Registrar, Alcohol and Gaming Commission of Ontario v. 1672251 Ontario Ltd., 2010 CanLII 81046

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-

1672251 Ontario Ltd., operating as or intending to operate as Rio 40 Degrees Restaurant & Bar Applicant

-and-

Willby Jarvis Resident Objector

-and-

Ramiro Costa Resident Objector

DECISION

Panel: Patricia E. McQuaid, Vice-Chair, AGCO Brian J. Ford, Board Member

Decision Date: November 24, 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 1672251 Ontario Ltd., Applicant ) Jerry Levitan, Representative Willby Jarvis ) On his own behalf Ramiro Costa ) On his own behalf and on behalf of the Resident Objectors

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18230 dated August 5, 2010 to review the application for licence for an additional licensed area made by 1672251 Ontario Ltd. (the “Applicant” or “Licensee”) operating as RIO 40 DEGREES RESTAURANT & BAR, 1256 St. Clair Avenue West, Toronto, Ontario, M6E 1B9 (the “establishment” or the “premises”), establishment number 23925, on the basis the AGCO has received one or more written objections to the Application. A hearing of the application was held on October 7, 2010 in the City of Toronto.

Decision

2After carefully considering the evidence and submissions, the Board APPROVES the Application made by 1672251 Ontario Ltd., operating as Rio 40 Degrees Restaurant & Bar, 1256 St. Clair Avenue West, Toronto, Ontario, M6E 1B9 for an additional licensed area on the conditions set out below. Reasons follow.

Preliminary Matters

3Mr. Willby Jarvis was granted party status, on his behalf and on behalf of his family. In addition, Mr. Ramiro Costa was granted party status on his own behalf and on behalf of the remaining resident objectors. Mr. Levitan, on behalf of the Applicant, consented to their requests for party status.

4Ms Majerovich, advised the Board that the Registrar would not be taking a position on the application. She submitted Exhibit 1, a package of objection letters and Exhibit 2, letters of support.

Objectors’ Evidence

5Willby Jarvis has lived at 14 Boon Avenue for seven years. His home is located at a distance of approximately 40 metres from the Applicant’s patio. Boon Avenue runs north from St. Clair Ave West and flanks the Rio 40 patio. Mr. Jarvis explained that he is not opposed to the Applicant’s business and is aware of its challenges. He and his wife have eaten there on occasion. However, he is bothered by the noise emanating from the patio especially during the busy summer months, and this year noise was exacerbated by the World Cup festivities.

6Sometimes it can by quite raucous on the patio, but he has not complained. He prefers to be accommodating if possible. His concern is the impact of doubling the size of the patio, from 44 to 86 persons both in terms of noise and the impact on parking on Boon Avenue.

7He reiterated that the noise from the patio is not terrible every night. When it is, he might get wakened from his sleep after 11:30 p.m.

8From Mr. Jarvis’ perspective, the Applicant seems unwilling to take action to deal with the community’s concerns about noise. She has displayed no great effort to talk to residents and he is concerned that she has not honoured her existing licence by allowing people to be on the patio after 11 p.m.

9By way of clarification, the Board was advised that there are no conditions on the liquor licence at present. There is however, a municipal bylaw in effect requiring the patio to be closed at 11 p.m.

10In cross-examination, Mr. Jarvis conceded that there is for him, another source of noise. A bar on the south side of St. Clair. While he hears significantly more from the Applicant’s premises, the music from the other establishment is loud and raucous. The music emanating from Rio 40 is not unpleasant. If there was no music at all at Rio 40, it would make a difference, though he did state that on occasion a “joyous explosion of laughter” from the Rio 40 patio can pierce the night. He has not kept a record or log of those occasions when he was bothered by noise from Rio 40. He is unwilling to do something about the noise when he hears it late at night.

11In the course of cross-examination, Mr. Levitan introduced Exhibit 3, a letter dated September 21, 2010 from Cesar Palacio to the AGCO in support of this application. In the letter, Councillor Palacio states that he had consulted with the majority of residents of Boon Avenue and heard no objections to the proposal and in many cases, residents were complimentary to the Applicant for being quiet and respectful of the neighbourhood. Mr. Jarvis stated that he had spoken to the councillor some time ago regarding the issue of extension of hours for the patio, but he had not been consulted by Councillor Palacio about this issue.

12Mr. Jarvis stated quite clearly that he is against the potential effect of the business, not the business itself. He has had friendly conversations with Ms Duarte, the principal of the Applicant; it is this application which is of great concern.

13Gregory C. Lorcini has lived at 27 Boon Avenue since December 2005. His home is approximately 40 metres from the Rio 40 patio. He is regularly bothered by the noise during patio season. There is a consistent level of ambient noise from it even with his windows closed. As a result, he will turn on the audio in his home so as not to be distracted by the ambient noise. This also affects his enjoyment of his own backyard.

14Mr. Lorcini has called the police several times about the noise. He did oppose the application for extension of hours (as per the municipal bylaw) in part because of the noise from the patio.

15In addition, Mr. Lorcini stated that parking is already an issue on Boon Avenue; patrons of Rio 40 will park on both sides of the street. The street is already congested, resulting at times, in fire trucks being unable to make their way up the street. Increasing the capacity of the patio will make this issue worse.

16On cross-examination, Mr. Lorcini stated that he last called police about the noise mid-summer. He has called once in the day and once in the evening. He does not know what resulted from those calls. He has not asked the Licensee to turn down the volume. Regarding the statement in his letter of objection that he has seen patrons on the patio after 11 p.m., and has seen the patio crowded with patrons, he made no record of this.

17On the issue of parking, he was aware that there are now four additional metered parking spots on Boon Avenue and acknowledged that parking is a problem throughout the City of Toronto.

18David Eburne has lived at 35 Boon Avenue since January 2010. He stated that living in the city, near a bustling street means there will be a general amount of noise. He hears patron chatter from the patio. It is not the current level of noise that is particularly bothersome; he described it as okay. What does concern him is what it will become, (for example, a nightclub area), if there is an increase in capacity. Parking issues, too, are of a concern should there be an increase. Parking enforcement does take place now, but people continue to park despite ticketing. The street can be very congested and he, too, has observed a fire truck unable to proceed north on the street due to the cars parked on each side of the street.

19Eike Dreyer also resides at 27 Boon Avenue. She explained that the noise level from Rio 40 has had an impact on her enjoyment of the outdoors. They are barely able to sit on their front veranda in the summer and sometimes are unable to enjoy their backyard. She has observed a yellow “Hummer” parked next to the patio, blaring music during the late afternoon, drawing people to the patio. She stated that on many Saturday nights the patio is still open at 12:30 a.m.

20Ms Dreyer has been to Rio 40 twice. She has not communicated with the Applicant about this matter, nor has she spoken with Councillor Palacio. While not all cars that park on Boon Avenue are those of Rio 40 patrons, she would estimate that with an additional 40 patrons, there would be 10 to 20 more cars arriving. She does hear the patrons when they are returning to their cars late at night.

21Ramiro Costa lives at 25 Boon Avenue. His house has a direct line of sight to the Rio 40 patio. The noise from the patio is significant, both from loud music and loud customers. As well, he hears blaring music from cars parked next to the patio which is unacceptable. His daughter is often awakened by the sound of car doors opening and closing all night long. All this has reduced the enjoyment of his property; their windows are kept closed to keep the noise out.

22Mr. Costa stated that parking is an issue on the street; cars obstruct emergency vehicles. By doubling the capacity of the patio, problems will only increase in his view. He has not complained to the Licensee though he has called the police. Mr. Costa stated that he was not contacted by Councillor Palacio and questioned who was, since none of the objectors seem to have been contacted.

Applicant’s Evidence

23Janaina Duarte is one of the principals of the Licensee. Five years ago, she and her husband purchased the business from the previous owner, for whom she had worked as a waitress. She described Rio 40 as a family restaurant serving Brazilian cuisine. The patio area is a large space with a current capacity of 44.

24Ms Duarte spoke to her local liquor inspector about increasing capacity on the patio and he suggested that she contact the fire department to have them conduct a capacity load. She did contact them and they set a capacity of 86 persons, at which point she then filed this application.

25Letters of support (Exhibit 4) were filed. The letter was drafted and circulated by a neighbour, Romilda D’Amico, who lives at 16 Boon Avenue.

26Parking traffic in general, has been an issue on St. Clair West from about three years ago while the construction has been ongoing. She did approach Councillor Palacio and the local BIA about securing four parking spots on Boon Avenue adjacent to the patio. They have been installed, though they are spots available to the public, not just for her patrons.

27Presently, the municipal bylaw requires that the patio closes at 11 p.m. Ms Duarte acknowledged that transferring patrons inside at 11 p.m. is a challenge and there are, at times, still patrons on the patio after 11 p.m. This is not a restriction on the liquor licence. She did apply to have the municipal bylaw lifted for her premises and hours extended but this was opposed by the neighbours. Mr. Palacio has been to her restaurant, was aware of the application to extend hours, and when she told him about this application, he said he would talk to the residents and then would get back to her three to four weeks later. He then provided her with Exhibit 3, his letter of support.

28Ms Duarte advised that Rio 40 is open seven days a week, to 10 p.m. on weekdays and 11 p.m. on weekends. There are 15 employees. A letter of support for extended patio hours from the Corso Italia BIA was filed as Exhibit 5, as were photos taken by Ms Duarte of the exterior of the premises. The photos depict the area in the morning when the area is not so busy. The photos show the size of the patio area, the new parking spots and the proximity of neighbouring houses. The church, shown in Exhibit 6A, has not objected to the application.

29Ms Duarte believes that the construction on St. Clair which now appears complete, has brought life to the street. Her customers want to have the opportunity to sit on the patio which now has limited capacity.

30Ms Duarte is prepared to agree to conditions on her licence to alleviate concerns regarding noise. These are as follows:

1. that there be no amplified or live music, tv or any other electronic device that emits sound on the patio at any time;
2. that one employee be designated to ensure orderliness on the patio during its hours of operation;
3. that she provide a cell phone number to residents by which they could communicate with her at any time;
4. that she erect a sign requesting patrons to respect the neighborhood, and
5. that the patio be completely closed at 11 p.m.

31Ms Duarte stated that she does not want her restaurant to be a problem for the neighbourhood. It is a family restaurant and she wants the neighbours to be customers. She provided her phone number to Mr. Jarvis in August, 2010 after speaking to him in a calm and friendly discussion. He did explain his issue with the patio to her. He has not called regarding any specific problem or incident.

32In cross-examination by Mr. Costa, Ms Duarte stated that she has not complained about the bar across the street which is very loud and bothers everybody. She acknowledged that it is difficult to get patrons off the patio at 11 p.m. and that there are at times, customers there after 11 p.m. During the World Cup, there was more noise on her patio and on St. Clair generally. She does not believe that the talk from patrons on the patio would be a big concern now.

33When questioned by Mr. Jarvis, Ms Duarte stated the photos (Exhibit 6) were not intended to depict the parking situation on Boon Avenue, acknowledging that the photos were not taken during a busy time of day. She confirmed that she has received from the City the required approvals for the additional capacity on the patio. She does not know whether any of the members of the BIA live on Boon Avenue.

34Ms Duarte confirmed that her previous discussions with Mr. Jarvis have been friendly, but she does not understand why, if neighbours have had problems with noise, they have not spoken to her about them.

35Enrico D’Amico has resided at 16 Boon Avenue since 1950. He has signed a letter of support (his wife drafted it). He has no concerns about the patio if Ms Duarte continues to run it the way she does now. He and his wife spend most of their time on their front veranda and they are not disturbed by noise. With respect to parking, it has been an ongoing issue on the street over the years. He would not know which cars belong to Rio 40 patrons.

Reasons and Analysis

36The Board has carefully reviewed all the evidence and submissions. There is no question that public interest hearings often raise difficult issues which require a delicate balancing of the interests of those who live in the community with those who would earn their living there. The LLA recognizes the very real impact that the licensed premises may have on the surrounding community. The onus is on the objectors, however, to prove on a balance of probabilities that the issuance of the licence for the additional area 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 those needs are bona fide, the totality of the evidence and subjective concerns and fears of those residents must be supported by a valid objective basis. In this instance, the licensed premises is on St. Clair Avenue West, an area of the City where a certain level of ambient noise is inevitable for those who live in close proximity and which has seen recent protracted construction which may have exacerbated certain concerns.

37The Board does encourage an applicant and objectors in situations such as this to resolve the issues between them by way of mutually agreeable conditions which respond to both residents’ concerns and the concern of an applicant to be able to operate a viable business. The Board provided an opportunity to the parties at the commencement of the hearing, but efforts to reach an agreement were to no avail.

38As the Board stated at the hearing, it does not decide the case based on a “head” count of objectors versus supporters. Five residents of Boon Avenue attended the hearing to give evidence having filed letters of objection. Mr. Levitan submitted letters of support, drafted and circulated by another resident Romilda D’Amico, whose husband attended the hearing to give evidence in support of the application. The Board acknowledges Mr. Jarvis’ point that these 19 letters may represent a lower number of households. The conclusion the Board can draw from letters filed is that while there are clearly residents opposed to the application, there are also supporters.

39Councillor Palacio’s letter of support was filed and Mr. Levitan described it as perhaps not definitive but carrying considerable weight. The Board, in this instance, gives it little weight. The Councillor may well have spoken to the majority of the residents of Boon Avenue, but the fact that he does not appear to have spoken to any of the witnesses who have objected to the application, all of whom live in relative close proximity to Rio 40 diminishes its weight for the Board.

40Mr. Jarvis throughout his evidence and in submissions spoke in a complimentary way about Ms Duarte and the licensed establishment. Indeed, there is no evidence of disciplinary history before the Board, or instances of disorderly conduct cited. Through Mr. Jarvis’ evidence and that of the other objectors, the key concerns articulated are noise, traffic and parking issues. The criticism of the applicant that was articulated was that she did not, prior to this hearing, impose conditions upon herself. This, it is suggested, might have demonstrated that Rio 40 saw itself, and acted, as part of the community. However, aside from a conversation between Mr. Jarvis and Ms Duarte this past summer when they discussed his concerns about the additional capacity, it appears from the evidence that none of the residents complained to Ms Duarte about the noise issue in particular. She acknowledged that there was a lot of noise generated around the time of the World Cup – an exceptional time – but otherwise, the Board questions, how she would have known what residents needed to have her respond to. Without that information, she cannot be faulted for a lack of response.

41Ms Duarte is now, however, through proposed conditions, agreeable to taking action to minimize the impact of noise on her neighbours. These would put in place stringent, and more importantly, enforceable conditions on the licence to mitigate the concerns of residents, conditions which did not accrue to their benefit before this hearing.

42The Board also heard concerns about parking, and the possible public safety concerns that might flow from congestion on Boon Ave. impeding emergency vehicles. That is a valid concern, but there is no evidence that the vehicles are those of Rio 40 patrons. (In the same way that no nexus has been determined between patrons of Rio 40 and those persons making noise as they return to their parked vehicles late at night). Parking issues are strictly speaking a municipal concern, though one that the Board may consider where appropriate. In this instance, the City has turned its mind to the parking issues to the extent that it has in fact created four additional public parking spots on Boon Avenue adjacent to the patio. In terms of illegal or unsafe parking, the City of Toronto is responsible for enforcing its bylaws and has a process for doing so, to which the residents may have recourse.

43The Board heard through the evidence that the City does have a bylaw, which applies to the Rio 40 patio, that requires it to be closed at 11 p.m. From the evidence it does appear that the City does not vigorously enforce this bylaw. Ms Duarte candidly acknowledged that she has, on occasion, had difficulty complying. Mr. Jarvis fairly pointed out in his submissions that it might be even more of a challenge to comply with more patrons on the patio should this additional capacity be approved. However, Ms Duarte has agreed to a condition on her liquor licence, which can and will be enforced, that the patio close at 11 p.m. This increased vigilance required of the applicant will afford to the residents a degree of protection from noise emanating from the patio in late evening hours which they have not previously had.

44The Board notes that Mr. Costa and Mr. Jarvis expressed some amount of frustration at the hearing process, namely that they did not receive “disclosure” prior to the hearing. Mr. Levitan advised, and Ms Majerovich concurred, that he had complied with the Rules of Practice in that 10 days prior to the hearing, he provided disclosure though the only other party was the Registrar. This may well point to a drawback in the process whereby, at times, objectors are made a party only at the commencement of the hearing. In this instance, Mr. Jarvis and Mr. Costa were provided with time to review that documentation which, in any event, was not determinative of the issue before the Board. Most important for the Board was the viva voce evidence which Mr. Jarvis and Mr. Costa ably put before the Board through the various witnesses.

45On the basis of the evidence heard and reviewed by the Board, there is insufficient evidence on which to base a refusal to grant the increase in capacity to the Licensee. The Licensee has, however, proposed conditions on the licence in order to respond to the concerns articulated by the resident objectors. The Board having listened to those concerns, concludes that such conditions are necessary and appropriate. Further, the Board strongly encourages the parties to work together, with the benefit of these conditions, to foster a community relationship which each purports to want to establish.

Order

46Therefore, the application made by 1672251 Ontario Ltd., operating as RIO 40 DEGREES RESTAURANT & BAR, 1256 St. Clair Avenue West, Toronto, Ontario, establishment number 23925 is hereby APPROVED, subject to all statutory and municipal regulations.

47Further, the Board ORDERS that the following conditions be attached to the licence:

1. There shall be no amplified or live music, nor TV or any other electronic device that emits sound on the patio;
2. There shall be a designated employee to monitor the patio during its hours of operation, specifically, to ensure orderliness on the patio and to ensure that exiting patrons do not cause a disturbance to nearby residents;
3. The Licensee shall post a prominent sign at each exit that reminds patrons to be considerate and respectful of the surrounding community.
4. The Licensee shall provide a telephone number for residents to register concerns or complaints. The line will be answered by a staff member during the Licensee’s published hours of operation. This line will be equipped with a functioning answering machine for those periods when the Licensee’s staff is otherwise occupied and when the establishment is closed.
5. The patio shall be closed to patrons at 11 p.m. daily.

DATED AT TORONTO, THIS 24 day of November, 2010.

PATRICIA McQUAID, VICE-CHAIR, AGCO BRIAN J. FORD, BOARD MEMBER