Registrar, Alcohol and Gaming Commission of Ontario v. 6028845 Canada Inc., 2009 CanLII 29753

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-

6028845 Canada Inc. operating as Memento Cafe Applicant

-and-

Mr. Michael McHugh Objector

DECISION

Panel: Allan Higdon, Board Member Bruce Miller, Board Member

Decision Date: May 1, 2009

Hearing Location: Hamilton, 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 6028845 Canada Inc., Applicant ) Douglas Burns, Representative Michael McHugh ) On his own behalf and on behalf of the resident objectors

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 17077 dated March 3, 2009 to review an application for additional licensed areas by 6028845 Canada Inc. (the “Applicant”), operating as MEMENTO CAFE, 334 Queenston Road, Hamilton, Ontario, L8K 1H6, (the “establishment”), liquor licence number 91737, for an additional capacity of 56 persons. A hearing of the Application was held on April 8, 2009 in the City of Hamilton.

Decision

2After considering all the evidence and submissions the Board DENIES the Application made by 6028845 Canada Inc. for additional capacity at MEMENTO CAFE. Reasons for these findings follow.

Preliminary Matters

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

4Mr. Michael McHugh is a resident of the municipality and objects to the application for licence. He appeared before the Board on his own behalf and on behalf of the resident objectors. On consent of all parties, the Board ORDERED Mr. McHugh be made party to the proceedings.

Objectors’ Evidence

5Michael McHugh is a partner in the Law Firm of McHugh, Mowat, Whitmore, Ionico, MacPherson, LLP. The firm is located at 337 Queenston Road in Hamilton and is directly across the street from the Memento Cafe. They occupy the entire top floor of the building and have been tenants there since 1975.

6There have been a number of different restaurants in the premises now occupied by the Memento Cafe. There was an Italian restaurant, followed by a steakhouse and then a Chinese restaurant prior to the Memento Cafe opening in 2002 or early in 2003.

7Mr. McHugh then submitted a map produced by Google, downloaded on April 2, 2009, which was entered as Exhibit #1. The map showed the immediate area of the Memento Cafe and neighbouring businesses.

8The map illustrated there are only four parking spaces for the Memento Cafe.

9The map showed 337 Queenston Road where Mr. McHugh’s business is located. There is parking on the side and at the rear of the building. There are 24 marked parking spaces and one marked handicapped parking space.

10There is a shortage of parking spaces at 337 Queenston for both tenants and customers of the building. The building and lot are marked with “Tenant Parking Only” signs in accordance with the City of Hamilton’s by-law.

11In 1978 the restaurant at 334 Queenston Road was called the Copa Cabana Tavern. The establishment applied for relief to the City of Hamilton’s Committee of Adjustment under the city by-law so that it could increase capacity to 112 notwithstanding “that there is provision on the site for only four (4) car parking spaces instead of the required 19 parking spaces”.

12The Committee of Adjustment granted the application subject to the applicant entering into an agreement to lease “at least 15 parking spaces from the owner of the property across the street”. The lease had to be for the “times specified in the letter and if possible, for the applicant to include Sunday”. Finally a copy of the lease was to be filed with the Committee of Adjustment.

13Mr. McHugh submitted the Decision of the Committee of Adjustment, dated January 9, 1979, as Exhibit #2.

14Mr. Burns objected as the letter dated back to 1978 and was not relevant. Mr. Burns only received a copy of the decision two days prior to the hearing.

15Mr. McHugh replied he had only received notice of the hearing on March 24, 2009 and this was the reason for the delay in providing Mr. Burns with a copy.

16The Board ruled the document was relevant and entered it as Exhibit #2.

17Mr. McHugh then submitted four more documents.

18Exhibit #3 is a letter dated January 9, 1979 to The Committee of Adjustment from the Law Firm of Dubeck & Dudzic who were representing the Copa Cabana Tavern. The letter informed the Committee that an agreement had been made for the Copa Cabana Tavern to lease up to 15 parking spaces “from the property directly across the road” on the evenings of Thursday, Friday and Saturday after 7:00 p.m.

19Exhibit #4 is correspondence from The Effort Trust Company who own the premises at 337 Queenston Road. The letter confirmed they had “no knowledge of any lease or other written agreement or arrangement as between Effort Trust and the owner of Memento Cafe or any prior owners at 334 Queenston Road with respect to the use of the parking lot at 337 Queenston Road”.

20Exhibit #5 is a letter dated April 1, 2009 to the Planning and Economic Department of the City of Hamilton signed by Mr. McHugh. The letter referenced the decision of the Committee of Adjustment in 1978 and stated the Memento Cafe was “not in compliance with the minor variance and accordingly, not in compliance with the parking requirements of the zoning by-law”.

21Exhibit #6 is an email sent April 2, 2009 to a staff member at the Law Firm of McHugh, Mowat, Whitmore, Ionico, MacPherson, LLP. The letter is from the Municipal Law Enforcement Coordinator for the City of Hamilton. The letter confirmed that “four parking spaces shall be on site and 15 parking spaces shall be provided off site on another property” as per the 1978 order of the Committee of Adjustment for the property at 334 Queenston Road “with a maximum seating capacity of 112 customers”.

22Mr. McHugh then continued his testimony.

23There have been a number of problems in the neighbourhood that are attributable to the Memento Cafe.

24The restaurants previous to the Memento Cafe were all good neighbours. They were frequented by him, his family, his staff, his clients and other neighbours.

25When the Memento Cafe first opened he took a client there for lunch and discovered there was no food served at the establishment. The only customers there were drinking. He has never been back to the premises.

26The Memento Cafe has been referenced as a family restaurant but it is not. Mr. Burns objected to this statement as Mr. McHugh has only been there once. Mr. McHugh stated the desk in his office faces the Memento Cafe and he has never seen children go in the premises and he has only seen a few women go in.

27The 25 parking spaces for the businesses at 337 Queenston are often insufficient for the clients and staff of the building.

28Since the Memento Cafe opened their patrons continuously use the parking lot at 337 Queenston Road. They do this during the day, in the evening and on weekends. When they are approached to move their cars some comply, while others refuse and are rude and argumentative.

29They often find broken beer bottles, puddles of urine and used condoms in their parking lot at 337 Queenston Road when they come to work in the morning.

30In summation the Memento Cafe is not in compliance with zoning and such compliance is a prerequisite to a restaurant licence and a liquor licence. The City of Hamilton never followed up on the required offsite parking lease as the Decision of the Committee of Adjustment required. It appears the AGCO never received confirmation of the zoning requirement. Not only does the Memento Cafe not have any parking for additional seating, it appears the applicant or predecessors have not satisfied the conditions of the Committee of Adjustment and therefore the current use is in contravention of the zoning by-law. Consequently the applicant does not qualify for additional seating. Finally, the patrons of the Memento Cafe have diminished the quality of the neighbourhood.

31In cross-examination he stated there was another restaurant where the Memento Cafe currently stands when he first rented office space at 337 Queenston Road. The restaurant had the same number of parking spaces as the Memento Cafe currently and was used primarily for catering.

32The subsequent owners of the premises at 334 Queenston Road where the Memento Cafe is now located all struggled to make a living.

33Customers start going to the Memento Cafe in the mid to late afternoon. He sees people walking out of the Memento Cafe in the morning and getting into cars and leaving. He has never seen anyone urinate in the parking lot.

34The previous restaurants had a lower customer volume and there were no problems with parking. They have parking shortages at his building at 337 Queenston Road. These problems are exacerbated by the persons who park there and go across the road to the Memento Cafe.

35The Memento Cafe was closed for six months last year. All the problems with broken bottles, puddles of urine and used condoms in the parking lot at 337 Queenston Road ceased during the time the premises were closed.

36Lori Vacca owns A. D. Vacca and Associates with her husband. They are tenants in the same building as Mr. McHugh but their address is 333 Queenston Road. They have three of the five units on the main floor. They run a financial planning business and have leased space at the building since 1994.

37There was a Chinese restaurant where the Memento Cafe now operates when they first moved into the building. They frequented the Chinese restaurant. The restaurant was a great neighbour. The restaurant closed about six years ago and the Memento Cafe opened in its place.

38She has never been to the Memento Cafe. One of her staff went over when it first opened and there was no food service. None of her staff has ever returned to the Memento Cafe.

39There are only 25 parking spots for the building that houses her business. They have had serious parking problems since the Memento Cafe opened. Patrons from the Memento Cafe park their cars on their lot at 333-337 Queenston Road.

40On many occasions they have asked the patrons to move their vehicles. Some complied but the majority refused to move their vehicles and were very rude.

41Her husband spoke to the owner of Memento Cafe several years ago about the parking problem but there was no improvement.

42They have called By-law Enforcement for the City of Hamilton on one or two occasions but they are running a business and it is hard to enforce the parking on an hourly basis.

43Parking problems caused by patrons of the Memento Cafe usually begin around 1:00 p.m. Sometimes they begin at 10:00 or 11:00 a.m. if there is a soccer game.

44They sometimes find people sitting in cars on their lot when they arrive in the morning. Some of the people are too drunk to drive.

45They also find broken beer bottles in their lot when they arrive for work in the morning. This is especially true on Monday mornings.

46The problems ceased when the Memento Cafe was closed for six months.

47The Memento Cafe is not a family restaurant. She has never seen a child or a family go in but has seen some women enter the premises.

48They had to put up no parking signs on their building after the Memento Cafe opened but the signs had no effect.

49The parking problem has seriously affected her business and the Board should refuse the Memento Cafe’s application for additional seating.

50On cross-examination she stated her sales increased when the Memento Cafe was closed for six months as they had more clients come in due to the extra parking which was available. They are considering moving their business because of the parking problems.

51On occasion she notices ponding of urine in the parking lot when she arrives in the morning for work.

52Her business operates from 9:00 a.m. to 5:00 p.m. during the week. She estimates that 98% of the clientele for Memento Cafe are men while 2% are women. All of the clients are age 18 and older. She estimated the average age of their clientele to be approximately 32 years of age.

53There is another licenced premise down the street.

54On occasions there are parking shortages at her building that are unrelated to any caused by the Memento Cafe.

55She knows that people who leave their vehicles on her lot are customers of the Memento Cafe because she watches them park their cars and walk across the street to the Memento Cafe.

56Carol Di Giantomasso has owned the property at 336 Queenston Road since 1977. She leased a unit in the building for five years prior to purchasing the premises. Her husband has run a mens hairstyling business in the building since 1977. There is also a womens hair styling business in the building and a residential tenant with a young family at the rear of the building.

57The tenant has told her about bad language and rowdy behaviour he believes are caused by the patrons of the Memento Cafe.

58She has found broken beer bottles and ponds of urine when she arrives at her building in the morning.

59They have two parking spots for the tenant and they also lease four to six boulevard parking spots from the city.

60Her husband has complained to the owner of the Memento Cafe about patrons parking on their lot but nothing was done. Her husband has also spoken to patrons of the Memento Cafe and asked them to move their vehicles from his lot but they refused and were rude.

61They have called City of Hamilton By-law Enforcement in the past. On March 29, 2009 five vehicles were given parking tickets. She noticed the parking lot at 337 Queenston Road was full that night even though all the businesses there were closed.

62They have never had any problems in the area before the Memento Cafe opened. She is worried she will lose her tenant because of the problems associated with the Memento Cafe. The problems will only get worse if the Memento Cafe is allowed to expand its capacity.

63On cross-examination she stated her tenant had been there for about a year.

Applicant’s Evidence

64Jovo Miscevic is a Director of 6028845 Canada Inc. and owns the Memento Cafe. He bought the property in October 2002 and opened the Memento Cafe in April 2003. The Memento Cafe is on the first floor and he would like to start to use the basement for special events.

65The premises were operated as the Copa Cabana Tavern at one time and Mr. Miscevic knew the owner. They used to operate on both floors and they served excellent food. They used to have a band on the weekend. The business closed when it was sold and it eventually became a Chinese restaurant.

66The Chinese restaurant was closed by the health department. The owner`s family used to live in the basement of the Chinese restaurant.

67They have always served food at the Memento Cafe. The only exception was when they lost their cook for a couple of weeks.

68Someone from Mr. McHughs office called him about the parking problems some time after they first opened. He approached someone at Mr. McHughs office about leasing parking space about two and a half years ago but the person refused to talk to him. He doesn’t know the name of the person who refused to talk to him.

69He has been very surprised to learn persons have concerns about his business.

70It is not his place to ask his customers where they park their vehicles.

71The Memento Cafe opens at noon daily. It stays open to 11:00 p.m. or 11:30 p.m. on Monday through Wednesday. They don’t serve food past 4:00 a.m. on the weekends.

72They never had any formal complaints about parking.

73They have never had any problems with the police. He knows of only one customer who received a parking ticket.

74He has never heard about any problems with broken beer bottles. He works until 4:00 a.m. some mornings. He sees people parked behind some buildings when he leaves and they are not his customers.

75Recently he cleaned up some of the broken glass from beer bottles. The bottles were brands that he does not sell.

76He will do anything he can to try and address the concerns that have been raised.

77On cross-examination he stated there is only one entrance to his establishment and it faces Queenston Road. There is an exit from the basement and there are also two exits from the main floor at the rear of the building.

78He parks his vehicle in the rear of his building and enters through the front door.

79He has four parking spots for the Memento Cafe but they can get up to five vehicles in the parking area.

80He was not aware of the application for relief for parking made by the Copa Cobana Tavern to the Committee of Adjustment.

81He was only able to open the main floor when he first opened the Memento Cafe due to a lack of funding.

82The customers he knows park on side streets. He doesn’t know where his other customers park their vehicles and he doesn’t believe it is right for him to ask his customers where they park.

83His licenced capacity is 56. There are usually about 25 customers in his restaurant. He is never full, even on his busiest days.

84He started cleaning up the broken bottles after he learned about the problem in a teleconference involving the AGCO and the resident objectors.

85He has two cooks. They have a full menu and serve half portions for children. He estimates 60% of his customers are men, 30 % are women and 10% are children.

86In response to questions from the Board he stated they are open seven days a week. They are open from noon to 11:00 p.m. Monday to Wednesday and from noon to 2:00 a.m. the rest of the week. On Saturdays he serves food until 3:30 a.m.

87He has never made an application to the City for cash in lieu of parking.

88He will do what he can to resolve the problems he has just learned about.

89Dragana Miscevic is married to Jovo Miscevic. She has worked at the Memento Cafe since 2003. She works as a cook and they have a full menu.

90Many families go to the restaurant to eat. They have many requests for special events such as birthday and anniversary parties but they can’t accommodate them and that is why they need to licence their basement.

91There is a parking problem but people can park in the street. They don’t ask customers where they park their vehicles.

92They have never had any problems with the police or any of their neighbours. Some of the neighbours eat at their restaurant. They will do whatever they can to ensure good relations with their neighbours. They will start asking their customers if they parked across the street.

93They would be willing to pay to lease more parking spots.

94On cross-examination she stated she used to work 14 hours a day at the restaurant but is going to school now and only works there about four hours a day.

95She has never talked to the neighbours about a parking problem and she didn’t know until recently there was a problem. Now when she sees someone park across the street she goes and tells them not to park there.

96Milorad Bucetic stated his family ran the Festival Restaurant which was about 100 metres away from where the Memento Cafe now operates. They purchased the premises in 1972.

97There are at least six restaurants, three or four of which are licenced, within 200 metres of the Memento Cafe.

98The capacity for the Festival Restaurant was 160. The Board required additional parking and they leased more parking for the evenings.

99They had problems with cleanliness in their lot but did not know who caused it.

100He goes to the Memento Cafe three or four times a week. He brings his wife and children. It is a family restaurant and not a men`s social club.

101On cross-examination he stated his father ran the Festival Restaurant from 1972-1995. He then ran the business until 1997 when he sold the property.

102He estimates the clientele at the Memento Cafe to be 60% male and 40% female.

103He spoke to the owner of a business near the Memento Cafe who said the broken bottles and empty beer cans come from young people who go to the parking lots at night to drink.

104Savo Grmusa has been a customer of the Memento Cafe for the past five years. He lives in the area of the restaurant. He goes there to eat because the food is excellent. He goes to the restaurant with his girlfriend who he met there. He saw children in the restaurant on five or six occasions last year.

105On cross-examination he stated he parks on the side streets or in front of the Memento Cafe when he goes there. He can only remember seeing someone park across the street on one occasion.

106Dubravko Brujic is a customer of the Memento Cafe. He goes there with his wife. The Memento Cafe serves Mediterranean food. His wife orders food from there for her business.

107He always parks on the street when he goes there. He has seen people from the restaurant park at the business across the street.

108On cross-examination he stated he had parked his car at the business across the street from Memento Cafe twice in the last seven years.

109Sinisa Manojlovic is Dragana Miscevic`s brother-in-law. He goes to the Memento Cafe daily to help out. There is food available every day.

110The Memento Cafe is not a men`s social club. There are children there at least twice a week and lots of women go to the restaurant.

111There is a parking problem and he is unable to watch all the time to make sure there are no problems.

112There are five or six restaurants in the area and they add to the parking problem.

113He was surprised when he heard about the complaints about the Memento Cafe.

114On cross-examination he stated he parks behind the Memento Cafe or on the street.

115There is parking for four or five vehicles at the Memento Cafe. If a fifth vehicle is parked at the rear then it must be moved to allow the other vehicles to exit.

116Mr. Burns requested that Dubravko Brujic be allowed to make a further statement. The Board permitted him to do so. Mr. Brujic stated the Chinese restaurant was filthy, the family who owned it lived in the basement and the kitchen was disgusting. There was no cross-examination.

Objectors’ Submission

117Mr. McHugh stated he would be brief as he had provided his submissions when he testified. He had two main objections.

118The first was the Memento Cafe was not in compliance with the zoning by-law as the condition on parking established by the Committee of Adjustment was never met.

119Secondly, patrons of Memento Cafe are using private parking spots, abuse the private parking lots and are rude and threatening when they are asked to move their vehicles.

120Any expansion of the licenced capacity could only make the existing problems much worse and the application should be denied.

Applicant’s Submission

121Mr. Burns stated there was no evidence of drunk or disorderly conduct at the Memento Cafe. There was no hint of any police involvement. There were no noise complaints and there is nothing wrong with the establishment.

122There is a commonality on the part of the objectors. They don’t go to the premises but they claim it is a men’s social club. There is a lack of knowledge on the part of the objectors.

123The Licensee’s witnesses gave evidence on what goes on at the Memento Cafe and why they need the expansion.

124There is a parking problem. However it is not the role of the Board to go back and change a situation that has existed for thirty years.

125The Licensee is prepared to try and address the parking problem. There is a garage on the property that could be demolished to create four more parking spots.

126The people opposite the Memento Cafe are obstructive. They don’t need their parking lots after hours or on the weekend.

127The Licensee will do anything that is logical and viable to resolve the parking problem.

128Everyone in the area faces a parking shortage.

Reply Submissions

129The Licensee’s neighbours have no obligation to let the Licensee use their property.

Reasons and Analysis

130The Board has carefully considered the evidence and the submissions presented. At issue in this hearing is whether the granting of this application is in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located. The onus is on the resident objectors to establish, on a balance of probabilities that the issuance of this licence is not in the public interest.

131The Liquor Licence Act negates entitlement to a liquor licence by an applicant if one of the 6 paragraphs of subsection 6(2) applies. The only paragraph that could have application to this case is that found in (h) which reads:

“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 are located.”

132There was a substantial amount of testimony as to whether the Memento Cafe serves food. The witnesses for the objectors do not frequent the establishment. Mr. McHugh was the only witness for the objectors who had actually been in the restaurant. However, he only went there once just after it opened in 2003 and has never returned. The Board was satisfied from the evidence of the Licensee’s witnesses, who attend the establishment on either a daily or regular basis, that the Memento Cafe serves food.

133There was also considerable testimony as to whether the Memento Cafe was a family restaurant. The Board does not believe this to be relevant but was satisfied from the evidence of the Licensee’s witnesses that the establishment caters to patrons of all ages.

134There was evidence of debris and broken bottles being found in the parking lots of 333-337 and 336 Queenston Road. The witnesses for the objectors had no direct evidence this was caused by patrons of the Memento Cafe. They suspected it was caused by the patrons and also noted that the problems in the neighbourhood diminished when the Memento Cafe was closed for a period of time.

135Witnesses for the Licensee disputed this and evidence was presented that the debris and broken bottles may have been caused by neighbourhood youths or by patrons of other establishments in the area. The Board is satisfied that the debris and broken bottles are caused by a number of sources, including patrons from the Memento Cafe. However these complaints were limited and this issue was not central to the question of public interest.

136Finally there was some limited evidence from Mrs. Carol Di Giantomasso that her tenant had heard some rowdy behavior that he believed emanated from the Memento Cafe. The tenant did not testify. Witnesses for the Licensee testified there are never any problems at the Memento Cafe and that police have never been to the establishment because of any type of disorderly conduct. The Board did not view this as a significant issue.

137The key issue for the Board centres on the availability of parking and its impact on the public interest.

138It is clear from the evidence of all witnesses that there is a parking shortage in the neighbourhood.

139It is also clear that the parking shortage has been exacerbated by the patrons of the Memento Cafe.

140All three witnesses for the objectors gave consistent evidence that patrons from the Memento Cafe regularly park vehicles in their parking lots. They also testified that many of the patrons are very rude and refuse to move their vehicles when they are asked to do so.

141Mr. McHugh testified his business is impacted by the lack of parking which is greatly exacerbated by the patrons of the Memento Cafe. Ms Vacca testified she and her husband are considering relocating their business because of the parking shortage caused by the patrons of the Memento Cafe. She also testified her business sales improved when the Memento Cafe was closed for six months a year ago. Finally Mrs. Di Giantomasso testified she is worried that she may lose her tenant.

142The Board notes the decision of the Committee of Adjustment (Exhibit 2). The decision came from a request for relief from the requirement of the licenced premises at 334 Queenston Road to have nineteen parking spaces. The request emanated as the licenced premises located there in 1978 had increased its licenced capacity to 112.

143The Memento Cafe has a current licenced capacity of 56 and is applying to increase that to 112. The Memento Cafe only has four parking spots.

144The Committee of Adjustment granted the request for relief subject to the licensee leasing 15 additional parking spots in addition to the four located at the premises. The email (Exhibit #6) from the Municipal Law Enforcement Co-ordinator confirms the decision of the Committee of Adjustment is still in effect.

145Mr. Miscevic testified he was unaware of any parking concerns caused by his patrons until he submitted his application to the AGCO for increased capacity. He did admit someone from Mr. McHughs office complained several years ago about the parking shortage caused by his patrons. He testified he tried to lease additional parking several years ago by speaking to someone in Mr. McHugh’s office but was unsuccessful. There was evidence both Ms Vaccas husband and Mrs. Di Giantomasso`s husband complained to the staff at the Memento Cafe about the parking problem.

146The Licensee`s witnesses also confirm the parking shortages. Mr. Brujic testified he has seen people from the restaurant park at the business across the street and that he had parked there on two occasions.

147The Board does not agree with Mr. Burns who stated the neighbours of the Memento Cafe are obstructive because they do not want patrons of the restaurant parking in their lot. The lots are their private property and there is no obligation for them to allow the patrons of another business to park there.

148There was no evidence that the Licensee, aside from one attempt several years ago, has made any attempt to address the issue of parking. In fact, Mr. Miscevic stated it was not his place to ask his customers where they parked their vehicles. The Board accepts the testimony of the witnesses for the objectors, all of whom testified that complaints had been conveyed to the Memento Cafe but no action had been taken by the Licensee to rectify the situation. The Board notes that this is not inconsistent with the Applicant’s testimony that he had not received any “formal” complaint about parking.

149There is general agreement that there is a shortage of parking in the area. There was ample evidence that patrons of the Memento Cafe park at neighbouring businesses. There was no evidence the Licensee has taken any steps, aside from one attempt over two years ago, to address the problem. There was evidence the neighbouring businesses are suffering from the parking problems caused by the patrons of the Memento Cafe.

150The Licensee gave evidence there are usually only 25 customers in his premises and they are never at full capacity, even on their busiest days. The Licensee only has four parking spots, yet the Licensee is applying to increase capacity from 56 to 112. The Committee of Adjustment recognized the need for additional parking in its decision. The neighbouring businesses are currently impacted negatively by the parking habits of patrons from the Memento Cafe and any increase in capacity would only serve to worsen the situation.

151A granting of the application would not be in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located.

Order

152For the above reasons, the Board DENIES the application to licence additional indoor areas for an additional capacity of 56 persons made by 6028845 Canada Inc., operating as MEMENTO CAFE, 334 Queenston Road, Hamilton, Ontario, L8K 1H6, liquor licence number 91737.

DATED AT TORONTO, THIS 1st day of May, 2009.