Registrar, Alcohol and Gaming Commission of Ontario v. Avery Whelan Investments Ltd., 2009 CanLII 20298

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-

Avery Whelan Investments Ltd. operating as Thirsty’s Sports Bar Applicant

-and-

Mike Mohs Objector

DECISION

Panel: Jacqueline Castel, Board Member; Beryl Ford, Board Member

Decision Date: March 18, 2009

Hearing Location: London, 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 Avery Whelan Investments Ltd., Applicant ) Daniel MacKeigan, Representative Mike Mohs ) On his own behalf and on behalf of the resident objectors

Authorities

Trailside Bistro & Café Inc. (Re), [2007] O.A.G.C.D. No. 447

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 16989, dated January 22, 2009 to review an Application by Avery Whelan Investments Ltd. (the “Applicant”), operating or intending to operate as THIRTY’S SPORTS BAR, 2008 Dorchester Road, Unit 1 & 2, Dorchester, Ontario, N0L 1G2, (the “establishment”), establishment number 813606. A hearing of the Application was held on March 4, 2009 in the City of London.

Decision

2After considering all of the evidence and submissions, the Board APPROVES the Application with conditions. Reasons follow.

Preliminary Matters

3Philip Morris appeared on behalf of the Registrar and advised that the Registrar was taking no position with respect to the Application.

4Mike Mohs appeared on behalf of the objectors and requested party status which was granted with the consent of the Applicant.

5Mr. Morris filed, with Mr. MacKeigan’s consent, the Applicant’s Document Brief, which included the objection letter of Elliott and Trish Gridec dated November 20, 2008 and a petition (tab 1), the objection letter of Mike Mohs dated November 28, 2008 (tab 2), and the objection letter of Mike Mohs dated January 29, 2009 (tab 3). The Document Brief was entered as Exhibit 1.

Objectors’ Evidence

6Jean Davis’ residence is located behind the establishment. When she moved there 49 years ago, it was zoned as a strictly residential area. However, the zoning was subsequently changed to permit businesses to operate in the area.

7Mrs. Davis stated that she has two main concerns with the establishment being given a liquor licence: (1) parking and (2) noise.

8On the issue of parking, Mrs. Davis stated that approximately 10 years ago, when the Dorchester Legion was located on the opposite side of Queen Street, cars of customers of the Legion were often parked on her front lawn. She also lost a number of trees on her front lawn, as a result of people from the Legion driving into them while impaired. In addition, when “Curves” was located in part of the building where the establishment is now located, she had difficulty backing out of her driveway because the street was so busy with customers of Curves. Curves used to close at 9:00 p.m. Mrs. Davis does not believe there is enough parking for the establishment, which will have a capacity of 145 people, and she will have issues similar to what she experienced when the Dorchester Legion and Curves were located on the street.

9On the issue of noise, Mrs. Davis stated that when the establishment recently had an open house, it was so noisy the walls of her residence were thumping. She went outside at approximately 11:15 p.m. to confirm where the noise was coming from. She determined it was coming from patrons in the establishment’s outside smoking area. At approximately 1:00 a.m. on the same evening, Mrs. Davis was woken up again by the noise, which she believed to be coming from the same place.

10Mrs. Davis clarified that her concern with noise only relates to patrons in the establishment’s outside smoking area.

11In the plaza where the establishment is located there is also a licensed pizza place, but Mrs. Davis does not believe it remains open until 1:00 a.m. or 2:00 a.m.

12On cross-examination, Mrs. Davis acknowledged that she complained to the Municipality about parking issues associated with the establishment obtaining a liquor licence in a letter dated December 2, 2008, which she identified at tab 10 of Exhibit 1. Mrs. Davis acknowledged that the Municipality responded to her letter of complaint by sending a letter asking each resident on Queen Street for input on parking restrictions relating to the planned opening of the establishment. Mrs. Davis further acknowledged that the majority of these residents opposed any restrictions being placed on parking on Queen Street.

13Mrs. Davis acknowledged living in the middle of a densely populated commercial area.

14At this time, Mr. Morris filed a letter to Ms Kristina Krause, Case Management Coordinator, AGCO, with a facsimile date of March 3, 2009, from Dr. Elliott Gridec, authorizing Mr. Mike Mohs to speak on behalf of the petitioners. The letter was entered as Exhibit 2.

15Mike Mohs made a statement under oath. He has lived at the northwest corner of Queen and Dorchester for nine years. He moved to Queen Street because it was walking distance from his business, located half a block away. He owns a Ferment on Premise business, where customers can make their own wine. Ever since he has lived on Queen Street, there has been a parking problem caused by the customers of businesses located on the street.

16When he moved to Dorchester, there were a Curves, a video store, a pizzeria, and a café in the plaza where the establishment is located. There was a chronic parking problem between 4:00 and 6:00 p.m. Sometimes when he would come home after 6:00 p.m., he would find a car parked in his laneway or in front of his house. Usually, the vehicle would be gone within 20 to 30 minutes.

17Mr. Mohs’ principal concern with the establishment’s application for a liquor licence is that there will be insufficient parking for the customers of the establishment, exacerbating existing parking problems on the street. The parking lot for the establishment and Town and Country Pizza has 18 regular parking places and two handicap parking places, which is insufficient for an establishment which will have a capacity of 145 people. At the north-east section of the plaza there is a septic tank. The tank would need to be removed to create additional space for parking.

18Mr. Mohs’ stated that the existing municipal zoning by-law is not realistic and does not require enough parking spaces for taverns or restaurants.

19On cross-examination, Mr. Mohs stated that Dr. Gridec and his spouse approached residents in the area to sign the petition found at tab 1 of Exhibit 1. Mr. Mohs did not prepare the petition or obtain any of the signatures on it, but he did sign the petition.

20Mr. Mohs confirmed that the conditions he would like to see attached to the establishment’s liquor licence are as follows:

1. The holder of the licence shall advertise and promote the areas that are available and not available for parking by their patrons.

2. The holder of the licence shall add nine on-site parking stalls by July 1, 2009.

3. The holder of the licence shall ensure that there is a designated and supervised area for smokers that does not adversely affect property adjacent to the premises or in the vicinity. The designated and supervised area shall comply with all relevant municipal by-laws.

4. The holder of the licence shall ensure that no person under the age of 19 enters the premises.

5. The holder of the licence shall not apply for an increase in capacity.

These proposed conditions are found in Mr. Mohs’ letter to the AGCO dated January 19, 2009 at tab 22 of Exhibit 1. Mr. Mohs acknowledged that the aforementioned conditions are not identical to the concerns outlined in the petition (tab 1 of Exhibit 1) and confirmed he would withdraw all other complaints if the above five conditions are met.

21Regarding condition #5 above (i.e., the holder of the licence shall not apply for an increase in capacity), Mr. Mohs stated he would be prepared to remove this condition provided that he would have an opportunity to object before an increase in capacity is approved.

22Mr. Mohs stated that noise is not a concern for him. If customers are too noisy, residents have the option of complaining to the by-law officer.

23Mr. Mohs identified a photo of the parking lot for the recreation centre at tab 26 of Exhibit 1. While he acknowledged that the lot contains parking for 70 to 80 vehicles, he indicated that the City puts overflow snow in the lot during the winter so the entire lot is not available for parking 12 months of the year.

24Mr. Mohs stated that he would like it noted for the record that he was not aware he had to be at this hearing until the day before the hearing and that he received the Applicant’s Document Brief (Exhibit 1) on Saturday, February 28, 2009. As such, he did not have much time to prepare for the hearing. He also stated that the Applicant’s counsel is a member of the same law firm he has used in the past, and as such, he was unable to obtain legal representation from this law firm for the hearing.

Applicant’s Evidence

25Mr. MacKeigan filed letters of support from Doug Gould (undated) and David Hutchison (dated February 27, 2009). The letters were entered as Exhibits 3a and 3b, respectively.

26Mark Sture is the Director of Transportation and Emergency Services for the Municipality of Thames Centre which encompasses the location of the establishment. He is neutral in respect of the establishment’s application for a liquor licence.

27Mr. Sture identified, at tab 8 of Exhibit 1, an Agency Letter of Approval dated January 8, 2009, signed by his colleague, Mr. Dave Murray, Chief of Building, in respect of the use of the establishment as a licensed premises, subject to compliance with identified requirements.

28Mr. Sture informed that 10% of Dorchester has a parking ban from 2:00 a.m. to 7:00 a.m. Most of the commercial businesses in downtown Dorchester use street parking. He identified the available street parking in and around the area of the establishment as follows:

1. Both sides of Queen Street east of Dorchester Road (no time restrictions);

2. Both sides of Ann Street (no time restrictions);

3. Both sides of Elizabeth Street (no time restrictions); and

4. North and south side of Queen Street west of Dorchester Road (between 5:00 p.m. and 2:00 a.m.)

He estimated that there is space for one vehicle per lot on the above streets. He also informed that there is a community parking area one and a half blocks south of the establishment. This community parking area includes gravel parking adjacent to Dorchester with 70 to 75 spaces and additional parking in the same lot with another 70 to 80 spaces. The Recreation Department prohibits overnight parking in this lot. According to Mr. Sture, clients of the establishment could park in this parking lot throughout the year, provided they do not leave their vehicles overnight.

29With reference to photos of various businesses in Dorchester, found at tab 26 of Exhibit 1, Mr. Sture indicated that some of the businesses had a combination of on-site and on-street parking, whereas others had on-street parking only.

30Mr. Sture indicated that in response to a letter of complaint from Mrs. Davis (tab 10 of Exhibit 1) about the potential for increased parking problems on Queen Street if the establishment receives a liquor licence, he sent a letter to the residents on Queen Street asking for their input on parking restrictions. He acknowledged receiving the letters contained at tabs 10 to 15 of Exhibit 1. He further acknowledged that his recommendation to Council, dated January 12, 2009, is contained at tab 16 of Exhibit 1. Specifically, he recommended to Council that the traffic and parking by-law be amended to restrict parking of motor vehicles on the south side of Queen Street (between Bridge Street and Dorchester Road) and that parking not be restricted on Queen Street east of Dorchester Road. His recommendation that parking be restricted on the south side of Queen Street was related to a planned walk/bike path. He did not recommend restrictions on Queen Street east of Dorchester Road because the majority of residents on Queen Street wanted no restrictions on parking. Mr. Sture confirmed that normally his recommendation to Council coincides with the wishes of the majority of residents who provide input.

31Mr. Sture acknowledged that tab 17 of Exhibit 1 is an excerpt from the Minutes of Council’s meeting of January 12, 2009, approving his recommendations concerning parking on Queen Street. Mr. Sture also acknowledged that tab 18 of Exhibit 1 includes Council’s resolution, which was carried, that there be no restrictions on parking on Queen Street east of Dorchester Road, except for the existing overnight parking restriction.

32Mr. Sture acknowledged receiving the letter at tab 25 with the names of 27 residents of Queen Street or 85% of the residents of Queen Street stating they are opposed to any restrictions on parking on Queen Street East. He also acknowledged that four of the names listed on this letter also signed the petition at tab 1 of Exhibit 1.

33On cross-examination, Mr. Sture acknowledged that the community centre’s gravel parking lot is used for storing excess snow in the winter and sometimes there is too much snow to park.

34On re-examination, Mr. Sture identified a photograph of the gravel parking lot of the community centre at tab 26 of Exhibit 1. The photograph was not dated, but there was snow on the ground. In response to a question, Mr. Sture stated that the parking lot appears to have been cleared of snow.

35Doug Crockett is a real estate agent who has resided in Dorchester all of his life. He is accustomed to the parking issues in Dorchester. He has known the Applicant’s family for 10 years and has had a business relationship with them. The Applicant’s family has provided a lot of employment for the community, and many of the people who attended the hearing as observers are or have been employed by the Applicant’s father.

36According to Mr. Crockett, there is a need for a family-oriented licensed establishment in the community. At this time, the closest family-oriented licensed establishment is about five kilometers from the recreation centre.

37He knows many of the individuals who signed the petition at tab 1 of Exhibit 1 and does not believe the petition was properly explained to them. However, he acknowledged that he only spoke to one or two of the signatories.

38Mr. Crockett resides about 1.6 kilometers from Mr. Mohs’ business.

39At this time, Mr. MacKeigan proposed that instead of calling all of the individuals in the room as witnesses, the Board ask for a show of hands of the individuals in the audience who support the Application. 17 individuals in the audience raised their hands indicating their support. Mr. Morris requested a show of hands of the individuals in the audience who are employees or potential employees of the Applicant. Two individuals raised their hands.

40Avery Whelan is the sole shareholder of the Applicant corporation. She has an English degree from the University of Western Ontario and holds a SmartServe certification. She has worked at Jack Astor’s as a server for over a year and has also managed a golf course. She is involved in the community as a Big Sister.

41Ms Whelan acknowledged seeing the petition at tab 1 of Exhibit 1. She stated that none of the signatories approached her about their concerns before or after November 20, 2008.

42Ms Whelan stated that the establishment has 20 parking spots on-site. She indicated that she is prepared to post signage and advertise in the local newspaper about available off-site parking. She will also consider giving customers incentives not to drive at all. Her brother owns a taxi business and they plan to cross-market their businesses. She will also ensure that all servers hold their SmartServe certification before they are hired.

43Ms Whelan does not believe there is a noise issue associated with customers using the outside smoking area. She believes on the night of the open house, the noise that Mrs. Davis heard was from the Godfather’s Restaurant.

Objectors’ Submissions

44Mr. Mohs submitted that the Applicant has not addressed the parking issue as well as it needs to. Under the municipal by-law, a tavern requires 13 parking stalls. A restaurant would require additional parking. In reality, the 75 parking spaces at the community centre will not always be available to the customers of the establishment.

45Mr. Mohs questioned the accuracy of the map at tab 24 of Exhibit 1, showing alleged supporters and objectors. He indicated that on this map his residence is shown as a supporter. He knows someone who is listed as a supporter when, in fact, she is an objector.

46Mrs. Davis’ testimony should be given credibility. She is not opposed to another bar per se. She simply does not want to be disturbed from noise from customers in the establishment’s outside smoking area at night when she is trying to sleep.

Applicant’s Submissions

47Page 4 of tab 29 (Exhibit 1) shows the minimum number of parking spaces required for, among other types of businesses, restaurants and taverns. A tavern requires one space per six square meters. A restaurant requires one space per 10 square meters. As such, the opposite of what Mr. Mohs stated is the case; restaurants require fewer parking spaces per square meter than taverns. Restaurant is defined under the by-law (page 2 of tab 29, Exhibit 1) as “a building or part thereof where food and beverage is prepared and offered for retail sale to the public for immediate consumption on the premises including a licensed dining room.” The Applicant would fall under the definition of a restaurant and complies with the municipal by-law.

48Mr. MacKeigan referred the panel to the Trailside Bistro decision of the AGCO Board. Mr. MacKeigan submitted that, as in the Trailside Bistro case, the objectors’ concerns relate to issues which fall under the jurisdiction of the municipality and not to the operation of the establishment. Specifically, the concerns relate to potential parking issues if the establishment is granted a liquor licence. Mr. MacKeigan asked the panel to make the same decision as the Board made in the Trailside Bistro case, approving the licence without conditions.

49Mr. Sture set out all of the available parking for the establishment. Mr. Sture specifically contacted all of the residents directly affected by the application to obtain their input on whether there should be parking restrictions on Queen Street. 85% of the residents on the street supported no restrictions. The municipality listened to the wishes of the majority of the residents on the street.

50Only two objectors attended the hearing. No evidence was led to suggest that the two objectors represented the interests of the community. Conversely, the Applicant has a petition signed by 159 supporters, and 17 of them cared enough to attend the hearing and remain until the end. Of the 33 names on the objectors’ petition, four appeared on a different document submitted to Mr. Sture, requesting no restrictions on parking. As such, Mr. MacKeigan submitted that no weight should be given to the petition of the objectors.

51Mr. Crawford testified that it is in the interests of the community to have a family-oriented licensed establishment adjacent to the recreation centre, since the closest establishment of this nature is approximately five kilometres away.

52Ms Whelan has taken proactive steps to address the objectors’ concerns. The smoking area is protected by a six foot fence on two sides and a concrete wall on two sides. Access is only available from inside the establishment. She will also encourage parking at the community centre, where there is ample year-round parking. In addition, all of her servers will be SmartServe certified before they are hired.

53Mr. MacKeigan questioned whether Mr. Mohs, who is in the liquor business himself, sees the establishment as competition for his business and wants to ensure that there is no new competition.

54The concerns of the objectors do not require intervention by the AGCO. The municipality acted swiftly, fairly and with responsibility in responding to the needs of the community.

55The Applicant requests that the licence be granted without conditions.

Reply Submissions

56Mr. Mohs strongly objected to the suggestion he is motivated by protecting his own business from competition from the establishment. His business caters to a different market and he is not opposed to the Applicant being given a licence. Rather, he submits that the licence should have the conditions attached to it that were outlined in his letter of January 19, 2009 to the AGCO (tab 22, Exhibit 1).

Motion to Re-open Hearing

57Following the hearing, by correspondence dated March 9, 2009, Mr. Mohs asked to re-open the hearing and accept further evidence, on the advice of Mr. Morris, for three reasons:

1. Rule 10.2(a) of the Board’s Revised Rules of Practice (the “Rules”) was disregarded when the Applicant did not disclose the documents it intended to rely on until four days before the hearing. In addition, six documents that should have been included in tab 8 were not contained in the Applicant’s Document Brief:

a. Documents from Municipality’s zoning officer;

b. Council Minutes; and

c. A letter to the AGCO from Town Council.

2. Rule 10.2(b) was disregarded when the Applicant did not disclose the maps, photographs etc. that it intended to rely upon until four days before the hearing. Within that time, mistakes were noted.

3. Rule 10.2(c) was disregarded when the Applicant did not deliver a list of witnesses. Mr. Mohs was unable to call any rebuttal or fact witnesses due to their failure to provide this witness list.

58Mr. MacKeigan responded, by correspondence dated March 9, 2009, opposing the motion. He indicated that the objector is seeking to introduce, after the conclusion of the hearing, documents that he and/or the other objector had in their possession since November 2008. He also indicated that the Agency letter of approval from the Chief Building Official, dated October 30, 2008, was corrected by Mr. David Murray on January 8, 2009, thereby causing the previous letter to become irrelevant. As a result, the corrected letter was included in the Applicant’s Document Brief. According to Mr. MacKeigan, the subsequent documents do not advance any relevant issues, as the more recent Council meeting Minutes were produced in the Applicant’s Document Brief. Further, the objector did not provide the Applicant or its counsel with any materials, list of witnesses or other evidence in advance of the hearing date. The Applicant therefore opposes reopening the hearing or admitting irrelevant documents, which the objector had access to since on or before November, 2008.

59Although Mr. Mohs indicated he was bringing the motion on the advice of Mr. Morris, Mr. Morris stated, in correspondence dated March 9, 2009, that the Registrar is taking no position on the motion.

60By correspondence dated March 16, 2009, Mr. Mohs replied to the allegations contained in Mr. MacKeigan’s letter of March 9, 2009. First of all, he admitted being aware of the documents, which he is seeking to have introduced after the conclusion of the hearing, since he attended the Council meetings where the parking issues pertaining to the Application were discussed. However, he assumed that the Registrar would introduce these documents. He indicated that he asked Mr. Morris about them at the hearing, but misunderstood that they could not be produced because they had been used at a pre-hearing in January. Second, he indicated that Mr. MacKeigan’s statement, that the Agency letter of approval dated October 30, 2008 was corrected by the January 8, 2009 letter, is misleading. The January 8, 2009 letter corrects issues pertaining to plumbing and the Fire Code, but does not change the Chief Building Official’s position on parking. Finally, he took issue with Mr. MacKeigan’s statement that the documents Mr. Mohs is seeking to introduce do not advance any relevant issues, and explained the relevance.

61The Board denies the request to reopen the hearing or accept further evidence, either in written form or orally, for the following reasons. Mr. Mohs did not request an adjournment or any other type of relief at the commencement of or during the hearing because of non-compliance with Rule 10.2(a)-(c). Mr. Mohs did not object to the Document Brief being introduced as an exhibit at the hearing because of non-compliance with Rule 10.2(a) and (b). Mr. Mohs also did not object to the Applicant calling witnesses because of non-compliance with Rule 10.2(c). The only reference to non-compliance with the Board’s Revised Rules of Practice at the hearing occurred after Mr. Mohs had given evidence and been cross-examined (paragraph 24 above). There was no reference to non-compliance with Rule 10.2(c). Mr. Mohs did not request any type of relief when he noted the non-compliance with Rule 10.2(a) and (b), and indicated that he simply wanted it noted for the record.

62The Board was sensitive to the fact that Mr. Mohs was self-represented and made allowances for this at the hearing. Specifically, at Mr. Morris’ request, the Board delayed the commencement of the hearing to allow Mr. Mohs the opportunity to speak to Mr. Morris about the hearing. Further, at the request of Mr. Mohs, the Board also took a break in the middle of the hearing prior to hearing submissions, to allow Mr. Mohs to once again obtain advice from Mr. Morris. The Board also notes that Mr. Mohs was consulting with Mr. Morris at various points throughout the hearing.

63The Board notes that Mr. Mohs is a businessperson who is not unsophisticated. In fact, Mr. Mohs works in the liquor industry and, as such, had more of a familiarity with the liquor legislation than is often the case for resident objectors. He clearly understood the nature of the proceeding and in fact suggested certain conditions be imposed on the Applicant’s licence. He mentioned during the hearing that he was unable to obtain representation from the law firm he used in the past as the Applicant’s lawyer was from that same firm. The Board notes, however, that Mr. Mohs at no time indicated that he did not want to proceed without a lawyer, nor did he request an adjournment to find another lawyer.

64Rule 2.1 gives the Board the broad authority to relieve against the strict application of the Rules, as it considers appropriate. The hearing proceeded and was heard to completion. It would not be appropriate for the Board to reopen a hearing because the Applicant failed to comply strictly with the rules on disclosure, when Mr. Mohs did not object or request any type of relief for non-compliance with the disclosure requirements at the hearing. The Board also notes that Mr. Mohs did not disclose a list of witnesses to the Applicant or the letter from Dr. Gridec (Exhibit 2) in advance of the hearing. In addition, Mr. Mohs’ post-hearing motion of March 9, 2009 does not follow the strict requirement of Rule 16; the Board has, nevertheless, considered the motion.

65The documents which Mr. Mohs wishes to introduce, at this time, were available to him prior to the hearing. As such, it would not be fair or appropriate to allow him to introduce the documents after the completion of the hearing.

66The Board notes that Mr. Mohs did indicate in submissions that the map, depicting objectors and supporters, was inaccurate, as it depicted him and another objector as supporters. The Board agrees that the map was inaccurate and confusing and placed no weight on it in reaching its decision.

Reasons and Analysis

67The Board has carefully considered the evidence and submissions of the parties. At issue in this hearing is whether the granting of a licence to the establishment is in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises is located. The onus is on the objectors to establish, on a balance of probabilities, that the issuance of the licence is not in the public interest. In determining whether the needs and wishes of the residents are bona fide, the Board will consider the totality of the evidence to evaluate whether the subjective concerns and fears of some of the residents are supported on a valid and objective basis.

68In this case, the Board heard from two residents, Mrs. Davis and Mr. Mohs, who opposed the Application unless the licence was issued with specified conditions. Their principal concern with the Application related to increased parking problems which they allege will arise on their street due to the capacity of the establishment and the limited on-site parking spaces (18 regular and two handicap spaces, which are shared with the licensed pizzeria) in the strip mall where the establishment is located. Mrs. Davis also raised a concern related to noise from the establishment, specifically coming from customers using the outside smoking area. They also had a petition, with 33 signatures, outlining six concerns about the Application. The author of the petition and the individuals who obtained the signatures on the petition did not give evidence at the hearing. However, the author of the petition did authorize Mr. Mohs to speak on behalf of the petitioners (Exhibit 2). There were four names on the petition, which were also listed on another document as opposing any parking restrictions on Queen Street. Since these four individuals were not called as witnesses, it is not possible for the Board to know their real wishes or concerns.

69For the Applicant, the Board heard from a member of the community, Mr. Crockett, who supported the Application. He testified that the community will benefit from having a family-oriented licensed premises near its recreation centre, as it is currently necessary to drive about five kilometres to find such an establishment. The Applicant presented a petition with 159 names on it in support of the Application. The Applicant did not lead evidence on who drafted the petition or obtained the signatures on it. 17 individuals, two of whom were employees or prospective employees of the Applicant, attended the hearing in support of the Application, as was conveyed by a show of hands at the hearing; however, since they were not called as witnesses, the Board could not ascertain whether they were, in fact, from the community.

70Mr. Sture, the Director of Transportation and Emergency Services for the Municipality of Thames Centre, who indicated he was neutral in respect of the Application, testified that he responded to Mrs. Davis’ written complaint about increased potential parking issues on Queen Street, if the establishment is granted a liquor licence, by writing to all of the residents on Queen Street for their input about parking restrictions on the street. Mr. Sture testified that the majority of Queen Street residents opposed any restrictions on parking. As a result, he respected the wishes of the majority, and recommended to Council that no restrictions on parking be imposed, associated with the establishment obtaining a liquor licence. Council adopted his recommendation.

71The Board found Mrs. Davis and Mr. Mohs to be credible witnesses and does not doubt that the concerns they expressed about parking and, in the case of Mrs. Davis, also about noise, are genuine and real to them. Indeed, the Board sympathizes particularly with Mrs. Davis, who moved to the area when it was residentially zoned. The Board did not accept Mr. MacKaigan’s suggestion that Mr. Mohs was motivated by the desire to prevent competition for his own business from the establishment. The Board believed Mrs. Davis’ evidence that the noise she heard on the night of the establishment’s open house came from patrons in the outside smoking area, since Mrs. Davis actually went outside to see where the noise was coming from.

72Nevertheless, the resident objectors have not met the onus of establishing, on a balance of probabilities, that the issuance of a liquor licence is not in the public interest. There was insufficient evidence that the two objectors represented the needs and wishes of the residents of the municipality where the establishment is located. No evidence was adduced to suggest that the Applicant will not comply with the LLA and regulations. It is apparent, as acknowledged by the Licensee’s representative, that there are parking challenges throughout Dorchester, but there was no evidence that the establishment, if licensed, would fail to comply with the municipality’s zoning by-laws which stipulate the minimum number of parking spaces for restaurants. While Mr. Mohs testified that he does not believe that the existing zoning by-laws are realistic or require enough on-site parking for restaurants and taverns, this is an issue for Municipal Council and is outside of the jurisdiction of this Board. Further, Ms Whelan expressed a general willingness and desire to minimize potential negative effects on the residents by posting signage and advertising the availability of off-site parking at the community centre. She also indicated that she would look into providing customers with incentives not to drive at all.

73Responding to the concerns of the resident objectors, however, the Board has concluded that it would be appropriate to attach conditions to this licence relating to parking and noise. This case is distinguishable from the Trailside Bistro & Café case, where the Panel concluded that none of the proposed conditions were supported by the evidence. In the present case, the Board finds that the evidence does support some conditions relating to parking and noise. In the absence of advertising and clearly visible signage, patrons might not be aware of off-site parking available at the recreation centre a block and a half away, and the on-site and on-street parking could at times be inadequate for a premises with a capacity of 145 persons. For reasons outlined above, the Board accepted that patrons in the smoking area of the establishment did create a noise disturbance for Mrs. Davis on the evening of the open house, and the Board acknowledges that noise can be very intrusive on neighbouring residents, thereby justifying conditions.

74The evidence did not support conditions of restricting the establishment to persons 19 years of age or over or prohibiting any future increases in capacity, as proposed by Mr. Mohs. The Board heard evidence that the establishment was intended as a family-oriented licensed premises and as such, a condition prohibiting persons under 19 would not be appropriate. In addition, the Liquor Licence Act sets out a process which must be followed before the capacity of a licensed premises can be increased. The process includes municipal approval, as well as an opportunity for residents to object if the proposed increase in capacity is 25% or more. The Board does not believe that conditions, over and above what is required under the legislation in respect of any future increases in capacity, are warranted on the evidence.

Order

75For the above reasons, the Board APPROVES the application to licence Avery Whelan Investments Ltd., operating or intending to operate as THIRSTY’S SPORTS BAR, 2008 Dorchester Road, Unit 1 & 2, Dorchester, Ontario, N0L 1G2, establishment number 813606, subject to compliance with all statutory conditions and municipal regulations.

76Further, the Board ORDERS that the following conditions be attached to the licence:

1. The Licensee shall advertise in a local newspaper prior to the opening of the premises, and going forward whenever advertising the premises in print, the areas that are available and not available for parking;

2. The Licensee shall post prominent signage in the establishment indicating the areas that are available and not available for parking;

3. The Licensee shall post a prominent sign at the exit to the smoking area and all other exits, reminding and/or encouraging patrons to be considerate of the surrounding community, when using the smoking area or leaving the premises; and

4. The Licensee shall take measures to monitor and supervise, as necessary, that patrons in the smoking area are not causing a noise disturbance for neighbouring residents.

DATED AT TORONTO, THIS 18th day of March, 2009.