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-
1607456 Ontario Ltd. operating as King George Tavern
Applicant
-and-
Daniel Robert
Objector
DECISION
Panel:, Kirsti Hunt, Vice-Chair, AGCO Alex McCauley, Board Member
Decision Date: June 16, 2008
Hearing Location: New Liskeard, 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
1607456 Ontario Ltd., Applicant ) Alan Perello, Representative
Daniel Robert ) On his own behalf and on ) behalf of the Resident Objectors
Authorities
Smoke-Free Ontario Act, S.O. 1994, Chapter 10
The Application
- The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 15894 dated January 9, 2008, to review an application for an additional licensed area (the “Application”) from 1607456 Ontario Ltd., (the “Applicant”) operating as KING GEORGE TAVERN, 40 Wellington Street, New Liskeard, Ontario, P0J 1P0, (the “establishment” or the “premises”), liquor licence number 92579, for an additional outdoor capacity of 35 persons 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 27, 2008, in the City of New Liskeard.
Decision
- After considering all the evidence and submissions the Board APPROVES the Application for an additional outdoor capacity of 35 persons on the conditions set out below. Reasons for these findings follow.
Preliminary Matters
Richard Kulis appeared on behalf of the Registrar. He advised that the Registrar was not taking a position with regards to this hearing. Mr. Kulis introduced into evidence a package of letters opposing the Application (Exhibit #1).
Daniel Robert is a resident of the municipality and objects to the Application. He appeared before the Board on his own behalf and on behalf of the objectors. On consent of all parties, the Board ordered Mr. Robert be made party to the proceedings.
Resident Objectors’ Evidence
Laurent Labonte lives across from the King George Tavern. He resides at 47 Wellington Street and has lived there for the past five years. He stated that loud noise from the King George Tavern is very disturbing to him and his wife. He describes the sound as a base noise from the music. The noise has forced him and his wife to sleep in their basement during the most problematic periods. He states that the noise is more prevalent in the summer. In his opinion, if a licence were to be granted for the patio the noise would increase by 50%.
Mr. Labonte stated that he was aware of the King George Tavern and the noise issues prior to moving in, but he and his wife wanted to be close to everything in town.
Mr. Labonte stated that the noise has increased since another bar in town, Docks, closed. Now many of those patrons attend the King George.
Mr. Labonte is 76 years of age and his wife is 75.
In cross-examination, Mr. Labonte identified his residence on a map of the area provided by Applicant’s Counsel (Exhibit #2).
Mr. Labonte admitted he knew of the noise problems from the King George when he moved in. Mr. Labonte states the noise problems are exacerbated when the doors to the establishment are opened. Especially the patio door when it is opened, noise from inside comes out.
Mr. Labonte felt the noise on the patio would increase if licensed. He referred to another area bar, Sam’s Place, which has a licensed patio. He states that at all times there are clusters of people out there drinking.
Mr. Labonte advised there are no residents’ homes around Sam’s Place.
Nora Wilson has lived in her home since 2000, and her sister resided there prior to her. Her home is located at 41 Paget Street North, which is directly behind the King George. She states the noise coming from the King George is very loud and disturbing. This is especially so Friday and Saturday nights. She resides in a two story house and has to move downstairs because of the noise. In winter she puts a quilt over her window to deaden the sound. The most offensive sound is the base sound from the music.
In her opinion, if a licence is granted it will double the noise problem. She further stated that the noise is very bad from 11:30 P.M. until 2:00 A.M.
It is her opinion that the value of her property has diminished because of the noise from the King George.
In cross-examination, Ms. Wilson indicated the location of her home on Exhibit #2. Ms. Wilson stated that her letter of objection originally cited Wednesdays as a bad night for noise but as of now that is not the case.
Ms. Wilson stated that the noise has increased since the patio has been installed. Patrons screaming and yelling on the patio is primarily the noise she hears.
In response to questions from the panel regarding conditions, Ms. Wilson did not feel that conditions would ease the problem she foresaw, but was definitely opposed to any music on the patio.
Ronald Bowers lives directly behind the King George at 39 Paget Street South, and has resided there since 1966. His complaint mirrored those of the previous witnesses. In addition he stated the noise problems began around 2000. He states the problem is worst on weekends and is primarily caused by loud music. He agreed with previous witnesses that the noise has increased since the patio was constructed.
In cross-examination, Mr. Bowers pointed out the location of his residence on Exhibit #2.
Hector Chartrand resides at 58 Wellington Street South, exactly four houses south of the King George.
His evidence mirrored that of the previous witnesses. He is disturbed by the noise of music from the establishment. He has noticed an increase in the noise since the patio has been built.
In his view a licensed patio will increase the noise three to four times from what it currently is at.
In cross-examination, Mr. Chartrand indicated the location of his residence on Exhibit #2.
Tony Mederak resides at 41 Wellington Street, directly across from the King George. He has resided there for the past six years.
His evidence was essentially the same as the evidence given by the previous witnesses. He stated they knew what they were getting in to when they moved there. He stated the noise from the King George bothers his wife more than him. They are able to stay in their bedroom to sleep.
Mr. Mederak is of the opinion that if the patio is licensed, the noise from the patio will increase. In addition he feels there will be problems associated with crowd control.
In cross-examination, Mr. Mederak indicated his residence on Exhibit #2.
Daniel Robert and his wife moved into their home in 2001. They reside two houses from the King George. He stated when they moved there they realized that they were moving into a commercial area.
Mr. Robert stated the problems got worse around 2005 with the introduction of the “Smoking legislation”, first locally in by-law form then followed by provincial legislation. The closing of the Docks brought more customers to the King George further exacerbating the noise problems.
Mr. Robert’s opinion is that if the patio is licensed noise will increase and it will be impossible to control the noise.
Mr. Robert is of the opinion that an inside smoking room can be constructed and that there are provisions for this in the current legislation.
Mr. Robert stated that local noise by-laws are not enforced by the local police.
In cross-examination, Mr. Robert indicated the location of his residence on Exhibit #2.
Mr. Robert admitted the King George has been quieter recently but in his opinion this is but the “calm before the storm”.
Applicant’s Evidence
Richard Legros is the owner of the King George and has been since 2004. He operates the King George in addition to his full-time employment as a high school teacher.
Mr. Legros stated that after the advent of the smoking by-law in 2004, patrons had to go outside. There was no designated area for smokers until he built the patio. In his opinion, the building of the patio made things much better. He and his staff were better able to monitor the side door and also to control patrons from his establishment.
Mr. Legros stated that if he was given a licence for the patio he would ensure proper security and if the numbers of patrons warranted it he would put a security person on the patio full time.
Mr. Legros further stated that he is looking at installing a vestibule-type entrance for the patio, which will serve to reduce inside noise coming out when the door is opened.
Mr. Legros stated he would be amenable to reduced hours of sale of alcohol on the patio if this were the wish of the Board in granting the licence.
Mr. Legros stated that other bars in town like Roosters and Sam’s Place have licensed patios. He further stated that on some nights he can hear music from Sam’s Place at his bar.
Mr. Legros stated they have a stage inside for live bands and karaoke when they have it.
In cross-examination Mr. Legros stated that he has never examined developing a smoking area inside the premises or found out the cost of constructing one.
Brian Daniels works at the King George as a manager. His duties involve marketing, advertising and being the disc jockey (DJ) on occasion. He has held this position for two years. He advised that music amps are set at 7.5 decibels, and any noise above that level is cut off. Mr. Daniels advised that they have live music every other weekend Friday and Saturday night. The music starts at 11:00 P.M and ends at 2:05 A.M.
At closing time in an attempt to ensure an orderly exit of patrons, three security staff are at the front when people exit to ensure the exit is orderly and as quiet as possible.
He further stated there is no music on the patio at any time.
Objector’s Submissions
Mr. Robert submitted that the best evidence was the objectors here today. There were no residents here that were supporting the applicant. Mr. Robert stated that it was necessary to not issue the liquor licence for the patio to keep a bad situation from getting worse.
Mr. Robert submits that Mr. Legros should look into creating a smoking room inside the licensed premises.
The other licensed establishments referred to, Sam’s Place and Roosters, have no residents around them as does the King George. Also Roosters is primarily a restaurant and not a bar.
Applicant’s Submissions
In his submissions, Mr. Perello submits that there has been no clear evidence to show that licensing the current patio at the King George will result in an increase in the noise from that premises.
Mr. Perello suggested that the King George is a very busy establishment catering to the residents of the community, this greatly offsets the few residents that showed up at the hearing today to object to the granting of the liquor licence.
Mr. Perello stated it was to be noted that neither the City nor the police chose to object to the granting of the liquor licence.
Mr. Perello states the problem is in zoning. The establishment is a block from the centre of downtown, a problem particular to small communities where residences and commercial establishments mix.
Mr. Perello pointed out that many of the objectors knew the situation around the King George Tavern, but chose to locate there anyway.
Mr. Perello submitted if patrons were permitted to consume alcohol on the patio the side door would be opened less, thereby reducing the noise from inside the premises.
Mr. Perello submits that the liquor licence should be issued for the patio without restrictions.
Objector’s Reply
- Objectors heard from today are the most affected. In Mr. Robert’s view, the conditions agreed to by Mr. Legros will not affect the situation. In Mr. Robert’s view more people outside, more noise.
Reasons for Decision
The Board has carefully considered the submissions by all parties.
The Board agrees that those residents it heard from are affected by noise from the King George Tavern. The Board is also of the view that the management of the licensed premises takes the neighbours’ concerns seriously as evidenced by the decibel controls on the amplifiers and also by management’s plans to install a new doorway system to abate the noise from within when the door is opened. In the Board’s opinion management is not blind to the concerns of the residents. The smoking legislation has forced management of licensed premises to develop new methods of accommodating their smoking patrons, and at the same time maintaining control of persons in and around the licensed premises which is required under the Liquor Licence Act.
The suggestion by Mr. Robert that a smoking room can be constructed inside the premises is incorrect. The Provincial law regulating the use and sale of tobacco products in the Province is the Smoke-Free Ontario Act, S.O. 1994, Chapter 10. This act was last amended in 2007 and it makes no such proviso in the legislation. The only exception in the Smoke-Free Ontario Act for hotels deals with guest rooms and is found in section 9(10).
The problems as demonstrated in this case are often endemic of small towns where residents and commercial interests are often forced close together. In these situations a balance of the interests of all parties is what the Board strives to find.
The King George Tavern has operated in this area for many years. Adjustments have had to be made from time to time due to factors beyond the control of management, none more so than the anti-smoking legislation. Management not only has to try and accommodate patrons they have to balance that with their obligations under the Liquor Licence Act which places a responsibility on licensees to control the actions of their patrons in and around the establishment in areas within their control. It is of advantage for management to have one location where patrons can gather. It makes the control problems that much easier to manage.
The residents expressed concerns about late night noise from loud music, especially on weekends, emanating from inside the establishment when doors were opened as well as noise from patrons exiting at closing time and smokers on the patio.
The licensee’s agreement to build a vestibule at the patio door, thus creating a double door air lock, should help mitigate the problem of noise from inside the premises.
The agreement to limit the hours of service of alcohol on the patio will limit disruption from patrons consuming alcohol on the patio.
The conditions agreed to by the Licensee and those imposed by the Board should mitigate the noise disruption to neighbouring residences.
Furthermore, once the patio is licensed, the Licensee will have the added responsibility to abide by section 46 of Ontario Regulation 719/90 which states:
The licence holder of a licence that applies to outdoor premises shall not permit noise that arises directly or indirectly from entertainment on the premises or from the sale and service of liquor to disturb persons who reside near the premises.
Order
For the above reasons, the Board APPROVES the Application for liquor licence made by 1607456 Ontario Ltd., for additional outdoor capacity of 35 persons at KING GEORGE TAVERN, 40 Wellington Street, New Liskeard, Ontario, P0J 1P0, subject to all statutory conditions and municipal regulations.
Further, the Board ORDERS that the following conditions be attached to the licence:
Service of alcohol will cease on the patio at 10:15 P.M. each day and signs of service and consumption of alcohol will be removed by 11:00 P.M.
A vestibule with a door shall be installed outside the patio door in order to mitigate any noise from inside coming out when the patio door is opened.
The doors to the patio are not to be propped open at any time.
Signage will be erected at the exits of the licensed premises reminding patrons that there are private residents nearby and noise is to be kept to a minimum when leaving the licensed premises.
Adequate security shall be on duty to ensure that activities in all parts of the licensed premises are lawful and orderly.
DATED AT TORONTO, THIS 16th day of June , 2008.
ALEX MCCAULEY, BOARD MEMBER KIRSTI HUNT, VICE-CHAIR, AGCO
AM/ee