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-
Quantum Leap Edge Inc. O/A or intending to O/A The Mirch Masala Applicant
-and-
City of Toronto Intervener
-and-
Lorie Milone Objector
DECISION
Panel: Allan Higdon, Board Member Alex McCauley, Board Member
Decision Date: June 19, 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 Quantum Leap Edge Inc., Applicant ) Randall Barrs, Representative City of Toronto, Intervener ) Kelly Matsumoto, Representative Party to the Proceedings ) Lorie Milone, on her own behalf ) and on behalf of the objectors
Allegations
- A hearing into a Notice of Proposal number 15940 dated January 21, 2008 to review an application for a liquor licence from by Quantum Leap Edge Inc. (the “Applicant”) operating or intending to operate as THE MIRCH MASALA, 268 Dundas Street East, Toronto, Ontario, M5A 1Z9, establishment number 24948 on the basis of clause 6(2)(h) of the Liquor Licence Act (LLA), was held on April 16 and May 14, 2008 in the City of Toronto.
Decision
- After considering all the evidence and submissions the Board APPROVES the Application on the conditions set out below. 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.
Lorie Milone is a resident of the municipality and objects to the Application for licence. She appeared before the Board on her own behalf and on behalf of the resident objectors. On consent of all parties, the Board ORDERED Ms Milone is made party to the proceedings.
Counsel for the City of Toronto (the “City”), Ms Matsumoto, requested an adjournment, contending she had not received proper disclosure from the Applicant’s counsel. She stated the disclosure received was not forwarded to her in time to properly prepare her examination.
The adjournment request was opposed by Applicant’s counsel Mr. Barrs. It was his position that any perceived lack of disclosure could be remedied within the hearing. Mr. Barrs stated that there would be plenty of time between the two hearing dates to resolve any of Ms Matsumoto’s concerns related to any disclosure issues with regards to the Applicant’s witnesses’ evidence. Mr. Barrs advised that there were witnesses present who were prepared to give evidence on behalf of the Applicant and because of time constraints those persons may not be able to return at a future time. An adjournment would therefore be prejudicial to the Applicant.
The Board dismissed the City's motion for an adjournment. In the Board's view, an adjournment was not required, nor was it in the best interest of the parties to delay proceedings. If any disclosure problem arose, testimony would be delayed until the required period of disclosure had taken place.
Objector’s Evidence
Ms Nina Milone introduced photographs (Ex.4), which she had taken of the area in and around the location of the Applicant’s business. In the immediate area of the Applicant's restaurant some licensed premises have security, especially those within the hotels in the area.
Ms Milone stated that there have been problems in the area for some time. The police have installed surveillance cameras to try to limit the criminal activity in the area. In her view, the establishment in question would be very difficult to manage if licensed.
She stated during the time of previous owners, police found weapons stored in the ceiling of the premise in question. She further stated that in the last two years it has been peaceful in the neighbourhood since there has been no liquor license at the restaurant.
When the previous owners were there, drunken patrons used to urinate on her fence, throw beer bottles in her yard and she would be subjected to drunks cavorting outside or to watching them drive away in their vehicles. Often residents were prisoners in their own homes. In her view, if there is no liquor available, there is no draw for the criminals.
She was always frightened under the former management but for the last two years has enjoyed a sense of peace and security. She does not notice bad people hanging around.
She initially supported the new owners, but now they seem to be struggling and the quality of service has deteriorated.
On cross-examination, Mr. Barrs asked the witness if she was aware that the Applicants had been previously licensed to sell liquor. She stated that she was not. The witness had no evidence of previous problems regarding the Applicant.
Ms Lorie Milone has lived in the area for the past 11 years. She is very concerned about the criminal activity which took place in the premises under the previous owners. She is very concerned about the opportunity for criminal types to come and congregate in the neighbourhood. She believes that if the premises in question were to become licensed it would offer that venue to criminal types.
She stated her neighbourhood is vulnerable to criminal types and that in the past the police have not been able to contain criminal activity. If they were unable to do so, she cannot see how two people such as the Quadri’s would be able to control it. The Applicants and current operators of the restaurant are Mr. Habib Quadri and his wife.
Ms Milone stated that this is not a low income issue. It is an issue of being able to control the criminal behaviour which has emanated from the premises when it was previously licensed.
She spoke of experiencing damage and defilement to her property when the premises were licensed. She has not had these negative experiences over the course of the last 2 years since the premises were without a liquor licence.
On cross-examination by Mr. Barrs, the witness stated that she had just recently heard that there was a petition of support for the Applicant.
Mr. Glen Simourd is a long-time resident of the area and has served as chair of the Neighbourhood Council Committee. He stated that he was very aware of the problems that emanated from the licensed premises. Their committee meetings were often lengthened dramatically because of licensing issues. He went on to testify that the work of this committee was reduced dramatically when the licence for the previous tenants was revoked. The corner around the premises at Pembroke and Dundas was a problem. Now that area has been cleaned up and restored.
In his view, the neighbourhood has not had a sufficient chance to heal yet and opposes the issuance of a liquor licence to the Applicant for the premises in question.
On cross-examination, the witness admitted to not knowing the Applicant or his previous history.
Mr. Ryan Lahr is the Constituent Assistant for City of Toronto Councillor Kyle Rae who is the elected representative for Ward 27, the area in question. Mr. Lahr is familiar with the area and its problems. He stated that after the liquor licence for the previous tenants (Navaron) had been revoked, there was a real sense of improvement in the neighbourhood. He described the neighbourhood as vulnerable. There is men’s shelter in the area (Seaton House). He stated the neighbourhood has had many improvements recently, but is still fragile.
Mr. Lahr and Mr. Rae are concerned that if a liquor licence is granted, it will jeopardize the community. He is not in favour of a liquor licence being issued. If one is issued, he requests that conditions be attached to the licence.
Mr. Rae brought a motion before City Council to object to the issuance of the liquor licence for Mirch Masala.
On cross-examination, there was extensive questioning of the witness as to what investigative processes were undertaken before bringing the motion before Council. It was clear from the witness’s answers that there was no direct investigation of the Applicant by the witness or Mr. Rae. The matter had simply been turned over to the City Solicitor’s office.
Although concern by the residents instigated the motion by City Council, Mr. Lahr was unable to state categorically that this represented the majority of the residents in the area.
When asked if he had ever attended at the premises in question, he stated did one walk-about. He stated that Mr. Rae had been at the establishment twice.
Charles Stern is with the Toronto Police Service and has approximately 19 years experience working the area of the Applicant’s premises. He described the area of the corner of Dundas and Sherbourne streets as being a very busy place for drug dealers and drug addicts.
When asked about the conditions requested by the City of Toronto on the licence if one were granted, it was his opinion that the condition that windows be kept clear and unobstructed is necessary to deter unobserved criminal activity that may be taking place in the premises.
The witness further said earlier closing hours would be beneficial to deterring criminal activity in the licensed premise because historically these types of activities are generally more prominent later at night. He expressed concerns with regard to the foyer area which is separated by a doorway into the premises. The space between the two doors in the foyer area could be used by drug dealers and other criminal types to conduct business unobserved from the street or from inside by the management or staff of the licensed premises.
Constable Stern was also concerned about the stairway in the premises which led down to the washroom area. Persons under the influence of alcohol would be more inclined to go out the side door and relieve themselves rather than attempt to negotiate the stairway.
In response to questions from the Board, Cst. Stern advised that to the best of his knowledge there have been no police calls for service to the Applicant’s premises since they have been managing the business.
Mr. Robert Descoteaux has lived in close proximity to the premises in question. His concern is that the establishment will regress from a restaurant to a bar environment.
Ms Sharon Tegart has lived in this area for 15 years. The last 2 years have been very peaceful. She is very concerned that if a liquor licence is granted to the Applicant for the premises in question it will cause undue harm to the community and cause all types of problems for her. She will once again have to deal with drug dealers and addicts as well as drunks, who defile her property. In her opinion, a bar in this location will only serve to make the poor residents of the area poorer.
She is concerned about excessive noise from the premises and referred to a complaint she had made about loud karaoke music. The matter was resolved appropriately and she has had no reoccurrence of the problem.
In answer to Ms Matsumoto’s questions, Ms Tegart advised that she supports the City of Toronto’s condition prohibiting karaoke music. She went on to describe situations with the previous owners of the Navaron. She stated that during that period of time there were always persons hanging around outside the licensed premises. These persons were often under the influence of alcohol or drugs and it was not unusual for them to make lewd or sexist comments to her.
Applicant’s Evidence
Mr. Harry Litwin is a property manager for Bradley Court Limited. The offices are located at 280 Dundas Street East. Mr. Litwin has been employed in that capacity since 2004. The building in question has several businesses located within, including the restaurant operated by the Applicant. The other businesses are a hairdressing school, variety store, dry cleaner and a security company. The Applicants, Mr. and Mrs. Quadri, became tenants in early 2006 and their lease runs until January 2011. Mr. Litwin describes the Mr. and Mrs. Quadri as a hard-working family. They are a responsible tenant, and they keep the business clean. Mr. Litwin advised the Board that the business has operated more successfully since the new owners took charge.
Mr. Litwin was questioned about the dimensions of the building and the lighting around. He stated that the building was rectangular and had lighting on the north west and south sides, as well as signage lighting.
He stated that there had been no complaints from anyone regarding a lack of lighting for security purposes. Mr. Litwin went on to state that if requested by the police, he would put in additional lighting. There are cameras in the area, but Mr. Litwin was not sure if the camera at the front of the restaurant was operating properly, because it was not part of the other camera network. Mr. Litwin is supportive of the Applicant's request for a liquor license. He has confidence in the Applicant and feels that the Applicant is responsible and able to conduct the business properly.
On cross-examination, Ms Matsumoto questioned Mr. Litwin about the previous tenants and the problems that went on while they were there. She specifically asked Mr. Litwin if he had reported any of the problems that he observed from the previous tenants to the AGCO or to the police. He answered that he had not, but that he had told the previous tenants to clean up their act.
On cross-examination, Ms Milone asked Mr. Litwin what he did to try to stop the criminal activity taking place on the premises by the previous tenant. He stated that he told the previous tenant to operate professionally. He was asked if he was aware of any other criminal activity currently taking place since the new tenants had taken over and he replied that he was not aware of any such activity.
In re-direct, Mr. Barrs asked Mr. Litwin if he had ever supported the previous tenants before this Board. Mr. Litwin replied that he had not.
Mr. Gaetan Heroux is a community worker in the area and has worked in the area for 20 years. He is familiar with the Applicant and the premises and supports their application for a liquor license. In his view, there are a number of low income families in the area who need a place that is affordable for them to go and be able to have something to eat, socialize and have a drink. The witness feels that the restaurant, Mirch Masala, gives local residents that opportunity.
On cross-examination from Ms Matsumoto, the witness stated that he had not been asked to support the previous licensee, Navaron. He further stated it was not necessary for a restaurant to stay open until two or three a.m.
On cross-examination from Ms Milone, the witnesses stated that licensing the restaurant will not negatively affect persons in the area. He suggested that bars that cater to lower incomes are being picked on and forced to close, making it difficult for people who live in the neighbourhood to have a place to go.
Danielle Koyama is a social worker and community worker in the area. Her testimony largely reiterated the evidence given by the previous witness. In her view, licensing the premises would not increase the social problems in the area. The witness does not live in the area but spends a lot of time there. In her view, the Applicant seems knowledgeable and able to operate the business properly.
On cross-examination, Ms Matsumoto asked how late the restaurant should remain open; the witness advised that she enjoys socializing after 7 p.m.
Betric German has worked in the area for the past 27 years. He does not agree with the concerns expressed by those who are opposed to granting a liquor license to the Applicant. He is opposed to licensed premises being mismanaged. He pointed out that the Applicant has had liquor licenses in the past. They are experienced operators. He went on to say that in his opinion, the economic viability of the restaurant may well depend on its ability to sell alcohol.
On cross-examination from Ms Matsumoto, the witness stated that he would attend at the premises, if it were not licensed, but that he would be concerned about the ability of the business to survive. He stated many persons now consume alcohol outside since some of the bars in the area that he used to attend have closed.
On cross-examination, Ms Milone questioned who would ensure that the establishment was operated in an orderly fashion. The witness replied that the owners can intervene in an appropriate fashion. It was also the opinion of the witness that often violent behaviour can better be controlled without the intervention of “bouncers”.
Mr. Yaqoob Kahna is a doctor specializing in mental disorders. He has worked extensively in the community for several years and is very knowledgeable about the population of the area.
The witness is familiar with the present Applicant and has been in licensed premises operated by them in the past. The areas of the previous licensed premises were not in the most sedate settings, one in fact was located right next to an adult entertainment club and the Applicant operated the business well.
In the view of this witness, “bouncers” do not assist in the overall security of a licensed premise. Good security is more responsive to good management.
On cross-examination from Ms Matsumoto, the witness stated he is a non-drinker, but went on to state that meetings can be conducted without alcohol, but that the consumption of alcohol is a social norm.
Ms Donna Corbett resides at 257 Sherbourne Street which is a 5 minute walk from the premises. She is a frequent client of the restaurant and described it as a welcoming place in which she feels very comfortable. She stated she can understand the concerns from some of the residents, but she is confident that the Applicant can properly manage the premises.
On cross-examination by Ms Matsumoto, the witness stated that she does not live right next door to the restaurant in question. She further stated she would continue to attend the restaurant even if the Applicant was not successful in obtaining a liquor licence.
Mr. Habib Quadri is the Applicant. He is 72 years of age. He has previously managed and owned premises where the facility has had a liquor licence. He has never been sanctioned by the licensing authorities for any misconduct in the managing of those prior establishments.
Mr. Quadri has expended $400,000.00 in upgrading the facility, and washroom. Mr. Quadri took exception to the windows having to be clear. He stated this was a restaurant and patrons wanted privacy. Mr. Quadri stated there would be entertainment on weekends, such as karaoke. Mr. Quadri wants a full liquor licence which will enable him to serve alcohol until 2:00 a.m.
Mr. Quadri is confident that he can manage the restaurant properly as evidenced from his past experience. A petition of support was tendered in evidence (Ex.8).
On cross-examination, Ms Matsumoto challenged the petition of support, pointing out that many of the supporters who signed the petition were not even from the area where the restaurant is located.
Mr. Quadri stated that it was possible to run a successful business without a liquor licence, but that having a liquor licence will make the business that much more successful. Mr. Quadri further stated that he was not concerned about how the business was previously managed. He was certain that he would and could manage the business properly.
Mr. Quadri stated that he has not operated a premise with a liquor licence since 1993.
On cross-examination by Ms Milone, Mr. Quadri admitted that there had been one complaint about loud noise some time back but no complaints since.
Mr. Quadri stated they have 16 years experience in the business and are not interested in serving drunks or “druggies”.
In response to questions from the Board, Mr. Quadri stated he was in favour of certain conditions suggested by the City of Toronto, but not all of them. He did agree to keep the side door to the parking area closed, to be opened only for deliveries or emergencies. He further agreed to leave the inside foyer door open during business hours. He further agreed with suggestion numbers 2, 4, 5, 7, 8, 9 (contact number) of Exhibit 6.
City of Toronto’s Submissions
Ms Matsumoto described the residential area as transitional. There are schools, addiction centers and more. The area has an elevated crime level, but there has been improvement in the last 2 years.
She stated there are successful businesses in the area which do not have liquor licences. Some licensed premises in the area have experienced ongoing problems within their establishments.
In her submission, another licensed premise in the area is not in the public interest. She stated that the conditions requested by the City of Toronto, if a licence is granted, are reasonable considering the history of the area and the premises in question.
Ms Matsumoto pointed out that the supporters for the Applicant do not reside close to the premises in question, the objectors for the most part do.
She further stated that the Applicant may have been successful 15 years ago in operating a licensed premise, but that does not ensure that he will be able to operate successfully in this area considering all of the previous history.
Objector’s Submissions
- Ms Milone pointed out that the neighbourhood is very vulnerable. Residents have the right to enjoy their homes peacefully unencumbered by the activities of a licensed premise. She is very concerned that if a liquor licence is granted to the Applicant for the premises in question the premises will cease to be a restaurant and become a bar where food sales are secondary to the sale of alcohol. She asked that if a licence is issued to the Applicant the hours of sale be limited.
Applicant’s Submissions
Any conditions imposed on the Applicant must be reasonable and not put the Applicant at a disadvantage to its competitors.
Mr. Barrs stated that the Applicant is experienced in businesses that have had liquor licences and he has been successful in the management of those establishments.
With the exception of the opinions of the three main objectors, Mr. Barrs submitted that the liquor licence for the Applicant’s premises may actually be a benefit to many members of the community. The Applicant wants to operate on a level playing field.
The Applicant will not condone intoxication or inappropriate service and is committed to deterring and prohibiting inappropriate behaviour from patrons in his establishment.
Mr. Barrs stated that the hours for service of alcohol in the licensed premises should not be limited and karaoke music should not be disallowed.
City of Toronto’s Reply
- Ms Matsumoto stated there is an obligation upon commercial properties located in residential communities to consider the affect their business is having on the residents of the area. There needs to be balance to ensure a harmonious community.
Decision
The Board has carefully considered the evidence presented by all parties. The Board agrees with the residents of the area and the City of Toronto that the community is vulnerable, especially as a result of ongoing criminal activity in the area. It is also noteworthy that special steps are being taken to control this criminal activity. One of the newest tools used by the police is the installation of a CCTV camera in the area.
The Board was impressed by the energy of the Applicant and his commitment to operating the business properly and lawfully. The previous licensed establishment was operated by principals not connected in any way with this Applicant. While the fears and concerns of local residents are genuine, the Board must conclude that they are based largely on the historical experience with other licence holders. The Board cannot draw a negative conclusion about how this Applicant will operate the premise with a liquor licence based on what occurred with the previous licence holder. A licensed establishment properly operated within the dictates of the LLA and its regulations should not give rise to the types of problems experienced, regrettably, by local residents in the past.
Although the neighborhood is vulnerable to criminal activity that is no reason to repress the development of legitimate and lawful business interests in the area. Encouraging development may actually serve to reduce the criminal activity in the area.
Ms Matsumoto is correct when she stated that there needs to be a balance of interests between commercial enterprise and the needs and rights of the citizens of the community. Public interest hearings often raise difficult issues which require a delicate balance of the interest of those who live in the community with those who would earn their living there. For the reasons outlined above, the Board concludes that the objectors have failed to meet the onus on them that it would not be in the public interest to grant this licence having regard to the needs and wishes of the residents.
The hours of operation were a contentious point during the hearing. The Applicant does not want his right to full hours of sale to be fettered. The residents on the other hand point to late hours as a time when the peace of the neighborhood is disrupted by intoxicated patrons as well as other antisocial activities from late night patrons. They further questioned why late hours are are necessary for a restaurant.
The evidence of Cst. Stern was that in his experience problems from licensed establishments are generally more common later at night. In considering all of the arguments on this point, the Board will exercise its broad powers to impose conditions on a licence when dealing with public interest and will therefore impose conditions to respond to the concerns expressed by the local residents in their evidence, including a condition to reduce hours of service. The Board wants the venture by the Applicant to succeed, and operate in harmony with the community. However, the Board is concerned that late service hours will compromise on the Applicant’s ability to achieve that goal.
Conclusion
For the above reason, the Board APPROVES the Application for a liquor licence made by Quantum Leap Edge Inc. operating or intending to operate as THE MIRCH MASALA, 268 Dundas Street East, Toronto, Ontario, M5A 1Z9, establishment number 24948, subject to all statutory conditions and municipal regulations.
Further, the Board ORDERS that the following conditions be attached to the licence:
Service of alcoholic beverages will cease at 11:00 p.m. and all signs of service will be removed by 11:45 p.m.
The side door leading directly to Pembroke Street will remain closed to the general public except in emergencies. The door may be opened and accessed by management to facilitate the delivery of goods and service. In addition, the door is to be fitted with a panic bar system that can be opened from the inside. The opening of the door in this fashion will cause an alarm to ring which will alert management to the fact that the door is being opened. The door will be appropriately signed to indicate that it is an emergency exit only.
There will be no standing at the service bar by patrons, and no service to patrons from the service bar. All patrons must be seated.
The inside door at the foyer will be kept open during business hours.
The Licensee shall not permit music to be transmitted outside the licensed premises.
Any noise arising from entertainment or karaoke must be strictly monitored in order to avoid disturbing the peace of the neighbourhood.
All complaints of noise from residents to management will be investigated by management and a record kept by the Licensee for viewing by police and liquor inspectors.
DATED AT TORONTO THIS 19th DAY OF JUNE, 2008
ALEX MCCAULEY, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER
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