Registrar, Alcohol and Gaming Commission of Ontario v. Menetek Incorporated, 2010 CanLII 81057

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-

Menetek Incorporated operating as or intending to operate as Fixx Cafe (The) Applicant

DECISION

Panel: Kirsti Hunt, Vice-Chair, AGCO Brian J. Ford, Board Member

Decision Date: August 25, 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: Rena Khan, Representative Menetek Incorporated, Applicant: Tony Memauri, On his own behalf and on behalf of the Applicant Corporation

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18115 dated June 3, 2010 to review the application for a liquor licence made by Menetek Incorporated (the “Applicant”) operating as FIXX CAFE (THE), 1430 Yonge Street, Unit B, Toronto, Ontario, M4T 1Y6, (the “establishment” or the “premises”), establishment number 814056, 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 19, 2010 in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board APPROVES the application for a licence made by Menetek Incorporated operating as FIXX CAFE (THE), 1430 Yonge Street, Unit B, Toronto, Ontario, M4T 1Y6, establishment number 814056. Reasons follow.

Preliminary Matters

3Ms Rena Khan appeared as Registrar’s representative and took no position on behalf of the Registrar.

4Mr. Tony Memauri appeared on behalf of the Applicant Corporation and waved its right to be represented by legal counsel.

5A package of objection letters was made Exhibit 1.

6No objectors attended the hearing.

Applicant’s Evidence

7Mr. Tony Memauri testified that he and his wife have operated The Fixx Café since February, 2010. They did not want to start a business that would bother people. The establishment is on the main floor which also has other businesses. It is a café where they serve the highest quality coffee, pastries, soup and sandwiches.

8There are condos on the upper floors of the building but there is no direct access from the condos to the establishment. Many of the condo residents have come to the café and approve of it. A member of the Condominium Board told him that none of the objectors would be attending the hearing to object because he is operating the café well. The majority of his customers, 85 per cent to 90 per cent, are older retired people. Because they can’t have wine with their meal, people do not come for dinner.

9The café is not causing noise. Because the patio has a roof, no one can smoke there. The establishment is not a bar but a café which serves high quality coffee and food. Now they operate from 8 a.m. to 8 p.m. Once they get a licence, they will operate from 6 a.m. to 10 p.m.

10He signed a contract with the landlord which includes the authorization to apply for a liquor licence. The landlord told him that the location was licensed in the past.

11He and his wife want to run a small licensed café, with a capacity of 38 persons inside and 8 outside.

Decision

12The Board reviewed the evidence of Mr. Memauri and the letters of objection which raised concerns about possible negative effects of a licensed establishment in a building that has residential condos, including noise, nuisance, smoking outside, etc.

13The Board notes that none of the objectors came to the hearing to voice their concerns. One supporter attended.

14Mr. Memauri gave evidence under oath that he and his wife have operated the café since February, 2010 and that residents have complimented him on how well he runs the café. A member of the condominium board indicated to him that no one was going to show up at the hearing to object after having seen his operation. The credibility of that evidence is supported by the fact that no objectors appeared at the hearing.

15In addressing the concerns of the objectors, Mr. Memauri stated that the establishment is not a bar but a café serving high end coffee and food. It is now operated from 8 a.m. to 8 p.m. and he proposes, once licensed, to operate from 6 a.m. until 10 p.m. There can be no smoking on the patio because it is covered. They have not had a problem with noise.

16The Board accepts the unrefuted evidence of Mr. Memauri and notes that he has operated a café without a licence for about 6 months without problems.

17The Board notes that the objectors have the onus to show that the issuance of the licence is against the public interest. In this case, they have not met that onus.

Order

18Therefore, the Board hereby CONFIRMS its ORAL DECISION to APPROVE the application for a licence made by Menetek Incorporated operating as FIXX CAFE (THE), 1430 Yonge Street, Unit B, Toronto, Ontario, M4T 1Y6, establishment number 814056 subject to all licensing requirements and the receipt of all applicable municipal compliance letters.