Registrar, Alcohol and Gaming Commission of Ontario v. Justin Lee Novak, 2008 CanLII 91842

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-

Justin Lee Novak operating or intending to operate as Lucky’s Wings Applicant

-and-

City of Kitchener Objector

-and-

Terry Tucker Objector

DECISION

Panel: Allan Higdon, Board Member Guy Maurice, Board Member

Decision Date: October 2, 2008 Hearing Location: Kitchener, 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 ) Daniel Alakas, Representative Justine Lee Novak, Applicant ) Justin Lee Novak, on his own behalf City of Kitchener ) Jennifer Sheryer, Representative Objectors ) Terry Tucker, on his own behalf and on behalf of the objectors

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued a Notice of Proposal number 16375 dated June 18, 2008 to review an application from Justin Lee Novak (the “Applicant”), intending to operate as LUCKY’S WINGS, 320 King Street West, Kitchener, Ontario, N2C 1B7 (the “Premises”), establishment number 810786, 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 September 3, 2008 in the City of Kitchener.

Decision

2After considering all the evidence and submissions the Board APPROVES the Application made by Justin Lee Novak for an indoor area with a capacity of 180 persons at LUCKY’S WING’S on the conditions set out below. Reasons for these findings follow.

Preliminary Matters

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

4Justin Novak is the Applicant. He stated his counsel was attending to another matter in court and was expected to arrive within an hour. The Board adjourned the hearing until 11:00 a.m. in order to provide sufficient time for counsel to appear.

5The Board re-convened at 11:00 a.m. The Licensee stated his counsel had still not arrived but he wanted to proceed and waived the right to be represented by a barrister and solicitor or a licensed representative.

6Jennifer Sheryer appeared on behalf of the City of Kitchener (the “City”). The City opposes the Application without conditions and requested party status. On consent of all parties, the Board ORDERED the City be made a party to the proceedings.

7Ms. Sheryer advised the Board that notification of the hearing had been provided by the Registrar to the City only one day before the hearing. She therefore requested that disclosure requirements for evidence from the City be waived. The parties AGREED to accept City of Kitchener documents that had not complied with the disclosure requirements of the Board due to an administrative oversight in the office of the Registrar.

8Terry Tucker is a business owner in the area and objects to the Application for licence. He appeared before the Board on his own behalf and as the representative of the commercial objectors. On consent of all parties, the Board ORDERED Mr. Tucker be made a party to the proceedings.

City’s Evidence

9Ms. Sheryer submitted a series of documents regarding the Application and the City’s position (Exhibits 1a) – g)) on behalf of the City, including the conditions outlined in the letter of April 1, 2008, from the Office of the City Clerk.

Resident Objectors’ Evidence

10Darryl Moore has been in the hospitality industry for 15 years, and since 1990 has operated a restaurant and night club called “One Eye Jacks” located at 45 Duke Street West. He oversees the management of Element Night Club at 125 King Street West, as well as Dallas Night Club at 312 King Street West which adjoins the Premises for which the Applicant is seeking a liquor licence. Mr. Moore also oversees Bobby O’Brien’s Restaurant Club. Mr. Moore is familiar with the restrictions imposed on operating hours by the City. Closing times vary for different establishments. The staggered times work well.

11Mr. Moore’s concern with this Application, if granted, would be crowd control at closing time, which at present requires the services of paid duty officers as there are extremely large crowds at the cluster of bars in the area in question. It is also noted that properly trained security guards are required to assist with the crowd control. Mr. Moore stated that since 1990, the crowds have doubled in size in the downtown core. Other issues of concern are traffic flow, patrons filing out of the establishments at closing time, as well as fights amongst patrons, and garbage being kicked over.

12Mr. Moore stated that since 1998, bar owners, in conjunction with police, have imposed a code of conduct, which works well.

13Mr. Moore noted that at one point a knifing incident occurred, as well as a shooting, and residents are still concerned.

14According to Mr. Moore, a concern of the residents is that this Applicant proposes to operate his restaurant until 12:00 a.m. when most restaurants are already closed.

15On cross-examination by Mr. Novak, it was confirmed that Bobby O’Brien’s Restaurant Club has a restriction on its patio that service of alcohol must cease by 1:00 a.m.

16Patricia Harris has been manager of licensing and had been a Licensing Inspector for 12 years. She is a member of the Liquor Licensing Committee established by the City in 1999. She, as well as three members of the staff and one member of the downtown business, are members of a committee that was formed to look at the many problems with the downtown core. Police had asked for help with such issues as riots and crowd control, and this committee was charged with recommending licence applications accordingly.

17The Committee is concerned that the Applicant’s building is still owned by the same person who had Passions Lounge Restaurant as a tenant. During that time, noise and operation until 3:00 a.m. were issues of concern.

18Ms. Harris stated that due to these issues the Committee opposed a request for a liquor licence at the restaurant in March 2004.

19With respect to the Application currently before the Board, the Committee opposes the granting of a liquor licence unless Mr. Novak agrees to an early closing time.

20On cross-examination Ms. Harris was asked if City Council would consider supporting the granting of a liquor licence with the inclusion of the conditions proposed by the City. The Applicant asked if this is a standard agreement or if the conditions are exclusive to his application in particular. Ms. Harris replied the conditions are unique to these premises.

21Sylvia Wright, Manager of Downtown and Community Development, stated this Applicant has no experience in operating the business proposed for the Premises. Ms. Wright submitted that she, and the Committee, are concerned that 12,000 people in the downtown core create a security problem. Recently $30 million has been invested in a medical centre and $6 million into converting a school. Such revitalization of the downtown core needs to be protected. Ms. Wright submitted she has heard from many businesses in the area. The location of the Applicant’s business is of concern, being close to a new pharmacy and a large office building.

22Terry Tucker appeared on behalf of the commercial objectors to the Application. Mr. Tucker produced a letter signed by four business persons authorizing him to express their concerns to the Board.

23Mr. Tucker stated that business owners are concerned as to what would happen if a licence is granted for the Premises. These concerns are based on issues that arose during the operation by a previous tenant of the premises, Passions Lounge. Vandalism, loud music, and car doors slamming late at night were sources of disruption. Tenants complained about music playing seven nights a week. The witness knows the area in question and is afraid it will go back to what it was in the past, which is not good for business.

24Mr. Novak, upon cross examination of Mr. Tucker, requested the names of business owners in the area in question who objected to the Application. The witness provided a number of names. The witness was also reminded that some persons had withdrawn their objections to the Application.

Applicant’s Evidence

25Justin Novak is seeking a licence for the indoor and outdoor areas of the Premises with capacities of 223 and 12 persons.

26As owner of Lucky’s Wings, Mr. Novak understands the concerns that surrounded Passions Lounge. However, he is in no way responsible for the operation of the previous establishment.

27Mr. Novak has a full menu, and has changed it to also include a breakfast menu. His is the only restaurant offering breakfast.

28The restaurant is recognized as a sports bar, with occasional live music, and also acts as a sponsor of certain sports clubs. The building was vacant for one year until Café, a small coffee shop, moved in to occupy it. His family has owned many restaurants. Everyone talks about the previous tenant, but not about the current proposal. Mr. Novak has taken steps to tell patrons about the new name and the fact it is a new business. He wants the Board to give Lucky’s Wings a licence to operate indoors. It is a family business, and is supported financially and otherwise by his parents. He does not want to have to close at 1:00 a.m. simply because of his lack of experience.

29On cross-examination by Ms. Sheryer, the Applicant confirmed his knowledge of the investment in the downtown area.

30Ms. Sheryer questioned Mr. Novak’s plans in regard to security. Mr. Novak advised that six licensed persons will be employed for security purposes. As well, he has plans to have cameras installed.

31The Chair reviewed the conditions contained in a letter of April 1st, 2008, from the City to the AGCO. The Applicant agreed with all conditions as revised.

32Registrar’s representative noted that the Application originally sought a patio licence, but that is not part of this application.

33The Chair asked the Applicant that if a licence was granted with the terms suggested by the City to close as stated in the conditions, would he agree to abide by the conditions? The Applicant stated he would.

City of Kitchener’s Submissions

34The City of Kitchener stressed the proposed premises is in a very strategic location in the downtown core. Council has spent a lot of money improving this area and wants to ensure that progress to date is not compromised. The City requests that all the conditions suggested in the letter of April 1, 2008, from Council be attached to the licence.

Resident Objectors’ Submissions

35Mr. Tucker agreed with the position of the City.

Applicant’s Submissions

36Mr. Novak stated his premises will not be a nightclub. He wishes his proposal to be judged on its own merits and wants to have a full licence.

Findings & Reasons

37The Board considered carefully the concerns expressed by the objectors to the granting of a liquor licence. The City of Kitchener and the business community have invested a great deal of time and money in ensuring that downtown Kitchener provides a safe and hospitable environment for patrons, shoppers, and business people. In the minds of the objectors, the previous tenant of the premises did not take sufficient measures to respect the neighbourhood and operate in a responsible manner.

38The Applicant before the Board has committed to work with the community to run his operation in a manner that will enhance, not detract, from the downtown experience.

39The Board agrees it would be unfair if the past history of the operation of the business that previously occupied this particular space were to be used to disentitle a new Applicant or business from moving into the Premises.

40The City of Kitchener indicated its approval of the granting of a liquor licence in a letter dated April 1, 2008 provided a list of conditions is added to the licence. The Board reviewed the conditions and considers them sufficient to address the concerns of the community and strengthen the prospect of this new operator being able to run an orderly and responsible business.

41Based on all of the evidence before the Board, and Mr. Novak’s agreement to the conditions imposed by the City as set out in the letter of April 1st, 2008, as well as the withdrawal of objections by two persons, the Board approves the application for liquor licence.

Order

39. For the above reasons, the Board CONFIRMS the oral order given at the hearing and APPROVES the Application for liquor licence made by Justin Lee Novak for an indoor area capacity of 180 persons for LUCKY’S WINGS, 320 King Street West, Kitchener, Ontario, N2C 1B7, subject to all statutory conditions and municipal regulations.

40. Further, on consent, the Board ORDERS that the following conditions be attached to the licence:

The Licensee AGREES and COMMITS:

1. to post in a conspicuous place and abide by the Downtown Licensed Establishments Code of Conduct;

2. to become a member of the Kitchener Downtown Business Association’s License Committee and attend its meetings;

3. to abide to a set 30% monthly ratio of alcohol sales to gross refreshment sales (including food and other sundries) in other words, alcohol sales will be limited to 30% of gross refreshment sales;

4. for the first year of operation, stop serving alcohol by 12:01 a.m. and close the business by 1:00 a.m. daily;

5. to provide that only the main floor restaurant/lounge area, comprising 2,550 square feet with an occupant load of 180 persons and tables set for approximately 70 persons, be licensed;

6. to notify the Clerk of the City of Kitchener in writing of any application to change the license at the time of the application for the change is made to the Alcohol and Gaming Commission of Ontario and not to expand the establishment without the consent of the City’s Council;

7. to comply with the Noise By-law and the Smoking By-law;

8. not to have the owners of the property work, either as management or employees of the business, and;

9. these conditions shall bind all successors, assigns and subsequent licence holders (if any).

DATED AT TORONTO THIS 2nd DAY OF OCTOBER, 2008.