Registrar, Alcohol and Gaming Commission of Ontario v. Giggling Jerks (The), 2010 CanLII 80989

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-

Giggling Jerks (The) operating as or intending to operate as

Giggling Jerks (The) formerly known as Kwon’s Chicken House (The)

Applicant

-and-

Sharon O’Sullivan

Objector

DECISION

Panel: David C. Gavsie, Chair, AGCO Joan Lougheed, Board Member

Decision Date: December 3, 2010

Hearing Location: Ottawa, 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

Giggling Jerks (The), Applicant ) Ainslie Dunstone, Representative

Sharon O’Sullivan ) On her own behalf and on behalf of the resident objectors

The Application

1. The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18257 dated August 30, 2010 to review the application for a liquor licence made by Giggling Jerks (The), (the “Applicant”), operating as or intending to operate as GIGGLING JERKS, 332 Wilbrod Street, Ottawa, Ontario, K1N 6M5 (the “establishment” or the “premises”), establishment number 25592, on the basis the AGCO has received one or more written objections to the application. A hearing of the application was held on November 4, 2010 in the City of Ottawa.

Decision

2. The Board has carefully reviewed the evidence and the submissions of the parties. The Board GRANTS the application with conditions. Reasons and conditions follow.

Preliminary Matters

3. Mr. Morris stated that Registrar’s Counsel would not be taking a position.

4. On consent of all parties, party status was granted to Ms Sharon O’Sullivan, who was assisted by Joyce Harpell and Christopher Tan.

Objectors’ Evidence

5. Sharon O’Sullivan is a resident who lives a half block away from the establishment. Referring to Exhibits # 3A & B, a slide presentation and her speaking notes, she presented the risks for consideration.

6. Ms O’Sullivan provided a detailed overview of the geography, heritage and neighbourhood services, businesses, and buildings in proximity to the applicant’s business. As well, she provided information relating to concerns for parking, drunkenness, disorderly behaviour, vandalism, noise and garbage.

7. She stated that the area is a quiet, family orientated neighbourhood. She stated there was concern about the business being more of a bar than a restaurant. She cited statistics for the risk of failure in the restaurant industry and stated that the owners had admitted to having no restaurant experience. She pointed out that restaurant signage had been installed on private property. It has since been moved. The ventilation system noise broke city noise by-laws and delivery trucks blocked driveways.

8. She expressed concern about the use of two Special Occasion Permits (“SOP”) prior to a liquor licence being issued.

9. Ms O’Sullivan stated that risks related to this licence were significant and urged the AGCO to apply strict conditions to address the public concern. These conditions should include:

10. Liquor may not be served prior to 5 p.m;

11. Liquor may not be served after 11 p.m. (the Wilbrod Watch asks for 10 p.m.);

12. The consumption of liquor inside the establishment may not be visible from the street;

13. No alcohol may be consumed outside;

14. Doors and windows of the restaurant must remain closed during the sale of liquor;

15. Liquor must not be served on its own without the purchase of food;

16. The establishment must not have a designated dance floor, DJ , DJ booth and no live entertainment of any kind;

17. The Licensee to ensure there are parking spots as designated by the AGCO;

18. Provision be made for the delivery of supplies, to ensure driveways are not blocked and bicycles and vehicles can pass safely;

19. Acceptable noise volume should be determined and become one of the operating conditions;

20. There be no amplified music or entertainment in outdoor areas;

21. Ensure that smoking areas adhere to municipal by-laws;

22. Provide a plan for measures to deter disorderly conduct on adjacent properties;

23. The owner shall not apply for an increase in capacity or extension of hours.

24. On cross-examination she stated that a restaurant is a permitted use but did not believe that a bar use is permitted. She stated that parking was a concern, having heard that there are only three spaces for staff and that she saw an advertisement suggesting there was parking out front and on the street.

25. She stated that parking is already a problem with limited spaces available on the north side of the street and no parking on the south side. She agreed that there is currently no problem with the business which is open but felt this was because there was no liquor licence as yet.

26. In answer to questions, Ms O’Sullivan clarified that the school across the street has been closed, but staff appear to be on-site preparing for a January 2011 opening. She received this information from the school principal and on the internet.

27. When asked under what authority she determined that a sports bar cannot be near a school, she replied that hers was an amateur authority.

28. Prior to the hearing, she had made calls to the AGCO and by-law enforcement, due to concerns when a Special Occasion Permit was issued. She stated there were no infractions and no fines to the owners.

29. She indicated her past experience relates to problems at another establishment in the area.

Reply

16. In regard to authority of a school distance from a bar, Ms O’Sullivan clarified that she was not an expert in licensing, but in preparation for the hearing, had seen restrictions listed on the AGCO website.

17. Sarah Hibberd is the Executive Director for Sandy Hill Retirement Residence located at 353 Friel Street and serves a population between the ages of 70 and 105 years. The building backs onto the location of the restaurant.

18. Noise is a major concern due to the private rooms with large windows that primarily face the back of Giggling Jerks.

19. On cross-examination she confirmed since the business opened three months ago there have not been any complaints.

20. Tom Forbes relocated his family from Nova Scotia twenty-five years ago, moving to Sandy Hill. He indicated that he lives directly across the street and has seen numerous other businesses at this location, with none seeming to last long.

21. Mr. Forbes stated that there have been times when delivery trucks blocked his driveway and some caused damage to the tree limbs of a tree at the front of his property.

22. He stated that he knows parking is a city problem, but it becomes more of a problem when people try to extend the available parking and his driveway becomes blocked.

23. At a neighbourhood meeting that included police, university representatives and elected officials, in 2008, residents were encouraged to call with problems. He stated that his present concern is that the establishment is wired for multiple TV’s, suggesting more of a bar use. He is also concerned that the business has expanded the usable floor space from what the previous business used.

24. On cross-examination Mr. Forbes stated that he is a landlord and has units rented to students. He spoke to some of the students and stated they were positive in their response to the restaurant. He stated that he has not seen any of the changes made to the premises and did not speak with the owners about his concerns relating to delivery trucks blocking his driveway.

25. In response to questions, he stated that he did not speak with the business owners about an upcoming residents’ meeting and that the last annual meeting of Action Sandy Hill (“ASH”) was one and a half years ago.

26. In response to a question from the Registrar, Mr. Forbes stated that a restaurant was fine but felt there was a big difference between a restaurant and a bar.

27. Andrew Maffre stated he is a renter, living on Stewart Street which is immediately north of Wilbrod. The area is a mix of apartments and private homes. He supports restrictions on the establishment to protect the character of the community, ensure safety and prevent late night disruption to residents.

28. Mr. Maffre stated that the area boundary has a lot of establishments that already cater to students and evening disruption is a regular occurrence.

29. He commended the young business entrepreneurs and stated they should be given an opportunity to do business, but that there should be restrictions.

30. On cross-examination Mr. Maffre stated that he did not know the owners and has never had a problem with them.

31. Joyce Harpell stated that ASH meets monthly at Somerset Community Centre; the annual meeting occurs in April or May. The meeting notice is posted on poles in the area, flyers are distributed and an advertisement is put in the local community paper. With a membership of $3.00 a person is put on the e-mail list.

32. She stated that the motion passed by City Council did not reference the school purchase as it occurred without their knowledge. A website confirmed that a francophone public school had been purchased to be used as a satellite school starting in January in 2011. The site indicates the school will accommodate primary school children and a childcare centre.

33. She has observed cars in the parking lot and personnel on the school site.

34. Ms Harpell stated that they had no problem with a restaurant, but would have a problem with a liquor licence that did not have strict conditions and control if the business is sold.

35. On cross-examination Ms Harpell stated that the most recent meeting of ASH was on October 25, 2010. She stated that the new business owners were not told about the meeting when she was talking with him about two weeks before.

36. Ms Harpell stated that she had contacted City Hall and the AGCO about the rules governing the establishment while it awaits a licence. She wanted to understand the rules.

37. In answer to questions, she stated that she was involved in the petition and had posted signs in the area about possible conditions being applied to the liquor licence.

38. In response to questions from the Registrar’s Counsel, Ms Harpell stated that the restaurant opened on August 5, 2010 and that there had been no problems.

39. She stated she had a concern with the school across the street, seniors in the area and that this was atypical zoning for the area. A licence has the potential for increasing the risks for drunkenness and rowdy behaviour.

40. Chantal Gaudreault, a resident on Laurier, does not have a concern with the establishment as it is now. She is concerned that this may change if there is a liquor licence, adding to noise, and the parking problems. She stated that noise increases when smokers are outside, and have had a few drinks. She is concerned that the AGCO does not have the resources to monitor complaints.

41. On cross-examination Ms Gaudreault stated that problems in the area occur from 10 p.m. to 4 a.m. She stated that the problems do not occur because of house parties. She is impacted by the Urban Well which is right across the street from where she lives. She acknowledged that parking is a municipal responsibility.

42. Douglas Aldworth, a resident for 30 years stated that this location has either been non-operational or unsuccessful. He sees the need for an expanded license for success.

43. He stated that the residents are in a community under siege, with the pressures of being downtown and the residents have to guard the area to protect it when there is any expansion.

44. The main objective does not seem to be a restaurant, but seems to be striving to be more of a bar than a restaurant. If it draws student patrons, then there are more problems.

45. The quiet enjoyment of residents is important, and he stated that residents feel there is a lot of opportunity for business on the commercial streets.

46. He felt the residents need to watch carefully and to ensure the neighbourhood does not change too much.

47. He stated that the school needs to be considered as there are pre-school and young children who will be at the school now. He stated that hours for the business reflect a 12 hour difference in what is being asked by the residents and by the applicant.

48. Parking is a problem now with cars circling to find a spot. This involves residents, visitors, students and business people who work in the area. He wanted to know where 70 clientele would park if there are only three spaces on site.

49. Mr. Aldworth stated he loved the menu, but does not welcome the sports bar.

50. He lives in a residential community in the city centre and wants to keep it that way.

51. He stated that the conditions passed by City Council seem reasonable and will permit continued use of premises as a restaurant, but with no expansion

52. On cross-examination he stated that he agrees with a restaurant because it is zoned for this use but stated it is out of keeping with area.

53. Yvonne Karijo has lived on Wilbrod, 3 doors away from Giggling Jerks, for 11 years. She is concerned about an expanded business with a liquor licence. She stated that noise was a big problem, even with doors and windows closed.

54. Even though the vents have been repaired, she still hears the drone, and her bedroom is 20 meters from restaurant. She is concerned with smoking outside, litter from cigarette butts, potential fires, loitering in the area, and increased traffic. Her driveway has been blocked by delivery trucks.

Licensee’s Witnesses

55. Devin MacLeod has lived in Ottawa his whole life. Eight years ago he took a masters course in bartending and received his Smart Serve Certificate.

56. Referring to Exhibit 17, photos # 1, 3, and 5, Mr. MacLeod identified locations inside his establishment, stating that they are allowed a capacity for 63, including 56 seats for patrons and presently, 6 staff. The application is not for a patio licence and there are no plans for a dance floor.

57. He reviewed the zoning in Exhibit 14 which, under an exception number, allows a full service restaurant, retail or rooming house uses.

58. He stated that the name of the business was chosen to showcase jerk food and had used the words sports bar to let people know there were TV’s on site. With the negative community response, this wording was removed. He stated that it was a mistake to use wording for a sports bar.

59. Mr. MacLeod outlined his financing and personal investment in the business. He stated that the liquor licence is integral to its success. When people are served spicy food they also want to have a drink.

60. He stated that people call for reservation but want to know if they have their liquor licence and people walk out when they find out there is no liquor licence. The new business is not yet meeting the business plan goals and needs the licence to draw more clientele.

61. Clientele is 97 per cent local, with 65 per cent of the business being repeat customers. Many live in the neighbourhood or go to a nearby cooking school. He has never had any complaints about parking.

62. He stated that he has tried to speak with residents, and knows they have a lot of concerns. He thought meeting with neighbourhood groups and this Hearing would be the best places to address problems.

63. He has fixed the ventilation before they started to cook and noted that the problem existed at the time of taking over the business. The garbage is in a sealed container (Exhibit 17 photo 11 & 12) and is concealed from the street by screening.

64. He stated that he contacted the City Councillor for a contact number for Ms Harpell and called her to arrange a time to talk with residents. At the time they were not able to meet at the restaurant due to construction and so a meeting was arranged at her home. He brought information about the business and the menu.

65. He submitted a petition, (Exhibit #11), indicating support for the restaurant. He stated that there was a lot of community support as seen by the attendance, especially for breakfast and lunches on the weekend.

66. He noted that Kwon’s Chicken House was only open from 5 p.m. to 9 p.m. and, at the time he viewed the site, the business was not even open.

67. Mr. MacLeod referred to Exhibit #2, stating that he was not informed about the motion and only learned of it when contacted by the media. He did not have an opportunity to attend and make submissions. Councillor Bedard never spoke with him personally and he noted that he is no longer Councillor, not having been re-elected in the municipal election.

68. In response to questions, Mr. MacLeod stated that the authorities have attended eight times to follow up on complaints. No infractions were ever found. A Special Occasion Permit (SOP) was granted for the Grand Opening and for a soft opening. He has not applied for any more, not wanting to jeopardize the licence application.

69. He stated that they have received further advice and help through a food network show that assists business start ups, (Exhibit #10). Having successfully applying for the assistance, they needed an SOP for part of the filming for the show. The Chef Advisor told him that if they did not have a licence, they would not likely survive.

70. On cross-examination Mr. MacLeod stated that a bar was needed to serve according to regulation, as a place to prepare and serve the drinks, have a sink, etc.

71. In reference to the names on the petition the applicant submitted, Mr. Macleod stated that he did not know the backgrounds of the signatories or how many live in the area.

72. Mr. Macleod confirmed that most of the customers walk in and he chose this site, seeing the area as a vibrant, mixed community. He thought the Caribbean theme would have appeal. He stated that the operation has changed and this reflects what has been learned about their market.

73. He stated that staff is not allowed to park in front of the premises. He had arranged for deliveries on Tuesdays and Wednesdays, wanting the times to be least disruptive and he was not aware of delivery trucks blocking driveways. Garbage is picked up on Saturdays and Wednesdays.

74. Dylan MacLeod is part owner and, as Manager, is present every day.

75. He presented the menu, (Exhibit #12), stating that the Caribbean food, not pub food, is the focus. Clientele includes students and business employees. All staff is Smart Served Certified.

76. Mr. Dylan Macleod stated that parking is not a problem now and they have tried to address every issue as it has been presented.

77. On cross-examination he clarified that the hours of operation are 8 a.m. to 11 p.m.

Reasons and Analysis

78. The Board has carefully reviewed and considered the evidence, reviewed the exhibits and submissions of all parties in this matter. The Board found all the parties to have given their evidence in a clear and direct manner.

79. Public interest hearings often raise difficult issues that requires a balance of the interests of those who live in the community and those who provide a service and make a living there.

80. Under the LLA there is a qualified right to receive a liquor licence, subject inter alia, to several exceptions, one being the ‘public interest’. The LLA also recognizes the very real impact that licensed premises may have on the surrounding community, and local residents are provided the forum and opportunity in which to voice their concerns.

81. The Board understands that there have been a number of businesses at this location in the past. Given the mix of residents, students and housing in the area, it is recognized that a change in business and business ownership raises fear and an increased concern about the impact of a new business on the neighbourhood

82. During the Hearing, the Board heard from residents that they have not had problems with the restaurant since it opened five months ago. They accept that the zoning permits the use of a licensed restaurant with the responsible service of liquor.

83. During the course of the Hearing, Ms O’Sullivan and other witnesses indicated that conditions were acceptable. In submissions, objectors presented new information, additional comments and presented some new conditions for consideration. The Board, in reaching a decision, points out that some of this information differs from the evidence presented at the Hearing. This was taken into consideration during the analysis of evidence.

84. It is clear to the Board that there is concern about parking, noise and the repeated change of businesses at this site. of these concerns are addressed through municipal by-laws, zoning requirements. The Applicant must meet all the zoning and by-law requirements of the municipality. In considering the application, the Board has regard for zoning and by-laws, but notes that these are areas over which the AGCO does not have authority.

85. Evidence from the Applicant indicated that the ventilation was malfunctioning at the time they took ownership of the premises. They stated that the system has been repaired and meets the required standards. The Board accepts this evidence, noting that Ms Karijo also confirmed that the ventilation system has been repaired.

86. The Board, in giving consideration to the application as set out in the Notice of Proposal and to the concerns of the objectors, particularly those who live in close proximity to Giggling Jerks, recognizes that witnesses indicated a willingness to accept conditions, given that the existing zoning already permits a restaurant use.

87. The Board also notes that the application is for licensing of the indoor premises only and this is not an application for outdoor seating.

88. Witnesses expressed concern about early signage describing the premises as a sports bar. The Applicant provided evidence that he has removed the wording. Mr. MacLeod gave credible evidence that he is proposing to operate a full menu restaurant and that there would be televisions for patrons to watch while visiting the premises. He stated that there would be no dancing and that they are proposing limited hours of operation. The Board accepts the evidence of the Applicant as given in an open and forthright manner.

89. The Board recognizes that the community is seeking some restrictions to give them greater comfort regarding the licensed premises while the Applicant does not wish to be unnecessarily restricted. The objectors submitted proposed conditions during the course of the Hearing, which the Board took into consideration.

90. The Board finds no evidence to support denial of a liquor licence. Only the conditions on the licence remain to be addressed.

91. The Board reviewed the evidence, and considered the Applicants efforts to be responsive to the residents living in the area. Witnesses repeatedly stated they did not have a problem with the business as it is operating now. Mr. Forbes stated that he has not seen the renovations made to the business location and has not spoken to the new owners about the time(s) his driveway was blocked for deliveries. Ms Harpell stated that there have been regular meeting of ASH, but did not tell the Applicant about a meeting, even when Devin McLeod approached her for information. Mr. Maffre indicated that the business should be given a chance, but asked for conditions since the neighbours already had a problem with late night noise from other establishments. Ms Gaudreault stated that most of the noise problems from other businesses occur from 10:00 p.m. to 4:00 a.m.

92. The Board commends the Applicant for the commitment to work with residents in the area and for a willingness to be responsive to concerns, such as addressing delivery trucks blocking driveway. While the fears and concerns of the residents relate to past operators and to other businesses in the area, the Board cannot draw a negative conclusion from those fears and concerns about how this Applicant will operate the business. Witnesses stated that the business has been open for five months and that there have been no problems.

93. The hours of operation was an issue that was raised during the hearing. The Board notes that the Applicant is also proposing more limited hours of operation, and presented other conditions for consideration. The Board understands from the evidence that these proposed hours are more restricted than other establishments in the area.

94. The Board wishes to point out to the residents that the licensed establishment must operate within the dictates of the LLA and its regulations, meeting all obligations to serve alcohol responsibly. It would not be appropriate to apply onerous conditions, such as ensuring alcohol service cannot be seen.

95. Having heard from neighbours who live close by and learning that there is a resident association holding regular meetings, the Board encourages all parties to meet in a positive, proactive way, either individually or through the neighbourhood association(s), to discuss ongoing concerns as they arise.

96. Having heard the fears about the unknown and concern with past changes in ownership of this property, it becomes even more important to bring stability to the neighbourhood and to integrate this new business successfully into the area, ensuring that residents and a business co-exist successfully.

97. In considering the entirety of the evidence, the Board APPROVES the application with conditions to address the public interest, which respond to concerns that have been expressed and by imposing conditions that are fair, as the Board wants the Applicant to be successful in business and in their operation within the neighbourhood.

Order

98. For the above reasons, the Board APPROVES the application of Giggling Jerks (The) operating as or intending to operate as GIGGLING JERKS (THE), 332 Wilbrod Street, Ottawa, Ontario, K1N 6M5, establishment number 25592, subject to compliance with all statutory conditions and municipal regulations.

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

100. The service of alcoholic beverages will cease at 10:30 p.m. and all signs of service will be removed by 11 p.m. from Sunday to Thursday;

101. The service of alcoholic beverages will cease at 11:30 p.m. on Friday and Saturday and all signs of service will be cleared by midnight on those nights;

102. Food service and a full menu will always be available to patrons during hours of operation;

103. Windows and doors, except for entry and egress, shall remain closed to contain any noise within the premises;

104. There will be no live music or dancing on the premises and the volume of music indoors is to be at a level acceptable under the municipal noise by-law;

105. The Licensee shall provide the objectors and resident groups with a contact number that will be directly answered by a person during the hours of operation;

106. The Licensee will post signs in prominent locations at the exits, both inside and outside the establishment, reminding patrons to be considerate of the peace and privacy of residents in the neighbourhood;

107. All garbage and recyclables are to be kept in an enclosed area , and appropriately stored in secure containers;

108. The Licensee shall use best efforts to ensure the areas immediately adjacent to the establishment are clean and free of litter, refuse and other debris:

109. Should the premises change ownership or be sold, the Licensee shall immediately notify the Clerk or CAO of the City of Ottawa, the City Solicitor and the local municipal councillor in writing if the Licensee or any other person submits an application to the AGCO to transfer or amend the licence. In addition, the Licensee shall advertise prominently in the window of the establishment that such an application has been submitted to the AGCO, immediately upon its submission.

DATED AT TORONTO, THIS 3rd day of December , 2010.

DAVID C. GAVSIE, CHAIR, AGCO JOAN LOUGHEED, BOARD MEMBER