Registrar, Alcohol and Gaming Commission of Ontario v. 1696267 Ontario Ltd., 2009 CanLII 47529

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: [Liquor Licence Act, R.S.O. 1990, c. L.19](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html), as amended

B E T W E E N:

Registrar, Alcohol and Gaming Commission of Ontario

Registrar

-and-

1696267 Ontario Ltd. operating as Karma

Applicant

-and-

Robert Hornick

Objector

DECISION

Panel:, Allan Higdon, Board Member Joan Lougheed, Board Member

Decision Date: June 8, 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 ) Richard Kulis, Representative 1696267 Ontario Ltd, Applicant ) Jerry Levitan, Representative Robert Hornick ) On his own behalf and on behalf of ) the resident objectors

The Application

[1]. The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 17186, dated April 21, 2009 to review an application for an additional outdoor area for 20 persons by 1696267 Ontario Ltd., (the “Applicant”), operating as KARMA, 258 Enfield Place, Unit 104, Mississauga, Ontario, L5B 3Y6, (the “premises” or the “establishment”), liquor licence number 809372. A hearing of the application was held on May 12, 2009 in the City of Toronto.

Decision

[2]. After considering all the evidence and submissions the Board APPROVES the application on the conditions set out below. Reasons for these findings follow.

Preliminary Matters

[3]. Richard Kulis appeared on behalf of the Registrar. He advised the Registrar took no position on the public interest aspects of the hearing.

[4]. A representative of the Objectors, Mr. Robert Hornick, requested party status on behalf of the Objectors. This was agreed to by the Licensee's Counsel.

Exhibits #1 to 6 were submitted on behalf of the Objectors by Mr. Hornick.

1. Exhibit #1: Two email letters of objection dated September 5, 2008 – one from the Karilya Drive Action Team and Supporters, the other from Robert Hornick.
2. Exhibit #2: Letters of objection from Jamie Hinton, manager of City of Mississauga Licensing and Enforcement, and local residents Theresa Wilson and Predrag Milutinovic. Attached were photocopies of the posted Liquor Licence Application for Karma.
3. Exhibit #3: Letter of objection from Kariya Drive Team and supporters, noise diary
4. Exhibit#4: Noise Petition for “The Enfield Fox”.
5. Exhibit#5: M.O.U. between residents and “The Enfield Fox”.
6. Exhibit #6: CD with video and sound of front of premises and street.

Objectors’ Evidence

[5]. Predrag Milutinovic lives on the eighth floor of the residential condominium building which contains the licensed establishment on the ground floor. He moved there six years ago.

[6]. The ground floor contains three establishments: Karma, The Fox and Fiddle (Enfield Fox), and Elbow Room (currently closed). The premises has patios on the sidewalk in front of the building.

[7]. The witness presented videos on a computer showing the front of the building and also presenting recorded noise emanating from the area. This material was entered as Exhibit #6.

[8]. The witness stated the major problem with the current premises is the throbbing of bass music that reverberates right through the concrete structure of the condominium building.

[9]. The witness stated that residents had attempted to undertake mediation with the owners of Karma but they had refused to participate.

[10]. The music in the club goes on until 2:00 – 2:30 a.m. When patrons leave there is yelling and shouting which goes on until 3:00 a.m.

[11]. The witness stated that conditions had been imposed on the Licensee by the City of Mississauga. The five conditions are outlined in Exhibit #2 in the email letter from Mr. Jamie Hinton, Manager, Compliance and Licensing Enforcement, City of Mississauga, dated April 7, 2009.

[12]. The witness stated if the conditions were enforced the residents would have no problems with the premises.

[13]. On cross-examination, the witness acknowledged Karma has been open for only one year.

[14]. The witness stated no letter of support was submitted by the local city councillor and no position was taken by the City in support of the residents.

[15]. The witness agreed he was the only resident of the building present at the hearing.

[16]. The witness stated there was no restriction on the type of business that could be operated on the ground floor. It is not owned by the condominium corporation operated by the building’s residential residents.

[17]. The witness stated the management company hired by the residents did not appear interested in doing anything to address the noise problem.

[18]. The witness acknowledged the bass noise is coming from the interior of existing businesses.

[19]. The witness agreed that no resolution had been presented from the Board of Directors of the residential condominium portion of the building in support of the Objectors. He stated he did not ask the Board to take a position on the issue.

[20]. Theresa Wilson is a local resident who lives directly across the street from the front doors of the establishment.

[21]. The witness stated she suffers from a major sleep disorder due to sleep disruption. She is sick all the time and cannot use her bedroom because of the noise.

[22]. The witness lives directly opposite Karma’s front doors and the noise is very intense. The noise is so bad she often gets up at night and walks around the neighbourhood to obtain details for a noise report to the city. People can be rude and rough late in the evening.

[23]. The witness spoke about initiatives taken by the community to address neighbourhood noise. She stated if Karma were a regular restaurant these noise problems would not exist.

[24]. There was no cross-examination.

[25]. In response to a question from the panel, the witness stated noise from the establishment usually resulted from approximately six patrons standing outside smoking between 2:00 and 3:00 a.m.

[26]. Charlie Scicluna stated he was asked by the City of Mississauga to participate in facilitating mediation with bar owners.

[27]. The witness said he tried repeatedly to get in touch with the owners of Karma but he was never able to reach them.

[28]. Robert Hornick lives directly across the street from the subject premises in the same unit as Theresa Wilson.

[29]. He testified that since 2006, the establishments in the building have started to play music louder using huge bass speakers.

[30]. He noted the establishment is really a nightclub in the evening and should never have been licensed.

[31]. He stated he has called police and by-law enforcement with noise complaints only to be told he was the only one complaining.

[32]. The witness stated the City does not charge business owners for noise problems. Competitive pressures force bar owners to crank up the music volume.

[33]. The witness said 20 patrons on a patio would create more noise. Currently, as people go in and out of the premises, the blast of music from the open door wakes you up. This would happen more often with doors to a licensed patio.

[34]. Karma did provide him with a cell phone for noise complaints but they turn music down only so much.

[35]. The witness stated the problem is enforcement.

[36]. There was no cross-examination.

[37]. On a question from the panel, the witness confirmed the area is zoned for licensed premises.

Applicant’s Evidence

[38]. Lucio Pirruccio is the owner of Karma. The premises was purchased in May 2007 and opened in early February 2008.

[39]. The establishment provides all the services of a full restaurant.

[40]. Music is provided by a DJ who plays top 40. There are no live bands.

[41]. The witness stated he was content with the five conditions imposed by the City on his establishment and the immediate neighbouring premises.

[42]. The witness stated his patio would not be viable without a liquor license.

[43]. The witness stated he had attempted to contact Mr. Hornick but spoke to his wife, gave her his cell number, and asked her to have Mr. Hornick contact him. He sent his email address but there was no response.

[44]. The witness stated he had never seen the Memorandum of Understanding (Exhibit #5) before. He has never agreed to any of its terms. It is an agreement between the next door establishment and neighbours.

[45]. On cross-examination the witness said he has tight restrictions on noise. He has security on the doors out to the patio. He would be happy to meet with any neighbourhood group if they were reasonable in their demands.

[46]. The witness stated there was noise when people came out of the bar. Sometimes they hoot, shout and yell. So far, Mr. Hornick is the only person who has complained to him.

[47]. The witness stated he has never been charged with any noise infractions by local police, by-law enforcement officers, or the AGCO.

[48]. In response to a question from the panel, the witness stated he had no problem with the five conditions imposed by the City of Mississauga being imposed on his license and that he would be willing to meet with residents.

[49]. The witness stated that upon purchase of the premises he had six or seven speakers removed. The DJ now uses only three speakers.

Objectors’ Submissions

[50]. Mr. Hornick stated people have no idea what happens at night when they buy a condominium. Noise problems appear which are not present during the day.

[51]. City by-laws specifically ban events that cause a nuisance yet it is impossible to get the rules enforced.

[52]. The proposed licensed patio will add marginally more noise. However, if competing premises bump up their music others will follow.

[53]. Police don’t like to get involved with noise disputes. However, the City is trying to cut back on licensed premises in the area.

[54]. The problem with these premises is that it is a restaurant by day but turns into a nightclub in the evening.

[55]. Residents are working hard to get this area back under control. If a license is granted for this patio it will simply invite more people into the area to its detriment.

Applicant’s Submissions

[56]. The evidence presented in opposition to this application is not compelling.

[57]. One of the objectors, Predrag Milutinovic, stated that if a license is granted it would not affect him.

[58]. Much of the evidence presented, such as the petition (Exhibit #4), has nothing to do with the subject premises.

[59]. The bulk of the evidence against the Licensee comes from two people who live in a unit across the street.

[60]. The City of Mississauga took no position in support of the Objectors. The local city councillor took no position. Even the condominium Board of the residents living directly above the subject premises took no position.

[61]. In fact, not one person from the building sent a letter of objection or showed up at the hearing.

[62]. The Licensee is happy to have the five conditions imposed by the City of Mississauga placed as conditions on the license.

[63]. The Licensee has a perfect record with the police department, by-law enforcement, and the AGCO.

[64]. Not one piece of evidence was submitted alleging drunkenness, vandalism or rowdiness.

[65]. The complaints submitted were of a general nature. They were not specific to the operation of the Licensee. The petition of complaint (Exhibit #4) does not refer to the subject premises but to another business entirely.

[66]. The Objectors have not made an adequate case to deny the Licensee this application for a patio license for 20 people. The application should be granted.

Reply Submission

[67]. Mr. Hornick stated it is inappropriate to allow liquor to be sold in the street until 2:00 a.m.

[68]. The comments of Mr. Predrag Milutinovic were misrepresented. He stated he had no problem with normal conversation outside the premises. However, adding liquor to the scene would result in problems.

Reasons and Analysis

[69]. The Licensee has applied for a patio license for 20 people in front of his current premises.

[70]. The Board heard evidence from local residents who are concerned about general conditions in the neighbourhood.

[71]. Most of the evidence heard was not specific to the subject premises.

[72]. The objections were made by a very limited number of people.

[73]. As noted by Licensee’s counsel, there is no letter of support for the Objectors submitted by the residential condominium Board of the building in which the premises is located. There is no letter of support from the management firm employed by the condominium corporation. There is no letter of support for the Objectors from the City of Mississauga or local municipal councillor.

[74]. No evidence was presented of any infractions by the Licensee. In fact, the Licensee has a clean record with police, the City of Mississauga, and the AGCO.

[75]. The letter received from Mr. Jamie Hinton, Manager, Compliance and Licensing Enforcement, City of Mississauga, dated April 7, 2009 was instructive.

[76]. The letter describes noise complaints for the time frame of February – June 2008 for which no evidence was provided and therefore no action taken.

[77]. An inspection carried out on November 7, 2008 in the early morning hours found no violation.

[78]. An enforcement officer also visited the premises across the street from Karma and “did not hear any noise from the restaurant while inside the condo building.”

[79]. A further inspection on March 17, 2009 resulted in a charge laid against another establishment.

[80]. Mr. Hinton does conclude that the granting of a license will aggravate the existing problem.

[81]. The Board has noted the five conditions imposed by the City on the establishment. The Board is confident that these conditions address the noise issues raised by residents.

[82]. The Board is aware of comments made at the hearing that enforcement of these conditions has been problematic.

[83]. The Licensee stated he has no problem with these conditions being added to his license. This provides an important additional incentive for compliance as the breaking of these conditions could result in the loss of his liquor license.

Decision

[84]. Based on the evidence above, the Board FINDS for the Licensee and grants a liquor license for an additional outdoor area for 20 people with the following conditions, subject to all necessary municipal approvals.

[85]. As agreed by the Licensee the following conditions shall be attached to the licence:

1. Doors leading to the exterior of the building shall remain closed and will not be propped open during operation hours;
2. No music shall be played on any patio or outside of the restaurant establishment. All speakers must remain inside the licensed establishment;
3. The owner and all staff shall ensure that the volume of music played inside is at such a level that it cannot be heard outside from any adjacent street;
4. The owner shall erect and maintain signs visible at all public entrances and exits advising patrons to respect the business neighbours’ peace and quiet;
5. Sufficient staff shall be employed to ensure that patrons outside of the business on the patio or waiting in line to enter the business are not boisterous or loud. Patrons not in compliance shall be removed.

DATED AT TORONTO, THIS 8^th day of June, 2009.

ALLAN HIGDON, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER