Registrar, Alcohol and Gaming Commission of Ontario v. 2231256 Ontario Inc., 2010 CanLII 81017

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-

2231256 Ontario Inc. operating as or intending to operate as Bellevue (The)

Applicant

-and-

Corporation of the City of Toronto

Intervenor

DECISION

Panel: Jacqueline Castel, Board Member Eleanor Meslin, Board Member

Decision Date: September 16, 2010

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 ) Susan Majerovich, Representative 2231256 Ontario Inc., Applicant ) Christopher Dardarian, On his ) own behalf City of Toronto ) Kelly Matsumoto, Representative

The Application

1. The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18183 dated July 6, 2010 to review the application for a liquor licence made by 2231256 Ontario Inc. (the “Applicant”) operating as or intending to operate as BELLEVUE (THE), 61A Bellevue Avenue, Toronto, Ontario, M5T 2N5, (the “establishment” or the “premises”), establishment number 814339, on the basis that the AGCO has received one or more written objections to the Application. A hearing of the application was held on August 26, 2010 in the City of Toronto.

Decision

2. The Board ISSUED an ORAL decision approving the application subject to compliance with municipal regulations and to the conditions attached as Schedule “A” of Exhibit 1. Reasons follow.

Preliminary Matters

3. Ms Susan Majerovich appeared on behalf of the Registrar. She advised that the Registrar takes no position on the Application.

4. On consent of all parties, the Board ORDERED that the City of Toronto be made a party to the proceedings.

5. Ms Matsumoto, on behalf of the City, filed a package of documents including a Consent with Terms and Conditions, signed by the City and the Applicant, which the Board entered as Exhibit 1.

6. Mr. Dardarian filed a Disclosure Document List, which the Board entered as Exhibit 2.

Reasons and Analysis

7. Public interest hearings often raise very difficult issues, which require a delicate balancing of the interest of those who live in the community, with those who would earn their living there. This is particularly true when dealing with a major urban artery that supports a variety of mixed usage within a very confined area.

8. Under the Liquor Licence Act (the “Act”) there is a qualified right to a liquor licence, subject to the considerations of the “public interest”. The Act thus recognizes the very real impact that the licensed premises may have on the surrounding community, and the local residents are provided with a forum in which their concerns can be voiced. The onus is on the objectors, however, to prove on a balance of probabilities that the issuance of the licence for additional licensed areas is against the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises are situated. In determining whether the needs and wishes of the residents in the community are bona fide, the totality of the evidence and the subjective concerns and fears of the residents need to be examined as to whether they are supported by a valid objective basis.

9. In this case, the issues were essentially resolved when the City of Toronto agreed to support the application once the Applicant agreed to the conditions, as stated in Schedule “A” of Exhibit 1.

10. The Applicant presented the following five witnesses who supported the application: David Perlman, Angela Gentili, Brian Naranjo, Steve Cosens and Leroy Niles.

11. The only persons objecting to the application were William Durnan and Sylvia Lassam.

12. Mr. Durnan’s objections were mainly in regard to the patio application, which were moot, since the Applicant had withdrawn the patio portion of the application.

13. Ms. Lassam’s concerns related to the possibility that any future owner might abuse the liquor licence. When she was shown condition #10 regarding notification to the local Ward Councillor and the posting of a notice regarding any transfer of the liquor licence, she indicated that she would now support the application.

Order

14. Based on the evidence heard and for the above reasons the Board APPROVES the application for a liquor licence made by 2231256 Ontario Inc., operating as or intending to operate as Bellevue (The), 61A Bellevue Ave., Toronto, Ontario, M5T 2N5, establishment number 814339, subject to compliance with all statutory conditions and municipal regulations.

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

1. The Licensee shall hold a valid business licence, issued by the City of Toronto, to operate a business of the class “restaurant”.

2. Food service shall be available from the time of opening until at least 11:00 p.m. or until closing, whichever is earlier, on all days that the premises are open for business.

3. The Licensee shall ensure that a seat is available for a majority (greater than 50 per cent) of the approved occupancy, as specified on the liquor licence, during all hours of operation.

4. 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 is otherwise occupied and when the establishment is closed.

5. The maximum size in any space made available as a dance floor shall at all times comply with the governing city by-law for restaurants.

6. The Licensee shall ensure that any sound resulting from the operation of the business is not audible beyond a reasonable distance from the lot line of the property on which the premises is located. This clause refers to sound that is generated by any internal or external loudspeakers, conversation by patrons within the premises, bussing, garbage disposal and bottle disposal. A reasonable distance for such sound to be considered in non-compliance is any point opposite the Licensee’s premises that is separated by a public street, public or private laneway or a parting wall between the Licensee’s premises and any adjacent space.

7. The Licensee shall post a prominent sign at each exit that reminds and/or encourages departing patrons to be considerate of the surrounding community.

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

9. The Licensee shall use best efforts to arrange garbage pickup and recycling at times that will not disturb nearby residents.

10. Prior to making any application for a transfer of the licence to sell liquor or a sale of the business, the Licensee will advise the local Ward Councillor in writing of the Licensee’s intention to make the application or sale and will also post a notice of the intention to transfer the licence or sell the business in a prominent location in the window of the establishment so it is visible from the street.

DATED AT TORONTO, THIS 16th day of September , 2010.

JACQUELINE, CASTEL, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER