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-
Denis Edmond Broyere O/A Phatty Kats Bar & Grill Applicant
-and-
Sherry Wylie-Arbic Objector
DECISION
Panel: David C. Gavsie, Chair, AGCO Brian J. Ford, Board Member
Decision Date: November 3, 2008
Hearing Location: Cornwall, 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 Denis Edmond Broyere, Applicant ) Ainslie Dunstone, Representative Sherry Wylie-Arbic, Objector ) On her own behalf and on behalf of the resident objectors
The Application
- The Registrar of the Alcohol and Gaming Commission of Ontario (AGCO) issued Notice of Proposal number 16230 dated April 28, 2008, to review an application to license an additional outdoor area for 42 persons from Denis Edmond Broyere, (the “Applicant”) operating as Phatty Kats Bar & Grill, 18 Third Street East, Cornwall, Ontario, K6H 2C7, (the “premises” or the “establishment”), licence number 803683, 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 June 5, 2008, in the City of Cornwall.
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
Phillip Morris appeared on behalf of the Registrar. He advised the Registrar took no position on the public interest aspects of the hearing.
Sherry Wylie-Arbic is a resident of the municipality and objects to the Application for a licence for the patio. 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. Wylie-Arbic be made a party to the proceedings.
Mr. Morris filed letters of objection, Exhibit #1, an aerial map of the location, Exhibit #2, and a signed petition, Exhibit #3.
Ms. Wylie-Arbic made a request to file some police reports. The Board DENIED the request as the reports had not been disclosed beforehand to the Licensee or to the Registrar.
Resident Objectors’ Evidence
Sherry Wylie-Arbic is a resident of the area. Her back yard abuts the parking lot of the establishment. Her experience with the establishment has been negative. She has had beer bottles thrown on her property, heard loud music, seen fights and drugs, and public urination by patrons of the establishment. She would like the Board not to grant a licence for the patio.
Ms. Wylie-Arbic stated the side door of the establishment is left open on a regular basis and loud music emanating from inside the establishment disturbs the neighbourhood.
When she spoke to the owner about the issue, he admitted the concerns were valid. She stated the Applicant explained that he was trying to bring order to his establishment. She noted that he had banned forty people from his bar.
Ms. Wylie-Arbic stated the owner used to have teen dances at his establishment but had stopped them because of problems.
Maureen Fedorus lives at 234 Sydney Street and her back yard abuts the property of the establishment. She has lived at this location for six years. She is constantly being disturbed by the noise of patrons at the bar.
Ms. Fedorus has had to put up with broken beer bottles and drug use at the back of her property. She has been disturbed by physical altercations and has called the police.
Ms. Fedorus stated the back door of the establishment is left open all weekend and noise can be heard emanating from inside the premises. She went over to the establishment and there was no security at the door and it was open.
In July 2007 Ms. Fedorus heard two patrons arguing for approximately 45 minutes and no one intervened. Ms. Fedorus felt that if she could hear it in her house surely they could hear it at the establishment.
Ms. Fedorus stated that on the previous Monday, a vehicle went the wrong way down Third Street and crossed the parking lot. The individual driving the vehicle, which was a gold SUV, came out from the bar.
Under cross-examination, Ms. Fedorus stated that persons smoking drugs were about two feet from her property and the bar entrance is approximately one hundred feet from her property.
Ms. Fedorus stated her wood fence is five feet tall of with spaces between the boards. She also stated she has never seen a patron throw a bottle into her yard.
Ms. Fedorus stated the persons she observed having an altercation came out of the bar and they were yelling about money being owed.
Ms. Fedorus explained the front of the establishment is on Third Street East. The side entrance to the establishment faces her back yard on Sydney Street.
She stated the majority of problems occur Friday and Saturday after midnight. She has felt intimidated by the patrons and on one occasion her cousin was at the house and her cousin also felt intimidated.
Andrew Arbic lives at 236 Sydney Street. Mr. Arbic has three daughters who attend St. Columbus School who walk past Phatty Kats to go to school. Mr. Arbic is concerned that his children will be exposed to inappropriate conduct on the part of patrons, such as swearing, yelling or fighting.
Mr. Arbic stated the neighbourhood is a beautiful neighbourhood; the only negative factor is the establishment. When he barbecues in his back yard he often hears yelling and screaming and the squealing of tires.
On the Friday before the hearing, the music emanating from inside the establishment was loud and he tried to contact the bar to ask them to close the front door, which was open. He was successful in speaking to the owner at 12:15 a.m. and advised him of the noise.
Mr. Arbic made a freedom of information request of the Cornwall Police regarding the number of incidents at the address of the establishment. The request was made for information for the period of December 2004 to the present.
Mr. Arbic noted that there were ninety-seven police responses to the address for that period of time. These responses were for Liquor Licence Act and municipal by-law infractions, problems with youth, drugs, assault and threats.
One incident occurred outside his residence when there was a violent altercation in his driveway involving two women and two men. The police were called and two males were arrested.
Under cross-examination, Mr. Arbic could not say if all the police calls to the address involved the establishment or its patrons. Nor could he say if there were any charges which resulted from the police calls.
Mr. Arbic was not aware there was a party at the residence across the street from the establishment on the night there was an altercation in his laneway.
On re-direct, Mr. Arbic stated the request for information was for 18 Third Street East, the address of Phatty Kats.
Shirley Warner lives at 230 Sydney Street and her property backs onto the property of Phatty Kats. Ms. Warner opposes the issuing of the licence for the patio. She stated when she walks on the street in front of the establishment some of the people there are bold and make rude comments and beg for money.
Ms. Warner stated it is difficult to sleep at times because of noise from vehicle horns and loud voices, often cursing and swearing.
Ms. Warner feels the patio would lower the value of her home by virtue of the negative impact of the establishment on the neighbourhood.
Ms. Warner noted there is a municipal parking lot beside the establishment’s parking lot. There is nothing separating or defining the two lots. Patrons of the bar use the municipal lot to park.
Under cross-examination, she stated her husband had enough time to get dressed and go out and observe two women in a car because its horn honking between 1:30 and 2:00 am.
Raymond Gauthier lives on Third Avenue, approximately forty feet from the front door of Phatty Kats. He has lived there for approximately fifteen years. He hears noise of patrons talking loudly, arguing, screaming and fighting between 2:00 and 3:00 a.m.
Mr. Gauthier is also disturbed by the horns of taxicabs sounding their horn for patrons who are inside the bar.
There have been people coming from the establishment urinating in his driveway. There has also been a hotdog stand working outside the bar, which is not allowed under the by-law. There are however no by-law officers working after 5:00 p.m.
Under cross-examination, Mr. Gauthier stated he could not be sure the people he saw urinating came from Phatty Kats. He also stated the hot dog vendor has ceased doing business outside the bar.
Todd Byers lives at Third Avenue and Sydney Street and has lived there since 1996. Mr. Byers stated there is a chain link fence between his property and the establishment’s property.
Mr. Byers has found beer bottles on his lawn and in the bushes behind his house and has found syringes as well. This generally happens after a busy night at the bar.
Mr. Byers noted on one occasion his car was damaged. He has seen people falling down drunk.
Mr. Byers stated city employees and others use the parking lot behind the bar, which is part municipal, mainly in the day. However he noted on Thursday, Friday and Saturday nights, patrons of the bar take up the parking.
Mr. Byers would move if he could get a fair market price for his residence.
Mr. Byers stated the bar caters to a rough group of people and he would not say hello to them. There is no doubt the intoxicated people he has seen come from Phatty Kats.
Mr. Byers is often outside and has seen drunken people coming from the establishment and entering a motor vehicle and drive away. He has also watched them staggering up the block after leaving the establishment.
Applicant’s Evidence
Denis Bruyere is the owner of Phatty Kats, having purchased the establishment in December 2004. Mr. Bruyere stated that he is at the establishment on Thursday, Friday and Saturday from 9:00 a.m. until 3:00 p.m., going home for a rest and coming back at 9:00 p.m. and staying until closing. On Monday to Wednesday, Mr. Bruyere is in the establishment from opening at 9:00 a.m. until approximately 3:00 p.m.
Mr. Bruyere stated that he has two security personnel working on Thursday, Friday, and Saturday and that all have SmartServe training.
Mr. Bruyere stated that his establishment caters to all ages. The average age is between thirty and thirty-five.
Mr. Bruyere stated his clientele is blue collar and some people who are on social assistance. When the social assistance people receive their cheques at the end of the month he tends to be busier.
Mr. Bruyere stated he has a policy that people are checked at the door, especially on busy nights, Thursday through Saturday, to see if they are intoxicated. He stated he has a zero tolerance policy toward intoxication. People are not allowed in if intoxicated, or if in the establishment, are sent home. He also has a zero tolerance policy for drugs. If any patron is caught with drugs they are banned for life from his establishment.
Mr. Bruyere stated that his establishment is not just for alcohol consumption. He also has special events, such as card and dart tournaments. He has comedians performing as well as bands. Many of the events are fundraisers. For example he recently raised $6,000.00 for diabetes.
Mr. Bruyere stated many of his customers would like a patio, allowing them to have a meal and a drink outside. He noted that other establishments have patios and that his establishment has seen a drop in customers because he cannot offer this service to his customers.
Mr. Bruyere stated that police and AGCO inspectors inspect him regularly and he has never been charged under the Liquor Licence Act or criminally.
Mr. Bruyere stated that his patio would be eight feet from the sidewalk at the front of his establishment, and would measure 20 feet by 25 feet (Exhibit # 5). He noted that he has always had a patio there however, it has not been licensed.
Mr. Bruyere stated he noticed in the last two years his business went down starting in May. He surveyed his customer and found 50 percent go to other establishments where there is a licensed patio. He is seeking to be competitive with other establishments.
Mr. Bruyere stated he has invested approximately $160,000.00 in his business.
Mr. Bruyere stated he met with the objectors on April 10, 2008, to help alleviate their concerns. He noted he has taken some action with respect to their concerns, such as security. He has also closed the doors to his establishment to keep the sound in. He also put signs in all the bathrooms and at all exits asking patrons to respect the neighbours and keep noise to a minimum (Exhibit #6). He has also placed a security person at each door.
Mr. Bruyere also stated that he intends to use only plastic drinking cups on the patio. There will be no extra lighting or glass on the patio. He also stated there would be no canned, live music or sound reproduction on the patio.
Mr. Bruyere stated there have been parties at the house across the street from his establishment and he has called the police about them.
Under cross-examination, Mr. Bruyere stated after his April 10, 2008, meeting he went to the band playing at the time and told them to keep it down.
Mr. Bruyere also stated he and his staff have never received a warning from the police. When asked about the posters regarding respect for his neighbours he stated he posted them the day after the April 10th meeting.
Mr. Bruyere said that he has on occasion noticed illegal action in his premises and he has thrown out the persons responsible.
Mr. Bruyere stated he is at risk of having to shut his bar down if he does not get his patio licence.
When asked what he does if he finds someone intoxicated, he stated he cuts them off immediately, then gets them out of the establishment, finding them a ride or calling a taxi. When asked how he monitors how much someone drinks he stated that it is a judgment call.
Mr. Bruyere stated he would hire another security for the patio. He also stated 90 percent of the problems stated are related to what happened a month ago. He also stated his reason for the patio is economic and his business is down during the day because he does not have a patio. His intentions are to have the patio open from 11:00 a.m. until 8:00 p.m. Monday to Friday with no canned music.
Resident Objectors’ Submissions
Mrs. Wylie-Arbic opined the applicant should not be granted a licence due to his past history, which she states proves that the owner is not a responsible owner. She noted a school is close by and children would be walking along the street where the patio is situated.
Mrs. Wylie-Arbic stated the granting of the licence would have a negative impact on the quality of life in the area. However she stated if a licence was granted she would like to see conditions placed on it.
Applicant’s Submissions
Mr. Dunstone stated the applicant has had four years to prove himself and he has an impeccable record with no infractions of any kind. He also noted the zoning requirements for the patio have all been met.
Mr. Dunstone stated if the licence was granted it could contain restrictions and controls, limiting the hours of operation and no music as an example. Mr. Dunstone stated the Applicant just wants to be competitive with other establishments. It is Mr. Dunstone’s belief that conditions will help ensure the peace and privacy of the neighbours.
Mr. Dunstone noted for the Board that the Applicant is seeking a daytime patio that would be open from 11:00 a.m. until 7:00 p.m.
Analysis/Reasons
The Board has carefully considered the evidence presented by all parties. The Board notes that the residents residing adjacent to the Applicant’s establishment have over time encountered problems with patrons of his establishment. However, the Board also notes the Applicant has never been charged with or convicted of any violations under the Liquor Licence Act or Municipal by-laws.
The Board also heard evidence that the Applicant is trying to be competitive with other establishments in the area who have licensed patios.
There were a number of police calls for service to the area of the establishment for a variety of reasons, however, none of these resulted in charges against the owner.
The Board also notes that the owner of the establishment met with the residents who border his property in order to deal with their concerns regarding his establishment. The Board also heard that he has also put into place measures to deal with the concerns of the neighbours.
The Applicant has indicated he only wants to serve alcohol during the hours of 11:00 a.m. and 7:00 p.m. so his customers can enjoy a drink while having a meal on the patio and so he can be competitive with other establishments.
The hours of operation are a concern to the residents as well as noise and light emanating from the patio. The residents were also concerned about broken glass.
Public interest hearings are difficult, particularly when determining the effect of a licensed establishment on a neighbourhood. Residents have fears, real or perceived, that are genuine. These concerns must be balanced against those who would earn their living there.
Order
For the above reasons the Board APPROVES the Application for liquor licence made by Denis Edmond Broyere for additional outdoor capacity of 42 persons at Phatty Kats Bar & Grill, 18 Third Street East, Cornwall, Ontario, K6H 2C7, licence number 803683, 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 on the patio will cease at 8:00 p.m., and signs of service and consumption of alcohol will be removed by 8:45 p.m.
There will be no live, canned or reproduced music or sound system on the patio.
All beverages on the patio will be served in plastic cups.
Doors leading to the patio are to remain closed in order to mitigate noise from inside the establishment, except for normal exit and entry.
Signs are to be posted at all 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,
There will be adequate security on duty at all times, and on Thursday, Friday and Saturday between 12:00 Noon and closing time. Security shall consist of a minimum of three (3) people.
DATED AT TORONTO, THIS 3rd day of November, 2008.
DAVID C. GAVSIE, CHAIR, AGCO BRIAN J. FORD, BOARD MEMBER
BJF/ee