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-
Ceili Cottage Inc. operating as Ceili Cottage (The)
Applicant
-and-
Gordon Crann
Resident Objectors
-and-
Janet Money
Objector
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 ) Phillip Morris, Representative Ceili Cottage Inc., Applicant ) Jerry Levitan, Representative Nancy Hawley, Gus Sandusky, ) Myrl Sandusky, Yona Satin, ) Keith Lennox, Elaine Genius ) and Joanne Settherington, Resident Objectors ) Gordon Crann, Representative Janet Money, Objector ) On her own behalf
The Application
The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18136 dated June 14, 2010 to refuse to remove/change conditions on liquor licence number 813734 (the “licence”) made by Ceili Cottage Inc. (the “Applicant”) operating as CEILI COTTAGE (THE), 1301 Queen Street East, Toronto, Ontario, M4L 1C2, (the “establishment” or the “premises”), on the basis that the Deputy Registrar of the AGCO has received written objections to the application from residents of the immediate area of the establishment, and there has been no change in circumstances to justify the removal of the conditions. A hearing of the application was held in the City of Toronto on August 19, 2010.
The Applicant applied to remove the following condition on the licence:
“5. Any doors between the Licensed Patio and the indoor portion of the establishment shall be kept closed at all times, except to allow for ingress and egress of patrons and staff.”
- The Applicant applied to change conditions 1, 2, 3 and 12 from:
“1. The sale and service of alcohol shall cease on the Licensed Patio at 11 p.m. daily and all signs of sale and service shall be cleared by 11 p.m. No patrons will be allowed to remain on the Licensed Patio after 11 p.m.
Subject to final capacities established by the Fire Marshall, no more than 40 patrons shall be allowed on the Licensed Patio at one time.
There shall be no speakers, televisions, entertainment, amplified or live music whatsoever on the Licensed Patio. After one year (March 2010) a review with the residents of Agnes Lane, may allow the Ceili Cottage to apply with the AGCO for the ability to play un-amplified music on the Licensed Patio.
With concerns about the environmental impact that the plastic will have, as well as the impact of the amount of garbage it would produce, it is agreed that the Ceili Cottage will be allowed to use regular glassware on the patio. All glassware will be removed from the patio by 11 p.m.”
to: “1. The sale and service of alcohol shall cease on the Licensed Patio at midnight daily and all signs of sale and service shall be cleared by midnight. No patrons will be allowed to remain on the Licensed Patio after midnight. Smokers – exception – Smokers may have a smoke on the patio, with their beverage, until close of the establishment.”
Subject to final capacities established by the Fire Marshall, no more than 60 patrons shall be allowed on the Licensed Patio at one time.
Only ambient background music shall be permitted on the patio at anytime and shall cease no later than midnight daily. In addition, acoustic live musical performances without amplification shall be permitted on the patio but shall cease no later than 9 p.m. daily.
With concerns about environmental impact that plastic will have, as well as the impact of the amount of garbage it would produce, it is agreed that the Ceili Cottage will be allowed to use regular glassware on the patio. All glassware will be removed from the patio by midnight.”
Decision
- After carefully reviewing the evidence and written submissions, the Board APPROVES the Application to remove/change conditions except for the smokers’ exception under condition 1. Reasons follow.
Preliminary Matters
Mr. Gordon Crann filed a Declaration of Representative, for the resident objectors (Nancy Hawley, Gus Sandusky, Myrl Sandusky, Yona Satin, Keith Lennox, Elaine Genius and Joanne Settherington), which the Board entered as Exhibit 1.
The Board gave the resident objectors represented by Mr. Crann party status with the consent of all parties.
Ms Janet Money advised the Board that she is a resident objector but that she is not represented by Mr. Crann. She further advised that her interests are somewhat different than those of the other objectors. Mr. Levitan objected to her being given party status on the ground that adding another party would drag out the proceedings. Mr. Morris indicated that Mr. Crann is legal counsel and he has not been retained by Ms Money.
The Board gave Ms Money party status.
Mr. Morris filed the following documents, which the Board made exhibits:
i. Exhibit 2: Original Conditions on Liquor Licence signed by Mr. McMurray
ii. Exhibit 3: Licence Profile
iii. Exhibit 4: Letters of Objection
iv. Exhibit 5: Letters of Support
Mr. Levitan filed a Book of Record for the Applicant, which the Board entered as Exhibit 6.
Mr. Morris advised the Board that the Registrar’s position is that the Application should be refused, since there has been no change in circumstances to justify the removal/change of conditions. However, Mr. Morris further advised that the Registrar would not be calling evidence and would be relying on the evidence of the objectors.
Applicant’s Evidence
Ms Sandra Bussin is the City Councillor for the Beaches – East York, the Ward where the establishment is located. Mr. Levitan filed her letter of support, dated August 3, 2010, which the Board entered as Exhibit 7.
Ms Bussin indicated that she has reviewed the requested changes in conditions, as well as the proposed increase in capacity, with the City Solicitor and is of the view that the amendments being requested are reasonable and fair and that the community will not be negatively impacted by them. The owners of the restaurant are very responsible individuals who have an excellent reputation in the community and in the restaurant industry.
Ms Bussin indicated that the area where the establishment is located has seen a transformation in the last ten years as a result of a zoning change, which she helped to bring about. Ten years ago, an emission testing facility was in the location of the establishment. Now there are lovely new shops and restaurants in the area, including the establishment.
The establishment is a wonderful addition to the community. It runs smoothly and effectively, and the owners are thoughtful to the residents in the community.
Ms Bussin understood that all of the conditions would be open to review after one year. She did not believe that all of the conditions on the licence were necessary at the time that they were agreed to. She believes that the Applicant felt pressure to agree to the conditions because of an imminent municipal strike, which would delay the issuance of the licence.
On cross-examination by Mr. Crann, Ms Bussin indicated that City Council has not passed a motion in support of the application. However, Ms Bussin indicated that in her experience City Council never brings motions in support of an application. City Council would only bring a motion if it were opposing the application.
Ms Bussin indicated that she is representing herself and not the City of Toronto.
Ms Bussin acknowledged being aware of a by-law in the Woodbine area of the Ward where public portions of patios must be closed by 11 p.m., whereas the private portions are allowed to stay open until 2 a.m. The 11 p.m. curfew is adjusted for special events.
The Applicant has never hosted a fundraising event for her.
On cross-examination by Ms Money, Ms Bussin indicated that Ms Money’s residence is not part of her Ward and she has not had any conversations with members of Ms Money’s Ward regarding the application. Councillor Fletcher, who represents Ms Money’s Ward, is supportive of the application.
Four years ago Ms Bussin had an event at another licensed establishment in the Ward. Ms Bussin paid to hold the event at this location.
On re-examination, Ms Bussin indicated that the establishment has competitors located nearby which do not have the same restrictions on their licence.
Ms Victoria Dinnick resides at 65 Lang Street but owns a building opposite the establishment. She supports the Application.
Ms Dinnick has lived in the area for 23 years. When she first moved into the area it was desolate and there were no amenities. There were crack dealers and prostitutes on the street. It was not an area that was conducive to raising a family or running a business. In the last ten years or so she has watched the area go through a wonderful transformation.
An emission testing facility used to be in the location of the establishment. Now the air is cleaner. The establishment is a family-run business, and an Irish dance school operates at the back of the premises.
The establishment is an asset to the neighbourhood and Ms Dinnick would like to see them do well. For this reason, she is supporting the Application. She has never been disturbed in any way by the Applicant or its clientele.
On cross-examination, Ms Dinnick indicated that her residence is a four minute walk from the establishment.
She is aware that open fires were being burned on the patio of the establishment last winter.
Ms Raquel Youtzy resides next door to the establishment at 1303 Queen Street East. She has lived there for six months. She also owns the property next door (1305 Queen Street East) and lived there for five years. The bedroom window from her present residence overlooks the patio of the establishment.
Referring to Exhibit 6, the Applicant’s Book of Records, Ms Youtzy acknowledged that she wrote a letter in support of the application to increase the capacity of the establishment and remove certain conditions on the licence. She is supporting the Application because it will help its business and it will not hurt her in any way.
She has not witnessed any rowdy behaviour at the establishment and has never been disturbed by its clientele. She hears people talking on the patio of the establishment from her bedroom window, as she typically keeps the bedroom window open. However, she finds the chatter of customers on the patio pleasant. She resides in Leslieville where all kinds of noises, such as street cars, trucks, cars, buses, people talking, etc., are to be expected. She finds the chatter from customers on the patio of the establishment preferable to the noise from the traffic on the street.
On cross-examination, she indicated that her property has been used for a business in the past. The business, which was called the Simple Café, closed in November 2009.
She owns a bar/lounge at 138 Adelaide Street East.
She stopped working several months ago because of her pregnancy. She is typically home five nights a week.
At this point, Mr. Levitan took a count of the supporters and objectors in the audience. He counted 20 supporters and five objectors.
Mr. Patrick McMurray is the owner of the establishment. He also owns another licensed establishment called Starfish Oyster Bar on Adelaide Street. The latter is a mid to high end seafood bistro. Ceili Cottage is an Irish Pub. Two-thirds of the building is used as an Irish Dance school, and the other one-third is used as the pub. At the pub, they serve traditional Irish food which is made at home.
Prior to opening the establishment, but after posting the required AGCO placard in April 2009, Nancy Hawley, President of the Agnes Lane Association, suggested a meeting with Councillor Bussin. The meeting took place at Maple Cottage, a city owned property, and all parties worked out a list of conditions which were recommended by the City. Legal Counsel for the City reviewed and had no issue with the conditions. Nancy Hawley subsequently stated that she wanted to amend a few of the conditions and make them tighter. Mr. McMurray was not in agreement with the amendments, but he did not want to go to a hearing. Further, a municipal strike was imminent. He could not afford to delay opening until after the municipal strike, as he had spent $250,000 to revamp the establishment and he needed to start generating income. Therefore, in order to obtain his liquor licence before the strike, he signed the conditions with Nancy Hawley’s amendments. It was his understanding that all parties agreed that they would reassess the need for the conditions in March 2010.
Referring to the third condition on the licence (Exhibits 2 and 3), Mr. McMurray indicated that although the condition only states that the Applicant could apply to the AGCO for the ability to play unamplified music on the patio in March 2010, it was his understanding that he could apply to have all of the conditions removed.
Referring to the fifth condition on the licence (Exhibits 2 and 3), which stipulates that any doors between the licensed patio and indoor portion of the establishment must be kept closed, except to allow for ingress and egress of patrons and staff, Mr. McMurray indicated that if the door could be left open he would not have to operate the air-conditioning inside, which is better for the environment. He also indicated that his customers prefer the cool breeze inside to the air conditioning. Finally, he indicated that the constant opening and closing of the door is an irritant to customers and staff.
Referring to the first condition on the licence (Exhibits 2 and 3), which stipulated that the sale and service of alcohol must cease on the licensed patio at 11 p.m. daily, all signs of sale and service must be cleared by 11 p.m., and no patrons are allowed to remain on the licensed patio after 11 p.m., Mr. McMurray stated that he would like to change the time restriction to midnight. His reason for wanting the change is that most of the bars in the area close at 2 a.m. The current condition means that patrons cannot be served after 10 p.m., since the signs of sale and service must be cleared by 11 p.m. His customers have complained that they would like to be able to stay on the patio and enjoy a drink until later in the evening. His inability to accommodate them has resulted in the loss of business to competitors who are allowed to serve alcohol on their patios until 2 a.m. He believes that midnight is a fair middle line between the current requirement and what his competitors are allowed to do.
With reference to the request to increase the capacity on the patio to 60 people, Mr. McMurray indicated that the Fire Department has given him the approval for a capacity of 60 people on the patio. He has learned, through the experience of one year, that there is always ample space for more people on the patio. His customers often become disgruntled when they see that there is plenty of room on the patio, yet he has to turn them away because the capacity on the licence is restricted to 40. It ultimately results in him losing business, which he has the space to accommodate, to competitors.
Mr. McMurray referred to the capacities of the following establishments in the area, which he also documented in his Book of Records (Exhibit 6):
a. Curzon, 1192 Queen St. East: rear patio, capacity 60 people until 2 a.m.; boulevard patio, capacity 60 people, until 10 p.m.
b. Strangers, 1130 Queen St. East: boulevard patio, capacity 70 people until 11 p.m.; rooftop patio, capacity 40 people until 2 a.m.
c. Murphy’s Law, 1702 Queen St. East: street side patio, capacity 60 people until 2 a.m.
d. Le Papillion, 1001 Eastern Ave., rooftop patio, capacity 90 people until close at 11 p.m. (restaurant)
e. What Are You Looking At, 996 Queen St. East, rear patio capacity 25 people until 2 a.m.
f. All of the above patios have music, either live or ambient.
Referring to condition 12 (Exhibits 3 and 4), Mr. McMurray stated that he would like to be able to use regular glassware until midnight.
Mr. McMurray took the Board through the Book of Records, including a map showing the location of the establishment, photos of the establishment from various vantage points, the menu of the establishment, various magazine and newspaper reviews of the establishment, such as a Toronto Life article naming it one of the top 10 patios in the city, a letter inviting objectors to a meeting to discuss the proposed changes to conditions, letters of support from neighbours and an email exchange attempting to set up a meeting with objectors to resolve issues without a hearing.
Mr. McMurray emailed all of the objectors, for whom he had an email address, outlining his proposed changes and explaining why he is seeking them. These emails were produced in his Book of Documents (Exhibit 6). The only objectors who responded to his emails were Janet Money and Nancy Hawley. They told him they were not prepared to meet with him or change their position.
Mr. McMurray referred to an email exchange with Joanne Setterington, one of the objectors, which he produced in his Book of Documents (Exhibit 6). In the exchange, he asked her to identify the objectors’ grievances, so that he could fix them. She never identified the grievances.
None of the objectors present at the hearing sat down with him to discuss their concerns, despite his efforts to meet with them. If they had, he would have been receptive and done his best to address all of their problems.
None of the objectors have ever complained directly to him about the noise or a problem with the garbage. Inspector Jade Leadbetter told him about a noise complaint received the day before St. Patrick’s Day and relating to music being played off the unlicensed portion of the patio. When the complaint was received through Inspector Leadbetter, he turned the music off right away and moved everything inside.
On cross-examination by Mr. Crann, Mr. McMurray stated that no one from the Fire Marshall’s office is present at the hearing, but he indicated he has a copy of its written approval.
For St. Patrick’s Day festivities, the Applicant had a tent over the entire patio and a Special Occasion Permit with a capacity of 60 people.
On cross-examination by Ms Money, Mr. McMurray indicated that he has no intention of ever increasing the capacity over 60 people on the patio.
On cross-examination by Mr. Morris, Mr. McMurray indicated that about 40 per cent of his clientele smokes. This translates into about 25 people on a busy night.
Mr. McMurray stated he would regulate smokers on the patio by explaining to them as they go outside that they can take their drink onto the patio, but they will not be served any more beverage alcohol on the patio. The Applicant would not advertise that patrons may smoke on the patio with a drink until closing and he would not provide smokers with chairs to sit and congregate on the patio.
Ms Sylvia Burka resides with David Hogg at 1306 Queen Street East across the street from the establishment. She and her partner operate a contract cleaning business out of their residence. She has resided at this location for 19 years. She signed the letter dated April 28, 2010, and produced in the Applicant’s Book of Records, in support of the Application.
An auto emission testing facility, which she considered to be a real eye sore in the neighbourhood, used to be in the location of the establishment. In addition, there was a “seedy” club, which she believes was called Carubis, in the neighbourhood. The customers from this club were rowdy and she believes they were doing drugs. It was the type of bar which you do not want to have in your neighbourhood.
In the past few years, the neighbourhood has changed for the better. There is now a bakery, ice-cream store and the establishment, which is a family oriented restaurant, in the neighbourhood. The owners of the establishment really care about the neighbourhood. She also likes to see the little girls in their Celtic costumes go in and out of the dance study located in the same premises as the establishment. She would like to see the Applicant thrive, as it is an asset to the community.
The Applicant always has to turn people away because its capacity on the patio is restricted to 40, even though there is space for more people. She has been frustrated by this restriction, as there have been evenings when she would have liked to sit out on the patio but the Applicant was already at capacity.
She has never seen any drunks at the establishment, nor has she ever found the patrons on the patio of the establishment to be too loud. Most of the noise you hear in the neighbourhood is from cars.
Other witnesses were asked about the noise coming from the establishment on St. Patrick’s Day. They were not asked if it was from the young children dancing inside the establishment on St. Patrick’s Day, something she found lovely to watch and very family-oriented.
Ms Patricia Kelso owns and operates the Irish dance school located in the same building as the establishment. She opened her dance school in 2002 and started operating in the same building as the establishment in the spring of 2009. Presently, there are about 100 students enrolled in her school, from age three to adults. She runs classes six days a week, on Monday to Friday evenings and Saturday all day. Some times, when there is a competition, she also runs classes on Sundays.
She has never had any concern about her dance school being located in the same place as this liquor licensed establishment, which is family-oriented. She has always viewed the dance school and Irish pub as a marrying of two types of Irish culture. She has never received any complaints from parents about the establishment. Many of the parents of her students patronize the establishment. Some of her students learned about the dance school because their families were customers of the establishment.
Ms Kelso believes the Application is in the public interest. The increase in capacity and amendments to the conditions would keep the patrons of the establishment happy. Some of her students and the parents of her students have mentioned to her that they wish the patio was open later.
On cross-examination, Ms Kelso indicated that she has been at the dance school or the establishment between 10 p.m. and closing about 10 to 20 times.
At this time, Mr. Levitan filed a letter dated August 18, 2010 signed by Alec Singleton and Ella Potyrala, in support of the Application. The Board entered the letter as Exhibit 8.
Resident Objectors’ Evidence
Ms Nancy Hawley resides at 19 Anges Lane and owns 1307 Queen Street East, where she runs a not for profit business. She has lived and worked in this community all her life.
The club referred to by Ms Burka was actually called the Kariboo Club located at 1311 Queen Street East which was next door to her residence. There were chronic problems emanating from the Kariboo Club. It was very noisy and the police was there constantly. She hired a private investigator and installed security cameras to record the activities of customers entering and exiting the Kariboo Club. Ultimately, her efforts resulted in the club being closed down.
The establishment is about 25 feet from her property.
When she saw the AGCO placard in the spring of 2009 about the planned opening of another licensed establishment in the area, she was very concerned that she would experience the same type of problems that she had experienced with the Kariboo Club. Many of her neighbours were equally concerned. Ms Hawley was chosen by her neighbours to represent their interests at a meeting at the Maple Cottage with the Applicant and Councillor Bussin from the City. Ms Bussin proposed certain conditions be imposed on the licence, but Ms Hawley was in favour of tighter conditions. The residents she represented were divided. Some of them wanted the matter to go to a hearing, but she appealed to the neighbours to give the conditions a try for a year and after a year they could review the operation of the conditions and discuss any concerns.
She did not provide Mr. McMurray with the concerns she and her neighbours have been experiencing since the licence was approved because she did not have a chance to have all of the neighbours sign off on the concerns.
She does not know whether she received any written communication from the Applicant that it was intending to apply to have certain conditions rescinded and the capacity on the patio increased. She was informed of the Application by Anthony Haley of the AGCO.
It is difficult for her to ignore all the people on the patio of the establishment. A lot of the patrons from the establishment stand in her driveway and congregate on the street in front of the establishment. If the patio’s closing time is lengthened, it will mean she will not be able to fall asleep until that much later because of the noise. There are a lot of street cars and traffic during rush hour, but the street is pretty quiet between 11 p.m. and 5 a.m. The later the patio stays open, the less time the street will be quiet.
Mr. McMurray had promised he would always have someone at the entrance to prevent people from congregating. He has not done so. People are constantly congregating on Agnus Lane after leaving the establishment.
On the week of St. Patrick’s Day, she heard music from the establishment while hosting a residents’ meeting at her home. This brought back bad memories of the Kariboo Club.
She does not like the open fire she has observed on the patio of the establishment. She doesn’t think it is safe or good for the environment.
The Applicant made an ice rink for skating and curling on the patio in the winter. However, when the ice melted, it created very slippery and unsafe conditions on the sidewalk.
Ms Hawley put her trust in Mr. McMurray prior to the opening of the establishment, when some of her neighbours preferred a hearing to a negotiated settlement. Regarding the present application, Ms Hawley felt it would be futile to sit down and negotiate with Mr. McMurray. She and other residents never wanted a licensed patio at this location. She believes the existing conditions represent a fair compromise and are very reasonable.
On cross-examination by Mr. Levitan, Ms Hawley stated that Mr. McMurray acted in bad faith because he promised to have an attendant at the door to ensure there is no congregating outside and he has not done so.
Ms Hawley said she does have a record of the dates, times and location where people were loitering or congregating, but she did not bring it to the hearing. She has witnessed it herself and in one case a neighbour complained to her about it.
Ms Hawley said that, to her, loitering means standing around, socializing and smoking.
She has never complained to the City about people loitering. She was the Executive Assistant to Art Eggleton and knows how to make such a complaint.
The people who come out of the establishment are different from other people on the street. When pressed to elaborate on what she meant by “different” she indicated that the people from the establishment are louder because of the effects of alcohol.
The biggest crowd she has seen in front of the establishment is about 25 or 30 people obstructing the sidewalk. She has never heard these people swear, yell or use obscenities.
She has never given Mr. McMurray a list of complaints. She believes Mr. McMurray is nevertheless aware of her complaints since she provided them to the AGCO.
She didn’t attend the open house, an invitation to which was produced in the Applicant’s Book of Records (Exhibit 6), because she didn’t think it was appropriate to attend a meeting at the Applicant’s establishment, when she was having problems with that very establishment.
She did not log the dates and times in which the noise from the establishment was a disturbance.
On one occasion, she called the police about a fight in front of the establishment. The fight started because a man was bit by a patron’s dog and an altercation ensued. The people who were fighting went away and the police didn’t do anything.
She would prefer people to smoke on the patio than on the laneway.
She called the Fire Department regarding the fire burning on the patio of the establishment. They said they would follow-up with the Applicant, but she does not know whether they did.
Her spouse complained about the safety hazard caused by melting ice on the sidewalk from the skating rink. She did not slip on the sidewalk.
She complained to Ms Leadbetter at the AGCO about alcohol delivery trucks obstructing the sidewalk in front of the establishment.
She can’t trust Mr. McMurray because he promised, if the neighbours agreed to a licensed patio, to ensure that it wasn’t a problem.
On re-examination, she indicated that it is difficult to enforce noise by-laws.
Ms Joanne Setterington resides at 15 Agnus Lane, three houses east of the establishment. She has patronized the establishment on several occasions and welcomed it as a positive alternative to the body shop which was previously located there. The atmosphere of the establishment is typical for an Irish pub.
The fire pit on the patio concerned her as it appeared to be unattended. Sometimes she likes to dry her clothes on the patio and she can’t do that when there is wood burning or her clothes would smell of wood.
Ms Setterington is accustomed to being at bars after 11 p.m.
When she attended the meeting at Maple Cottage, where the original conditions were negotiated, it was her understanding that it would be a family establishment. She doesn’t understand how a family establishment would benefit from being opened after 11 p.m.
Mrs. Edith Sandusky, who rides a scooter to get around the neighbourhood, doesn’t have a problem with people standing out in front of the establishment. If there are people standing around, she simply turns her scooter around and changes the route.
She doesn’t support the patio being opened after 11 p.m. By that time, people have normally consumed enough beer.
The establishment and its patrons do not bother her. However, she wouldn’t like to see them expand as that’s when the problems would likely begin.
It is a nice establishment now, but to change the conditions would be asking for trouble.
Mr. Gus Sandusky resides at 19 Agnus Lane about 25 feet from the establishment.
He attended the meeting at Maple Cottage before the licence was granted. It was his understanding that all of the conditions would be reviewed after a year.
He thinks a pub in the area is a good thing as long as it is operated properly.
Mr. Sandusky tried to speak to Mr. McMurray four times about complaints, but Mr. McMurray was never at the establishment when he went there to speak to him.
One of the complaints he has about the establishment is that people hang out in front of it. Mr. McMurray put a bench out front, which encouraged people to congregate. Once he witnessed a woman with a stroller move onto the road to get around the people congregating on the sidewalk in front of the establishment.
Another complaint relates to the ice rink in the winter. When the ice melted and flowed onto the street it created a very dangerous condition on the sidewalk. He saw people cross the street to avoid walking on the ice.
The noise inside the bar is very loud. In response to a question from the Board, Mr. Sandusky indicated he is not referring to noise that is audible from outside the establishment.
A further complaint relates to the fire pit on the patio. He has observed this fire pit being left unattended, which is not safe.
Mr. McMurray has not been entirely forthright with residents. For instance, he should have disclosed to residents at the initial Maple Cottage meeting that there would be an unlicensed patio and he could do what he wanted on the unlicensed patio.
He does not object to the Applicant having an event on St. Patrick’s Day.
He has not seen the delivery trucks block the sidewalk lately.
Once he saw an eight to ten year old girl standing in the laneway by the establishment.
A midnight closing hour is irrelevant if patrons are going to be allowed to smoke, with their drinks, on the patio until 2 a.m.
He has witnessed two well dressed men urinate in the laneway. He did not witness them come from the establishment, but he expects they had too much to drink at the establishment. In both cases, the men who were urinating got into a car. As such, he doesn’t think they were poor people collecting bottles, as suggested by Mr. McMurray.
On cross-examination, Mr. Sandusky stated that he is only aware of amplified music being played on the patio on St. Patrick’s Day. The amplified music stopped after someone complained. It wasn’t repeated after that one night. He doesn’t know whether the amplified music came from the unlicensed portion of the patio.
He did not get a legal opinion that the people hanging around on the sidewalk were loitering. The City Inspector said the Applicant was not allowed to have a bench in front of the establishment and it was removed.
He doesn’t fault Mr. McMurray for not being there when he went to the establishment to speak to him. He did not try and obtain Mr. McMurray’s email address. He can’t fault Mr. McMurray for not responding to complaints that he didn’t know about.
He doesn’t know for a fact that the eight or ten-year- old came from the dance school but he thinks she probably did. He is not faulting the school or the establishment for this.
Ms Janet Money indicated that she has never met the Agnes Lane residents before today. Noise from the establishment is not a major concern for her. Her main objection relates to the amendment which would allow smokers on the patio until 2 a.m.
She attended the hearing because she objects to certain inaccuracies in the application process and other misstatements. For instance, she was not polled on her opinion about the closing hour of the patio, nor was she aware of the opportunity to object to the closing hour.
Ms Money strongly objects to the suggestion that she refused to meet or negotiate. She thought it was inappropriate to have a meeting with the Applicant at the establishment. There would be an inherent bias if the meeting about the Application took place at the establishment to which the Application relates. The meeting should have taken place at a neutral location. The cancellation of the conference call with the AGCO came as a complete surprise to her.
She had to file a Freedom of Information request to obtain a copy of the petition. Fortunately, the information she requested was provided to her in advance of the hearing.
Applicant’s Submissions
The Application triggered objections from residents. Five residents attended (three of which were from the same family, namely Gus Sandusky, Nancy Hawley and Edith Sandusky, Mr. Sandusky’s mother). Approximately 22 resident supporters attended the hearing, including the local Councillor for the Beaches-East York Ward, Sandra Bussin. The Registrar generated a NOP to Refuse because this was an application to remove conditions, but took no other position on the merits.
There was a consensus among all witnesses that the conditions on the licence were subject to a review in a year and that the review would not be limited to the ability to play unamplified music on the patio (condition #3).
Councillor Bussin, in her evidence, gave a glowing account of the Licensee and presented her full support of all aspects of the Application. She also testified that the City Solicitor determined that the amendments requested were reasonable and fair and that the community would not be negatively impacted by them. Under cross-examination from Ms Money, she testified that Councillor Fletcher of the adjoining Ward was highly supportive of the Application. Councillor Bussin also testified to the substantial improvement the Applicant has made to the area and that it is in a competitive disadvantage with other establishments that can operate beyond 11 p.m.
Victoria Dinnik, who resides at 65 Lang St., testified that the establishment transformed the area and that the changes around the building and area are wonderful. Sylvia Burka testified that the Applicant has enhanced a rotten area.
Raquel Youtzy, who is the closest resident to the establishment, with her bedroom and living room windows directly overlooking the Ceili patio, is a strong supporter of the Application and had no qualms about any of the changes to the conditions, including the increased capacity.
The email exchange contained in the back of Exhibit 6, makes clear that the resident objectors had no interest in having any constructive dialogue with the Applicant.
The objectors could not cite one credible example of a complaint regarding the past operation of the Ceili Cottage. The suggestion from Ms Hawley that she had to accumulate the complaints over a year before disclosing one single complaint to the Licensee is absurd and should speak volumes about the bona fides of those complaints. They produced no log or record of any complaints despite the fact that they had experience with the Caribou Club and were proud that they shut it down after hiring a private investigator and using security cameras. They could have done the same in this case but did not.
Ms Hawley could not cite one credible noise complaint. Neither she nor any other objector produced any log, diary or record of any complaint or problem dealt with privately or with the police, the City or the AGCO. Her evidence about “problems handling crowds” was not credible, as she could not cite a specific case. She testified that she preferred smoking on the patio than in the street.
Joanne Setterington testified that she has eaten at the Ceili Cottage, that its atmosphere is enjoyable, and that it is a welcome alternative to the body shop that was there before.
Edith Sandusky, the mother of Gus Sandusky, testified that she saw no problems in front of the establishment, that the patrons do not bother her much because “you need to use common sense”, and that the establishment is “nice as it is going along”.
Gus Sandusky could not substantiate many of his allegations. When asked if he complained to the Applicant about any problems, the best he could say was that he went to the establishment three times but could not remember if he spoke to anyone. He admitted he made no attempt to email Mr. McMurray, despite the fact that his spouse had the email address.
Janet Money indicated that noise was not an issue for her. Most of her complaint related to the AGCO’s process.
The Applicant does not have to show a change in circumstances by virtue of Condition 3, which contemplated a review within a year. Nevertheless, there are numerous changes in circumstances, including the change in position of the City of Toronto, the City Solicitor, Councillor Bussin and supportive residents. With a positive track record of one year, they all now support every one of the changes requested.
The evidence of support is substantial. The evidence is also clear that the changes are modest, reasonable and in the public interest. The few opponents of the Application do not speak for the community.
The evidence is clear that the Licensee acted in good faith with the residents and attempted, at great lengths, to explain the Application and discuss it with an open mind.
The Applicant has met its onus to support the changes to the conditions requested, including the increase in capacity to 60 on the patio. The Applicant has demonstrated substantial changes in circumstances and that the Application is in the public interest. It is, therefore, requested that the Application be granted in its entirety.
Resident Objectors’ Submissions
The Application triggered objections from owners and residents of nine of the ten townhouses on Agnes Lane, located a short distance to the east of the establishment. Four Agnes Lane residents attended plus an objector from Alton Avenue. The remaining Agnes Lane residents indicated their support for the five residents in attendance through a signed petition.
The onus of proof is on the Licensee to prove that the removal and change of the existing conditions are warranted by a change in circumstances and are in the public interest.
Councillor Bussin agreed in cross-examination that Toronto City Council did not take an official position on this matter by passing a resolution and that her position was only as a local City Councillor.
Councillor Bussin also admitted that there are similar conditions in place on patio licences on Queen Street east of Woodbine Avenue, in her Ward, as a result of a City By-law passed before she became Councillor.
All residents except Raquel Youtzy and Sylvia Burka, testifying in support of the Application, indicated that they lived farther away from the establishment than the Agnes Lane residents. Raquel Outré testified that she owns a bar/lounge which is a short distance from the Applicant’s other establishment on Adelaide Street.
The testimony of all of the Agnes Lane witnesses was that they do not want to shut down the Ceili Cottage and that all they want is for the existing conditions on the licence to be continued.
Nancy Hawley, Joanne Setterington and Gus Sandusky all testified that there was an agreement that the Licensee would review the operation of the conditions with the Agnes Lane residents after one year. The Licensee failed to live up to what he promised to do, since there was no review. As a result, they have lost trust in the Licensee.
The objectors opposed the Application as one way to prevent even greater neighbour concerns with respect to noise, late night activity, congestion and other disruptive behavior from the establishment’s outdoor patio operation arising in the future.
The evidence of the Agnes Lane residents is that their experience over the last year has demonstrated to them that the impact on the quiet enjoyment of their properties by the operation of the establishment’s outdoor patio has, at times, been adverse due to instances of noise, late night activity, congestion and other disruptive behaviour.
The impact on the Agnes Lane residents, resulting from the proposed removal and changes to the existing conditions, would be adverse to the extent that the enjoyment of the Agnes Lane residents’ properties would be taken away and that the impact regarding noise, late night activity and congestion, in particular, cannot be satisfactorily mitigated without continuation of the existing licence conditions.
The Applicant has not met its onus to support the requested changes to or removal of conditions. The Applicant has not demonstrated substantial changes in circumstances, nor has it demonstrated that the Application is in the public interest.
Janet Money’s Submissions
Councillor Bussin’s testimony was of questionable relevance given that determination of “reasonableness and fairness” of requested amendments to conditions are not within the jurisdiction of the municipality and, in any event, are not determining factors in a public interest hearing.
Ms Bussin’s comments about Councillor Fletcher’s position on the Application should be disregarded as it is third party evidence.
While Ms Bussin and Victoria Dinnik gave positive comments about the establishment, the Applicant must establish that there has been a change in circumstances.
The 20-5 scorecard is irrelevant. The identities and addresses of the 20 people are unknown, since they were not sworn in and questioned. Ms Money learned through conversations with some of the supporters outside the hearing room that the Applicant provided taxi cab transportation for the supporters.
Sylvia Burka contrasted the area to an environment that had already disappeared with the demise of the Caribou Club. There was no evidence that this occurred after the opening of the establishment, or that if it did, that it was a result of the establishment’s influence.
Patricia Kelso, a tenant of the Applicant, has a conflict of interest and her testimony should be viewed in that light.
Ms Money provided photos with her submissions of the nearest bars with patios.
Ms Money did not attend the open house because the review of the conditions should have taken place in a neutral location and been chaired by a neutral party. She was not involved in the establishment of the conditions and only knew what they contained when she read the Application. She would have attended an impartial, open neighbourhood meeting.
Ms Money declined to continue correspondence about points of contention because she questioned whether it was an AGCO-sanctioned dispute resolution method.
Registrar’s Submissions
The Registrar issued the NOP to refuse to remove/change the conditions based on the objections received from the public. The Registrar has no further evidence or position beyond the submissions of the objectors as to whether there has been a change in circumstances to permit the Board to approve a change in conditions and as to whether the requested changes to the conditions are appropriate and in the public interest, subject to one caveat.
The Registrar is concerned about the enforceability of amended condition number 1 both by the Licensee’s staff and the AGCO enforcement officers. It is more than likely that the 12 o’clock closing will become a 2 a.m. closing, given the number of patrons who smoke (40 per cent) and the fact that on nice days, they will likely be standing on the patio drinking, talking and smoking on a continuous basis. It will be impossible for the Licensee to monitor if people are smoking, about to smoke, in between cigarettes or just waiting for a fellow smoker to finish.
It will also be difficult for an AGCO inspector or police officer to determine if the condition has been breached. When does one become a smoker, and when does one cease to be a smoker and become a person who is now illegally on the patio?
With respect to paragraph 21 of the Licensee’s submissions, the Licensee has a statutory right to apply for a change of condition regardless of whether an agreement with the residents enabled it to do so. However, the statutory onus on the Licensee to prove a change in circumstances remains.
Applicant’s Reply Submissions
The clear evidence given by Patrick McMurray was that smokers were strictly monitored and regulated as is. There is no evidence to the contrary. In fact, one of the objectors, Nancy Hawley, testified that she preferred smokers to be on the patio as opposed to the street. The nearest resident, Raquel Youtzy, is supportive of this, as is the City of Toronto and Sandra Bussin. As the Councillor testified, the City Solicitor had no problem with this proposed change and/or condition (or the other ones). The issue of smoking at establishments is City of Toronto regulated and enforced and is of City jurisdiction. Therefore, the best evidence presented at the hearing, including that of Nancy Hawley on the issue of smoking, is that this proposed condition is appropriate and reasonable.
There was no evidence on the percentage of smokers at the establishment and therefore, Registrar Counsel’s proposition that 40 per cent of patrons smoke should be disregarded. The issue is how many of the establishment’s patrons are likely to be on the patio smoking and whether the establishment can handle it responsibly. The only evidence, and the best evidence as stated above, is that the establishment has handled the issue responsibly up until now and therefore there is no reason to presume that it would not if the proposed condition came into being.
With respect to it being “difficult” for an AGCO inspector or police officer to determine if the condition has been breached or not, there is no evidence that there would be any difficulty. If someone were on the patio drinking and not smoking, that would be easy to determine and not any more difficult than determining if someone were underage or intoxicated. It is rather simple. The argument of Registrar’s Counsel presumes that the establishment would permit this breach and there is no basis for that presumption. People have been allowed to drink and smoke on the patio under the present time restriction with no problem, and the presumption that there would be a problem with the proposed condition is not supported by the evidence.
The evidence of Patrick McMurray was that though there was a consensus building at the March 19, 2009 meeting, there was no conclusion because Nancy Hawley did not approve the City’s draft and this caused the uncertainty to continue, particularly when looming strikes placed the Licensee in duress.
Councillor Bussin testified that it is not the usual practice for the City to pass a resolution of support and that the position of City Council is usually deference to the local Councillor.
The Board ought to pay the greatest attention to the concerns of the closest residents, specifically, the evidence of Raquel Youtzy and Sylvia Burka who reside closer than the Agnes Lane residents. Further, it is preposterous to suggest that Raquel Youtzy would have less credible or honourable evidence because she is in the service industry.
Patricia Kelso, the director of the dance school, testified that her school and the 100 students would not have a home if not for the Licensee.
The critical point about the St. Patrick’s Week celebration is that once a complaint about noise arose (and this was a day time complaint), the Licensee took immediate steps to mitigate the issue, and there was no complaint or problem afterward. This is the conduct of a responsible and responsive Licensee.
The clear evidence of Patrick McMurray and Councillor Bussin is that many competitors were not restricted on the patio in terms of hours and music. The residents had no specific or credible evidence on what the conditions or lack of them were on other patios. Their evidence must be disregarded.
Resident objectors’ submissions on the issue of consultation are not credible or supportable based on the evidence and the email exchange included in Exhibit 6. The objectors clearly and unwaveringly did not want to have any discussion with the Licensee on reviewing the conditions or compromising in any way. That is the clear evidence on the documentation, on the evidence of Patrick McMurray, and most damagingly from Nancy Hawley, Joanne Setterington, Gus Sandusky and Janet Money.
Both the issues of the “open” fire pit and the curling rink are irrelevant to the issues before the Board. The reality is that there was no evidence of City or other violations in regard to these activities, there was nothing illegal about them, and they are unconnected to what is being sought in the Application.
The fact that Gus Sandusky went to the establishment three times to speak with the Licensee but on all three occasions the License was not there does not help Mr. Sandusky or the Board. His clear evidence was that he never left his card, his number or any message and never attempted to get in touch with the Licensee by phone or email even though he had access to that information. Further, the fact that the Licensee was not present on these random occasions is utterly irrelevant.
There was no clear, specific or credible evidence of an “adverse” impact. The objecting residents were strained under cross-examination to come up with one specific example of “problems” and their disingenuous evidence in this respect is reflected in their refusal to provide Mr. McMurray with specific complaints, though he implored them to do so in order to address them, as evidenced by the email exchange in Exhibit 6.
The allegation that the Licensee did not follow through on its promise to consult with neighbouring residents is utterly unsupported by the evidence. The contrary is true. Not one of the objecting residents attended the Open House of April 14, 2010.
Ms Money’s submissions contain substantial mischaracterizations of the evidence and a purported attempt to introduce new evidence which is improper.
It is not the Licensee’s responsibility to account for the rules under which applications of this nature take place. Ms Money was not prohibited from checking with her fellow objecting residents’ counsel for information on evidence or procedure. She also could have read the AGCO’s rules, which are available online.
Ms Money’s attempts to have Ms Bussin’s evidence discounted or rejected have no basis in fact or law. Third party evidence is accepted. and it should be noted that Ms Money and the other objecting residents could have, but chose not to, call any third party evidence such as the police, city officials, by-law officers, AGCO inspectors or Councillor Fletcher to counter the preponderance of supportive evidence and that of Councillor Bussin as to Councillor Fletcher’s views.
There was no credible evidence of late night patio noise from the establishment. In fact, the evidence of Edith Sandusky counters it. What is most telling about Ms Money’s submissions is that in her opening remarks at the hearing, she made her distinction from the other objecting residents by saying that for her “noise is not a major issue”.
Ms Money’s attempts to slip in unidentified conversations outside the hearing room is highly inappropriate. Her attempt to slip in other photos and evidence of other bars is also improper and ought to be discounted. She could have led evidence at the hearing when she would be under oath and subject to cross-examination.
The reality is that Ms Money had every opportunity to come to the Open House and dialogue with the Licensee. She also could have communicated any concerns to the Licensee. She chose not to.
Ms Money makes no submission that addresses the merits of the Application and her submissions, in the context of her opening at the hearing, that “noise is not a major issue”, questions the very purpose of her objection.
The preponderance of evidence supports the Application and it should be granted as requested.
Decision/Reasons/Analysis
The Board rejects Mr. Levitan’s position that the Applicant does not have to show a change of circumstances in light of the wording of condition 3, which contemplated a review of the condition insofar as it relates to playing unamplified music on the licensed patio, and the evidence that in fact a comprehensive review of the conditions was contemplated. The Board agrees with Mr. Morris that the Licensee has a statutory right under subsection 14(2) of the LLA to apply for a change of conditions and that there is an onus on the Applicant to prove, on a balance of probabilities, that there has been a change of circumstances, regardless of any agreement between the Licensee and the residents.
Counsel for the resident objectors submitted that the Applicant has not demonstrated substantial changes in circumstances. Under subsection 14(2) of the LLA, the Applicant is required to establish, on a balance of probabilities, that there have been a “change in circumstances”. The changes in circumstances need not be “substantial”.
The Board rejects Ms Money’s request that Councillor Bussin’s comments regarding Councillor Fletcher’s position on the Application be disregarded. Under the Board’s Rules of Practice, hearsay evidence is admissible. The Board finds it questionable that Ms Money is objecting to this hearsay evidence in submissions, when Ms Money is the one who put the question to Councillor Bussin in cross-examination. Further, there were no objections by any other party to this evidence being admitted at the hearing.
The Board also rejects Ms Money’s request that the count of supporters and objectors taken at the hearing be disregarded. None of the parties objected to the count being taken at the hearing.
The Board did not give any weight to Ms Money’s submissions regarding conversations she had with some of the supporters outside the hearing room. Nor did the Board consider or give any weight to the photographs she included with her submissions. Ms Money should have introduced such information at the hearing thus enabling the Applicant to cross-examine on it. It is neither fair nor appropriate procedure to introduce new evidence through submissions.
Respecting the Application to remove condition #5 and to change conditions 1 (excluding the smokers’ exception), 2, 3 and 12, the Board is satisfied, for reasons which follow, that there has been a change in circumstances and that the Applicant has met the onus of establishing that the removal/change of the aforementioned conditions is in the public interest.
When the Applicant initially applied for a liquor licence in the spring of 2009, the City and residents supported the existing conditions because the Applicant had no track record in the community and some were concerned about encountering problems similar to those they experienced with the Caribou Club, including loud noise, rowdy, intoxicated patrons, drug dealings, etc.
Throughout its first year of operation, the Licensee has established that its premises is nothing like the Caribou Club. Instead, it is a family-oriented operation, which all of the supporters testified, and even some of the objectors acknowledged, is an asset to the community and has contributed to the transformation of the neighbourhood into one that is more inviting to residents and businesses.
There was no credible evidence of a noise disturbance being caused by the Licensee or its patrons. Ms Youtzy, whose residence is the closest to the patio of the establishment, characterized the noise on the patio as “pleasant chatter” and preferable to the noise from the street cars and traffic on the street. There was no basis to Mr. Crann’s attempt to discredit Ms Youtzy’s testimony because she owns a bar/lounge near Mr. McMurray’s other establishment.
Ms Money testified that noise from the establishment was not an issue for her. Neither Ms Setterington nor Mrs. Sandusky mentioned anything about a noise disturbance in their testimony. Ms Hawley and Mr. Sandusky did not have any specific evidence to support a noise complaint, except one time during a St. Patrick’s Day event (when music was being run off the unlicensed portion of the patio), but once the complaint was brought to the Licensee’s attention through Inspector Leadbetter, the Licensee immediately turned the music off and it was not repeated.
To the extent that the objectors had complaints, they generally had nothing to do with the conditions which the Applicant is seeking to remove or change. For example, some of the objectors complained of customers obstructing the sidewalk in front of the establishment, of the liquor delivery truck obstructing the sidewalk in front of the establishment (although Mr. Sandusky acknowledged that he has not noticed the liquor delivery truck doing same for some time), of a fire pit on the patio being left unattended, and of slippery conditions on the sidewalk in front of the establishment as a result of melting ice from the skating rink the Licensee created on the patio in the winter. These complaints may or may not be justified, but they have nothing to do with the Application before the Board in this case.
The Board found it troubling that the residents who had these complaints did not bring them to the attention of the Licensee at the time that they occurred. As Mr. McMurray noted in his evidence, it is very difficult to address complaints he does not know about or that occurred many months ago. The Board found Mr. McMurray to be very genuine in his commitment to ensure that his business does not encroach on the enjoyment of residential properties in the neighbourhood. Ms Bussin and the residents who testified in support of the Application all described the Licensee as a thoughtful member of the community who really cares about the neighbourhood and the neighbours. Indeed, the one time a complaint was brought to his attention he addressed it immediately (St. Patrick’s Day event).
Ms Hawley and Ms Money indicated that they did not attend the Open House because they felt it was improper to have a review of the conditions at the Licensee’s establishment. However, there was no evidence that they brought their concern, regarding the location of the review, to the attention of the Licensee, nor was there any evidence that they proposed an alternative location. The Board agrees with Mr. Levitan that the allegation that the Licensee did not follow through on its promise to consult with neighbouring residents is unsupported by the evidence. From the evidence, it appears as though the objectors were set on the matter going to a hearing.
The majority of residents in the neighbourhood are now supporting the Application as being in the public interest. Indeed, there were 20 individuals supporting the Application present at the hearing, whereas there were only five objectors, and three of the objectors were from the same family. Further, Ms Money’s opposition to the Application at the hearing, related only to the smokers’ exception (she was also very critical of the application process, but this had nothing to do with the content of the Application per se). Councillor Bussin, who represents the Ward where the premises is located, also testified that she supports the Application, and that she has reviewed it with the City Solicitor who found the Application to be reasonable and fair and who believes that the community will not be negatively impacted if it is approved. She also explained, in response to questioning from Mr. Crann, that City Council never passes a resolution in support of an Application, but rather would only bring a motion if it were opposing the Application.
The Board agrees with Mr. Levitan that the objectors did not provide any credible evidence that the existing patio has had an adverse impact on residents or that the proposed removal and changes to the conditions, changes which are quite modest in nature, will have an adverse impact on residents.
From the evidence, the significant support for the Application, a change from when the Applicant initially applied for a licence over a year ago, is because the Licensee has proven to be a responsible, family-oriented operation which has not disturbed the majority of residents, but rather has proven to be an asset to the community, and a welcome alternative to the emission testing facility previously located in its place, over the last year.
In determining that there was a change in circumstances and that the Application to remove condition 5 and change conditions 1 (excluding the smokers’ exception), 2, 3 and 12 is in the public interest, the Board did not consider the fact that Mr. McMurray felt pressured to sign the conditions because of the impending municipal strike. Nor did the Board consider that other establishments in the neighbourhood are permitted to serve beverage alcohol on their patios until 2 a.m., as it was not clear from the evidence that this was a change from one year ago when the conditions were signed. Rather, in determining that there was a change in circumstances and that the Application is in the public interest, the Board considered the conduct of the Licensee in the last year and the fact that, because of its responsible conduct and the family-oriented nature of the establishment, the majority of residents, as well as the City Councillors of the Ward and the adjoining Ward, are now supportive of the Application.
The Board is not, however, satisfied that there is a change in circumstances which warrants the smokers’ exception or that this proposed exception would be in the public interest.
The proposed exception for smokers would effectively allow the Licensee to circumvent the requirement that the signs of beverage alcohol be cleared by midnight and that patrons not be allowed on the patio after midnight. Further, it would make it very difficult for AGCO inspectors to determine compliance with the requirement of clearing the signs of service on the patio by midnight, if smokers could remain on the patio with their alcoholic beverages after midnight.
The Board also agrees with Mr. Morris that it would also be difficult for the Licensee and AGCO inspectors to determine when someone is a smoker and when someone ceases to be a smoker and is improperly on the patio after midnight. When asked how he intended to enforce the proposed smokers’ exception, Mr. McMurray did not indicate that he planned to have staff on the patio to monitor and ensure that only smokers are on the patio after midnight, and the enforcement measures he proposed appeared, on a balance of probabilities, insufficient to ensure compliance.
The Board disagrees with Mr. Levitan that there was no evidence that 40 per cent of the establishment’s patrons smoke. This was, in fact, evidence that Mr. McMurray gave, in response to a question from Mr. Morris at the hearing.
Mr. Levitan notes that the Registrar did not lead evidence on enforcement difficulties proposed by the proposed smokers’ exception, however, the onus is on the Applicant to prove that this change to the conditions is warranted by a change of circumstances and in the public interest, and the Applicant failed to do same in respect of the smokers’ exception.
Order
For the above reasons, the Board APPROVES the Application to remove condition #5 and change conditions #1 (excluding the smokers’ exception), 2, 3 and 12 on liquor licence number 813734 issued to Ceili Cottage Inc., operating as Ceili Cottage (The), 1301 Queen Street East, Toronto, Ontario, M4L 1C2.
The amended conditions 1, 2, 3 and 12 are:
The sale and service of alcohol shall cease on the Licensed Patio at midnight daily and all signs of sale and service shall be cleared by midnight. No patrons will be allowed to remain on the Licensed Patio after midnight.
Subject to final capacities established by the Fire Marshall, no more than 60 patrons shall be allowed on the Licensed Patio at one time.
Only ambient background music shall be permitted on the patio at anytime and shall cease no later than midnight daily. In addition, acoustic live musical performances without amplification shall be permitted on the patio but shall cease no later than 9 p.m.
With concerns about the environmental impact that the plastic will have, as well as the impact of the amount of garbage it would produce, it is agreed that The Ceili Cottage will be allowed to use regular glassware on the patio. All glassware will be removed from the patio by midnight.
DATED AT TORONTO, THIS 16th day of September , 2010.
JACQUELINE CASTEL, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER