Registrar, Alcohol and Gaming Commission of Ontario v. 1317596 Ontario Limited, 2009 CanLII 69682

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-

1317596 Ontario Limited operating as or intending to operate as Border Club 2000 (formerly known as Woody’s Beach Bar) Applicant

-and-

Corporation of the City of Sarnia Intervener

DECISION

Panel: David C. Gavsie, Chair, AGCO Alex McCauley, Board Member

Decision Date: September 30, 2009

Hearing Location: Sarnia, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario 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 ) Joyce Taylor, Representative 1317598 Ontario Limited, Applicant ) Ed Greshem, Representative Corporation of the City of Sarnia, Intervener ) Scott McEachran, Representative

Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 17274 dated May 27, 2009 to review an application for a liquor sales licence made by 1317598 Ontario Limited (the “Applicant”), operating as or intending to operate as BORDER CLUB 2000 (formerly known as Woody’s Beach Bar), 494 Christina Street North, Sarnia, Ontario, N7T 5W4, (the “premises” or the “establishment”), establishment number 100062, on the basis that the AGCO has received one or more written objections to the application. A hearing of the application was held on September 15, 2009 in the City of Sarnia.

Decision

2After considering all the evidence and submissions, the Board DENIES the application for a liquor sales licence. Reasons for these findings follow.

Particulars

3The applicant wishes to obtain a sales licence for the premises described. It would have an inside occupancy capacity of 162 and outside capacity of 86 persons.

4There were several objectors to the granting of the licence and the City of Sarnia, at its May 11, 2009 Council meeting, passed a resolution opposing the granting of the liquor licence to the Applicant.

Preliminary Matters

5Joyce Taylor appeared on behalf of the Registrar. She advised the Registrar is taking no position on the public interest aspects of the hearing.

6Party standing at the hearing was granted to the Corporation of the City of Sarnia through its Assistant City Solicitor, Mr. Scott McEachran.

7Mr. McEachran agreed to assist the objectors who were in attendance and who wished to give evidence.

8The Corporation of the City of Sarnia’s letter and resolution was entered as Exhibit # 1. Exhibit # 2 consisted of the objector letters and other documentation.

Objectors’ Evidence

City of Sarnia

9Dave McMahan, a Sergeant (“Sgt.”) with the Sarnia Police Service, is in charge of the police service’s Morality Squad. Their duties include liquor offences and dealing with premises licensed under the Liquor Licence Act (the “LLA”).

10The witness is very familiar with the Applicant’s premises. He is familiar with this premises when it was previously licensed and most recently when it was known as Woody’s. He stated the premises is a very problematic location. It is an active bar that attracts a young boisterous crowd, many of whom come from the U.S.A. because our age of majority is 19 as opposed to their’s which is 21 years of age.

11The witness stated that the proposed bar abuts a residential area on Dundas and Christina Streets. This street has many family dwellings, an apartment block and is the proposed site for a new hospice just being completed. He introduced a map of the area, which was entered as Exhibit # 3.

12The witness further introduced an occurrence list which highlighted police complaints in the area as a result of the previous licensed premises at the proposed location; this became Exhibit # 4. There were a total of 312 calls to the area; 98 regarding noise. This covers the years from 2000 to 2006.

13The witness stated that the police have responded to a variety of complaints from local residents and others. There is still an outstanding homicide investigation, where after a fight a patron was stabbed to death.

14The witness stated there are two other licensed establishments close to the Applicant’s premises. One is a pool hall, the other a restaurant. Neither of these establishments have been problematic for the police.

15The witness stated that often police resources had to be expended at the end of the night in order to control traffic in the area after the bar closed.

16The Applicant has owned this site for several years. It was leased to another person when it was operated as Woody’s.

17In cross-examination, the witness stated the premises have previously operated under many names: Zingers, Zappers and Woody’s.

18The Applicant runs another licensed establishment. In cross-examination the witness was asked if the Applicant runs that establishment well. The witness stated it was run fairly well. He went on to state that the Applicant had run Border Club (at the proposed location) and there were problems there.

Objectors

19Ms Debra Thomson has been a resident on Dundas Street for 28 years. Her residence is directly across the street from the proposed location which was formerly known as Woody’s.

20Over the past 24 years when the location proposed was an operating licensed bar she described living where she does as being intolerable. They have endured loud noise, obnoxious behaviour from patrons screaming and yelling when leaving, patrons fighting, destroying her property, trespassing and urinating on her property and parking in her driveway.

21She fears for her safety. She is concerned about the lack of security, a factor, in her view, which may have contributed to the homicide in 2001.

22She stated that all other businesses in the area are compatible with the neighbourhood and cause no problems.

23A letter from Ms. Rosemarie Dunn, a resident on Napier Street, was entered and became Exhibit # 5.

24In redirect, the witness stated there are no problems with the other licensed establishments in the area.

25Ms Marion Round is a resident on Napier Street in Sarnia. She resides one street over from the proposed establishment. She corroborated Ms Thomson’s evidence in its entirety regarding the problems at the proposed location when it was licensed.

26Ms Round is also the chairperson of the local Neighbourhood Watch and is very concerned about the effect a liquor licence at the proposed location will have on the peace and security of the neighbourhood.

27She stated that she had spoken with the Applicant and suggested he abandon the idea of a bar and open a restaurant.

28Ms Round stated that the neighbourhood is improving since Woody’s is no longer licensed and she fears that improvement will evaporate if the Applicant is granted a liquor licence.

29Ms Liette Schafer is the office manager of a 45 unit apartment building known as Christina Terrace. The building is owned by her father. The building is located on Christina Street North. Ms Schafer filed a letter of objection dated October 21, 2008 which was entered as Exhibit # 2. and at that time included a petition from the residents objecting to the licensing of the proposed location. The apartment building is across the street from the proposed location.

30In her evidence Ms. Schafer stated that residents continually complained of being disturbed by the noise from the proposed location when it was licensed. She described instances of unruly intoxicated patrons coming from the bar to her premises and buzzing residents and waking them. She stated that she has lost tenants because of the bar and if they are granted a liquor licence again she will lose seven more tenants. She stated that the proposed location, if licensed, negatively affects her business, and is a detriment to business development in the area.

31Mr. Robert Murray is on the Board of Directors for St. Joseph’s Hospice and is vice-chair of the fund raising campaign. The hospice is near completion and intends to take in its first residents in November of this year. The hospice is located on Christina Street North, in close proximity to, and across the street from, the Applicant’s proposed location.

32The hospice deals with terminally ill persons and their families in the final days of the person’s life. A peaceful and relaxing atmosphere is deemed to be essential. There is real concern about the proposed location being licensed as a bar, considering the previous history of that location.

33The location of the hospice was gifted. The location is ideal in that it is accessible for patients and family. There were other sites considered but they did not offer the accessibility that is deemed essential in these situations.

Applicant’s Evidence

34Mr. Peter Athanasopoulos and his brother Aris Athanasopoulos, are the principals of the corporation applying for the licence.

35The witness stated he has owned the property since 1986. He managed a bar at that location at different times, the first being Rodeo Saloon. The club was then managed by other people and he and his brother later managed the club known as The Border Club. A fire in 2000 at the club caused its closure and he reopened in 2002 until 2004 when he again leased the premises to Mohinder Deol who operated the club as Woody’s.

36The Applicant has held a liquor licence since 1978 and has had no infractions.

37In the lease signed with Mr. Deol, page 6, paragraph 5 of the document outlined what was believed to be a safeguard against problematic behaviour from the licensed premises as it affected the neighbourhood.

38He stated that when he had problems previously with the club known as The Border, he had met with neighbours and ensured his phone number was available to anyone who wanted to call.

39He stated that he would put security outside in the parking lot. He would restrict the amount of alcohol served to patrons to avoid anti-social behaviour.

40He stated that a lot of the neighbourhood problems emanate from the skate park at the end of the street. Young people congregate there and cause trouble.

41In answer to questions from the Board, the witness stated he has not undertaken any noise tests to attempt to mitigate the effects of noise on the neighbours. He has not conducted any security evaluation to see what security may be required.

Objectors’ Submissions

42Mr. McEachran submitted that this licence is not in the public interest. There has been a litany of complaints from the residents whenever the proposed premise has been licensed. It is unsafe for residents as well as extremely disruptive.

43The neighbours have been negatively affected in the past by noise and disruptive behaviour from patrons and that is not likely to change.

44The City of Sarnia is asking that the liquor licence for the proposed location be refused.

Applicant’s Submissions

45Mr. Gresham stated that the Applicant is sensitive to the issue of noise. The residents’ complaints are primarily about Woody’s. It no longer exists.

46The Applicant is sensitive to the mix of residents in the area.

47The apartment building Ms Schafer gave evidence about was constructed at the time the bar was in operation.

48The Hospice Board knew there was a bar in the area of the proposed hospice. There are other commercial properties dispersed in the residential area of Dundas Street. The applicant has a very good record with the liquor licensing agency.

49Mr. Gresham submitted a Book of Authorities. Four cases were cited:

1. Casa Nova Bar & Dance (2008) AGCO # 15807
2. Serbian Orthodox Centre “Holy Trinity” (2007) AGCO June 4, 2007.
3. Cue’s Whole 9 Yards (2007) AGCO November 9, 2006
4. 2034233 Ontario Inc. operating as Inter Steer Restaurant (2009) AGCO

Decision

50The Board has carefully reviewed the evidence heard and has reviewed the letters and petitions which were received and became exhibits at the hearing.

51The Board further considered the resolution of the City of Sarnia in light of subsection 7.1(1) of Ontario Regulation 719/90 made pursuant to the LLA. Keeping in mind that in the absence of evidence to the contrary this serves as proof of the needs and wishes of the residents for the purposes of clause 6(2)(h) of the LLA.

52The Board heard from the City of Sarnia’s witness, Sgt. Dave McMahan. His evidence chronicled events at the proposed location of the application. These events for the most part were noise complaints but there were also very serious criminal events. There were complaints throughout the history of this location when it was licensed. There was no mitigating evidence toward the proposed establishment by Sgt. McMahan who was obviously very experienced with this establishment location. It was clear from his evidence and experience with the location that he did not feel licensing this particular bar at the proposed location was in the public interest.

53The petitions included in Exhibit #2, for the most part had signature addresses from the affected neighbourhood. The letters, including Exhibit # 5, Ms Dunn’s letter, paint a bleak picture of life for area residents when the proposed location was operating as a licensed bar. There were no mitigating points to the objector’s letters, no suggestions that there were appropriate conditions that could be placed on the liquor licence if one were granted.

54The Applicant himself gave evidence, but what was absent from that evidence was any real plan to address the issues raised by the City of Sarnia and the area residents. No clear plan for security was forthcoming. There had been no testing around the issue of noise and noise abatement. It is the view of the Board that there were no meaningful meetings between the Applicant, the residents, the City of Sarnia, or the Sarnia Police Service. The Applicant never suggested any conditions for the licence that would mitigate the negative aspects of the operation at this location. There was no tangible indication that if licensed they then would not revert to its previous form.

55It was noted that there was no indication of support for the proposed licence through either written or oral evidence at the hearing.

56The Applicant appears to have a commendable history as a Licensee but that history has primarily evolved from other locations, where there is not necessarily the close proximity to residential neighbourhoods. However the Board notes Sgt. McMahan’s testimony that although the Applicant did not have problems at his other licensed establishment, he did have problems previously while running the Border Club in its current proposed location.

57The Applicant’s Representative pointed out that the apartment building came after the proposed location served as a bar and that the planners of the hospice knew that the proposed location previously was a bar.

58In the view of the Board, the existence of a bar should not preclude others from existing lawfully in the neighbourhood. In order to develop, neighbourhoods often go through change and growth. The hospice in the location on Christina Street appears to be a well thought out and necessary move. The Applicant’s Representative agreed that the hospice was badly needed, but perhaps another location should have been considered. It almost sounded like the argument, “Yes, but not in my back yard.”

59A licensed premise cannot dominate the neighbourhood to the exclusion of others. There must be a balance and a harmony between the needs of the residents and the licensed commercial entity. Development of a neighbourhood cannot be jeopardized by the existence of a licensed premises.

60The authorities presented by the Applicant’s Representative, Mr. Gresham, were reviewed. The licences were granted in many cases with strict conditions, conditions that were agreed to and conditions which in some cases called for early closing and cessation of music.

61The Board FINDS that there has not been sufficient planning by the Applicant in order to open a licensed bar at the proposed location. The Applicant has been aware of the concerns of the residents for a long period of time. In the lease to Mr. Deol (Exhibit #7) he included a clause in the lease agreement regarding dealing with the concerns of the neighbourhood. Obviously he was aware at that time that there were significant concerns from the neighbourhood. It is of note that the clause in and of itself did not deter the unruly actions of the patrons or the excessive noise. More was clearly needed.

62There have been no suggested conditions by the Applicant to mitigate against noise or unruly behaviour or traffic control. The Board is of the view that if, on a balance of probabilities, a licence is granted to the Applicant at this location, it will cause significant disruption to the peace and lawful activities of the residents considering all the developments in the neighbourhood including the new hospice. In the view of the Board there has been a lack of effort on the part of the Applicant to exist in harmony with the neighbourhood.

Order

63Therefore, the Board DENIES the application by 1317598 Ontario Limited for a liquor sales licence at BORDER CLUB 2000 (formerly known as Woody’s Beach Bar), 494 Christina Street North, Sarnia, Ontario, N7T 5W4, as it is not in the public interest pursuant to clause 6(2)(h) of the LLA.

DATED AT TORONTO, THIS 30th day of September, 2009.