Registrar, Alcohol and Gaming Commission of Ontario v. Michelle’s Brasserie Inc., 2009 CanLII 70926

IN THE MATTER OF The: ALCOHOL AND GAMING REGULATION AND PUBLIC PROTECTION ACT S.O. 1996, C.26, S.14.1, SCH

Registrar, Alcohol and Gaming Commission of Ontario Registrar

-and-

Michelle’s Brasserie Inc. O/A Michelle’s Brasserie Licensee

DECISION

Panel: Patricia McQuaid, Vice-Chair, AGCO Joan Lougheed, Board Member

Decision Date: October 22, 2009

Hearing Location: Toronto, 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 ) Richard Kulis, Representative Michelle’s Brasserie Inc., Licensee ) John Park, Representative

Allegations

A hearing into the appeal of Order of Monetary Penalty (“OMP”) number 146 dated June 17, 2009, issued to Michelle’s Brasserie Inc., (the “Licensee”), operating as MICHELLE’S BRASSERIE, 162 Cumberland Street, Toronto, Ontario, M5R 3N5 (the “establishment” or the “premises”), liquor licence number 25063 (the “Licence”), pursuant to section 14.1 of the Alcohol and Gaming Regulation and Public Protection Act, 1996, in respect of alleged violations of section 46 of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (the “LLA”), was held on September 21, 2009 in the City of Toronto.

Decision

After considering all the evidence and submissions, the Board DISMISSES the alleged violations contained in OMP and SETS ASIDE the monetary penalties sought by the Registrar. Reasons follow.

Preliminary Matters

The Chair of the panel reviewed the role of the Board in this matter, stating that the penalty can only be confirmed or set aside. The Chair noted that the monetary penalty amount cannot be modified by the panel.

Registrar’s Evidence

Fransi Weinstein, lives in a residential condominium unit at 164 Cumberland Street. Her unit is on the fifth floor, facing a walkway and adjacent to a mixed-use condominium complex.
The entrance to her building is in the middle of the walkway, which runs between Cumberland Street and Yorkville Avenue, opposite Michelle’s Brasserie. All the windows of her unit face the front, overlooking the walkway. She stated that the condominium is a seven story building with residential units from floors four through seven. The first three floors are businesses in the mixed use complex.
Ms Weinstein has been an owner for four years and stated that noise has been an issue for her during this time, especially since she works from home.
On Thursday, February 19,2009 (the February 18^th^ date was incorrectly cited in the OMP), she came home at 12:45 p.m. and when inside her apartment, she could distinctly hear the lyrics of music playing on loudspeakers located on the exterior of Michelle’s Brasserie.
At 3:00 p.m., the witness sent an e-mail to Alcohol and Gaming Commission of Ontario Inspector Jade Leadbetter, filing a complaint about the ongoing noise. She stated that the municipal by-law does not allow loud music at any time, but this is not enforced during the day. The music volume had become unbearable. The inspector told her that she would contact the business. At 3:31 p.m., the witness stated that the music was turned down and she contacted the inspector to extend her thanks.
Ms Weinstein stated that her dispute with the business is that they play the music too loud and it is often on when it should not be.
A prior incident occurred on November 7, 2008. It was pouring rain, the restaurant was quiet, with few patrons present at the time. The witness heard a guitarist and wondering who would be playing in the pouring rain, she got dressed and went down to verify where the music was coming from.
She saw a guitarist sitting on the terrace, under an overhang, playing a guitar. She went inside to ask them to stop the music. Ms Weinstein stated that the log book of the doorman for her building would confirm her concern and complaint, at approximately 8:53 p.m. that evening.
A year ago, in June 2008, a meeting was held with the Condominium Board of Directors and the retail property manager. At that meeting, the witness recalled that it was agreed that the music could be played inside the premises and that the Licensee had agreed to disconnect the outdoor speakers. But the music was back three or four weeks later, as illustrated in Exhibit #5. It has been ongoing with no resolution.
The witness stated that the problems have been well documented in the minutes of the Condominium general meetings. She noted that many residents do not live at the condominium full-time otherwise others would be present to share concerns.
She stated that she is entitled to do her business at home and to live in peace.
On cross-examination, the witness stated that she was surprised to learn that D.A., an employee in the retail property management business, stated that there have been no complaints. She stated that he had attended a joint meeting that was held in June of 2008 when ongoing issues were discussed.
Although she referenced documentation of problems recorded in the Condominium Annual General Meeting (“AGM”) minutes, Ms Weinstein, in response to questions, stated that she did not bring copies of the AGM records. She said that these two incidents were not specifically referenced in minutes of the meeting. She stated that these are not isolated incidents, but part of an ongoing problem.
The witness confirmed that the noise was heard on February 19, 2008. She said that although Exhibit #7, an Environment Canada report, indicates the temperature was -11 degrees with a wind chill of -17 and snow, the Licensee keeps the speakers loud to attract people off Yorkville Avenue.
When asked if she knew if the speakers were working, she replied that with the level of noise, there had to have been speakers, “it was an Elvis Extravaganza”. She stated that the Licensee plays all kinds of music, “as varied as her menu”.
In response to questions about another source of noise, the witness stated that she always goes downstairs to verify the source of the noise. She stated that she only heard noise coming once from another establishment.
Ms Weinstein responded to questions stating that on February 19^th^ she heard the music when she passed by on the walkway, in her building and when she was outside to follow up and check the source. She confirmed that the music was from Michelle’s Brasserie, from an outside speaker and that she believed the speakers to be working.
When asked if she was the only complainant, the witness stated that the complex has only 32 units and most of the owners were either away for the winter or had given up. She was not giving up.
When shown Exhibit #10, letters signed by patrons and staff stating there was no music playing at 3:35 p.m., she stated that it had stopped at 3:31 p.m. after her call to the inspector.
In response to questions from the panel, she stated that the noise should not be heard after 11:00 p.m. and she has complained to her local councillor and to the police. She is a member of the Board of Directors for her condominium.
She stated, “I am not out to get anybody,” and the doorman also always goes out to check, too. There would be documentation in his record book.

Licensee’s Evidence

Michelle Gebhart, the principal of the Licensee, stated that she has been at this location since spring 2002. She has held a liquor licence at another location for 15 years. She worked to correct issues with noise in the first few years, and of the eight condos facing her business, she has five letters of support. She stated that she is not as concerned about the monetary penalty as having a record on her liquor licence. A call to the police indicated that they have no record of any infractions.
Music was an issue in the first couple of years. The meeting referenced by Ms Weinstein was held to address the issues raised by her. Attendees included the Condominium President, the Property Manager, and the Landlord and D.A. Wanting to be a good neighbour, the witness said she cancelled live entertainment.
On November 7, 2008 the patio was closed. No one was in the restaurant and one couple were outside smoking. She was working with one server and one kitchen staff. She received a phone call about a guitarist playing outside. After the call, he was told to leave and he did so. She did not hire the guitarist to play that day, although he had worked for them in the past. The patio was closed, with the furniture and planters put away. It was simply an open area. The condominium president was contacted and confirmed that he had not received further complaints.
Referring to February 19, 2009, the witness stated that on this date the patio speakers were not working because the speaker wires had been pulled out and were not fixed until spring. “Elvis” music is not played. A patron was smoking a cigar on the patio when Ms Weinstein approached him with a complaint. Within the hour she received a formal complaint.
When asked about the time of letters signed by staff and patrons in Exhibit # 9 and # 10, she stated that when a waitress called her about the complaint, she asked the waitress to get letters and to note the time. The waitress went around at 3:35 p.m.
Shawn Hogan, a bartender at Michelle’s Brasserie for the past three years, stated he has put together music on an I-pod which is played at the restaurant. It includes classical and jazz music. He said there was “definitely no Elvis”.
On November 7, 2008, he was working inside. He did not hear anything and did not go outside until a complaint was received. He heard there was a concern about a guitarist, but when he went outside, no one was there.
He stated that the speakers were not working on February 19, 2009.
On cross-examination, he stated that the speakers had not been working for a couple of months.
Fawad Haqqi, a commercial banker from Mississauga, drives on occasion to the establishment to enjoy a beverage with friends. He has been a casual patron for several years, usually attending on Thursdays and weekends for cocktails and dinner. Routinely he enjoys a cigar outside before moving inside the premises.
He was present in the evening of both November 7, 2008 and February 19, 2009. The patio was cleared for the winter on both dates.
When asked, he described the restaurant as French with a casual, quiet atmosphere. He was aware of other restaurants in the area and stated that there is a lot of echo movement because of the high-rise construction and the acoustics in the area. Music can be heard from other locations. He was aware of complaints and only knows Ms Weinstein by sight.
On cross-examination, he stated that November 7, 2008 was a rainy night and he was only outdoors a short time to smoke a cigar. On February 19^th^ he would have arrived around 6:00 p.m., after work.
Kamran Ayagah has a currency exchange business at 162 Cumberland Street. The back door of his business opens to the same courtyard area. He frequently attends the restaurant and often recommends it to other people, as a quiet, peaceful place.
The witness stated that on February 19^th^, he arrived for a late lunch and was outside smoking a cigar. It was extremely cold. He did not hear any music when outside. He was approached by a lady, saying he should be ashamed, polluting air in the neighbourhood. He told her to mind her own business. The exchange lasted about five minutes. He confirmed that Ms Weinstein was the person who spoke to him.
Joe Rodrigues has worked at Michelle’s Brasserie for seven or eight years. He is the cook and helped with renovations. He stated that there were four or five speakers in total: two under the main entrance by the windows, two in the lounge and one under the canopy outside. Patio season is usually from April until the end of September, depending on when it gets chilly.
In late October 2008, he took down the patio furnishings and when doing so dropped the speakers, shorting the whole system. The speakers were replaced April 2009; they were not working on February 19^th^.
The witness stated that he has seen Ms Weinstein a couple of times before.
On cross-examination, Mr. Rodrigues stated he was the person who asked the guitarist to leave. The doors to the establishment were closed and he had not personally heard him playing. There were no speakers working at this time and the man was outside playing an acoustic guitar.

Registrar’s Submissions

Mr. Kulis noted that the Board would have to make a determination on a balance of probabilities, and based on the credibility of witnesses, whether Ms Weinstein heard music and if it was sufficient to create a breach of section 46 of the O.Reg.
The Board must make that decision based on the assessment as to whether the noise would disturb a reasonable person, and consider whether the testimony of one complainant is verified in the context of all the evidence.
Ms Weinstein was firm and forthright in her evidence, giving clear and detailed answers to questions about the incidents.
The Licensee’s evidence was also strong. Evidence must be considered as to whether the reverberation of noise may have caused some confusion and whether there may be therefore be some question as to the source of the music.

Licensee’s Submissions

Mr. Park stated that when interpreting section 46, the Board must take into account what is a reasonable complaint. Ms Weinstein may have heard some noise and been disturbed, but the issue is reasonableness.
On November 7^th^, there was a busker on the patio and the evidence indicates it was someone who went and played without permission. This cannot be made a fault of the Licensee.
In considering direct and indirect noise, one cannot say it came from this premises if the source of the music was not sanctioned by the business. If someone is trespassing and making noise, the Licensee cannot control it if they do not know about it.
Many witnesses have said it was impossible for speakers to have been working on February 19^th^. It may have been a mistake to have attributed it to Michelle’s Brasserie and the sound may have come from nearby restaurants.

Analysis/Reasons/Findings

The Board has thoroughly reviewed all the evidence and submissions in the context of the elements of section 46 of the O.Reg. Was there noise arising directly or indirectly from the premises, was it permitted by the Licensee, and can it be said to have disturbed persons who reside nearby, measured against, as Mr. Kulis stated, a standard of reasonableness.
Noise and disturbances arising from any business impacting neighbours is a serious occurrence, especially in a mixed commercial / residential area. In making a determination the Board considered the facts and gave careful deliberation to evidence relating to both the direct and indirect impact of noise arising from entertainment on the premises which could disturb persons residing nearby.
The Board acknowledges that Ms Weinstein was clear and concise in giving evidence and the Board does not doubt that she has been disturbed by noise in the area. The question is whether the noise emanated from Michelle’s Brasserie.
In relation to the November 7, 2008 event, the Board notes that the Licensee’s evidence was consistent in establishing that the patio was closed, the speakers were not working and it was raining. It was a quiet night at the restaurant. The Board accepts that staff on the premises of Michelle’s Brassiere did not hear or notice a person playing acoustic guitar on their patio. There was clear and undisputed evidence that the musician was not hired to play by this establishment. When a call was received about noise, the staff responded immediately, checking out the source and asking the busker to leave. Given these facts, the Board cannot conclude that the Licensee “permitted” noise.
In relation to the allegations of February 19, 2009, the cumulative evidence does not support the statements that the noise Ms Weinstein heard, emanated from Michelle’s Brasserie.
Witnesses consistently testified that the patio was closed, with the furniture stored for the winter. The speakers had been damaged and were not working. An Environment Canada report indicated that the weather conditions were -17 in degrees with the wind chill and snow, not weather conditions conducive to lingering passerby traffic.
Witnesses also presented details of other businesses in the area that provide entertainment, suggesting that there may have been noise generated from other sites, that could have been amplified or could echo through the neighbourhood .
The Board notes that other Condominium Board of Directors did not attend. The Condominium Board of Directors also did not send a letter of concern with Ms Weinstein, who is a member of the Board. As well, there were no letters of concern submitted by any other neighbours living in the area.
The Board does acknowledge the concerns and distress of Ms Weinstein and the impact that direct and indirect noise can have on a person. The Board commends those efforts made in August 2008 and prior to bring neighbours together to work through any issues. It may be important for her to work on an ongoing basis with her Condominium Board of Directors, pursuing enforcement of the city noise by-law and perhaps considering utilizing a neighbourhood association to work with residents and businesses in this mixed-use centre.
In considering the totality of evidence and on a balance of probabilities, the Board cannot conclude that the Licensee “permitted noise” to disturb nearby residents as alleged. Accordingly, the Board DISMISSES the allegation of a violation of section 46 of the O.Reg.

Conclusion

For the reasons given, the Board DISMISSES the alleged violations contained in OMP number 146 issued to Michelle’s Brasserie Inc., operating as MICHELLE’S BRASSERIE, 162 Cumberland Street, Toronto, Ontario, M5R 3N5, liquor licence number 25063, and SETS ASIDE the monetary penalties sought by the Registrar in the amount of $2,400.

DATED AT TORONTO THIS 22^nd^ DAY OF October , 2009

PATRICIA MCQUAID, VICE-CHAIR JOAN LOUGHEED, BOARD MEMBER