ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission of Ontario (Registrar)
-and-
1276458 Ontario Inc. O/A Dark Horse (Applicant)
-and-
Swansea Area Ratepayers Association (Objector)
DECISION
Panel: Allan Higdon, Board Member Guy Maurice, Board Member
Decision Date: July 11, 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 1276458 Ontario Inc., Applicant: Lance Anderson, on behalf of the Corporate Licensee Swansea Area Ratepayers Association: Nicholas Singh, on his own behalf and on behalf of the Objectors
Authorities
Dark Horse, [2003] O.A.G.C.D. No. 98
The Application
The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 15897 dated January 9, 2008 to refuse to remove conditions from 1276458 Ontario Inc. (the “Licensee/Applicant”) operating as DARK HORSE, 2401 Bloor Street West, Toronto, Ontario, M6S 1P7, licence number 806463. A hearing of the application was held on May 6, 2008 in the City of Toronto.
The Licensee has applied to the AGCO to remove a condition on the licence which states:
Sale and service of liquor on the outdoor licensed area shall cease at 10:15 p.m. daily, and all signs of the sale and service of liquor shall be cleared from the outdoor licensed area by 11:00 p.m. daily.
Decision
- After considering all the evidence and submissions the Board DENIES the Application. Reasons for these findings follow.
Preliminary Matters
Richard Kulis appeared on behalf of the Registrar. He advised the Registrar took no position on the public interest aspects of the hearing.
Lance Anderson appeared on behalf of the Corporation and waived the right to be represented by a barrister and solicitor or a licensed representative.
Nicholas Singh is a resident and President of the Swansea Area Ratepayers Association. He is a resident of the municipality and objects to the application. He appeared before the Board on his own behalf and as the representative for the Objectors. On consent of all parties, the Board ORDERED Mr. Singh be made a party to the proceedings.
Applicant’s Evidence
Lance Anderson reviewed the history of Dark Horse being granted a patio licence by the AGCO after an extensive public hearing in the fall of 2002 (see Dark Horse). In that decision, the Board found that there had been a change in circumstances and that the granting of the liquor licence for the outdoor area was not detrimental to the public interest. The Board placed among other conditions a requirement that the patio close for service at 10:15 p.m., the purpose being to address the concerns raised by the objectors.
Mr. Anderson stated that since the opening of the patio there have not been any complaints to him from any residents from 2407 Bloor Street, an adjacent apartment building, or other residents of the community.
In the spring of 2007 the Licensee distributed a notice of intention to request the removal of conditions. There have been no complaints or negative responses from the nearby tenants to the Licensee’s proposal.
Mr. Anderson further stated that in 2006, Bloor Street West was closed to vehicular traffic for a Friday, Saturday and Sunday night. The Dark Horse patio remained open until midnight without incident.
In the spring of 2008 the Licensee contacted Mr. Bill Saundercook, the local city Councillor, and served notice of the Licensee’s intention to request the removal of the early closing condition for the patio. Mr. Saundercook confirmed that he had no negative response regarding the proposal and issued a letter of support to the AGCO on behalf of the Licensee.
Mr. Anderson indicated that there are numerous other competitors with patios that are not restricted in their hours of operations. The 45 minute difference in operating times has the effect of eliminating some customer visits altogether and placing Dark Horse at a competitive disadvantage. Mr. Anderson stated there has been no evidence suggesting that the removal of the condition would have a detrimental effect on local residents.
On cross-examination it was established that Mr. Robert Mercer who wrote a letter of support is not a local resident.
Mr. Singh questioned Mr. Anderson concerning a fence alleged to be a soundproof barrier. Mr. Anderson claimed that this was approved by then City Councillor David Miller’s assistant. The Board of the AGCO granted a liquor licence in 1998 based upon this approval by Mr. Miller’s assistant. Nobody could verify that an inspection of the fence was ever carried out.
Mr. Singh said Mr. Miller objected to the issuance of the licence because the condition requiring a soundproof barrier is totally inadequate.
Joseph Kelly is the sole director, officer and shareholder of the Licensee Corporation and manager of Dark Horse. He stated he has not received any direct complaints from area residents. He testified that early closing causes problems as customers are disappointed by the 10:15 p.m. closure and go to adjacent establishments to complete their night out.
Mr. Singh questioned the witness as to the special event in 2006. Mr. Kelly advised that the Ukrainian Festival was a great event. Despite live entertainment on a large stage with beer tents and good attendance it was controlled with no complaints. The only disappointment was the early closing hours at Dark Horse.
Mr. Kelly stated that Dark Horse has a clean record despite a minor infraction last year which resulted in a fine.
Mr. Kulis noted that the Licensee must explain what changes have been made to warrant a change to the licence and the onus is on the Licensee to provide sufficient explanation.
In response Mr. Kelly pointed out that customers are leaving his premises early resulting in a loss of revenue. Also, his competitors in the neighbourhood are allowed to remain open late.
Resident Objectors’ Evidence
Cheri DiNovo is the Member of Provincial Parliament for Parkdale-High Park. She attested to many complaints about Dark Horse. She stated that three blocks from Bloor Street people have complained against extending closing hours for Dark Horse. Ms DiNovo has received complaints against the Dark Horse proposal and is present to represent those who object.
On cross-examination Mr. Anderson asked the witness if she had ever given consideration to the businesses in her riding. She replied that she has because they are a strong vocal group. She does not keep a record of vocal complaints at her office. She stated she has not contacted Mr. Kelly. After speaking with her constituents she felt it was not necessary. She is not aware if the ratepayers complained to Mr. Kelly.
Mr. Singh asked the witness if she was aware of provisions of the AGCO Board decision to which she replied “yes”.
Stephen Smyslo has lived at 2407 Boor Street West for 15 years. The witness provided a detailed list of disturbances that came directly from the operation of Dark Horse. He is very much against the application for extended hours and he does not trust the Licensee. He presented evidence of disturbances and calls for interventions.
The witness referred to photo Exhibit #3 which shows the back yard of Dark Horse directly under the bedroom windows of the residents at 2407 Bloor Street. Disturbances came from smokers, car alarms, and crunching gravel from the rear parking lot. He stated extended hours would extend the disturbances. The witness further testified about noise at all hours of the night from garbage trucks, cleaning trucks, and compressors being used. He has recorded 11 such incidents in the past.
Mr. Smyslo also referred to Exhibit #4 a Notice of Proposal dated October 21, 2002, which in part directs the Licensee to erect a soundproof barrier acceptable to the local municipal councillor to separate the Bloor Street West patio from Armandale Avenue and 2407 Bloor Street West. Photo Exhibits #8a - d show the fence was intended to be the soundproof barrier.
On cross-examination Mr. Anderson asked that the witness if he received the letter circulated to the tenants of the apartment. The witness stated he saw the letter but chose to ignore it. He further confirmed that he has never complained to Mr. Kelly.
Mr. Anderson asked if he approves of the 11:00 p.m. closing (including removing signs of service) to which he replied “yes.” However, if the proper sound barrier were to be constructed he may change his mind.
Mr. Singh asked the witness if he had spoken with other tenants and he replied he had.
Maria Lomas lives at 18 Laskin Avenue one block south where a lane separates her property from Dark Horse. She filed a petition containing signatures from residents of Laskin Avenue who would like the current restrictions imposed on the Dark Horse to continue. The petition lists six restrictions when, in fact, the Licensee requests the removal of only one condition - to be allowed to serve until 11:00 p.m. Laskin Avenue has forty houses with the owners being mostly young families with young children. Entered into evidence were Exhibits #14 and #15 which depict the local area.
Mr. Singh asked what would happen if hours are extended. She replied that patrons would still be talking and it would create more problems.
When asked if she was involved in the previous hearing she said yes, and that nothing has changed.
On cross-examination Mr. Anderson referred to the petition and asked how many homes she visited. She replied that all of the homes she visited had signed her petition. She confirmed that those parking on Laskin Avenue require a permit valid for 1 hour. She also admitted not having called Mr. Kelly concerning problems at Dark Horse.
Louis Gris lives at 12 Kingscourt Road, one kilometre from Dark Horse, where he has lived for 27 years. He is the past president of the ratepayer’s association. He counted 67 seats today at Dark Horse’s patio which is only licensed for 48. He introduced Exhibits #18 and #19 which depicted the patio and the table and chairs as well as the stacked chairs. He filed Exhibit #20, a Notice of Proposal which refuses to remove a condition for a neighbouring establishment called Queen’s Pasta at 2263 Bloor Street West. The application was not successful. He stated that he objects to the Dark Horse application.
On cross-examination Mr. Anderson questioned the witness on his count of chairs referred to earlier. The witness claimed that he had observed more than 48. Mr. Anderson informed the witness that only 48 chairs were purchased for the patio.
Mr. Anderson stated that a previous witness may change his mind on objecting if changes were made by Dark Horse. Might this witness do the same? The witness replied that the sound barrier was a mistake and does not see how a sound proof barrier could be constructed on an open patio.
Licensee/Applicant’s Submissions
Mr. Anderson first pointed out that the drawing for the patio was prepared by the City of Toronto and the drawings are the basis on which Councillor Miller agreed to be the arbitrator for the construction of the barrier. Although Councillor Miller had the opportunity to meet with the applicant to discuss the construction of this barrier, he delegated authority to his assistant to approve construction of the barrier.
The Licensee stated it is impossible to converse with objectors who refuse to speak to him. He has been open and available to any comments positive or negative from local residents. The objector’s testimony shows that in every instance they bypass the Licensee and go to some higher authority. Mr. Anderson claimed that a petition distributed by Ms. Lomas falsely states the Licensee is seeking removal of all the conditions. This is not what the Licensee’s proposal stated.
Resident Objector’s Submissions
- Mr. Singh stated that the Licensee failed to present any evidence that there has been a change in circumstances as proposed by the Licensee. The pub is being fairly treated. The reasoning for the limitation of hours of service is the same as for the imposition of conditions at Queen’s Pasta. The public interest would not be well serve by allowing the disturbance experienced by the neighbours on all sides of the pub to be prolonged and to be pushed further into the night.
Analysis and Reasons
The Board may, on application of a licensee, remove conditions of a licence if there is a “change in circumstances”. The issue for this Board is whether there has been such a change, sufficient to justify the removal of a condition.
The onus is on the Licensee to show that there has been a “change in circumstances” as indicated in the Liquor Licence Act.
The only change advanced at the hearing by the Licensee was a loss of customers to competitors. This does not constitute a “change in circumstances” as contemplated by the Liquor Licence Act. There is no evidence before the Board that any change in circumstances has occurred. In fact, the previous condition of a sound proof barrier appears to have been insufficiently addressed and, if so, should be attended to immediately.
The AGCO received numerous objections from area residents to the removal of the condition as well as the personal testimony in opposition of the local Member of Provincial Parliament. It was made clear to the Panel that a significant number of local residents want all the existing conditions to remain in place.
For the reasons above, the panel does not consider the Applicant to have met the onus for the removal of a condition.
Conclusion
- The Board therefore DENIES the application by 1276458 Ontario Inc. operating as DARK HORSE, 2401 Bloor Street West, Toronto, Ontario, M6S 1P7, licence number 806463.
DATED AT TORONTO THIS 11th DAY OF JULY, 2008
ALLAN HIGDON, BOARD MEMBER GUY MAURICE, BOARD MEMBER
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