Registrar, Alcohol and Gaming Commission of Ontario v. 1126430 Ontario Inc., 2010 CanLII 25964

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-

1126430 Ontario Inc. operating as Little Texas Bar & Grill (Applicant)

-and-

Larry Hofmeister and Bob Wonch (Objectors)

DECISION

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

Decision Date: February 25, 2010 Hearing Location: Belleville, 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: Phillip Morris, Representative 1126430 Ontario Inc., Applicant: Charles St. George, On his own behalf and on behalf of the Corporate Licensee Larry Hofmeister and Bob Wonch: On their own behalf and on behalf of the resident objectors

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 17582 dated September 28, 2009 to review the application for an additional licensed area made by 1126430 Ontario Inc. (the “Applicant”), operating as LITTLE TEXAS BAR & GRILL, 290 North Front Street, Belleville, Ontario, K8P 3C6 (the “premises”), liquor licence number 809441, on the basis the AGCO has received one or more written objections to the Application. A hearing of the application was held on December 22, 2009 and February 4, 2010 in the City of Belleville.

Decision

2After considering all the evidence and submissions the Board APPROVES the application for an additional outdoor capacity of 41, on the conditions set out below. Reasons for these findings follow.

Preliminary Matters

3Mr. Philip Morris appeared on behalf of the Registrar. He advised that the Registrar took no position on the public interest aspects of the hearing.

4Mr. Larry Hofmeister and Mr. Bob Wonch are both residents of the municipality and object to the application. They appeared before the Board on behalf of other resident objectors and requested party status at the start of the hearing on December 22, 2009. On consent of all parties present, the Board ordered Mr. Hofmeister and Mr. Wonch be made parties to the proceedings.

5Mr. Charles St. George, a principal of the Licensee, waived his right to legal representation, indicating he was prepared to proceed.

Resident Objector’s Evidence

6Mr. Larry Hofmeister provided details of the property, stating there was a single panel wood fence on three sides of the perimeter and referring to Exhibit #2, identified the residential streets in the vicinity.

7He stated that the neighbourhood reflects all sectors and ages, with the issues not being specific to any one group, since all are impacted by the noise that occurs regardless of the season.

8Sleep disturbances are common and an increased patio size and increased patrons on the patio is expected to increase the noise. He indicated that his guests have commented on the disturbance from noise vibration that is felt within the walls of his home.

9He indicated that patrons continue to party in the parking lot until 3:00 or 4:00 a.m. There is often fighting, engines revving, tires squealing and the use of high volume sound systems in the cars.

10Although there is soundproofing on the walls, as required under the Agreement of July 5, 2006 between Mr. St. George and the City of Belleville (Exhibit #6), the ceiling is open and transmits sound. He said that the owner is compliant with the condition that there be no outdoor speakers and no music directed outside.

11On behalf of residents, he asked that the terms of the agreement be continued, including:

1. no speakers outside or music directed to outdoor areas, and
2. the back doors be closed at all times.

12Mr. Hofmeister requested that conditions of approval also address the concerns relating to the high intensity lights on the roof that provide enough light over neighbouring properties to illuminate to the extent that one can read a newspaper. As well, there should be an agreement for additional security in place to address noise of patrons. Residents would like to see a copy of the agreement with the Belleville Police Department to provide paid-duty police officers so they know who to contact if there are ongoing issues with the parking lot.

13Further concerns relate to broken beer bottles on Parkwood Gardens, a street adjacent to the parking lot. There is concern of a loss in the market value of their homes.

14Mr. Hofmeister indicated that there was some misunderstanding about details of the application. Today the residents have learned details that are different. With this information, he stated that they would like to arrive at a negotiated settlement and not be adversarial.

15In response to questions from the Board, he stated they just learned that the actual size of the patio is not increasing. The application is for an additional 41 persons on the existing site. He thought the patio did not have a licence and has now learned that it has had a licence and is just expanding the occupancy permitted.

16He confirmed that the music that they hear is from inside the premises. The residents have never met with the owner about the concerns before today.

17He stated there were previous offences and the Registrar’s Counsel provided details of previous infractions.

18Mr. Bob Wonch stated his main concern is noise and the lack of police response. The back door and fire exit of the premises is often propped open, resulting in escalating noise.

19If the licence is approved, he asked that there be:

1. A contract for additional policing on the owner’s property;
2. Hours of security adjusted to 11:00 p.m. to 3:30 a.m. Friday and Saturdays and on Sunday evening prior to a holiday Monday or until everyone has left the property. A copy of the police contract to be shared with the residents;
3. Decibel testing be done, to ensure that noise levels comply with the city bylaw; and
4. Lighting be adjusted to ensure it only illuminates the parking lot.

20On questions from the Board, Mr. Wonch stated that the residents want paid duty police contracted by the Licensee since their authority assures compliance by patrons.

21Ms Joanne Dirks, a recent resident in the area stated that the loud booming of the bass and the vibration has caused her daughter to have nightmares and to believe there are monsters in her bedroom.

22She stated that in good weather it is not possible to open windows due to the parking lot noise, including loud laughter, and screams.

23She supports increased security, in part due to broken bottles that are smashed over the fence.

24Ms Christine Hayman stated she knew Little Texas was there when buying her home. She stated that lighting is a major concern, shining directly into bedrooms and requiring room darkening blinds.

25She hears the noise from the premises when the back door is open and in summer the noise is almost unbearable. Sometimes the back door is propped open. With a patio increase, the noise levels will increase.

26Mr. Karl Reid stated that the noise is a thumping throb, similar to a washing machine rhythm, happening most evenings, but most noticeable on the weekends. The noise can be heard even when the windows are closed.

27On cross-examination, he stated that the noise from Pizza Hut is different and does not go on for hours.

28Ms Joan Latchford stated that a patio extension would mean that it is not far from the back of her home. The existing patio seems small and she does not see how it can accommodate 120 people.

29She expressed concern with noise, stating that the thumping is unbelievable and there are people screaming as they come outside. She said that at times you wonder if someone is hurt and it startles you awake. Bedrooms are at the back of her house, adjacent to the premises and the noise is not really noticed until bedtime.

30Ms Evie Aubertin stated she has been dealing with this “boom boom” noise for eight years. She is tired of the beer bottles thrown on her property, litter being dumped and the horrible noise. She felt that the patio noise may make it worse.

31Mr. James Hutchison, a city employee, is Manager, Approvals Section, Development Services Department for the City of Belleville. He stated that an approval given by the City on July 27, 2006 applied four conditions and the Licensee is in compliance. This agreement does not have a clause about lighting. He stated that the site plan agreement can be amended to add lighting controls and consideration could be given to improving the single board fences to a better design.

32He indicated that acoustical fences have been done for Canadian Tire and Loews to address the noise of delivery trucks. There have been no complaints from neighbours.

33On cross-examination, he indicated that an acoustic fence will not stop the bass sound. He stated he is not an acoustical engineer and the fences at the other businesses were installed to address issues of trucks unloading.

Licensee’s Evidence

34Mr. Charles St. George, co-owner with Mr. Peter Argiris, stated that the residents’ objections related to an advertisement of the AGCO that was not clear on the patio licence application details.

35He stated that many new residents to the area are not familiar with an existing agreement that there are to be no windows or patio on the west side of the building. This condition has existed since 2001 when the building was constructed.

36He believes that an error was made, in the initial application, in calculating the capacity of the patio. At that time the additional 41 persons should have been approved.

37He indicated that the patio has been licensed, although they do not serve alcohol on the patio. Patrons can bring their drinks outside and the area is mostly used by smokers.

38A building inspector and civil engineer reviewed the patio capacity and came up with a new number and this is the change requested on the application.

39Mr. St. George stated that he now hires police for parking lot security. This is necessary because people do not respect regular security on staff, but they do respect police.

40His contract with the local police is on a monthly basis and it can stop anytime at their discretion. He has the best of intentions and if the contract is stopped, he would meet with the Police Chief.

41He indicated that he is willing to work with residents to reduce the lighting.

42There is no city noise by-law and has spoken to the Chief Building Inspector about decibel testing.

43Mr. St. George asked that the residents keep in touch with him to resolve issues.

44On cross-examination, he said that there was no legal action needed for the fence to be constructed but it was a condition on the licence. He provided clarification of the numbers on the patio and the previous infraction(s) relating to overcapacity.

45In response to questions from the Board, he indicated that he would work to keep the back door closed, address the lighting concerns, and provide a phone number to the residents. He would work with the sound technicians to have a decibel reading done of the bass noise and turn down the volume.

46He stated that the bass travels through the ground. The building is soundproofed but he knows that sound travels through the ground.

47He is prepared to provide the residents with a copy of the police contract and their instructions to police when they are working on the property.

Resident Objector’s Submissions

48Mr. Hofmeister stated that he would like to explore the opportunity of improving the fence. Issues relate to trespassing, unruly patrons and noise, especially if the patio size is increased. The level of concern is evident by the large turn out of residents, of whom there are approximately 20 people present at the hearing.

49If approval is granted, he asked that it be conditional on the outstanding issues being resolved.

50He hopes that the Licensee can work with residents in a non-adversarial environment.

51He indicated his willingness to continue to work with the Licensee, on behalf of residents.

Licensee’s Submissions

52Mr. St. George emphasized that he was here to work with the neighbours, stating that “To take care of business you must take care of neighbours.”

53In answer to questions from the Board, he clarified that he was prepared to agree to conditions on the approval of the application that were not directly related to the patio. He expressed concern about the setting of benchmarks in relation to the bass noise and indicated he would work with city staff and acoustic experts to address noise management.

Analysis / Reasons / Findings

54The Board has carefully reviewed all the evidence, letters and the exhibits as submitted. The Board found all the witnesses in this matter to be credible and recognises that all their evidence was presented in a fair and frank manner.

55Noise and disturbances arising from any business impacting neighbours is a serious occurrence, especially when a business is adjacent to residential homes on three boundaries of the property. In making a determination, the Board considered the facts and gave careful deliberation to evidence relating to numerous issues, including both the direct and indirect impact of noise arising from the nearby premises.

56The issues consistently related to existing problems with litter, lighting and noise disturbances on the parking lot, and emanating from the premises when doors are opened.

57There was agreement from the Licensee that bass noise travels through the ground and can vibrate through walls causing a disturbance to the neighbours.

58The Licensee agreed to conditions relating to these existing problems being attached to this licence.

59When considering all the evidence, the Board must balance the interests of commercial enterprise and the needs and rights of the citizens in the community. Public hearings often raise sensitive issues in a residential / commercial area that impact those who live in a community and those who would earn their living there. All parties indicated a willingness to work together to resolve the ongoing issues and are to be commended for this.

60The Board acknowledges that no witness at the hearing was opposed to the granting of the patio licence once there was clarification of the actual details of the application.

61The Board acknowledges that licence conditions have been agreed to by all parties and that the residents will designate one or two people to act as contact persons, representing the residents, to work with the Licensee.

Order

62For the above reasons, the Board APPROVES the application for an additional licensed area made by 1126430 Ontario Inc., operating as LITTLE TEXAS BAR & GRILL, 290 North Front Street, Belleville, Ontario, K8P 3C6, liquor licence number 809441, subject to compliance with all statutory conditions and municipal regulations.

63Further, the Board ORDERS that the following conditions be attached to the licence in addition to the existing conditions on the licence:

1. A phone number is to be provided to the residents to receive complaints and concerns.
2. The back doors and fire exits are not to be propped open and will be closed at all times except for deliveries or emergencies.
3. Lighting in the parking lot is to be adjusted to ensure there is no spillage onto neighbouring residential properties.
4. Parking lot security is to be contracted to local police and be in place from 11:00 p.m. to 3:30 a.m. Friday and Saturdays and on Sunday evenings if there is a holiday Monday or until everyone has left the property, whichever is later.
5. A copy of the police contract and details of the instructions given to the police on site are to be shared with the residents.
6. Decibel testing to be done of the bass sounds, and volumes are to be adjusted to ensure that levels comply with city bylaws or volumes are turned down to reduce noise and vibration impact on the residents.