Registrar, Alcohol and Gaming Commission of Ontario v. Jean-Pierre + Co ICI Inc, 2009 CanLII 70933

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-

Jean-Pierre + Co ICI Inc o/a ICI

Applicant

-and-

City of Toronto

Objector

DECISION

Panel: Bruce S. Miller, Board Member S. Grace Kerr, Board Member

Decision Date: , 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

Jean-Pierre + Co ICI Inc ) J.P. Challet, Jennifer Decorte and ) Peter Ka-Chung Tsang, on their own ) behalf and on behalf of the Corporate ) Applicant

City of Toronto ) Mark Crawford, Representative

The Application

1. The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Amended Notice of Proposal number 17512, dated August 26, 2009, which amended Notice of Proposal number 17450 dated August 14, 2009, to review an application for a licence for 30 persons by Jean-Pierre + Co ICI Inc, (the “Applicant”), operating as ICI, 538 Manning Ave., Toronto, Ontario, M6G 2V9, (the “premises” or the “establishment”), liquor licence number 802095. A hearing of the application was held on September 30, 2009 in the City of Toronto.

Decision

2. After considering all the evidence and submissions the Board APPROVES the application for a licence for 30 persons, subject to conditions. 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. J.P. Challet, Jennifer Decorte and Peter Ka-Chung Tsang are the directors, officers and shareholders of the Applicant corporation. They appeared on their own behalf and on behalf of the Corporation and waived the right to be represented by a licensed representative.

5. The City of Toronto was added as a party objector by previous Order of the Board, dated September 22, 2009. Mr. Crawford advised the Board that although the City is opposed to the Application, it would not be calling any witnesses at the hearing.

6. A number of residents asked for and were permitted to present evidence on their own behalf in objection to the application.

Individual Objectors’ Evidence

7. Sonia D’Agostino works for Deputy Mayor Joe Pantalone, who was unable to appear at the hearing as he was attending a Toronto City Council meeting. She read into the record a letter (Exhibit 5) that Mr. Pantalone had prepared which set out his objections to the application. A copy of that letter is attached to this decision as Schedule “A”.

8. Teresa Gallippi testified next. For the past 37 years, she has lived in a house that is located about 30 feet away from the establishment’s location; she has lived in the neighbourhood for about 50 years. Mrs. Gallippi is upset that this is the fourth time an establishment is seeking a licence for the location in question when she had felt assured that it would not come up again. She testified that nothing has changed from the other applications: the neighbourhood has not changed, the same five or six schools are in the area, and the area’s problems are the same, if not more.

9. Mrs. Gallippi is particularly concerned about the school that is about 20 feet away from the establishment. She was told that the establishment would be a great place for staff from the Harbord Collegiate to have a meal and a glass of wine and wondered what kind of people are teaching the children if they cannot get through the day without a drink. Mrs. Gallippi also questioned and was concerned about the implications of whether the Applicant was planning on opening the second floor, how responsible the Applicant is, and how long it intended to stay. What people say and do are two different things, in her opinion.

10. Finally, Mrs. Gallippi was concerned that if this application was allowed, that it would not be possible to deny other applications for different locations. She stated that this was not the kind of neighbourhood she bought her house in or wants it to become. She feels that those residents who support the application live far enough away that no matter what happens, they will not be affected. Mrs. Gallippi believes that the children, elderly and very sick people who live in the area, close to the establishment, who are also taxpayers, have the right to live in peace.

11. Irene Mindrinos-Opel also testified. She purchased her property, which is directly attached to the premises, about one year ago. While she does not reside there presently, she plans on moving in within the next year. She has small children and her day starts at 5:00 a.m. Her biggest concern is noise. To her, noise is already a problem because when she had some electrical work done to her property after taking possession of it, she could hear people talking while they were renovating next door. She believes that alcohol consumption will only increase noise levels.

12. To Ms Mindrinos-Opel, another big issue is the precedent that she believes will be set for other businesses on other corners in the neighbourhood if a licence were to be granted to the Applicant. She stated that Manning Avenue is a residential street even though her duplex is zoned ‘commercial’.

13. Ms Mindrinos-Opel is also concerned about how many people will be standing outside of the establishment smoking. When she and her children are sitting out on her porch, she and her children will be exposed to second hand smoke.

14. Exhibit 7 is a photo that shows the front of Ms Mindrinos-Opel’s property and the establishment. [Following the hearing, and with the consent of all of the parties, Ms Mindrinos-Opel provided the Board with three photos showing the front of the establishment as well as her property.]

15. The next witness to testify was Susan Bishop. For the last 20 years, she has lived on Manning Avenue, about 12 houses below Harbord Street. She has two children. Ms Bishop has several concerns with the application. First, the area she lives in is a quiet neighbourhood: there are bike paths, parks and the like, and this is an especially important feature because the nearby College and Bloor Streets are very active. Particularly, Ms Bishop is concerned about the influence alcohol would have, given that a high school is located across the street from the establishment. She believes that in order for the establishment to be viable, it will need to cater to the students.

16. Ms Bishop attended a meeting the owners of the establishment held with the residents. She was impressed with their reputation, their commitment to the neighbourhood, and their understanding of what is important to the neighbours. A big component of the establishment’s business is catering, which Ms Bishop believes will suit the neighbourhood. She acknowledged that some people feel the establishment could help improve the quiet nature of the neighbourhood.

17. As well, Ms Bishop is concerned about the precedent that will be set if a liquor licence is granted in the Harbord area. She feels it is important to keep a quiet strip in the area where the establishment is located. She would not want to see a large number of licenced establishments on the street. The high school tends to draw the type of establishment about which the community is so concerned.

18. Finally, Ms Bishop is worried about how the set of conditions the Applicant is willing to have attached to the licence will be enforced in the event the licence is transferred: she believes that it will be much more difficult than it appears on paper.

19. Eric Johnson was the final independently objecting resident to testify. He lives in the third building south of Harbord Street, on Manning Avenue, having owned and lived there for 15 years. His is a family of three children, with a fourth child on the way. Mr. Johnson advised the Board that Mr. Pantalone’s letter reflects many of the concerns that he has and which were addressed in neighbourhood meetings for former licence applications.

20. Mr. Johnson indicated that when a nearby (i.e. different) establishment has obtained Special Occasion Permits, every occasion has resulted in an inability to park on the street during those events. In other words, even though he has paid to park on the street in front of his house, he has had to park elsewhere. There is no municipal parking close by.

21. Also, according to Mr. Johnson, the neighbourhood has been quietest in the last three years when other licensed proprietors (e.g. Aftermath, two sports bars) went out of business.

22. He is concerned as well that setting the precedent for liquor nearby both the secondary and primary schools will have unforeseen results.

23. Finally, Mr. Johnson also remarked that having the hearing outside of the community may have had a strong impact on the lack of negative response to this hearing than was evident in former meetings (regarding other Applications that had been made by other owners to obtain licences).

Applicant’s Evidence

24. Jean-Pierre Challet testified on behalf of the Applicant. He has resided in Canada since 1984 and, in Toronto, since 1987. Mr. Challet is a chef and sommelier as well as a part-time teacher at George Brown College. He has been cooking for 30 years and has a strong reputation from his days as chef in several well-known restaurants such as the Park Plaza, Windsor Arms, SkyDome’s Founders Club, Auberge du Pommier and Bouchon. He and his business partner, Ms Decorte authored a cookbook that has been published in seven countries.

25. Mr. Challet testified that service of wine is critical to the type of food the establishment serves. Catering will be the main business of the restaurant; the restaurant is intended to be a show case for the catering. He and his partners do not plan to have a restaurant upstairs. They want a little bistro to promote Canadian wine and local, organic food. The magazine, Toronto Life, described Mr. Challet as a master of ‘haute cuisine’; Mr. Challet testified that he has worked hard to establish this reputation and cares about it. It is not in his interest to fail. Besides, according to Mr. Challet, one cannot be a chef or sommelier if one is not passionate about his work and does not care about his customers; he cares about his customers.

26. The establishment will not be open for lunch. He does not intend to jeopardize the establishment’s licence “for a couple of dollars” by serving liquor to minors. No minors without guardians will be allowed in, not even to use the washrooms.

27. Mr. Challet’s day starts at 5:00 a.m. as that is when he rises to start baking bread which is sold from a place across the street from the establishment.

28. Peter Ka-Chung Tsang testified next on behalf of the Applicant. He has lived in Canada since 1972. He has been cooking since 1994, specifically with Mr. Challet since 1999. Previously, Mr. Tsang managed McDonald’s restaurants in Canada and California.

29. Mr. Tsang testified that the owners wanted to locate the establishment in a neighbourhood that is close to downtown, where most of their customers are based, and from where to go out and do their catering. Since their business has opened, the owners have come to really like the neighbourhood.

30. Before setting up their operation, the owners checked with the AGCO and were advised they were “in the right zoning”; as a result, they did not think it would be a problem that the high school was located across the street. The high school students are not their target population. He does not believe the students are likely to come into the establishment because its offerings would be too expensive for them. Based on this concern that has been raised by the objectors, the owners have agreed to a condition that if a minor wants to come into the establishment, s/he must be accompanied by a parent or guardian.

31. Mr. Tsang acknowledged that Exhibit 9 sets out the other conditions that the owners are proposing and have agreed should be attached to the licence, if a licence is granted.

32. The anticipated hours of operation will be as follows: from 10:00 a.m. until 4:00 p.m. Saturday and Sunday for brunch; closed Sunday evening/night and Monday (all day); open Tuesday through Friday for dinner from 5:30 p.m. until 11:00 p.m.; and, Saturday nights will be reserved for outside catering (i.e. the establishment would not be open to the general public).

33. By way of staff, the establishment has two chefs, one dishwasher, a maître’d, a server, and a hostess.

34. As for parking, Mr. Tsang stated that the location was chosen, in part, for its accessibility to public transit. As well, he suspects that most of the customers will come from the neighbourhood (i.e. will be walking).

35. The establishment’s capacity is for 24 persons, but Mr. Tsang said that it more comfortably seats 22 people. While the establishment has been running its catering operation, it is not presently open to the public. If the application is denied, Mr. Tsang does not see any reason to open the business as a restaurant; he cannot see customers eating there without being able to enjoy a glass of wine with their meal.

36. Jennifer Decorte was the next witness for the Applicant. She, too, is a chef, and has been cooking for about five years. Her experience is in the corporate world in branding/marketing. She drew on this background to reach out to the community after notice of the Application was given to the community. For example, Ms Decorte developed the Open House Flyer (Exhibit 10) which was delivered door-to-door. As well, there has been an on-going open house at the establishment for the neighbourhood since May 2009, or the time of the Application. Other outreach activities have included visiting neighbourhood businesses and supporting them with their community efforts.

37. The owners were cautious not to petition door-to-door as they felt this would be an invasion of their neighbours’ privacy. A neighbor suggested that the owners do the Petition (Exhibit 12) to capture the neighbourhood support. People came into the restaurant voluntarily to sign the Petition. One of the tenants who lived in the property right next door to the establishment also signed it; many of the supporters live within close proximity to the establishment.

38. Many times, Ms Decorte attempted to contact Deputy Mayor Pantalone, but his office never once returned a call. Neither has he come to the business. The owners were not notified that a motion was being put forward to the City of Toronto Council; when they became aware of the motion, it was “already done”, and there was no way they could speak to it.

39. Ms Decorte believes that the establishment meets the needs of and provides a solution to the neighbourhood. It sits on a troubled corner; she has seen the problems the neighbours worry about (such as “classic drug deal(ing) behaviour” and out-of-control kids (“nice, but lawless”). She acknowledged some neighbours find the corner dangerous that the business is located on: it had been a dark corner at night and during the day, the number of kids there could have been be intimidating. However, she believes that if the City Councillors had known about the owners’ business plan, they would have seen the establishment not as a risk but as a benefit to the community.

40. Next, Rosario Marchese testified in support of the Application. He is the MPP for Trinity-Spadina.

41. Mr. Marchese believes that the Application is in the public interest. In the past, the establishments that were located in the same spot as this establishment were catering to students and young people; they were open much of the day and serving the students then. Opposition to licensing such establishments, which included the Toronto and District School Board, the City of Toronto, and neighbours, was unanimous.

42. If the hearing for this application had been held at Harbord Collegiate, Mr. Marchese believes that there would have been even more supporters present. The community does not feel the same way as it did for the previous applications (for different establishments). While the feeling is not unanimous, many people are in support of this application for several reasons: it is a fine restaurant; it serves adults and is not intended for children; and it will serve as the “eyes of the community” at night, thus contributing to the community’s safety.

43. Mr. Marchese hopes the establishment will get a licence. He thinks it will be a fine addition to the community; it will do no harm. He acknowledged that this is a judgment on his part, but believes it will bear out. He believes that the owners have a serious partnership and that they want to work with the community. Their agreement to add conditions to their licence shows that they are responsible business people, in Mr. Marchese’s estimation.

44. Mr. Marchese understands the objections being raised and the objectors’ fear, but believes that much of the concern relates to the possibility of the licence being transferred to the type(s) of Licencee(s) that the neighbourhood has objected to in the past. He thinks that all of the conditions the Applicant have agreed to and also that risk-based licensing will be applied to any potential future transfer of the licence address the objectors’ concerns.

45. While parking could be a problem, Mr. Marchese thinks it is a minor concern and agrees that most of the restaurant’s customers will walk to it. As to the ‘smoking’ concern, he points out that the Applicant is committed that smokers will be directed to Harbord Street and will not stand on Manning Avenue.

46. Mr. Marchese noted that he received 30 letters in support of this Application, which is unusual in that usually he only gets one to two letters with regard to anything. He suggested that this level of response speaks well of the Applicant/owners and strongly in favour of granting the licence sought. Personally, he did not get one objection letter.

47. The Applicant’s last witness was Allan Reynolds. He is the Chair and spoke on behalf of the Palmerston Area Residents’ Association (“PARA”). He testified that this application represents the needs and wishes of the community, adding that he did not hold this view originally. He is a 30-year resident of the area and lives there with his wife and children.

48. Mr. Reynolds indicated that he was initially opposed to the application based on old information and assumptions about the licensing process. Only learning about the application just before the deadline for submitting objections, he also was unaware of the provisions of risk-based licencing (“RBL”). As a result, PARA did not conduct due diligence on the application, including learning about the public protection that is based in RBL. PARA’s concerns were therefore about the process as well as the precedent value of granting a licence in this case.

49. PARA has since researched the application and spoken with residents of the neighbourhood as well as with the AGCO and PARA members realized that they had erred in not making a truly informed decision in making their objection.

50. PARA believes that the conditions the Applicant has agreed to builds real protection for the residents. When the Applicant went through the conditions that they would agree to, PARA withdrew its objection. PARA believes the conditions will prevent the Applicant from operating as a club or a bar; they also show the owners’ good faith in trying to run a small community restaurant. PARA does not think that the conditions will set a negative precedent. If they set any precedent at all, it would be in the public’s interest because it will enhance both the look and the safety of the street. Licensing this establishment will not harm the neighbourhood and will not create problems for its youth, according to Mr. Reynolds.

51. Over the summer, PARA became overwhelmed with the neighbourhood support that came in. He drew particular attention to Mr. Fred Wheeler’s letter in support, who speaks as a neighbor and parent of a grade 10 student and said that this application gives him hope that the establishment’s presence will improve the experience of students at Harbord Collegiate.

52. Mr. Reynolds asked that the application be granted.

Registrar’s Submissions

53. The Registrar made no submissions.

Objectors’ Submissions

54. The City of Toronto’s position is to oppose the application although, Mr. Crawford submits, he has no evidence to support that position. Since the passing of the City Council’s motion, MM38/25, dated August 6, 2009, and based on the evidence of the Applicant and the Resident Supporters, several of the grounds noted in that motion have been negated. Particularly, the Applicant’s business plan has been distinguished from the types obtained from other establishment trying to get liquor licences in the past. As well, several residents who previously were objectors are now supportive, such as PARA. Finally, the Applicant has voluntarily placed several conditions on the licence, if granted, which includes a condition that requires it to give notice to the City as well as the local residents if a request to transfer the licence is submitted.

55. As a result, the City has no evidence to address any of the grounds noted in the City Council’s motion, but asks if a licence is granted that the conditions listed in Exhibit 9 be imposed upon it.

Applicant’s Submissions

56. The Applicant is interested in being a good neighbor. The owners understand the objectors’ concerns and hopes, whatever the outcome, to continue to be good neighbours. Specifically, the Applicant argues that granting the licence is in the public’s interest, having regard to the following factors:

• ICI is a 22-seat bistro, that is run by a renowned chef, sommelier and educator, who, along with his partners, is a high-end restaurant professional with considerable national and international experience;

• The target clientele are adults, interested in a relaxed atmosphere and high-end foods and quality wines: ICI plans to pair wine with the food menu while offering only a limited range of custom beers, again all aimed at adults and not high school-aged persons;

• There is now tremendous community support for ICI; initial opposition to the application having largely been reversed mainly due to the owners’ strong neighbourhood commitment and proactive efforts and the strength and integrity of their business plan;

• ICI will improve neighbourhood safety by attracting a responsible, adult clientele, and providing “eyes” on the street to deter potential muggers and vandals;

• Several other nearby licensed restaurants operate in harmony with the neighbourhood;

• The City of Toronto’s motion should be disregarded since:

o Many members of the Ward have called upon the City to retract its untenable position, without avail;

o The motion was made without notice to the owners;

o The motion contains an incomplete and inaccurate recital of the facts; and,

o The City Councillor behind the motion ignored all of the owners’ requests to meet with him to resolve issues;

• ICI has addressed potential concerns by agreeing to voluntary conditions to attach to the licence; and,

• There is no risk to the residents from subsequent owners.

Reply Submissions

57. There were no reply submissions.

Reasons, Analysis and Decision

58. The Board has carefully reviewed the evidence and the submissions of the parties and approves the application, subject to conditions being placed on the licence, for the following reasons.

59. First, by way of background, clause 6(2)(h) of the Liquor Licence Act (the “LLA”) provides, in essence, that an application for a licence shall be granted unless it can be shown that it is not in the public interest to do so having regard to the needs and wishes of the residents of the municipality in which the premises are located. In other words, an applicant has a qualified right to a licence: the onus lies upon the objectors to an application to prove, on the balance of probabilities, that approval of a licence is not in the public’s interest. To this end, the Board must assess the totality of the evidence to determine whether the subjective concerns of the objectors are supported on a valid and objective basis. Each case turns on its own facts. While mindful of the objectors’ concerns, in this case an overwhelming number of factors overcome the apprehensions of those residents who opposed this application.

60. In making its decision, the Board has considered positively the conditions (Exhibit 9) which the Applicant is willing to have attached to its licence. As well as being consistent with the concept of risk-based licensing, by agreeing to these conditions the owners have shown that they have listened to and taken seriously the concerns that some members of the community, Deputy Mayor Pantalone, and the City of Toronto (through its motion) have expressed. It was both a prudent and a responsible thing to do.

61. And, while some of the conditions relate to matters that are required by law in any event (e.g. under the LLA and/or pursuant to municipal by-laws), they are nonetheless reasonable to impose and should address the objectors’ identified fears regarding noise from, smoking around, and attracting young peoples to the establishment. What’s more, one condition requires that the neighbourhood and the City of Toronto be put on notice in the event the Applicant wishes to transfer the licence in the future. For these reasons, the Board concurs that all of the conditions as set out in Exhibit 9 should attach to the licence.

62. Furthermore, the Board has taken into account that the owners, Mr. Challet, Mr. Tsang and Ms Decorte have responsible, respectable and long-standing work histories which they bring to the business they are endeavouring to build. They have genuinely reached out to the community both to bridge gaps and to build their reputation as a good neighbour to it. The Board believes that these are conscientious owners who will be diligent and considerate of the needs and wishes of their neighbourhood/community.

63. The owners’ business plan seems sound, too. It is also consistent with the owners’ representations that the establishment will operate primarily as a catering business and secondarily as a restaurant (and not as a bar or a club). They plan to carefully operate the establishment in keeping with the solid reputation they have all built, particularly Mr. Challet, in the restaurant industry (see Exhibits 14 and 15). Furthermore, their proposed hours of operation, upscale food (and proposed wine and beer) offerings, and modest capacity are consistent with their business being operated as a small, upmarket neighbourhood bistro.

64. The overwhelming show of community support for this application also weighed positively in the Board’s decision. Noteworthy supporters are PARA (the residential neighbourhood association), the area’s MPP, the people who signed the Petition in favour (Exhibit 12), and those people who sent in letters in support together with those people who initially opposed the application but then wrote in its support. In addition, a significantly disproportionate number of people in favour of the application attended the hearing itself.

65. Only time will tell if parking becomes a real issue for this establishment, another concern that was raised by the objectors. The concerns in this regard are speculative at present, and as such, should not be given any weight by the Board in coming to its decision. In any event, the evidence is that the establishment’s location is zoned ‘commercial’; as such, its use is legal. Additionally, both the owners and the supporters seem to believe that the establishment’s clientele will largely be local (i.e. will walk) or use public transit to get there, which should act to minimize this potential problem.

66. The Board discounts the worry that approving this application will act as a precedent either for future applications for licences at this location or at establishments elsewhere in the neighbourhood. Each application for a licence will be determined at the time of application based on its own merits (or not).

67. Prior opposition by City Council, residents and others to previous applications is not relevant to this application and has not been taken into consideration by the Board in this case. Should the Board be wrong in this conclusion, it finds that this application is substantially different from the ones that preceded it, for the reasons noted above. As such, this application should succeed where the others have failed.

68. Finally, the Toronto District School Board sent in a letter of opposition but did not send a representative to give additional evidence at the hearing. Consistent with its conclusion in the previous paragraph, the Board concludes that School Board’s stated concerns are serious but belong in a different context: regrettably, they are based on old information and misassumptions that are disconnected to and distinguishable from the evidence before the Board at this hearing.

69. Related, the Board has put little to no weight on the City of Toronto’s motion (Exhibit 1) given that it was passed without notice to the Applicant. Furthermore, as counsel for the City conceded, the grounds upon which the motion was based have been rendered invalid by the conditions to which the Applicant has agreed.

70. The Board has considered Deputy Mayor Pantalone’s letter (Exhibit 5) as well. However, his concerns are strongly offset by the overwhelmingly favourable testimony from other community representatives, such as the Mr. Marchese and Mr. Reynolds, on behalf of PARA. Importantly, other members of the public also wrote the Board to say that they had asked Councillor Pantalone to reflect their (favourable) position, too, but without avail. Similarly, the Applicant tried to meet with the Councillor to resolve issues, again without success. In the all, the predominant evidence before the Board is not only that the community wants this licence to be approved, but that it also believes licensing this establishment is in the best interest of the neighbourhood and community: this evidence contrasts sharply with Deputy Mayor Pantalone’s position on this application.

71. In short, the objective and compelling evidence in support of this application strongly shores up its approval and overcomes the objectors’ subjective concerns. Thus, the objectors have failed to meet the onus that lies upon them to show, on the balance of probabilities, it would not be in the public interest to grant this licence having regard to the needs and wishes of the residents.

Order

72. For the reasons above, the Board APPROVES the application for a liquor licence for 30 persons by Jean-Pierre + Co ICI Inc, operating as ICI, 538 Manning Ave., Toronto, Ontario, M6G 2V9, liquor licence number 802095, subject to compliance with all statutory conditions and municipal regulations.

73. Further, the Board ORDERS that the following conditions be attached to the licence:

a. The holder of the licence shall sell and serve liquor only during the hours specified by provincial law.

b. The holder of the licence shall offer menu food and non-alcoholic drinks to patrons at all times that liquor is for sale or served.

c. The holder of the licence shall operate as a restaurant, allocating most of its service areas to tables and chairs for patrons. The main focus of the establishment will be food service.

d. The holder of the licence shall not provide or permit amplified music or other forms of entertainment in indoor and outdoor areas of the premises.

e. The holder of the licence shall not have any of the following in operation on the premises: video/arcade-type or other electronic games, manual games (for example, foosball or jitz), video or TV screens of any size for patrons’ or public viewing, dance floor/area, DJ playing music, pool/billiard table, karaoke machine and microphones, jukebox, or any other type of entertainment feature/offering that would create disturbing noise or appeal to youths.

f. The holder of the licence shall not permit unreasonable sound levels to be emitted from the premises that are likely to disturb the quiet, peace, rest, enjoyment, comfort, convenience or safety of the nearby neighbourhood inhabitants in their residences.

g. The holder of the licence shall not sell or serve and shall not permit consumption of liquor after 11 o’clock p.m. on the patio or other outdoor areas of the premises.

h. The holder of the licence shall not permit patrons to enter or occupy any private room on the premises.

i. The holder of the licence shall ensure that the identification of every patron who appears to be under the age of 25 years is checked and verified.

j. The holder of the licence shall ensure that no person under the age of 19 years enters the premises unaccompanied by a parent or legal guardian.

k. The holder of the licence shall ensure that managers hold a Smart Serve certificate of server training / or other program approved by the Board of the AGCO at the time employment commences.

l. The holder of the licence shall ensure that all liquor containers and garbage are kept in an enclosed and secure container(s).

m. The holder of the licence shall ensure that if patrons choose to smoke, they do so on Harbord Street away from Manning Avenue and that ashtrays are provided, and that any patrons’ cigarette butts and related debris are disposed of properly and promptly.

n. The holder of the licence shall commit to following the laws and guidelines of the Province of Ontario with regard to the serving of alcohol.

o. The holder of the licence shall notify the Clerk of the City of Toronto, the City Solicitor’s Office, and the local Councillor, in writing, if the holder of the licence or any other person submits an application to the AGCO to transfer the licence to the premises. In addition, the holder of the licence shall advertise in the window of the establishment that the transfer application has been submitted to the AGCO.

DATED AT TORONTO, THIS day of , 2009.

BRUCE S. MILLER, BOARD MEMBER S. GRACE KERR, BOARD MEMBER

LIST OF EXHIBITS

1. Copy of City of Toronto Resolution (Motion) attached to letter to Mr. Tom Mungham, AGCO, dated August 17, 2009

2. Package of letters (various) originally all in objection to the application

3. Package of letters (various) retracting objection to the application

4. Letters of support (various) received about the time the NOP was issued in support of the application

5. Letter of Objection from Deputy Mayor Joe Pantalone, dated September 24, 2009

6. Photo of 538 Manning Avenue, Toronto

7. Photo of 538 and 540 Manning Ave., Toronto provided by the Applicant

8. Map showing proximity of schools to licensed establishments in the immediate area

9. Consent, signed by Jennifer Decorte, J.P. Challet and Peter Tsang and by Mark Crawford on behalf of the City of Toronto

10. Open House Flyer

11. (Partial) Mapping of Local Support in relation to the location of the establishment

12. (Original) Petition in favour of Liquor Licence for ICI

13. Package of letters in support of the application

14. Toronto Life Press Clippings

15. News clippings since May, 2009

16. Photos of 538 and 540 Manning Avenue, Toronto provided by Ms Mindrinos-Opel