Registrar, Alcohol and Gaming Commission of Ontario v. 1698213 Ontario Inc., 2008 CanLII 91921

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-

1698213 Ontario Inc. intending to O/A Whiskey Bar and Lounge Applicant

-and-

Catherine Banning Objector

DECISION

Panel: Kirsti Hunt, Vice-Chair Brian J. Ford, Board Member

Decision Date: September 26, 2008

Hearing Location: Thunder Bay, 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 1698213 Ontario Inc., Applicant ) B. Lee Baig, Representative Catherine Banning ) on her own behalf and on behalf ) of the Objectors

The Application

1The Board of the Alcohol and Gaming Commission of Ontario (AGCO) held a hearing on June 24, 2008 pursuant to a Notice of Proposal number 16075 dated February 26, 2008 to review an application for a liquor licence by 1698213 Ontario Inc. (the "Applicant") intending to operate as WHISKEY BAR AND LOUNGE, formerly known as INNTOWNER TAVERN (the "previous bar"), 301 Brodie Street South, Thunder Bay, Ontario, P7E 1C4, establishment number 10969.

Decision

2For the reasons given, the Board hereby DENIES the application for a liquor licence. Reasons follow.

Preliminary Matters

3On consent, Catherine Banning was made a party to the proceedings on behalf of the objectors.

4The Registrar took no position on the public interest issue but stated that the approval of the application should be subject to the Conditions of Approval, set out in Exhibit #1.

5A package of objection letters was tendered as Exhibit # 2 and an objection petition was tendered as Exhibit # 3.

6The Applicant requested an Order from the Board to exclude witnesses because evidence given would colour the evidence of subsequent witnesses. The Registrar submitted that it would be very unusual to exclude witnesses in a public interest hearing.

7The Board ruled not to exclude witnesses for this was a public interest hearing and residents have the right to hear what is being said.

8The Board asked Registrar's counsel why there has been a delay of a year from the time the application was advertised to the hearing date. Mr. Morris explained that there had been a lengthy investigation into the ownership given the long history of this location. Exhibit #1 would deal with the points raised in the investigation.

9The principal of the Applicant Corporation is Duc Nguyen and the second owner is his mother, Cuc Nguyen.

10The previous business on the premises (previous premises) was owned by his aunt and cousins and had a lengthy history since 1995, with 7 suspensions ranging from 3 to 90 days to a final "carry out" Order in 2006 to revoke the licence.

Evidence for the Objectors

11Catherine Banning is the Chief Credit Officer for the Superior Credit Union at 318 South Syndicate Avenue. Their property fronts on both Syndicate Avenue and Brodie Street and their parking lot adjoins the Inntowner Motor Hotel lot.

12When the Credit Union was built in 1987, they built an 8 foot high chain link fence with a gate. Padlocks were installed on the gate so the only access to their property was from the side entrance on Syndicate Avenue.

13Because of the lack of control by the previous licensee, the Credit Union had continuing problems:

• patrons were leaving broken beer bottles and glasses in their parking lot;
• a drink was dumped into their ATM machine damaging the electronic equipment and a glass was left on the machine;
• padlocks on the gate were cut off a half a dozen times;
• the gate was ripped off and stolen;
• the chain link fence was disassembled from the post and rolled back creating a drive through between their parking lot and that of the previous premises.

14The Credit Union incurred significant expense to repair the fence and eventually had a post installed to prevent passage by cars.

15The Credit Union has grave concerns for the safety and security of their clients who use the ATM machine on their premises. Also, night cleaners and staff often stay after hours to complete their work or attend educational workshops. Because of past problems, they have a rule that no staff should leave the building alone after hours. They are discussing getting alarm buttons for staff for their safety.

16Overnight parking by patrons of the previous premises in the Credit Union's parking lot created a problem for snow removal and reduced the parking spaces for their staff and clients. On a number of occasions, they had vehicles towed away. Parking in their lot was a greater problem when the bar was operating but problems continue today. The vomit at the entrance of the parking lot and their building stopped after the previous bar closed but urinating still continues by the fence around a transformer box.

17Since the previous bar closed, there has been a small improvement in the number of beer bottles and glass in their parking lot. However, they still see unsavoury and inappropriate behaviour from the guests staying in the building.

18In the summer of 2007, the Credit Union was the subject of an armed robbery at knife point. When the police arrived, they followed the trail of the robber to the upstairs level of the Inntowner Hotel. They were told by a witness that a person with a knife entered one of the rooms and that person was apprehended. In the 45 minutes from the robbery to the apprehension, the robber was able to spend $2,500 to procure illegal drugs and was significantly affected by them in that short time.

19The robber pled guilty to the robbery and to spending some of the stolen money. The robber got the drugs somewhere between the Credit Union and the Inntowner Hotel. He did not get the drugs in their parking lot because their video camera showed him entering and exiting and the direction he fled on foot.

20On June 23, 2008, a guest of the Inntowner Hotel had parked in the Credit Union's parking lot. The guest hit a fence and while removing the vehicle, left behind the front bumper that had been ripped off. The vehicle returned and twice hit a staff member's car. The driver was stopped. After the police arrived, she failed a roadside check, was arrested and taken to the police station.

21As a spokesperson for the residents who mostly live on Brodie Street, Ms. Banning wanted the Board to be aware of the constant partying spilling out from the previous premises to the surrounding streets. Residents were regularly awakened to police sirens, screaming, fighting, profane language, the sound of breaking beer bottles and also had to deal with inappropriate behaviour of people urinating on the street, their flower beds or on their children's toys. Those problems diminished after the previous bar closed but the problem from guests upstairs still exists.

22On cross-examination, Ms. Banning expressed her belief that the damage to the ATM machine was done by a patron of the previous premises since Sunny's Cavern was not open at that time. The Credit Union has not been impacted by Sunny's Cavern because it is farther away.

23Ms. Banning did not know where the beer bottles in their parking lot came from but the owner of the previous premises admitted the problem and swept their parking lot. That was in the late nineties or up to 2000. She did not know who peeled back the fence but there were tire tracks going through the gap and people would park in the Credit Union lot and walk to the Inntowner.

24Even if the new premises were open late at night only on weekends, the Credit Union would still have concerns because their ATM machine is open 24 hours a day. When asked if their concerns would be relieved if the premises attracted a different clientele by providing different entertainment rather than loud rock and roll, Ms. Banning replied that she had nothing against rock and roll if the venue was one where alcohol consumption was handled properly and there was better security regarding people leaving the premises. They would be really happy if the upstairs was closed because the guests in the building are a concern. They are not consuming as much alcohol as before but there is still some substance abuse. The building looks almost vacant with dark windows and curtains on the upper floor. The building has, however, been painted recently.

25Annette Logan represented the property owners of 321 Brodie Street South and its tenant, Corey Place, a child development and wellness centre, and Defeat Autism Together Association (DATA), which are registered charities. Ms Logan is an officer of the corporate property owner, the director of Corey Place and president of DATA.

26They have been at this location since August 2006. Their building is next to the parking lot of the Inntowner Hotel which is on the North West corner of Arthur and Brodie Streets across the street from the Inntowner building. Jenkin's Funeral Home's parking lot is on the other side of their building so they are between two parking lots.

27The last 2 years have been calm in the area and the large caricature of a child on the side of their building has not been vandalized. The glass door on their porch that was previously a regular target of bar patrons has stayed in good shape. The area is good but they still lock their door because of the general environment of downtown and because they cater to children.

28On three occasions she has found needles in the shrubbery and called police who took them away. That is part of the environment of the neighbourhood. They also see a lot of traffic in and out of the Inntowner. People park at the funeral home, walk past their building and the Inntowner parking lot, go into the Inntowner and come out 10 minutes later.

29They are open six evenings a week for workshops and parent groups, and are concerned for the safety of their clients. The guests at the Inntowner are a concern and also the future customers who will be served alcohol. She does not want the problems of the previous bar repeated and would like to see the problem of the hotel guests eliminated.

30June Danchuk has been a resident of South Brodie for 50 years and lives a block away from the Inntowner Hotel. She indicated that the City is trying to clean up the downtown. A nursing home is opening on Syndicate Avenue. Mackellar Place is opening in the old Mackellar Hospital and a Shoppers Drug Mart is opening on the hospital grounds.

31It has been quiet in the neighbourhood for the past 2 years. When the previous bar was operating, people were parking all over, and going up and down the street at closing time. There was vandalism. Things were stolen from people's yards but she did not know who did it. The area wasn't very clean. There were broken bottles and glass all over the main sidewalk and the vomit was there for days. She would not walk on that side of the street because it was so dirty. She expressed concern for the new people with young children who have moved into the area. The people who went to the previous bar were not very nice. She is also concerned because she was told at City Hall that the old Sunny's Cavern and Newfie's is starting up again. With the Inntowner there would be 3 bars in the area.

32Kandy Smith lives on Brodie Street South across the street and 4 houses away from the Inntowner Hotel. When the previous bar was operating, patrons would park in front of driveways and all along the street, drink in their vehicles, leave litter on the sidewalk and then go to the bar. When the bar closed there was hollering and screaming, local residents could not have their windows open. People would pull out beer bottles from their coats and drink them along the way to their cars. Local residents would often wake up to breaking glass. People would also urinate on their fence.

33Ms. Smith called the police about cars parking in her driveway, but they were not removed. She didn't call a towing company because she was told that she would be responsible for the towing cost. She did not call management because she felt they would not do anything. If people didn't read the "No Parking" sign in the driveway, they were not going to read any signs posted in the bar.

34On one occasion, she called the police because a crowd of approximately 100 people came down the middle of the road toward her house and a fight was happening. When the police arrived, people scattered and jumped neighbours fences.

35On weekends, Ms. Smith would see prostitutes at the corner of Arthur and Brodie Street. They have not been there since the previous bar closed. On one occasion, police notified her husband about a guest upstairs at the Inntowner Hotel who was dead with a needle stuck in his arm.

36Ms. Smith called the police when she observed two girls hitting the windshield of a van parked in the Brodie Street parking lot. Police came and apprehended them. She did not know if they were from the bar.

37Last night about 9 p.m. ambulance attendants were attending to a person lying at the Brodie Street entrance of the Inntowner Hotel. She did not know if the person was from upstairs.

38Ms. Smith moved into her home 6 years ago when the Inntowner was operating. She knew it was a bar but did not know about the entire "goings on". She has not had to call police since the previous bar closed. She does not want the bar to open again and return to the problems of the past.

39Sheldon Strachan lives on the west side of Brodie Street in the sixth house south of the bar. When the previous bar was operating, he would have to clean up beer bottles from the back and front yard before his children could go out to play. When he found 5 to 6 broken beer bottles in his yard, he spoke to a security guard at the bar the next evening. He was told that after patrons leave the bar, they were no longer the bar's responsibility. The security guard did not let him to go in to talk to anyone; he was but told that he would have to pay a cover charge to get inside.

40Their vehicle was broken into and damaged. Their driveway was blocked at times and he had to park on the street. His car was sideswiped by a car coming from the vicinity of the bar.

41On one occasion, his wife called him at work because someone outside was banging on the door trying to get in. Once a group of people came down the street and a huge brawl ensued. He and his family were scared. People were in their driveway, jumping over their camper and fence. They damaged his property and vehicles.

42People would leave the bar with beer bottles. There was fighting in the street. After closing time people would stay outside for up to an hour yelling, arguing and making noise.

43According to a newspaper article, serving under aged youth was one of the reasons for a suspension of the liquor licence. He works with youth and a number of them told him that it was easy to get in but he did not ask them if they were drinking there.

44Since the previous bar closed, he has had no problem with beer bottles. Nothing has been stolen or damaged. They have been able to sit outside in the summer and enjoy a peaceful time after the children were asleep.

45He walks to work past the Inntowner Hotel and their guests don't move while on the sidewalk. Some yell from upstairs windows. He has seen police, ambulance and a few times a fire truck at the Inntowner. He would have no problem if the hotel residents were removed but that is a big if. He does not object to bars in general or to a properly managed bar.

46Although things got worse and worse over the years, he did not complain to the AGCO, the City or the police, because he felt nothing could be done. After the previous bar closed, he was relieved and felt a little safer in the downtown core.

47During the last couple of years, neighbourhood organizations and committees have been doing positive things in the downtown core like having barbecues, and community events. As a result, the downtown feels more like a community. Opening another bar would not contribute to that and would be contrary to what the community is trying to do.

48Mr. Strachan explained that some of the objectors could not attend the hearing because they were out of town or attending a graduation.

49Sharon Strachan added to her husband's evidence that he did call their local Alderman to try to get help on the situation when the previous bar was operating. She saw minors walking out of the bar drinking from glasses in hand.

50They were awakened every weekend around 1 or 2 a.m. by people swearing, screaming and fighting. She knew they were patrons of the Inntowner because she could often see them in their parking lot.

51She called Superior Points half-a-dozen times in the past 5 years to pick up syringes from the Inntowner parking lot, the street and the back alley. She did not know if all of them came from the Inntowner, but on 3 occasions the syringe was right in front of their building. Drugs are there because a person died there with a needle in his arm.

52She and Kandy Smith saw ambulance attendants treating a male who staggered out of the Inntowner and fell on the street. She walks to work past the Inntowner and residents hang out the windows and yell at people passing by.

53The area is getting more residential. A seniors home is going up on Syndicate Avenue right behind the Inntowner. The Mackellar Hospital is opening as a long term care facility.

54Ms. Banning submitted a letter given to her by objectors who could not stay at the hearing. They were seniors from Glengowan Place which is a seniors apartment across the street and a ½ block south of the Inntowner.

55Mr. Baig objected because the letter was not signed, was not addressed to the Commission and no one could be cross-examined regarding its contents. The Board accepted the letter as Exhibit # 4 and advised that it would give it the appropriate weight.

Evidence for the Applicant

56Duc Nguyen is 27 years old and is the principal of the Applicant Corporation. His mother, Cuc Nguyen, owns 11% of the shares. His father has owned 4 or 5 bars. He has worked in those establishments in most aspects of the businesses since he was young. He also worked at the Golden Nugget, which is now the Scuttlebutt's, Roxy's and the Silverado Saloon.

57As part of the application process, he met twice with an Ontario Provincial Police (OPP) officer. A liquor licence inspector also came to the premises. He knew that there were problems with the previous bar. The inspector and OPP officer spoke to him about them.

58The building has people living upstairs. If he is granted a licence, he proposes to remove them. They are paying for bills now.

59Based on the Conditions of Approval which he has signed, the building owners will not be allowed on the premises. They will have no connection to the new establishment. To satisfy the area residents, he plans to clean up the area. He will have 3 bar-backs on staff from 8 p.m. to closing. They will clean any garbage inside and outside hourly.

60A doorman will check for identification (ID) at the door and use a swipe machine to check the age on IDs. People with a US ID will need a driver's licence and a passport to get in.

61To stay within their permitted capacity, the doormen will have counters, and will also do head counts inside. To ensure patrons are not over served, all staff will have Smart Serve training. They will also be trained to deal with different scenarios, and the liquor inspector has said that he would come in to answer any questions.

62If a person wants to go outside to the smoking patio, the doorman will ensure that their bottles are left on a table before they go outside. There will be a doorman at every exit checking people as they leave.

63The witness has spoken to Apex Security to provide tighter security than previously.

64On cross-examination, Mr. Nguyen said Apex will run the outside. He will have doormen for the inside but they will have to pass a security course. When asked why he would have his own security inside, Mr. Nguyen explained that no bars run with just a security company because they do not do indoor security in bars.

65He will have 10 to 12 security staff. There were 6 before. When using a minimum of 10 security staff, he would have a doorman at each of the 5 exit doors, one by the stairs, one on the stairs, one on the stage and 2 roaming. They will not rush people out so everyone leaves at the same time. Security staff will work from 8 p.m. to 3 a.m. On the nights that they are open only until 8 p.m., the kitchen person and bartender working will also be trained to deal with security matters.

66To reduce violence inside the bar, the doormen will use non-aggressive techniques with patrons. There will be a friendlier and a cleaner atmosphere. Security staff will go outside to deal with any altercations in the parking lot. Apex Security will patrol around the bar until all patrons leave. There is nothing they can do once patrons are out of the area or out of sight.

67To attract a different clientele, they will have a friendlier atmosphere and staff. Renovations will make the premises more comfortable and clean. Before, it was dirty with garbage everywhere and water dripping inside.

68They will also have more staff to create better customer service and have a program whereby a designated driver will get in free and will get free soft drinks.

69Their entertainment will consist of jazz, a hypnotist and comedy shows and benefits. It will be more modern, classic and up-scale than the previous heavy rock music. People will come for the entertainment and not just to drink.

70Regarding transportation of patrons, he has spoken to Iron Range Bus Lines about providing transportation on a half-hour schedule to and from the University. He also spoke to a limo company which provides service for people who arrange pick-up at the bar in advance. He will be paying for the bus and limousine service.

71They have 70 parking spots at the back of the building, across the street and on the property to their right. There is also metered parking on the street by the Library.

72The proposed hours of operation are Monday to Thursday from 11 a.m. to 8 p.m. Friday and Saturday from 11 a.m. to 2 a.m. They will be closed on Sunday except when Monday is a holiday.

73The kitchen will be open during the hours of operation. The menu will include burgers, fries, sandwiches, chicken wings and fingers, appetizers and salads.

74He has an experienced bar manager who has some good ideas for promotions.

75The Applicant received 5 objection letters. He spoke to all the objectors in 2007 and two objections were withdrawn. He also spoke to the manager of the Credit Union who was concerned about beer bottles left in the parking lot. He told the manager he would get staff to clean up glass from the parking lot. The manager said he would allow patrons to park in their parking lot and walk to the bar. He offered towing of people's cars but the manager was more concerned about the glass.

76On cross-examination he indicated that he will do neighbourhood cleanup from Brodie Street where the Credit Union is located and that block to where Brodie Street ends.

77The current owners of the building are operating the Inntowner Hotel. They have agreed to remove the hotel residents 2 weeks before the opening of the bar depending on when the licence is approved. Then they will know what kinds of events they will have.

78He discussed the removal of the hotel residents with his mother. She said that the owners would remove them from the hotel. What he will pay the owner under the lease agreement will cover the rent lost from the hotel occupants no longer being there.

79He agreed that there is nothing in his lease about removing the hotel occupants but suggested their removal could be made a condition of the approval.

80He was in the former premises on their closing day. He had picked up 2 beer bottles outside, brought them in and told staff about them. He had also been in the previous premises occasionally on long weekends. He got Points to remove syringes but did not clarify when that happened.

81Mr. Nguyen stated that he is simply a commercial tenant in the building. He has possession of the bar but he is not paying rent until he is operating. He agreed that he has no control over the upstairs part of the building.

82The clientele in the past was biker related, a dirtier crowd. The doormen were running the bar and had total control. The bartenders did not speak English.

83Mr. Nguyen agreed to Exhibit #1 as a precondition to receiving the licence.

84On questioning by the Board, Mr. Nguyen explained that the building has 3 owners but he did not know their names. They are his mother's sister and her husband and cousin. Their names are listed in Exhibit #1 and since they would not be allowed in the premises, they would not be allowed to have anything to do with it.

85When asked how he would keep the landlords out of his establishment, Mr. Nguyen explained that they could come in but not into the licensed area.

86He has spent $100,000 on renovations, painting and refurbishing the premises. There is a dance floor. They will keep the security cameras that are there.

87The Board asked the parties to provide submissions, if any, in writing.

Registrar's Submissions

88The Registrar's representative advised orally at the hearing that the Conditions of Approval (Exhibit #1) satisfy the Registrar's concerns and that he would be making no further written submissions.

Resident Objector Submissions

89The objectors strongly object to the issuance of a liquor licence for the Whiskey Bar and Lounge. They are not satisfied that the past practices of the Inntowner Tavern won't continue, that the new operators will have any control over the occupants in the building, or that they will be able to ensure control over their patrons. In the event the Board approves the application, they submitted a series of conditions which should be placed on the licence. Those conditions merely formalize what the applicant has committed to.

Applicant's Submissions

90The Applicant's representative submitted that the Applicant is prepared to execute his plan to ensure proper operation of the bar and has agreed that all residents in the upper floors will be removed prior to the opening of the bar. All standards required by the Commission have been met and a licence issued. There is one condition, a list of persons who are forbidden entry. It would be an improper exercise of the Commission's mandate to now refuse the licence or impose further conditions on the Applicant. The neighbourhood concerns, while real, are not supported on a factual basis.

Decision and Analysis

91The Board has carefully considered the evidence and submissions.

92First, the Board will address the submission by the Applicant's representative that the "standards required by the AGCO have been met and a licence has been issued." No licence has been issued. The Conditions of Approval (Exhibit # 1) is only one part of the administrative licensing process. Based on the submissions for the Registrar, the conditions in Exhibit # 1 satisfy the concerns of the Registrar.

93However, when objections to an application for a liquor licence are received from residents, the Registrar may under the Liquor Licence Act (LLA) issue a Notice of Proposal to review the application. That review is conducted by the Board of the AGCO through a public interest hearing, which is what has happened in this case. After such a hearing, the Board has the authority to approve or refuse the application to issue the licence.

94At issue at this hearing is whether the granting of the 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.

95The onus is on the objectors to establish, on a balance of probabilities the issuance of the licence is not in the public interest.

96In determining whether the needs and wishes of the residents are bona fide, the Board will look at the totality of the evidence to evaluate whether the subjective concerns and fears of the residents are supported on a valid objective basis.

97There is no question that public interest hearings often raise difficult issues which require a delicate balancing of the interest of those who live in a community with those who would earn their living there.

98In this case, the concern of the residents is essentially that the problems generated by the previous bar at this location will once again disrupt their lives because the Applicant will not have the control necessary to prevent them.

99The Board will deal with the previous premises, the location and the present application.

Previous Licensed Premises (Inntowner Tavern)

100The Board heard evidence from residents that the previous bar had patrons causing noise, parking problems, broken glass and beer bottles, fighting, vomiting, urinating, litter, vandalism and other antisocial behaviour which disrupted their lives.

101The Applicant submitted that the litany of transgressions was laid at the feet of the Inntowner Tavern without a scintilla of evidence that any of those persons were patrons of the Inntowner.

102The Board disagrees. Residents gave credible eye witness accounts of some of the incidents and agreed that in some cases they could not be sure that the problem created was by a patron of the bar. However, all agreed that after the Inntowner Tavern closed, they no longer had problems with beer bottles in their yards, vandalism, thefts, fights, noise disruptions, etc., which leads the Board to conclude that many of the problems were generated by patrons of that bar.

103The residents' assertion are supported by the fact that the AGCO issued 7 suspensions of the liquor licence between 1995 and 2006, with suspensions for significant periods of 35, 42 and 90 days.

104Also, the previous licence was revoked by a carry-out order which meant that the licensee did not contest the allegations in a Notice of Proposal to revoke its licence, so the proposed order was carried out by the Registrar.

105Furthermore, Mr. Nguyen himself admitted to finding 2 beer bottles outside when he visited the establishment on the last day of its operation.

106Therefore, the Board is persuaded that the previous premises did generate a large number of the problems described by the residents.

The Location

107The proposed licensed establishment, the Whiskey Bar and Lounge, is in the same location as the former Inntowner Tavern, and is in the building housing the Inntowner Hotel that has residents living upstairs.

108For the resident objectors, those hotel residents have remained a problem in the area after the liquor licence of the Inntowner Tavern was revoked. The Board heard credible evidence from Ms. Banning regarding a robbery. The robber was found highly affected by drugs in the Inntowner Hotel. Both Ms. Smith and Ms. Strachan gave evidence about a guest found dead in the Inntowner Hotel with a needle in his arm. Also, Ms. Logan gave evidence of frequent suspicious traffic in and out of the Inntowner, by people who park in the funeral home parking lot rather than the Inntowner lot, which is a closer walk to the Inntowner, and who return in 10 minutes. Mr. Nguyen himself saw and had syringes removed from the area.

109Ms. Banning also gave evidence about a hotel occupant who, driving while intoxicated, hit their fence and struck a staff member's vehicle twice.

110There is evidence of urination still happening on the Credit Union property and antisocial behaviour by the hotel residents who block the sidewalk and yell at passers by from their upstairs windows.

111The Board accepts the objectors' assertion that there is drug activity occurring in the Inntowner and that its residents' antisocial behaviour remains a problem for the neighbourhood. By agreeing to a condition to have the hotel residents removed, Mr. Nguyen himself implicitly admits that they are a problem.

The Application

112This is a new Applicant who cannot be held responsible for the actions of the previous licensee. There is no evidence that Mr. Duc Nguyen and his mother were involved with the previous licence.

113Mr. Nguyen gave detailed evidence of the plan he has for the premises. His evidence, essentially, is that he will provide responsible management which will eliminate past problems. He has experience and will have an experienced manager. He will have well trained staff and increased security. He hopes to attract a better clientele by providing different entertainment and food in a clean and friendly environment. He has had discussions to provide a bus and limo service to patrons to help alleviate parking problems. He agreed to clean up litter outside and have security outside the premises to forestall problems. He will have reduced hours of operation from 11:00 a.m. to 8 p.m. Monday through Thursday, 11:00 a.m. to 2 a.m. on Friday and Saturday and will be open Sunday only on long weekends to lessen the impact on the neighbourhood. At first blush, the Applicant's plan appears to respond to the residents' concerns.

114However, the residents are concerned about Mr. Nguyen's family relationship to the previous licensees and his ability to operate independently.

115Mr. Baig submitted that there is no connection between the previous operators and the present Applicant.

116Ms. Banning refuted that statement and indicated that Mr. Nguyen himself admitted that the ownership of the building is held by his aunt, uncle and cousin and that these same people were the past operators.

117The Board agrees with the submission of Ms. Banning. The evidence is clear and Mr. Nguyen admitted that his landlords are relatives on his mother's side and that they operated the previous bar.

118Given that relationship, the Board has a concern about how independently Mr. Nguyen can operate his establishment. Mr. Nguyen's statement that he did not know the names of the landlords appears to be an attempt to distance himself from them, which the Board, concludes is improbable considering they are relatives and they are named in the Conditions of Approval signed by him, set out in Exhibit #1. The Board finds Mr. Nguyen's statement to be not credible.

119The Board notes that Mr. Nguyen is a commercial tenant in the building and although he has possession of the bar, he is not paying rent until he is operating. The Board finds that this is not an ordinary landlord-tenant relationship.

120To respond to the concerns of the local residents regarding the hotel occupants upstairs, Mr. Nguyen suggested that they would be removed as a pre-condition of approval. The Board notes however, that Mr. Nguyen stated that he is only a tenant in the building and has no authority to take any action with regards to the rest of the building.

121Mr. Nguyen explained that his mother had talked to the landlords and they had agreed to remove the hotel occupants. He explained the occupants are there now because they pay the bills. However, the rent he would pay once he is licensed would off-set that revenue, allowing the landlords to remove the guests. On being questioned by the Board, Mr. Nguyen agreed that the agreement to remove the guests is not part of his lease agreement.

122In the Board's view, the agreement, based on discussions between Mr. Nguyen's mother and her sister and family, also goes beyond that of an ordinary landlord – tenant relationship. Such an agreement would inextricably connect the Applicant financially to its landlords, who operated the previous bar and are operating the current Inntowner Hotel which have caused and continue to cause so many problems for the local residents.

123Mr. Nguyen stated that he is in possession of the proposed premises but will not be paying rent until he receives his licence and is able to operate. He stated that he has spent $100,000 on renovations and his legal representative, in submissions, said it was in the area of $250,000.

124That leaves the Board to question why a tenant would spend such a large amount of money on someone else's building before getting a licence. This too suggests a relationship which is not a business relationship between strangers. The Board believes that the landlord's involvement is greater than the Applicant is suggesting. The Board has no authority to impose the suggested pre-condition because it has no authority to ask a landlord, who is not a licensee, to take any action regarding their property.

125Mr. Nguyen has agreed in Exhibit # 1 to exclude his landlords from the premises. When asked how he would keep his landlords out of the premises, he stated that they could come in but not into the licensed area. That raises a concern for the Board because Exhibit #1 states that they are not to be permitted on the premises at any time and does not speak merely of the licensed area of the premises.

126The Board is not persuaded that the Applicant has or will be able to maintain independent control of the business or the premises to operate a licensed establishment free of many of the problems which the previous premises had.

127Therefore, the Board FINDS that the residents have met the onus on them to show that the issuance of the licence is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises is located.

Order

128For the reasons given, the Board hereby DENIES the application for a liquor licence by 1698213 Ontario Inc. intending to operate as WHISKEY BAR & LOUNGE, 301 Brodie Street South, Thunder Bay, Ontario, P7E 1C4, establishment number 10969.

DATED AT TORONTO THIS 26th DAY OF SEPTEMBER, 2008.