Registrar, Alcohol and Gaming Commission of Ontario v. Eric Macedo and Brad Randy Macedo, 2009 CanLII 29754

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-

Eric Macedo and Brad Randy Macedo operating or intending to operate as Midpoint Bistro Applicant

-and-

Randall Kerr Resident Objector

DECISION

Panel: Joan Lougheed, Board Member Eleanor Meslin, Board Member

Decision Date: May 12, 2009 Hearing Location: Toronto, 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 Eric Macedo and Brad Randy Macedo, Applicant: Jerry Levitan, Representative Randall Kerr, Resident Objector: On his own behalf

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued a Notice of Proposal number 17128 dated March 25, 2009 to review an application for a liquor licence (the “Application”) from Eric Macedo and Brad Randy Macedo (the “Applicant”) operating or intending to operate as MIDPOINT BISTRO, 1180 Queen Street West, Toronto, Ontario, M6J 1J5 (the “establishment” or “premises”), establishment number 20682, on the basis the Commission has received one or more written objections to the Application. A hearing of the Application was held on May 6, 2009 in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board APPROVES the application subject to the conditions as set out. Reasons follow.

Preliminary Matters

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

4Mr. Randall Kerr is a resident of the municipality and objects to the application for licence. He appeared before the Board on his own behalf and requested party status. On consent of all parties, the Board ordered Mr. Kerr be made a party to the proceedings.

5Mr. Jerry Levitan, the Applicant’s representative, provided background information, stating that there had been ongoing discussions with objectors and representatives of the neighbourhood residents association resulting in a list of accepted conditions that he would be submitting (Ex. #1). As well, he stated that the ward councillor, Mr. Adam Giambrone, had submitted a letter withdrawing his objections (Ex. #2).

Resident Objector’s Evidence

6Mr. Randall Kerr stated that he lives about 100 feet away from the premises. They share a common laneway.

[7] He expressed his concern that there are a number of establishments in the area that have obtained liquor licences. He opposes this licence based on:

• Increasing noise in the area relating to garbage pick up and patron activities; and
• Increasing concentration of businesses with liquor licences.

8He also expressed unease over an opening party event that occurred on the premises before a licence was obtained. He felt it was important to attend the hearing in order to express his continued concerns relating to any liquor licence application.

9He indicated that although he accepted the conditions agreed to, he felt that they were only a bare minimum of the terms required.

10He also stated that he did not support the Application. He requested that the Board, if it approved the licence, attach the conditions set out in Ex #1, as the “bare minimum”.

11In cross-examination, Mr. Kerr stated he was a member of the informal residents group in the Queen/Beaconsfield area, but was not representing the group at this hearing.

12He acknowledged that he was present today representing only himself and was pleased that the patio request had been withdrawn.

13On questioning, Mr. Kerr agreed that he had been invited to the restaurant to learn about the proposed business plans, but that he did not attend. He also acknowledged that the special event may have taken place under a Special Occasion Permit (“SOP”).

Applicant’s Evidence

14Eric Macedo, an Applicant, stated that he was 29 years old and was opening his own business as part of a family venture. He indicated that the business is presently closed because customers leave when they realize there is no alcohol being served. He had been trying to run the business himself, managing the front and back areas of the business.

15He has invested $100,000.00 into the business from money loaned to him by his family. He stated he is anxious to open a restaurant and felt it would only succeed with a liquor licence.

16He confirmed that he had an SOP for the grand opening of the business in 2008.

17He has met with Mr. Glouberman, a representative of the neighbourhood association and has agreed to certain conditions and the removal of the patio from the Application.

18On cross-examination he indicated that he would be having shorter hours of operation than originally planned. A year ago he had planned to provide food service until 4:00 a.m., but would not be doing so now as he wishes to spend more time with his family and newborn.

19In response to questions, Mr. Macedo stated that without a patio, late night noise would not be an issue. The tenant upstairs had no complaints about noise and was happy when they were open until 4:00 a.m.

20Mr. Ted Rallis, the landlord, stated he had no objection to the licence being granted, and understood that this was going to be a restaurant.

21On cross-examination he stated that Boom Shiva, the previous establishment at this location, closed down for lack of payment of rent. He did not have problems with this tenant in matters related to liquor service. There has always been a restaurant at this location and he would “not allow a patio”.

Resident Objector’s Submissions

22Mr. Kerr confirmed that he does not speak for the community at this hearing, stating he was aware that the ward councillor had submitted a letter supporting the Application and that the objections had been withdrawn with support for the proposed conditions.

23He referred to a petition that had been presented at another hearing, stating that those who had signed previoulsly objected to more liquor licences in the area. He also stated that he did not bring the petition today and said that “at least conditions are there” in the Application.

Applicant’s Submissions

24The Applicant’s representative reminded the Board that Mr. Kerr does not speak for the community. In fact the objections have been withdrawn, including that of the ward councillor.

25The community supports the Application and Mr. Kerr is the only objector. Further he stated that Mr. Kerr had not made a case to prevent the licence and asked that an order granting the liquor licence application be made as early as possible, given the difficult personal and financial burdens being experienced by his client.

Reasons and Analysis

26The issues were essentially resolved when the objectors withdrew their objections, with the agreement by all parties, but one, to include conditions, as stated in Exhibit #1.

27The only person remaining is Mr. Randall Kerr, who appeared to raise his concerns. He stated he does not support the Application, but if the Board approves it, he asked that the conditions be attached to the licence.

28Mr. Kerr expressed concern about the cumulative impact of bars and restaurants on the quality of life in the neighbourhood. However he did not provide any evidence directly related to the operation of Midpoint Bistro.

29The Board is mindful that in the case before us where the municipal zoning permits the use, the Alcohol and Gaming Commission of Ontario and this Board do not have the authority to restrict or deny a licence when the public interest concerns have been addressed.

Conclusion and Order

30For the above reasons, the Board APPROVES the application for a liquor licence made by Eric Macedo and Brad Randy Macedo operating or intending to operate as MIDPOINT BISTRO, 1180 Queen Street West, Toronto, Ontario, M6J 1J5, establishment number 20682, subject to all the statutory conditions and municipal regulations.

31Further, the Board ORDERS on consent that the following conditions be attached to the licence:

1. No patio or outdoor licence shall be applied for in the present application.
2. The Licensee shall at all times abide by the City of Toronto noise by-law, and in particular, in relation to sound emanating onto the street. Sound emanating from the establishment should not be audible on the south side of Queen Street West. The Licensee shall ensure that the exit and entrance doors will not be propped open, nor any windows kept open after 11:00 p.m. if music is being played inside.
3. The Licensee shall provide a 24 hour accessible phone number for residents and email address, such phone to have voice mail, and both the phone and email to be routinely monitored on a daily basis. The Licensee shall use its best efforts to return such messages promptly.
4. Between the hours of 11:00 p.m. and 7:00 a.m., there shall no be disposal of garbage at the rear of the establishment other than for organic material.
5. Between the hours of 11:00 p.m. and 7:00 a.m., there shall be no deliveries or unloading at the rear of the establishment.
6. The staff of the establishment shall make every effort to ensure that patrons and other people in the areas surrounding any entrance or exit of the establishment do not make excessive noise or engage in unruly behaviour, such as singing, shouting, or using offensive language, while the establishment is open. Sufficient staff to effect this shall be employed. The Licensee shall use these best efforts for at least one half-hour after the establishment closes, or one hour after the establishment stops serving alcohol, whichever is later.
7. A clearly visible sign shall be posted, at least 11” by 17” in dimension, near each exit of the establishment, as well as in direct sight of any queuing area or smoking area, requesting that patrons respect neighbours by keeping outdoor noise to a minimum.
8. The Licensee shall provide written notice to a designated representative of the residents of any future application to modify or remove these conditions, and shall engage in consultation with the neighbours in relation thereto.