio during all hours of operation whenever patrons are present and shall evict noisy or boisterous patrons promptly;

3. The server station for the patio will be located on the eastern most end of the patio;

4. The licensee shall install security cameras covering the entire service area of the patio. Camera recordings shall be kept for a minimum of 36 hours.

5. Security personnel shall at all times wear visible identification.

6. All signs of the sale and service of alcohol on the patio shall be cleared by 12:00 midnight Sunday to Thursday and 1:00 a.m. of the following day on Friday and Saturday, and sale and service shall cease 45 minutes before these times.

DATED AT TORONTO THIS 30th DAY OF OCTOBER, 2008.