ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission of Ontario (Registrar)
-and-
2148855 Ontario Inc. operating as Margaret (Applicant)
-and-
Janet McKay (Objector)
DECISION
Panel: Beryl Ford, Board Member; Grace Kerr, Board Member Decision Date: October 5, 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 2148855 Ontario Inc., Applicant: Jill Rooksby, On her own behalf and on behalf of the Corporate Licensee Janet McKay: On her own behalf and on behalf of the resident objectors
Application
1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 17379, dated July 15, 2009 to review an application for an additional outdoor area for 33 persons (the “Application”), by 2148855 Ontario Inc., (the “Applicant”), operating as MARGARET, 2952 Dundas Street West, Toronto, Ontario, M6P 1Y8, (the “premises” or the “establishment”), liquor licence number 811914, on the basis that the AGCO has received one or more written objections to the application from residents of the municipality. A hearing of the application was held on August 13, 2009 in the City of Toronto.
Decision
2After considering all the evidence and submissions the Board APPROVES the application for an additional outdoor area for 33 persons, subject to conditions. Reasons for these findings follow.
Preliminary Matters
3Richard Kulis appeared on behalf of the Registrar. He advised the Registrar took no position on the public interest aspects of the hearing.
4Jill Rooksby is the director, officer and shareholder of the Applicant. She appeared on her own behalf and on behalf of the Corporation and waived the right to be represented by a licensed representative.
5Janet McKay is a resident of the municipality and objected to the application for licence. She appeared before the Board on her own behalf and as the representative of the resident objectors. On consent of all parties, the Board ordered that Ms McKay be made a party to the proceedings.
Objectors’ Evidence
6Ms Sheila Alexander first testified on behalf of the Resident Objectors. For the past seven years, she has owned a townhouse located opposite the establishment. Referring to various photographs (Exhibit 4), Ms Alexander showed the Board where her unit is relative to the establishment and what the subject patio looks like and where it is located. Ms Alexander’s main concerns, which underlie her opposition to the Application, are noise, safety, and the potential negative effect on real estate values of having a licensed patio to the rear of the establishment.
7Regarding the noise, Ms Alexander believes that the concrete pavement that lies between the establishment and the row of townhouses to the rear of the establishment would amplify sounds emanating from the patio. She was initially drawn to the neighbourhood because it was quiet. Also, Ms Alexander goes to bed at between 8:30 p.m. to 9:00 p.m. and rises for work at between 4:30 a.m. to 5:00 a.m.; she is worried about noise from the patio impacting her ability to sleep.
8Ms Alexander also expressed concern that pedestrian traffic behind the establishment would increase if a licence were to be granted, and in turn that her unit, which has already been broken into once, would be at greater risk. There already is a well-used thorough-fare for foot traffic behind the establishment.
9Ms Alexander supports local business, but believes that granting the Application would be setting a dangerous precedent.
10In cross-examination, Ms Alexander testified that she is also concerned by the flimsiness of the patio’s construction. She does not believe that there is anything the owner of the establishment could do to make the patio more sound-proof. Ms Alexander has not had any sound testing done.
11Ms Alexander acknowledged that another local establishment has an outdoor patio but stated that it is located in a different area and that she has not been to it. Her concern is that the neighbourhood is changing rapidly; there has been a great deal of new development, both commercial and residential.
12Ms Alexander acknowledged that while loud music is played inside the establishment she has not heard it from her residence. She agreed that the establishment was a “run-down bar” before it was taken over by the current owner.
13As for her security, Ms Alexander does not know the types of people who would be attracted to the establishment. She feels that the patrons would use her property because of its location (it is secluded).
14In answer to questions from the panel, Ms Alexander said that she did not see any way in which a licensed patio would work.
15Mr. Craig Midghall also testified on behalf of the Resident Objectors. He has owned one of the townhouses behind the establishment for six years. He likes the neighbourhood because it is very family-oriented. He, too, was concerned about noise levels that might keep his children awake. He also stated that the patio just does not belong in its intended location; “it’s in the wrong space.” He believes that the picture in the glass panel of the patio’s back door (Exhibit 4E) is inappropriate.
16Mr. Midghall said that there is loud noise from the front of the establishment when he walks past it on his way home from work.
17In cross-examination, Mr. Midghall stated that his townhouse is located about 200 feet from the rear of the establishment.
18In response to questions from the Board, Mr. Midghall confirmed that his position is that the application should not be granted; however if the licence is granted, then that his concerns would be lessened if there were “noise conditions” added to the license and if no music was allowed to be played on it.
19Sharon Reid testified next on behalf of the Resident Objectors. She has owned a townhouse behind the establishment for five years. One of the things she, too, likes is that her home is located in a quiet neighbourhood. There is a mix of families living in the area: young, old and working. She stated that the only area for the townhouse owners to relax is at the front of their properties, which faces the rear of the establishment. A six-foot fence, which separates the townhouses from the vacant area behind the establishment, helps reduce noise according to Ms Reid.
20A “train station” has been built in the space that was left when a commercial property that had been located there (i.e. a few buildings down from the establishment) was demolished. This area is used as community space: bands play, festivals are held there, and so on. As a result, more people use it as a throughway as well.
21Ms Reid was concerned about the potential noise associated with the number of people (33), the length of time (seven days per week until 2:00 a.m.), and the size of the licensed space applied for in the application. Even if unintentional, there is the potential for patrons on the patio to be loud or rowdy behaviour at 2:00 a.m.
22Ms Reid agreed with Ms Alexander that any noise seems to be amplified because the ground behind the establishment is concrete. Ms Reid did not believe it would make any difference to her concern about the noise levels even if the current patio structure was changed by filling in the spaces between the walls with plants.
23Another concern to Ms Reid is that patrons may begin to park behind the establishment and start up their cars at closing time, especially since that area is not monitored.
24In cross-examination, Ms. Reid testified that she is also concerned about a precedent being set. To her, if this application is granted, other establishments may try and follow suit: yet, other owners may not be as considerate as Ms Rooksby.
25Ms Reid said that when she initially heard about this application she would have been agreeable to certain accommodations, more particularly that any noise was to be kept within the ranges in the municipal noise by-laws and that there would be no music on the patio. However, now she cannot support the application at all.
26The Resident Objectors’ final witness was Janet McKay. For the past three years, Ms McKay has owned a house located nearby the establishment. Her back yard abuts a laneway through which pedestrians can walk from the area behind the establishment and the neighbouring businesses.
27From her backyard, Ms McKay can hear the residents who live in the apartments above the establishment talking if they are out on their balconies. As with the other objectors, Ms McKay’s main concern is the noise levels due to amplification if the establishment’s patio was licensed. She testified that the establishment is more of a nightclub than a restaurant and believes that the licensed patio will serve this type of clientele.
28Ms McKay is also concerned that the number of people coming and going along the laneway beside her house late at night will increase.
29Finally, she is concerned about the potential for the licensing of the patio to decrease the value of properties in the area.
30In cross-examination, Ms McKay testified that any non-enclosed room is the problem. In other words, sound will still go up and out even if the patio walls were made of brick or cement. She does not think that raising her own fence to a height taller than four feet would make a difference either.
31Ms McKay agreed that the foot traffic in the laneway could be coming from anywhere, not necessarily the establishment.
32Ms McKay did not think that lowering the capacity of the patio would help.
33Ms McKay believes that it is an inappropriate neighbourhood for an outdoor patio as the establishment is a nightclub and not a restaurant. She does not believe there is any compromise possible.
Applicant’s Evidence
34Mr. John Grassby testified on behalf of the Applicant. He owns several businesses that operate in the area in question and also lives there. As well, Mr. Grassby is a customer of the establishment. Mr. Grassby said that he has never known Ms Rooksby or her clientele to act in an irresponsible way.
35In Mr. Grassby’s opinion, the area around Ms McKay’s home has become safer since he started his own businesses in mid-2005. As the area in question is a difficult one in which to do business, Mr. Grassby believes that it would benefit the community if the establishment’s patio was licensed. He stated that he would not be supporting the Application unless he thought Ms Rooksby would do a sincere and respectful job of a licensed patio.
36In cross-examination, Mr. Grassby agreed that Ms Rooksby would not be able to stop conversation that will be heard from neighbouring residences.
37Mr. Grassby elaborated upon the benefit he believes that licensing the patio will bring to the neighbourhood. He said that the area needs more outdoor venues, as long as their conduct is satisfactory. A patio such as this would give the people outside of the area another place where they can come and spend money. He wants the neighbourhood to grow.
38As long as the patrons remained within the confines of the patio, were “not a ruckus crowd”, and not a lot of loud music was played, he thought that licensing the patio would work. He said that he would call the establishment “a bar” and agreed that business picks up “anytime after 10:00 (p.m.) on Friday and Saturday nights”. Other nights, he said that it is quiet in the establishment.
39Ms Kristy Hollidge testified next on behalf of the Applicant. Ms Hollidge both resides in the area known as “the Junction” and owns and operates a licensed business located about two city blocks from the establishment. Her business has a licensed patio. She supports the Application as both a resident and a business owner as being a positive thing for what she describes as a “growing” neighbourhood. There are only two licensed patios there now; a third one would allow the foot traffic to stay in the neighbourhood instead of going to the nearby Roncesvalles district.
40Ms Hollidge described her patio to the panel members. Photographs of it were entered as Exhibit 2. She also explained the steps she undertook before recently going before the Board to successfully gain approval to extend the hours of operation of her business’s patio.
41According to Ms Hollidge, she lives across from an establishment that creates the sorts of problems the Resident Objectors have raised. There are half-way houses in the area as well; she has tried to establish lines of communication between the people who run those homes and herself as a local resident and business owner. To address the residents’ concerns, Ms Hollidge suggests that the Board consider the establishment’s closing times, requiring the establishment to keep its door closed at all times, and ensuring that it keeps channels of communication open with its neighbours.
42In cross-examination, Ms Hollidge testified as that about 60% of her clientele is similar to that of the establishment. The establishment’s other 40% of clients are people who are over 40 and are interested in DJ music.
43Ms Hollidge had the opportunity to oppose the licencing of the establishment located across from her home, but she choose not to do so, preferring instead to open the channels of communication between herself and that establishment. She stated that those owners accommodate her requests most of the time. She acknowledged that there are times when noise from that establishment has kept her youngest child awake and that this was stressful.
44To assist her with her application to extend her patio’s hours of operation, Ms Hollidge hired two sound engineers who conducted noise level tests. No music is played on her patio. The two walls on either side of her patio are concrete and there is a 12 foot fence at the rear of the patio. For the first year, her patio was only open until 10:30 p.m.; now, the hours have been extended to 2:00 a.m.
45Ms Jill Rooksby, the owner of the Applicant establishment, testified next. She testified that she understands the Objectors’ concerns, and feels they are valid and should be addressed. She said that she felt remiss in not talking to the Objectors sooner; that would have been a courtesy.
46Ms Rooksby is agreeable to the licence being subject to some conditions, although she thinks that the neighbours are afraid of what might happen, rather than what will happen. She accepts that they need to see that she is responsible and their concerns will not happen as they fear.
47Regarding their noise concern, Ms Rooksby stated that she does not want the neighbours’ sleep disturbed by noise. It is 131 feet from the back of the patio to the doors of the townhouses on Jackson Place. She believes that the fence in front of the townhouses as well as the design of her patio will keep noise levels down. Also, food is served on the patio along with alcohol. Finally, neither does she want the yelling and screaming by the patrons that happened under the establishment’s previous ownership.
48As for the residents’ security concerns, she shares these for herself personally. However, she believes that any prostitution or drug activity that occurs in the alleyway behind the establishment does not involve her clients. In fact, Ms. Rooksby has worked very diligently to clean up that area; she operates a clean, respectful business. Ms. Rooksby likes being in business in “the Junction”.
49Ms Rooksby also addressed the Objectors’ concerns that licensing the patio will increase traffic in the area behind the establishment. The patio’s back gate is an “emergency only” exit. To the extent the back alleyway is used as a public thoroughfare, Ms Rooksby cannot control it. The establishment does not have any parking spots behind it. Lastly, Ms Rooksby said that she does not condone drinking and driving, and keeps a keen eye on levels of intoxication, being acutely aware of the establishment’s potential liabilities in this regard.
50Regarding the Objectors’ concerns that property values would decline, Ms Rooksby stated that as services come into the area and businesses thrive, it will bring people into the neighbourhood. She offers a unique business in the area; hers is an “urban bar”, which caters to a different clientele from the other bars.
51Ms Rooksby believes that the patio is necessary to her business’s survival. Especially in the summer, people want to be outside enjoying a drink.
52In cross-examination, Ms Rooksby agreed that her establishment is more of a bar than a restaurant, but disagreed that it was a nightclub. Ms Hollidge’s business is more of a “cozy English pub” whereas the establishment has DJ’s, sometimes shows movies or documentaries, and has theme nights. Currently, her business does not pick up until after 10:00 p.m. She believes that if her patio was open until 10:30 p.m. to 11:00 p.m. people would come earlier (i.e. to enjoy the sunshine.)
53Ms Rooksby has tried different ways to increase her business, including trying different menus, but with no success. She has made considerable improvements to the business, stating that she took over a “bad bar” and ran off the unsavory people who used to frequent it. She does not want her customers, her staff or herself to have to experience that kind of clientele.
54Ms Rooksby acknowledged the differences between her patio and the one that is part of Ms Hollidge’s business. She intends to apply artwork to the boards that make up the walls of her establishment’s patio and will be painting the outside of those boards. She also try to put “something” (as yet unknown) into the spaces between the wall boards.
55In response to questions from the Board, Ms Rooksby stated that she has not completely worked out the staffing for the patio as yet. She is also looking at having the emergency door ring if people open it and try to exit that way. While she does not have video cameras in the patio, she sees that as an easy, cheap solution for how to monitor the back door.
Objectors’ Submissions
56The Objectors submitted that their concerns are not of a “worst case” variety; rather, these are real, current issues that are bound to get worse if the patio were to be licensed. Specifically, licensing a patio with a capacity for 33 persons that, the Objectors submit, are already quite loud will create a noise problem. This is the Objectors’ main concern.
57Also, the Objectors believe that this is the wrong kind of patio in the wrong place: it is close to too many homes. As well, the Objectors ask the Board to make note of the numbers of residents that attended the hearing to object to this application as well as the number of letters of objection filed against it.
58The Objectors strongly urged that the Application not be approved.
Applicant’s Submissions
59The Applicant would like to come to a compromise solution and hopes that something can be found that works for all concerned. The Applicant has worked hard to build a business, but it has reached a plateau and requires a patio for it to compete with the surrounding licensed businesses. Ms Rooksby submits that, if the Applicant is given a chance, the neighbours concerns will be put to rest.
Reasons and Analysis
60The Board has carefully considered the evidence and submissions of the parties. The Board has concluded that the Application should be approved, with conditions.
61At issue is whether granting this application for a liquor licence is in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located. The onus lies upon the Objectors to prove on the balance of probabilities that granting the licence is not in the public’s interest.
62In order to determine whether the needs and wishes of the residents are bona fide, the Board has considered all of the evidence and evaluated whether the subjective concerns and fears of the residents are supported on a valid and objective basis.
63In this case, the Board heard from several witnesses on behalf of the Objectors. Three of the witnesses for the Objectors live in the townhouses located on Jackson Place, which runs parallel to the public footpath that runs behinds the establishment. Another witness lives in a house whose backyard backs onto the same area. All of their concerns were similar in nature, as follows.
64Their principal concern with the Application related to potential noise directly related to the patio (or “outdoor licensed area”). This could come from the patrons while they are on the patio and/or when they are leaving it, or be due to increased traffic (both foot- and vehicular) behind the establishment generally if the patio were to be licensed.
65None of the witnesses have complained to local authorities about noise emanating from the licensed establishment to date, the Board recognizing that only the inside of the premises is licensed at present.
66An additional concern relates to the potential for having a licensed outdoor area proximate to their properties to lower property values. As well, several Objectors raise personal safety concerns due to increased traffic behind the establishment, which they potentially connect to licensing of the outdoor area.
67The Applicant has expressed a willingness and desire to minimize the potential negative effects of the patio on the residents and to be a good neighbour to them. She is willing to abide by conditions which might alleviate the Objectors’ concerns. In fairness to the Applicant, the objectors acknowledged that they have never complained about their existing concerns with the establishment and its patrons to the Applicant, the AGCO, the City of Toronto or the police.
68The Objectors indicated that they would prefer that the Application be denied. The Board found the Objectors who testified to be credible witnesses and does not doubt that the concerns they expressed about noise are genuine and real to them. However, the Board cannot make a decision based on conjecture and speculation about potential negative impacts of a licensed patio. Alternatively, the issues raised relating to the type of clientele, and the yelling and screaming associated with those patrons, are historical in nature as they relate to the business’s operations by its prior owner, in which Ms Rooksby was not involved. Ms Rooksby cannot have reasonably been expected to have known about or acted to deal with those concerns. As well, the illegal activities that allegedly took place in the back alleyway are not matters that can be connected to Ms Rooksby as owner of the Application establishment. As such, there was insufficient evidence before the Board for it to conclude that the Objectors have met the onus of establishing on a balance of probabilities that the issuance of a liquor licence is not in the public interest.
69Recognizing Ms Rooksby expressed willingness to address the Objectors’ concerns and responding to them, the Board has also concluded that it would be appropriate to attach certain conditions to the licence it is granting. These conditions should alleviate some of the Objectors’ concerns about a licensed patio. Indeed, the conditions prohibiting music or amplified sound on the patio and limiting the times for the service of alcohol to 9:15 p.m. on weeknights and to 11:15 p.m. on weekends respond directly to the Resident Objectors’ main concern that noise from the patio will disturb their sleep.
Order
70For the above reasons, the Board APPROVES the application for an additional outdoor area for 33 persons by 2148855 Ontario Inc., operating as MARGARET, 2952 Dundas Street West, Toronto, Ontario, M6P 1Y8, liquor licence number 811914, subject to compliance with all statutory conditions and municipal regulations.
71Further, the Board ORDERS that the following conditions be attached to the licence:
There shall be no amplified music on any outdoor licensed area, or directed towards any outdoor licensed area.
On Mondays, Tuesdays, Wednesdays, and Thursdays the sale and service of liquor shall end at 9:15 p.m. on the outdoor licensed area and the area shall be cleared of all signs of service by 10:00 p.m.
On Fridays and Saturdays, the sale and service of liquor shall end at 11:15 p.m. on the outdoor licensed area and the area shall be cleared of all signs of service by 12:00 a.m. (midnight);
The Licensee shall provide a telephone number for residents to register concerns or complaints. This line will normally be answered by a staff member during the Licensee’s published hours of operation. This line will be equipped with a functioning answering service for those periods when the Licensee’s staff are otherwise occupied and when the establishment is closed;
Food Service shall be available for the entire time the outdoor licensed area is open for business;
The Licensee shall post a prominent sign at each exit that reminds and/or encourages departing patrons to be considerate of the surrounding community; and,
There shall be no access to the laneway from the outdoor licensed area, except as a fire escape or for emergency reasons.
DATED AT TORONTO, THIS 5th day of October, 2009.
BERYL FORD, BOARD MEMBER S. GRACE KERR, BOARD MEMBER
LIST OF EXHIBITS
- Letters received from various objectors (collective)
- A book of documents (filed by the Applicant)
- A City of Toronto zoning map of the area
- Collection of photographs
- Aerial map of the area
- Petition signed by various residents living in apartments located directly above the proposed patio
- Petition signed by four residents of Jackson Place
- Petition signed by 77 members of the Hallelujah Baptist Church