Registrar, Alcohol and Gaming Commission of Ontario v. 1757619 Ontario Ltd., 2008 CanLII 91859

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-

1757619 Ontario Ltd. Operating or intending to operate as Nolita Pub Eatery (Applicant)

-and-

Councillor Adam Giambrone (Intervenor)

-and-

Randy Kerr (Objector)

-and-

Misha Glouberman (Objector)

DECISION

Panel: Patricia McQuaid, Vice-Chair, AGCO Guy Maurice, Board Member

Decision Date: December 18, 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: Phillip Morris, Representative 1757619 Ontario Ltd., Applicant: Chandralingam Senatherajah, on behalf of the corporate licensee Councillor Adam Giambrone: Chris Gallop, Representative Randy Kerr: On his own behalf Misha Glouberman: On his own behalf

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal (“NOP”) number 16633 dated September 16, 2008 to review an application for liquor licence by 1757619 Ontario Ltd. (the “Applicant”) operating or intending to operate as NOLITA PUB EATERY, 1166 Queen Street West, Toronto, Ontario, M6J 1J5 (the “premises” or “establishment”), establishment number 806562, 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 November 20, 2008, in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board APPROVES the application on the conditions set out below. Reasons follow.

Preliminary Matters

3Phillip Morris appeared on behalf of the Registrar. He advised the Registrar took no position regarding the public interest aspect of the application.

4Chandralingam Senatherajah is an officer, director and shareholder of the Applicant. He appeared on behalf of the Applicant and waived the right to be represented by a licensed representative.

5Mr. Chris Gallop, Consistuency Assistant to Toronto City Councillor Adam Giambrone, appeared on the Councillor’s behalf in opposition to the application. On consent of all parties, the Board ORDERED Councillor Giambrone be made a party to the proceedings.

6Randy Kerr and Misha Glouberman are each residents of the municipality also objecting to the application for a licence. They appeared before the Board on their own behalf. On consent of all parties, the Board ORDERED Mr. Kerr and Mr. Glouberman each to be made a party to the proceedings.

7Mr. Morris submitted the letters of objection (Exhibit 1), as well as a conditional letter of withdrawal of objection from Michelle Gay (Exhibit 2).

8Proposed conditions to be attached to the liquor licence at 1166 Queen Street West were also filed (Exhibit 3).

Objectors’ Evidence

9Mr. Misha Glouberman lives on Queen Street West on the same block as the proposed establishment and testified that he met with the Applicant and noted the spirit of communication and goodwill brought to this potentially contentious matter. Together they have worked out a list of conditions that the Applicant has agreed to accept if objections are withdrawn.

10The witness attended the hearing as an individual though he is a founding member of the Queen Beaconsfield Resident Association (“QBRA”). He stated he would be prepared to withdraw his objection on the basis that the proposed conditions are attached to the licence, as stated in his letter to the AGCO dated November 20, 2008 (Exhibit 4).

11Mr. Glouberman circulated the conditions to all of those who objected to the application, including City Councillor Giambrone, further to which no one else has expressed an opinion.

12Mr. Glouberman objected to the application on the grounds that the area is overly concentrated with bars that create many problems for neighbours. He has no specific concerns about this applicant.

13Mr. Glouberman submitted that some conditions provide for a more restaurant oriented establishment as opposed to a bar. The issue of concentration remains.

14Randall Kerr resides immediately north of the proposed premises. He has owned the property for 28 years. He described the location of the building, the parking, the general layout of the area, as well as the various bars that operate in the vicinity. He stated that the neighbourhood became concerned with licence applications being “rubber stamped”, and that some residents have given up on the process.

15Mr. Kerr has attended a number of hearings objecting to the issuance of more liquor licenses in the neighbourhood.

16He started a petition of residents within three to four blocks of the premises and requested the local Councillor’s assistance in trying to stop the issuance of licenses. He gathered over 200 signatures on a petition opposing a licence which was presented at a previous AGCO hearing in September, 2008.

17Mr. Kerr offered the opinion that there exists a dysfunctional loop between the AGCO and the City, and that as soon as conditions are agreed upon, the City withdraws its objection and the licence is granted.

18Mr. Kerr alluded to the fact that no building permit had been issued for renovations at the proposed premises, and the City had issued two “Stop Work” orders. There is pressure on City Council, from the community regarding the concentration of licensed establishments and, to pass a proposed Interim Control By-law to bring this under control.

19Mr. Kerr described noise issues and delivery trucks which prevent access to the laneway.

20He noted that people come from outside the neighbourhood to attend area bars and as such create noise until 3:00 – 4:00 a.m. The area appears to be “the place to go” because of the number of bars. He further stated that in the area of Queen Street between Dovercourt and Gladstone, 50% of the storefronts have been converted to bars. There are 12 – 13 licensed establishments with a total licensed capacity of approximately 2000 persons, and seven to eight hundred residents. This is the reason why people have to speak up.

21Chris Gallop is the Constituency Assistant to Councillor Giambrone, and is tasked with reviewing liquor license applications with the Councillor. He presented a motion filed by Toronto and East York Community Council which recommends that City Council authorizes the City Clerk to advise the AGCO that the City of Toronto has determined that the application is not in the public interest (Exhibit 5). He stated that the Committee’s motion was approved on November 18th and is going before Council as a whole on December 2, 2008.

22Mr. Gallop provided a parameter of the area in question, which is represented by Councillor Giambrone, and noted that the area is mixed commercial and residential zoning with retail space at ground level and residential space on the upper levels. Retail consists of mixed stores, bars, restaurants and art galleries. On the south side of Queen Street, intensive development is occurring with condominium construction.

23The Councillor’s objection is based on the complaints of the residents, as well as the building permit and zoning issues. The Councillor does, however, support the conditions as drafted, and if they were to attach to the licence, would be willing to withdraw his objection and would so advise Council on December 2nd.

Applicant’s Evidence

24Chandralingam Senatherajah stated that he has undertaken renovations of a cosmetic type at 1166 Queen Street West. These do not require a building permit. He has applied for a plumbing permit for work required in the building.

25He submitted a copy of the municipal license issued by the City for the operation of a restaurant at 1166 Queen Street West (Exhibit 6).

26Mr. Senatherajah operates another neighbourhood restaurant, Wylie’s Restaurant at 1234 Yonge Street, at Summerhill, and it is a quiet neighbourhood. He has owned this establishment for 9 years, serving 75% food and 25% alcohol. He anticipates the same kind of business at the Queen Street West location.

27He stated that the establishment at 1166 Queen Street West will not be a night club, he owns the building and is not presently applying for a licence for the outdoor patio. The Licence would only be for the main floor. While it is important to get a licence, he wants to be on good terms with the neighbours and this is why he agreed to conditions on his licence. He noted that while there are many restaurants, he only knows of two that are open for lunch. He wants to own a neighbourhood restaurant for which he will be the cook. There will not be any loud music.

28In his cross-examination, Mr. Kerr suggested that there are several lunch time operations and noted there are more than two providing lunch services, to which the witness responded that the restaurants referred to by Mr. Kerr are very expensive places to eat, and that the neighbourhood needs good food at reasonable prices.

29He informed Mr. Kerr that he owns the building and he did renovations without permit because they were cosmetic in nature that did not require a permit, but admitted that the plumbing work requires a permit.

30The witness denied that the City had placed “Stop Work” orders on the establishment. He further reaffirmed that he did not apply for a patio licence on the ground floor.

31In response to being asked what type of food he serves at Wylie’s Restaurant, Mr. Senatherajah provided a copy of the menu (Exhibit 7).

32When asked by Mr. Kerr if he agreed with the conditions negotiated, the witness stated that they cause him no problems and he agrees with them all.

33Martin Stothard does a lot of graphic design work for Mr. Senatherajah and supports the application. He knows him from his other establishment. Mr. Senatherajah provides good food at moderate prices. He submitted that there will be a need for a good lunch place to service all the condo and retail outlets in the 1166 Queen Street West area. In his view, Mr. Senatherajah shows pride of ownership in his establishment.

Reasons and Findings

34At issue in this hearing is whether granting this application for a liquor licence is in the public interest having regard to the needs and wishes of the residents of the area in which the premises is located. Mr. Kerr has raised non-specific and generalized potential “negative” impact problems if a liquor licence was issued to this establishment.

35While the Board considered the evidence of Mr. Kerr, it finds that none of his concerns are or can be related directly to the manner in which Mr. Senatherajah proposes to operate this particular establishment. In fact, the Applicant has agreed to an extensive list of conditions to alleviate the impact the establishment might have and to respond to objectors’ concerns.

36The Board finds that the concerns raised by Mr. Kerr are broader issues for the municipality to consider in terms of his desire to see an interim control by-law in place. His concerns, however, do not relate directly to this application.

37Thus, given the circumstances of this case and the evidence adduced, the Board finds that the objectors have failed to meet the onus upon them under the LLA.

Order

38Therefore the Board APPROVES the application for a liquor licence by 1757619 Ontario Ltd. operating or intending to operate as NOLITA PUB EATERY, 1166 Queen Street West, Toronto, Ontario, M6J 1J5, establishment number 806562.

39Further, the Board ORDERS, on consent, that the following conditions be attached to the licence:

1. The kitchen, providing a full menu, shall remain open until the establishment’s closing time.
2. There shall be no dance floor on the premises.
3. There shall be no cover charge to enter the establishment.
4. There shall be sufficient seating for all customers.
5. The establishment will at all times adhere to the City of Toronto noise by-law.
6. The Licensee will construct and operate the facility in such a manner that all sound waves are contained within the perimeter of the facility. Sound waves or vibration must not be sensed either as audible sound or as vibration beyond the perimeter of the facility, whether on the street or in nearby homes.
7. There will be no loading, unloading, delivering, packing, unpacking, or otherwise handling of any containers, products or materials between 11:00 p.m. and 7:00 a.m. (9:00 a.m. on Sundays and statutory holidays.)
8. Staff of the establishment shall make every reasonable effort to ensure that patrons and other people in the areas around any entrance/exit of the establishment, do not make excessive noise or engage in unruly behaviour, such as singing, shouting, or using offensive language, while the establishment is open, and for at least one hour after establishment closes. Sufficient staff shall be employed to make these efforts.
9. Clearly visible signs will be posted, at least 11” x 17” in dimension, near each exit of the establishment, as well as in direct sight of any queuing area or smoking area, requesting that patrons respect neighbours by keeping outdoor noise to a minimum. The language of this sign shall be provided by the local residents.
10. A sign shall be placed, at least 8.5” x 11” in dimension, in a highly visible location, providing neighbours with information on who to contact if they have concerns about the establishment. This includes a contact number for the establishment, as well as contact information for the Councillor’s Office, and the residents association. Language for this sign shall be provided by the neighbours.
11. The licensee shall provide a telephone number which will be answered by a staff member during hours of operation, and equipped with an answering machine when the establishment is closed, which neighbours may phone to register complaints or concerns, as well as an email address. Residents with concerns shall be able to quickly reach a manager or responsible staff member, when the establishment is open.
12. None of the conditions listed here shall be removed or modified without public consultation with neighbours.

DATED AT TORONTO THIS 18th DAY OF DECEMBER, 2008.