Registrar, Alcohol and Gaming Commission of Ontario v. Charley Fitzwhiskey’s Tap and Eatery Inc., 2008 CanLII 91776

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-

Charley Fitzwhiskey’s Tap and Eatery Inc. operating as Charley Fitzwhiskey’s Tap and Eatery Applicant

DECISION

Panel: David C. Gavsie, Chair, AGCO Patricia McQuaid, Vice-Chair, AGCO

Decision Date: October 17, 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 ) Joyce Taylor, Representative Charley Fitzwhiskey’s Tap and Eatery Inc., Applicant ) Carmona Gilbert Nunes, on behalf of the corporation

Authorities

Lion on the Beach, [2003] O.A.G.C.D. No. 140

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued a Notice of Proposal number 16489 dated July 23, 2008 to review an application to remove conditions from licence from Charley Fitzwhiskey’s Tap and Eatery Inc. (the “Applicant” or “Licensee”), operating as CHARLEY FITZWHISKEY’S TAP AND EATERY, 55 Ontario Street North, Milton, Ontario, L9T 2T2 (the “Premises”), licence number 16489 (the “Licence”), on the basis that the AGCO has received one or more written objections to the application from residents of the municipality and that there has been no change in circumstances to justify the removal of the conditions. A hearing of the Application was held on October 1, 2008 in the City of Toronto.

Decision

2After considering all the evidence and submissions, the Board APPROVES the Application made by Charley Fitzwhiskey’s Tap and Eatery Inc. to remove conditions on the Licence subject to the addition of conditions on the Licence set out below. Reasons follow.

Preliminary Matters

3Carmona Nunes, one of the two officers, directors and shareholders of the Licensee, waived its right to have representation at the hearing and indicated that he personally would represent the corporate licensee.

Licensee’s Evidence

4Mr. Nunes gave evidence. He indicated that he purchased the business, with a partner, in October, 2007, knowing that it had a history of liquor licence suspensions, and problems with noise. The bar is located in a commercial strip mall complex. Since taking over the business, he has hired a security company and installed video cameras. All staff have their Smart Serve certification. As well, the speakers on the patio were removed. There are no live bands and the music has been toned down. Police have attended the Premises for minor scuffles, but there have been no complaints about the establishment.

5Further, he has become involved in the community, holding fundraisers and sponsoring local hockey and football teams. He is willing to work with the community to make changes to the establishment. He has fully enclosed the patio with an approximate 9 foot high barrier (as shown in Exhibit 1). Construction of that barrier started in May, 2008. He has put plants on the patio to make it more attractive.

6In terms of noise, Mr. Nunes noted that trains on the nearby rail line which pass at regular intervals, would possibly generate more noise than his establishment.

7Mr. Nunes is seeking to remove the conditions, in part because his is the only bar in the area with such restrictions, that is, he cannot serve drinks in glasses on the patio or serve alcohol on the patio past 11:00 p.m. The removal of the conditions would help him in the face of a tough business environment.

8In cross-examination, Mr. Nunes was asked about his comments that the spouse of the objector John Bennett was supportive of his application in that she no longer hears noise from the establishment. Her position at the local bank branch that Mr. Nunes deals with was referenced. Issues surrounding any comments she may have made, any possible conflict given her position at the bank and any consequences to her were determined by the Board to be of little or no relevance to the issue before it. Evidence from Mr. Nunes or, later, Mr. Bennett regarding her position regarding this application was hearsay and given little weight, especially when measured against its marginal relevance.

9Mr. Nunes acknowledged that when he purchased this business, the condition regarding limited service on the patio had been on the licence for over 10 years. The application to remove both conditions was filed before the business had operated for a full patio season, and therefore, he perhaps, at a point whereby it was difficult to assess the current noise impact on neighbours, and he acknowledged, too, that this past summer was, due to poor weather, not a busy patio season.

10Mark Stanley, who works for Mr. Nunes as a DJ on Friday and Saturday nights, gave evidence in support of the Licensee’s application. Mr. Stanley stated that the license required that there be no external speakers. Mr. Nunes removed them, though they should have been removed prior to this, by the prior licensee. He has noted that there is less police presence at the establishment with the bar having its own security. Though acknowledging that he is not a sound engineer, Mr. Stanley stated that the wooden barrier around the patio absorbs noise more effectively than would a clear plexi-glass barrier.

11Mr. Stanley stated that there are two doors to the patio, one being a garage door and the other a regular door with an automatic closing mechanism. The garage door is often left open, with a security person posted at the door.

Registrar’s Evidence

12P.C. Paul Harrower is with Halton Regional Police and is part of a six person district response unit and a bar project coordinator, overseeing liquor licensed establishments in Milton and Halton Hills. He expressed public safety concerns about removal of the conditions, specifically the condition requiring alcohol to be served in plastic stemware on the patio.

13P.C. Harrower related an incident on May 27, 2006. Police attended at the parking lot of the licensed premises in response to an anonymous call that a fight was occurring. Upon arrival on scene, at approximately 1:13 a.m., the officers saw no fight. However, while standing next to their cruiser, a glass bottle landed at their feet, narrowly missing their vehicle. Patrons on the patio became verbally abusive. There were numerous intoxicated patrons on the patio. The situation escalated. Approximately 10 police officers were required to control the situation. The bar was closed in the interest of public safety. At this time in the bar’s history, numerous occurrences were recorded at the licensed premises.

14P.C. Harrower conceded that since Mr. Nunes took over the Premises, the number of police calls have decreased considerably. Though Mr. Nunes has been diligent, P.C. Harrower feels the potential for an injury is still present. Bottles could still be thrown, at best over a much higher wooden barrier around the patio. The patio presents a different issue now as the barrier may conceal patrons from police officers.

15In P.C. Harrower’s view, not enough time has passed to assess the changes made by Mr. Nunes. In addition, the past summer was generally quiet for patios in the area, so it is difficult to assess what the decreased call volume represents. The history, location and clientele of the establishment, the latter of which has not changed in his assessment, remain problematic. He would say though that Mr. Nunes is off to a good start in his operation of the establishment.

16On questioning from the panel, P.C. Harrower stated that he believes he has attended at Charley Fitzwhiskey’s about two to three times in the past eleven months. These were not attendances in response to a call, rather police were in the parking lot or in the general area. He has not gone into the establishment. P.C. Harrower also stated that the incident of May 27, 2006 was the only incident he was aware of that presented, to any degree, the concern for police officer safety.

17John Bennett, a resident of that area, expressed his concerns about a change in the hours of service on the patio. Historically, there has been a lot of noise and disruption emanating from the patio, which is located at the front of the Charley Fitzwhiskey’s premises. His house is behind the building, perhaps 350-400 feet away.

18Mr. Mayer has also objected to this application. His house is located about 150-200 feet from the rear of the bar. As confirmed through Exhibit 1, behind the Charley Fitzwhiskey’s premises is a parking lot, then a row of parking for Discount Truck Rentals, a fence and Mr. Mayer’s property. There has been an improvement since Mr. Nunes took over, but in Mr. Bennett’s view there has not been enough time passed to assess whether Mr. Nunes’ efforts are sufficient. He noted, too, that it was a slow summer for patio business.

19As well as hearing loud voices and shouting from the patio, he can hear the music when the garage doors are raised, Mr. Bennett stated that he hears noise from passing trains. The freight train may generate more noise than would emanate from Charley Fitzwhiskey’s but large freight trains pass infrequently and the sounds are transitory.

20On cross-examination, Mr. Bennett stated that the concerns outlined in his letter of objection (Exhibit 2) are largely based on the prior history and experience with the establishment. He reiterated that there has been a difference since Mr. Nunes took over though it may be too early to determine whether Mr. Nunes’ efforts will bring an end to their issues.

21If there is an issue with noise, Mr. Bennett said he is more likely to call the authorities to complain rather than the bar itself. He has probably called police twice in the past year, and this was early in the year, before the patio opened. The issue was music played too loudly, emanating from inside the establishment. He stated that he has heard nothing in the past eight months or so. He probably hears the trains more often.

22Richard Mayer describes himself as a “back door neighbour” of Charley Fitzwhiskey’s. He has lived there for 36 years. The previous owners of Charley Fitzwhiskey’s gave them a lot of problems. Noise was the issue. Bands would play, the back door would be left open and the noise level would affect their ability to sleep.

23He called the police between 10-15 times. Bylaw enforcement officials attended and measured the volume. The establishment was told to lower the volume. As well, he could hear customers going home. They would be loud, screaming and yelling. Fights would ensue. They also hear noise from passing trains, but this is a noise that comes and goes. They could hear music from Charley Fitzwhiskey’s between 10:00 p.m. and 2:00 a.m.

24Mr. Mayer stated that his main concern is the noise from loud music, especially the bass. The noise issue has lessened in the past 11 months. He last called police about the noise a few years ago. The bass noise has diminished. Alcohol consumption does not concern him as they “don’t make noise drinking”. The problem with the patrons is when they leave, especially when they are parked behind the building, closer to his residence. The patio was not really a problem this past summer. Mr. Mayer stated that the existence of the patio does not concern him, nor whether there is glassware on the patio.

Reasons and Analysis

25The guiding principle for the Board in determining whether, pursuant to subsection 14(2) of the Liquor Licence Act, to remove a condition of a licence is whether there has been a change in circumstances. In this instance, the Board heard from the police who object to the removal of the condition prohibiting glass stemware on the patio and from two local residents who object to the removal of the condition regarding hours of service on the patio. Their concerns express an important public interest component that must be weighed, against the request for removal of conditions.

26The onus, however, is on the Licensee to establish a change in circumstances to justify removal of the conditions.

27Mr. Nunes submits that he, as owner of the licensed establishment, has accepted the challenge of changing what was, and this was agreed by all participants in the hearing, a problem establishment. He has put in video surveillance equipment, increased security personnel, made physical changes to the patio, namely erecting a 9 foot wooden barrier around it. He also removed the speakers on the patio and toned down the music played inside. As was noted by Mr. Stanley, the Licence required that there be no external speakers prior to Mr. Nunes’ ownership. They had not been removed. The Board did not hear evidence as to when this condition was placed on the Licence, but the Board finds it noteworthy as an indication of compliance that it was Mr. Nunes who saw that the speakers were, in fact, removed.

28Further, there has been no requirement for police presence beyond what P.C. Harrower described as a common occurrence at bars, minor scuffles, since Mr. Nunes took over. Indeed P.C. Harrower stated that he was aware of 2-3 attendances in this last 11 months, and he himself, has not gone into the establishment. The condition that is the police concern is that only plastic stemware be used on the patio. This condition was placed on the Licence in response to an incident which occurred in May, 2006 and only on that one occasion. The Board was not told of any incidents since, stemming from patrons at the establishment, inside or out, which posed a threat to police or public safety. P.C. Harrower suggested that the potential for an injury is still present. While possibilities always exist, the Board has heard no evidence to suggest a reasonable basis for that belief.

29Mr. Nunes has, as P.C. Harrower noted, made steps in a positive direction. He has increased security at the establishment. He has enclosed the patio in a manner which would significantly reduce the risk of items being thrown at anyone, including police. Therefore, regarding the condition requiring plastic stemware on the patio, the Board concludes that the above noted changes amount to a change in circumstances and justify removal of the condition.

30The first condition on the Licence, that is, that there be no sale and service of alcohol for consumption on the patio after 11:00 p.m. is, on its face, the condition which invokes the concern of the local residents. Mr. Nunes cites the same changes: his ownership, community-mindedness, video surveillance, compliance with the conditions on the Licence by taking out the speakers which had not been removed by the prior Licensee, increased security and the construction of the wooden barrier which he believed would absorb more sound.

31Mr. Nunes also submitted that other licensed establishments in the vicinity with patios do not have such a restriction and he loses business as a result. To this specific point, the Board agrees with Ms. Taylor’s submission that such commercial considerations do not play a part in whether a condition should be removed from a licence.

32The Board heard from two local residents. Both gentlemen were fair and forthright in their evidence and acknowledgement that things have improved. Though by all accounts this past summer was not a busy one for patios, Charley Fitzwhiskey’s patio use did not present any problems for them. Mr. Mayer, who lives closest to Charley Fitzwhiskey’s (his house being approximately 150-200 feet from the rear of the licensed establishment), indicated in his evidence that his main concern is the noise created by the music, especially the bass. This is exacerbated when the rear door of the establishment, or the “garage door” at the front are left open. The patio itself is at the front of the establishment.

33Mr. Bennett, as well, stated that the music is the most significant noise issue and that it has abated somewhat. The Board notes, however, that the condition in issue is unrelated to music. The condition that speaks to music, that there are no external speakers, amplified music or live bands on the patio, remains on the licence.

34The Board is satisfied that Mr. Nunes has made changes in the operation of the establishment that have reduced the impact of his business, and in particular the patio, and thereby has improved his neighbours’ enjoyment of their properties. He, unlike the Licensee cited in the Lion on the Beach case submitted by Ms. Taylor, has, it appears, demonstrated a “change in attitude” from that of the previous Licensee. He has established bona fides on the issue of compliance. In Lion on the Beach, loud noise was continuing and neighbours continued to be disturbed. That cannot be said on these facts. The Board is not convinced that another patio season with, hopefully, good weather is required to determine the issue of whether a change in circumstances has occurred.

35Therefore, the Board, weighing the public interest concerns with the evidence of change in circumstances as found by the Board, is of the view that the removal of the condition regarding hours of service on the patio is justified.

36The Board, however, in weighing the public interest concerns with Mr. Nunes’ assertions that he intends to continue to improve the establishment’s reputation as a well run business and good neighbour, and his willingness to take additional measures, agrees that there are conditions which will facilitate this in terms of monitoring patrons, particularly, as they leave the Premises. Mr. Nunes indicated in his submissions that he was prepared to increase security patrols, to keep the rear door of the Premises closed and to take measures such as an accessible phone number and signage to respond to neighbours’ concerns of noise.

Order

37For the above reasons the Board APPROVES the Application made by Charley Fitzwhiskey’s Tap and Eatery Inc. operating as CHARLEY FITZWHISKEY’S TAP AND EATERY, 55 Ontario Street North, Milton, Ontario, L9T 2T2, licence number 203606, to remove conditions 1 and 3 from the Licence, which state:

“1. The sale and service of alcohol for consumption on the patio shall cease at 11:00 p.m., Monday to Sunday.

3. Alcohol is to be served in PLASTIC stemware on the patio.”

38Further, the Board ORDERS that the following conditions be added to the Licence, in addition to those conditions remaining:

1. There shall be a designated employee on duty when the establishment closes, and for 30 minutes thereafter, to ensure that exiting patrons are not causing a disturbance to nearby residents.
2. The door at the rear of the establishment shall be kept closed during hours of operation, except for deliveries and emergency purposes.
3. The licensee shall provide a telephone number which will be answered by a staff person during hours of operation and be equipped with an answering machine when the establishment is closed for local residents to register concerns or complaints about the establishment.
4. A clearly visible sign will be posted near each exit of the establishment requesting that patrons respect neighbours by keeping outdoor noise to a minimum.

DATED AT TORONTO THIS 17th DAY OF OCTOBER, 2008.