ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission of Ontario (Registrar)
-and-
Sarnia’s Rack ‘N’ Roll Inc. operating as Sarnia’s Rack ‘N’ Roll (Applicant)
-and-
Robert Murray (Objector)
DECISION
Panel: David C. Gavsie, Chair, AGCO Bruce S. Miller, Board Member
Decision Date: January 28, 2010 Hearing Location: Sarnia, 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 Sarnia’s Rack ‘N’ Roll Inc., Licensee: Susan Plain, Representative Robert Murray, Objector: On his own behalf and on behalf of the resident objectors
Application
1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 1717544 dated September 23, 2009 to refuse to change a condition on liquor licence number 812355 issued to Sarnia’s Rack ‘N’ Roll Inc. (the “Licensee/Applicant”), operating as SARNIA’S RACK ‘N’ ROLL, 460 North Christina Street, Sarnia, Ontario, N7T 7H5 (the “establishment” or the “premises”), on the basis the AGCO has received one or more written objections to the application and that there has been no change in circumstances to justify the removal/change of the condition. A hearing of the application was held on December 7, 2009 in the City of Sarnia.
2The Licensee had applied to the AGCO to change a condition on the licence which states:
“That there be no live entertainment, including DJ music. Karaoke is permitted;”
To:
“That live entertainment be permitted up to 2 piece band, DJ music or karaoke.”
Decision
3After considering all the evidence and submissions the Board DENIES the application. Reasons follow.
Preliminary Matters
4Ms Susan Plain is the sole owner of Sarnia's Rack 'N' Roll. She waived her right to counsel and was ready to proceed.
5The Board advised the Licensee that there must be a change in circumstances for the Board to change a condition on the liquor licence.
6Mr. Morris stated that Mr. Robert Murray wished to be granted status as a party to the proceedings and that Mr. Murray was the spokesperson for the objectors. The Board ORDERED that Mr. Murray be made a party to the hearing with the consent of the Licensee.
7Mr. Morris stated that the Registrar's position was to refuse the request to change the condition on the liquor licence.
8Mr. Morris submitted a copy of the Board's decision on the Licensee's original application for a liquor licence which was dated January 2, 2007 which was entered as Exhibit # 1.
9Mr. Morris submitted a copy of correspondence from five different objectors which was entered as Exhibit # 2.
10Ms Plain submitted a letter of support from her landlord, RJK Holdings Limited, which was entered as Exhibit # 3.
11Mr. Murray submitted a brochure that contained information about St. Joseph's Hospice of Sarnia Lambton which was entered as Exhibit # 4.
Licensee’s Evidence
12Susan Plain stated they first applied for their liquor licence when Woody's Bar was operating 3 to 4 doors down from their location. Woody's Bar was cited for a number of violations including serving minors. There were fights at Woody’s Bar and the police were constantly attending the premises.
13She believes that the problems attributed to Woody’s Bar may have influenced the reaction from residents and ultimately the decisions that were made by the Board in relation to their application for a liquor licence for Sarnia's Rack 'N' Roll.
14There was a change in ownership for Sarnia's Rack 'N' Roll. “P.M.” was an original partner but has not been involved since May 2007. She is now the sole owner.
15Sarnia's Rack 'N' Roll is a licensed billiards hall. They have a capacity of 128. All of the operation is indoors.
16The hours of operation have been changed for Sarnia's Rack 'N' Roll.
17They have the following hours of operation in the winter:
Sunday 12:00 PM to 1:00 AM Monday to Wednesday 11:00 AM to 1:00 AM Thursday and Friday 11:00 AM to 2:00 AM Saturday 11:00 AM to 9:00 PM
18They have the following hours of operation in the summer:
Sunday to Thursday 11:00 AM to 11:00 PM Friday 11:00 AM to 2:00 AM Saturday 11:00 AM to 9:00 PM
19She believes the changes in circumstances are the change in ownership and hours of operation.
20She would like to do parties and special events. She would like to offer her customers more choices of entertainment. She would like to be able to offer a two piece band.
21On cross-examination from Mr. Morris, she stated that Christina Street North is a major roadway. Their premises are on the east side.
22Sarnia's Rack 'N' Roll is not located in the downtown core.
23The police station is north of her location. There is a hotel to the south and there is a beer store behind her location.
24There is a jewellery store across the street. There is a variety store to the north of that and a funeral home and a McDonald's Restaurant to the south.
25St. Joseph's Hospice of Sarnia Lambton is half a block north of her location.
26The entrance to Sarnia's Rack 'N' Roll is at the rear of the premises and faces east. There is a large parking lot in the rear.
27The building where Sarnia's Rack 'N' Roll is located used to be a furniture and linen supply store.
28Woody's Bar was a nightclub with a capacity of 300. It closed sometime in 2008. They had a different clientele. They were a young crowd and were American. She does not want to attract the former clientele of Woody’s Bar.
29Sarnia's Rack 'N' Roll has 19 pool tables.
30Sarnia's Rack 'N' Roll offers Karaoke on Friday evenings until midnight and on Sunday afternoons. The person who operates the Karaoke brings in his own sound system.
31She would like to offer DJ music as well. It would use the same sound system that they use for Karaoke. She would like to offer it on Saturdays if they have a party.
32The addition of music would not change her clientele.
33She currently plays music from her television set for the customers.
34The two piece band would be very mellow. The Karaoke customers come on the weekend and average 50 to 60 years of age.
35Not everyone likes Karaoke and she would like to be able to offer more in the way of entertainment.
36No one lives directly around her establishment.
37She has never had a noise complaint. She does not want it to be loud inside as people need to be able to talk.
38On cross-examination from Mr. Murray she stated they used to be open from 11:00 AM to 2:00 AM seven days a week.
39She hosts charity and youth tournaments at her premises. She personally supports a charity known as Rebound and they are hosting an event for Rebound in the near future. She also hosts Christmas and Thanksgiving dinners for the unemployed at Sarnia’s Rack ‘N’ Roll.
40Sarnia’s Rack ‘N’ Roll currently has a few tables and chairs and she would have to add more for parties.
41Saturdays are very slow and she hopes to be able to add a party a month if the application is granted.
42Sarnia’s Rack ‘N’ Roll has two levels.
43She wishes to maintain her current age group. She would not discourage young people as customers as long as they behave and dress appropriately.
44She doesn’t give people a second chance if they misbehave or use vulgar language. That is why she doesn’t have any problems.
45She would like to use guitar players for her two piece band and would never allow drums to be used.
46She knows there is a concern with noise and wants to be a good neighbour.
47In reply to a question from the Board she stated the premises are in a commercial area. The closest residence is on the east side and is about half a block away.
Registrar’s Evidence
48Mr. Morris did not introduce any evidence and stated that Mr. Murray would be introducing evidence on behalf of the objectors.
Objector’s Evidence
49Robert Murray is a member of the Board of Directors of St. Joseph's Hospice of Sarnia Lambton.
50There is a 10 bed residence in the Hospice that opened November 25, 2009. The Hospice is the final home for the residents and the average length of stay is 21 days.
51They are concerned that there will be problems with noise and bad behaviour if the application is granted.
52There are residences on Maxwell Street which is the first street to the south of Sarnia’s Rack ‘N’ Roll.
53There was no cross-examination.
54In response to questions from the Board, he stated the Hospice is across the street from Habitat for Humanity and Sarnia’s Rack ‘N’ Roll is behind Habitat for Humanity.
55Sarnia’s Rack ‘N’ Roll is about 150 to 200 yards away from the Hospice.
56The entrance to Sarnia’s Rack ‘N’ Roll faces east away from the Hospice.
57Joyce Abma stated that she has lived on Dundas Street for 39 years. Dundas Street is the first street to the east of Sarnia’s Rack ‘N’ Roll. There were five or six residential homes across from her residence when she first moved in but they are all gone now.
58She submitted a photograph of the main entrance to Sarnia’s Rack ‘N’ Roll which was entered as Exhibit # 5.
59Woody’s Bar closed in July 2007.
60There have been no problems with Sarnia’s Rack ‘N’ Roll. She is concerned that there will be problems with noise if the application is granted. They don’t want to have the same problem that they had with Woody’s Bar and other bars in the neighbourhood.
61People live in the area. Her husband has to get up at 5:00 AM to go to work and he needs his sleep.
62She has never been inside Sarnia’s Rack ‘N’ Roll but understands that it is very nice.
63In reply to a question from Mr. Morris she stated that all five objectors, with the exception of one, live or are located in the immediate area.
64There was no cross-examination.
Licensee’s Submissions
65They thought that when they first opened the business that the billiard tables would make Sarnia’s Rack ‘N’ Roll financially feasible but it has not worked out as planned.
66They need to have different options to offer their existing clientele in order to increase business.
67She recognized the neighbourhood’s concern about the noise.
68She has tried to be a good neighbour and limits the noise.
69She would never jeopardize her status as a good neighbour.
70She does not want Sarnia’s Rack ‘N’ Roll to become a nightclub.
71She is trying to offer more to her current customers. Many of the customers who play pool bring a guest with them. Many of the guests do not enjoy playing pool. She feels they will appreciate entertainment.
72She wants to remain a pool hall first and foremost, with the option to offer some entertainment.
Registrar’s Submissions
73The Registrar is opposed to the application as there is no change in circumstances.
74There were objectors to the application from the community.
75Traditionally, the Board has not recognized economic hardship as a change in circumstances.
76The Licensee now closes early on Saturday and those hours might be extended should the application be granted.
77The Licensee has been a good neighbour.
78The Board should deny the application.
Objector’s Submissions
79Mr. Murray stated that he agreed with Mr. Morris that there has not been a change in circumstances. As a result the Board is in effect conducting an appeal of the original decision to grant a licence with conditions.
80The Licensee has been a good neighbour.
81The Board should deny the application.
Licensee’s Reply
82The hours for Saturday night would only change if there was a pre-booked party.
83The fact that she is losing money is something that has not changed.
84Everyone acknowledged that she has been a good neighbor.
85The noise level will not increase because of a two piece band.
86She is requesting that the Board allow her to have a two piece band or a DJ. Karaoke is already permitted.
87The Board should grant the application.
Analysis/Reasons/Findings
88The Board has carefully considered all the evidence and the submissions presented.
89The Board was impressed by the efforts that the Licensee has taken to be a good neighbour.
90The Licensee had applied to the AGCO to change a condition on the licence which states:
“That there be no live entertainment, including DJ music. Karaoke is permitted;”
To:
“That live entertainment be permitted up to 2 piece band, DJ music or karaoke.”
91By way of process, the Board must first remove the existing condition and then add the new condition if it were to approve the application.
92The original condition, among others, was imposed by the Board following a hearing on December 6, 2006 which was held to review the application for a liquor licence. In its decision (Exhibit # 1) the Board stated that it was “mindful of the concerns of the community, which has obviously been traumatized by other establishments”.
93Subsection 14(2) of the LLA deals with the removal of condition and states as follows:
A member of the Board may, on the application of a licensee, remove a condition of a licence…if there is a change in circumstances.
94In considering the application the Board must be satisfied that there is a change in circumstances.
95The Licensee argued that the change in ownership was a change in circumstances. The Licensee testified that P.M., a former partner, was no longer involved in the business. There was no evidence entered as to how this has impacted the Licensee or how it constituted a change in circumstances.
96The Licensee also argued that the change in hours of operation were a change in circumstances. The Board assumed the decision to shorten the hours of operation was a business decision made by the Licensee. A change in the hours of operation in and of itself does not in the Board’s view constitute a change in circumstances. The Board notes that there are no conditions on the licence regarding hours of operation, so these can be changed at any time at the Licensee’s discretion. The reason for the change may or may not have arisen from a change in circumstances but there was no evidence before the Board as to why the change in hours was made.
97The Licensee gave evidence of economic hardship. Ms Plain stated she had hoped that the business would have been economically feasible but it appears to have faced economic challenges since it first opened. There was no evidence that there was a change in circumstances with regards to this, but rather that it had been an ongoing issue.
98Finally, it should be noted that there were still objections from the community. Both Mr. Murray and Ms Abma acknowledged that Sarnia’s Rack ‘N’ Roll had been a good corporate neighbour. However, both were concerned that problems associated with noise and rowdy behaviour could develop if the application was granted. Correspondence stating those concerns was received from three other objectors who did not attend the hearing. Similar concerns were raised at the Licensee’s original application for a liquor licence and this has not changed.
99The Board is sympathetic to the challenges faced by the Licensee and appreciates her efforts to be a good corporate neighbour. However, the Board must deny the application as there has been no change in circumstances.
Conclusion
100For the reasons noted above, the Board DENIES the application to change a condition issued to Sarnia’s Rack ‘N’ Roll Inc. operating as Sarnia’s Rack ‘N’ Roll, 460 North Christina Street, Sarnia, Ontario, N7T 7H5.
DATED AT TORONTO THIS 28th DAY OF January, 2010
DAVID C. GAVSIE, BOARD MEMBER BRUCE S. MILLER, BOARD MEMBER