Registrar, Alcohol and Gaming Commission of Ontario v. 1710643 Ontario Limited, 2008 CanLII 91896

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-

1710643 Ontario Limited operating as Royal Tavern

Applicant

-and-

Michele Featherstone

Objector

DECISION

Panel: S. Grace Kerr, Board Member Guy Maurice, Board Member

Decision Date: December 18, 2008

Hearing Location: Chatham, 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 1710643 Ontario Limited, Applicant ) Kevin Wallace Michele Featherstone ) on her own behalf and on behalf of ) the resident objectors

The Application

1. The Registrar of the Alcohol and Gaming Commission of Ontario (the “AGCO”) issued Notice of Proposal number 16570 dated August 20, 2008, to review an application by 1710643 Ontario Limited (the “Applicant”), operating as ROYAL TAVERN, 119 King Street East, Chatham, Ontario N7M 3N1 (the “establishment” or the “premises”), to licence an additional outdoor area for 16 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 October 9, 2008 in the City of Chatham.

Decision

2. 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

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

4. Kevin Wallace is a director, officer and shareholder of the Applicant. He appeared on behalf of the Corporation and waived the right to be represented by a barrister and solicitor or a licensed representative.

5. Michele Featherstone is a resident of the municipality and objects to the Application for licence. She appeared before the Board on her own behalf. On consent of all parties, the Board ordered that Michele Featherstone be made party to the proceedings.

Resident Objectors’ Evidence

6. Suzanne Baylis testified on behalf of the Resident Objectors. She lives directly across the street from the establishment. She can see the establishment’s patio from her living room, kitchen and front porch. She described the neighbourhood in which the establishment is located as “residential”: there are 3 churches, a park, a WISH centre, and a bus stop near the front of the establishment. In other words, she said there are a lot of children.

7. On August 31, 2008, Ms Featherstone notified Ms Baylis about a man standing on the patio of the establishment, with his arms folded and looking out.

8. There were no questions from the Applicant in cross-examination of this witness.

9. In response to questions from the panel, Ms Baylis said she had lodged a noise complaint with the police about the establishment once within the last five years. The establishment was there when she moved into her home. Ms Baylis has made no efforts to speak to the owners of the establishment about her concerns. She would not be seeking any conditions to be added if the application were granted.

10. Ms Diana Atwell was the Resident Objectors’ next witness. She asked that the Board consider Pastor Mark Vincent’s letter, dated July 22, 2008, which formed part of the Board’s package with respect to this hearing. She also requested to speak to the application on her own behalf.

11. Ms Atwell’s concern is that, by granting the application, the establishment would be able to take “what is in the bar outside”. According to Ms Atwell, the children in the neighbourhood do not need to see this.

12. In cross-examination, Ms Atwell testified that as a born-again Christian she would never and does not wish to step inside the establishment. She has not lodged any complaints against the establishment. She lives about two blocks away from the establishment, and has lived in the area for about six years. She questioned what supervision would be given to the patrons on the patio to keep them from going to the sidewalk or the parking lot to drink.

13. Suzanne Baylis Sr. was also a witness for the Resident Objectors. She noted that the establishment’s patio is close to her daughter, Suzanne Baylis’ house. Her concern is what could happen beyond the establishment’s security camera’s range. She attested to having seen drunks leave the establishment and proceed to drive. Ms Baylis Sr. also has called the police, who have attended and told the establishment to quiet down. She feels that her daughter’s house value has decreased.

14. Finally, Michele Featherstone testified on behalf of the Resident Objectors. She has three children and has lived next door to the establishment for 20 years. The patio was not there when she bought her home. Ms Featherstone is concerned that, unless her children “never look to the right”, they will see the patio which faces her house. She has not approached the owners of the establishment, believing it is not her right to ask what they are doing on their property. Ms Featherstone does not believe it is a necessity to licence the patio.

15. Ms Featherstone testified that, once, three men exited the establishment and smoked a “joint” by some trees which are outside of the establishment’s security camera’s range. Not all of the establishment’s patrons are bad, according to Ms Featherstone, only some are loud and opinionated. The noise she has heard is loud, bellowing laughs, dirty talk and swearing. She would like the patio moved to the back of the establishment where it would be outside of children’s view. Ms Featherstone does not believe the establishment’s patrons require a patio to have a good time.

16. Ms Featherstone stressed how emotional the issue before the Board is to her. She said no one should be forced to stay inside and shut their blinds or their children not able to play in their backyard. She wants to be able to sit outside because it is her choice and not because she needs to “watch her van”. Ms Featherstone says she cannot afford to move elsewhere.

17. The establishment has an alarm that used to be but no longer is hooked up to the police station. Ms. Featherstone said that recently the alarm was triggered and it took the owner a long time to respond. Thursday’s are karaoke night: in the summer, she said there is no problem with this, however, during the school year, she is asking the establishment to keep their doors shut and the noise level down.

18. On September 26, 2008, Ms Featherstone described that a large fight broke out in the parking lot of the establishment. She called the police. Ms Featherstone wondered what if the fight had happened on the patio, if it someone had been pushed through the window, if weapons had been involved? After the police arrived, two men came onto her property and were wrestling in her yard.

19. Mr. Wallace came to speak with her only after he had applied for the patio licence.

20. In cross-examination, Ms Featherstone acknowledged that the law requires patrons who smoke to do so out-of-doors. She agreed that she likes to drink and smoke on her porch and that when she does so her children might be inside her home. Ms Featherstone agreed that loud language could possibly come from inside her or the Baylis’ home.

21. Ms Featherstone called the police on four to five occasions in the last two to four months about the establishment due to an issue with noise, a concern that suspicious people were around, and for people arguing. Before then, she had called one to two times with noise complaints.

22. If any conditions are imposed, Ms Featherstone would like the patio to be moved and the noise to stay down. Ms Featherstone acknowledged that not all of the noise is coming from the establishment, but asks the Applicant to have control of the establishment and respect for the neighbourhood.

Applicant’s Evidence

23. Fred Meyerink testified on behalf of the Applicant. He owns Superior Roofing and Siding in Chatham and was the contractor who installed the window which looks onto the patio as well as the patio itself. He looked at how licensed patios in other establishments in Chatham were constructed and suggested a design, which the Applicant agreed to, where people outside of the patio would not be able to see into it. There is a railing at body height so no one could “go through the window”, which is a heavy duty model. The window is there so the bartender can see what is taking place on the patio. All of the chairs are tacked down so they cannot be moved. No one can enter or leave the patio without going through the establishment.

24. Mr. Meyerink attends the establishment as a patron, too. He testified that people from all walks of life give it their patronage and that it is one of the “cleanest bars” in Chatham now.

25. In cross-examination, Mr. Meyerink said that Ms Featherstone’s house is about 150 feet away from patio. In answer to questions from the Board, he stated that Ms Baylis’ house is about 80 to 85 feet across the road from the establishment.

26. The Applicant’s second witness was John Olbey, who has lived in the community for about 60 years. Mr. Olbey testified to a “remarkable change” in the establishment since it was taken over by its current owners. He lives directly west of the establishment; there is one house between him and it. Mr. Olbey said that the changes to the establishment have beautified the street.

27. In cross-examination, Mr. Olbey answered that he has never experienced any of the incidents described by Ms Featherstone in her evidence.

28. In reply to the Board’s questions, Mr. Olbey stated that he used to get “quite perturbed” about the noise from the establishment; now, he has none of his previous concerns.

29. Next, John Trahan testified on behalf of the Applicant. He was the real estate agent acting for the Wallaces when they acquired the establishment. Mr. Trahan said the Wallaces have done a “fantastic job” renovating the establishment inside and out. Their “zero tolerance” for drugs or prostitution and the change of the clientele from bad to good has benefited the community.

30. In response to cross-examination, Mr. Trahan agreed that “bad things” could still happen at the establishment but one controls it.

31. The Applicant’s final witness was Kevin Wallace. He is a shareholder, officer, and director of the corporate Applicant, together with his wife. He and she have owned the establishment for less than two years and have attempted to beautify the 100 year old structure.

32. He stated that he built the small patio for several reasons: to accommodate smokers and those patrons who like eating outside and to remain competitive with other establishments that offer licensed patios. Mr. Wallace believes that the establishment provides a responsible service of food and beverage; all staff are SmartServe trained.

33. In order to supervise the patio, a large window was installed in the wall; this allows the bartender and other staff to watch it. He also has 24-hour surveillance camera on it. When he became aware that his neighbours did not want to see the establishment’s patrons smoking or drinking on the patio, he had lattice work installed around it so that their only view is of the patrons’ heads and feet.

34. To address the community’s noise concerns, Mr. Wallace has a self-imposed early closing on the patio: on Fridays and Saturdays, it closes at 10:00 p.m.; on Thursdays, at midnight.

35. From the day he commenced operations, Mr. Wallace has had a “zero tolerance” policy for drugs. Notice to this effect is posted on the doors and at the cash register.

36. Everyone who enters into and exits from the establishment is subject to his staff’s supervision.

37. Mr. Wallace was born and raised in the neighbourhood. He said that he knows how it used to be and he wants to help getting it back that way. He and his wife live next door to the establishment which has 24-hour monitoring that is linked to the police station. In the event of an alarm, the police response time is about 90 seconds.

38. Mr. Wallace acknowledged that there have been a few noise complaints and that they relate to “singing” in the parking lot after karaoke night.

39. The establishment is open to the public of all ages, however children are not allowed in after 9:00 p.m.

40. In cross-examination, Mr. Wallace elaborated upon why he believes his establishment provides a community service. He said it is a place for people to meet, where they can relieve tensions. It brings people together from all walks of life.

41. Mr. Wallace acknowledged that “incidents can happen”; however, he responds to them immediately and deals with them. There have never been any charges laid against the establishment during his ownership. He views the video surveillance tapes on a regular basis.

42. The patio is set back from the street.

43. Exhibit 6 is a petition in favour of the application. Mr. Wallace indicated that there are 203 names on it and that not all of the names are from customers. Some of the signatories are people from the community who stopped in and commended him and his wife for what they have done with the establishment. One of his patrons, and not Mr. Wallace, took it outside of the bar to circulate.

44. In response to questions from the panel, Mr. Wallace testified that the September 26th, 2008 incident involved a disagreement between a boyfriend and girlfriend. There were not six to eight people involved, as alleged. He saw it happening on the video surveillance camera and came out to deal with it before the police arrived. No charges were laid as a result of this incident.

45. The establishment has been inspected by an AGCO Liquor Inspector at least 10 times since he and his wife became the owners. No suspensions have been served; no letters of warning have been received. One complaint against them was removed after the video surveillance tapes were shown.

46. The establishment’s hours are: Sunday through Wednesday – 11:00 a.m. to 10:00 p.m.; Thursday – 11:00 a.m. to midnight; Friday and Saturday – 11:00 a.m. to 2:00 a.m. The patio has self-imposed restricted hours which differ from the foregoing, as noted above. A Halloween event, called “Kiddie Karaoke”, is now annual. Children, dressed in costume, come into the establishment with their parents to have hot dogs and pizza.

47. All of the Applicant’s staff are designated as security persons. The establishment is licensed for 149 persons inside. Capacity for 16 persons is sought for the outdoor patio. The patio, which was completed in early July, has been operational since then but has been serving food and non-alcoholic beverages only. Mr. Wallace does not intend to put music on the patio. There are no outdoor speakers. Acoustic guitars have been played there.

Resident Objectors’ Submissions

48. The Resident Objectors object to the letter submitted on behalf of East Side Pride, which is in support of the Applicant’s application. Ms Featherstone indicated that she had no knowledge they would be submitting it and that it was received on short notice, only two days before the hearing. She noted that Ms Baylis is a member of that organization.

49. Ms Featherstone acknowledged that the school bus does not let the children off in front of the establishment, as had been stated in several of the letters by Resident Objectors opposing the application. She asked the Board, however, to see the issue as one of control and, more particularly, that the Board require the Applicant to move the patio to a place where the public does not have to see it. Since the establishment is next door to her place, and directly across the street from Ms Baylis’ home, she argued that the patio is an invasion of hers and Ms Baylis’ privacy. She takes offence when someone says, “Go inside. Close your blinds if you don’t like it.”

50. Ms Featherstone asks the Board to take the Resident Objectors’ needs into consideration; they are not being unfair. She should not have to control what she or her children see. It is not a right to have a patio. Ms Baylis coined the phrase, “Keep the bar in the bar”, which means that the Resident Objectors want to keep the neighbourhood as a neighbourhood.

Applicant’s Submissions

51. Mr. Wallace agrees that his neighbours should call the police if they see something offensive and that he, too, will try to fix it. His application is reasonable, he urges. Controls are in place for noise and the sight of people eating/drinking. The patio closes early. He oversees a responsible staff. The establishment has changed from a “den of iniquity” to a responsible place that serves the community. Providing a needed service, as Mr. Wallace describes it, he and his wife take their responsibilities seriously as owners of the establishment.

Analysis and Reasons

52. At 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 municipality in which the premises are located.

53. In making its decision, the Board finds that the Wallaces are responsible owners, who respect their responsibilities as Applicants. They have worked hard since they acquired it to turn the establishment around and make it into a reputable part of the community. Exhibit 6 and the evidence of the Applicant’s witnesses attest to this latter conclusion.

54. The Applicants also appear to have reasonable plans with regard to the use and supervision of the patio should it become licensed and, more especially, to address the concerns of the neighbours in relation to it. They have acted responsibly to self-limit its hours of operation and have testified that they intend to do the same in the future. They have no plans to play amplified music on it. The patio’s furniture is sturdy and secure. The lattice work provides a measure of privacy for the establishment’s patrons as well as its neighbours. The Board has no authority to require the patio to be moved: it has met all zoning and other by-law requirements.

55. The Board does not doubt the apprehensions expressed by the objectors were genuine. The Board accepts that some noise complaints have been made by some of them as regards the establishment since the Wallaces took over its ownership. Also on occasion and since then, the police have been called by neighbours to attend and have attended at the establishment in response to other concerns.

56. The Board has considered those fears, real or perceived, and has attempted to balance them against the Applicants who are attempting to earn a living as well as to serve the neighbourhood. In that regard, in addition to the factors and findings outlined in paragraphs 53 and 54 above, the evidence shows that there have been no charges laid by the police or any disciplinary action taken by the AGCO as against this Applicant. Furthermore, it accepts Mr. Wallace’s evidence that his approach to deal with potential problems is to take preventative measures against them and also, if an issue arises, that he responds quickly and appropriately to bring it under control. The Board takes assurance from this evidence and concludes that the establishment will be operated in a similarly appropriate manner in the future.

57. Therefore, on the facts of this case the conditions set out in paragraph 58 below are appropriate and conform to the evidence before the Board at this hearing.

Conclusion

57. Given the circumstances of this case and the evidence adduced, the Board finds that the objectors have failed to meet the onus on them that it would not be in the public interest to grant the application having regard to the needs and wishes of the residents. The application shall be granted, however the conditions noted below shall attach to the licence.

Order

58. For the above reasons the Board APPROVES the Application for a liquor licence made by 1710643 Ontario Limited, operating as ROYAL TAVERN, 119 King Street East, Chatham, Ontario N7M 3N1, to licence an additional outdoor area for 16 persons, subject to all statutory conditions and municipal regulations as well as the following conditions which shall attach to the licence:

a. The holder of the licence shall not sell or serve and shall not permit consumption of liquor on the patio or other outdoor areas after midnight on Thursdays and after 10:00 p.m. on every other day;

b. The holder of the licence shall not provide or permit amplified music on the patio; and,

c. Signs are to be posted on both sides of the door leading onto the patio reminding patrons that there are private residents living nearby and noise is to be kept to a minimum when entering or leaving the patio.

DATED AT TORONTO, THIS 18th day of December, 2008.

S. GRACE KERR, BOARD MEMBER GUY MAURICE, BOARD MEMBER