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-
2204159 Ontario Inc., operating as or intending to operate as
Black Swan (The)
Applicant
-and-
Kimberly Riley
Resident Objector
DECISION
Panel: Allan Higdon, Board Member Jacqueline Castel, Board Member
Decision Date: February 2, 2011
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 ) Tamara Brooks, Representative 2204159 Ontario Inc., Applicant ) Kimberley Leonard, On her own behalf Kimberley Riley ) Resident Objector, On her own behalf
The Application
- The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18429 dated November 25, 2010 to review the application for a liquor licence made by 2204159 Ontario Inc. (the “Applicant”) operating as or intending to operate as BLACK SWAN (THE), 4040 Palladium Way, Unit 1, Burlington, Ontario, L7M 0C2, (the “establishment” or the “premises”), establishment number 814614, on the basis the AGCO has received one or more written objections to the Application. A hearing of the application was held on January 27, 2011 in the City of Hamilton.
Decision
- After carefully considering the evidence and submissions, the Board APPROVES the Application subject to compliance with all statutory requirements and municipal regulations. Reasons follow.
Preliminary Matters
Ms Tamara Brooks appeared on behalf of the Registrar. She advised that the Registrar takes no position on the Application.
Ms Kimberly Riley, a resident of the municipality where the establishment is located, appeared before the Board on her own behalf and requested party status. On consent, the Board ordered that Ms Riley be made a party to the proceeding.
Ms Kimberley Leonard, a principal of the Applicant, appeared before the Board on her own behalf and waived the right to be represented by legal counsel.
Objectors’ Evidence
Ms Riley filed a copy of a letter of objection, signed by herself and her spouse, Johnathan Riley, and dated September 20, 2010. The Board entered the letter as Exhibit 1.
Ms Riley explained that the reason she is objecting to the Application is because it is in close proximity to a day care. In addition, she stated that there will be a privacy issue for the houses which back onto the parking lot which the establishment will share with other businesses in the mall.
Ms Riley filed copies of eleven photographs which the Board entered as Exhibit 2A-K. The photographs showed the exterior of the establishment from various vantage points, the day care, and the residential houses which back onto the parking lot of the mall.
Ms Riley acknowledged that she does not know what will happen if the Application is approved, but believes that there is a potential for noise issues and disturbances.
On cross-examination, Ms Riley was asked whether she is familiar with two other day care centers located in plazas with licensed premises in the municipality. Ms Riley admitted to being familiar with one of them, but indicated that it is a drop in centre rather than a day care.
In response to questions from the Board, Ms Riley admitted that she has not been authorized to speak for the owner or the staff of the day care or the parents whose children attend the day care at 4040 Palladium Way. She also admitted that she spoke to the owner of the day care who felt that the children’s safety would not be compromised by the Applicant being granted a liquor licence.
The day care is not adjacent to the establishment. There are ten units which separate the establishment from the day care.
Ms Riley also admitted that she has not been authorized to speak for the residents whose properties back onto the parking lot of the mall and acknowledged that they have not attended the hearing, filed letters of objection, or signed a petition opposing the Application.
Applicant’s Evidence
Ms Leonard stated that she is 53 years of age and that she has been in the restaurant business for 34 years. She has owned and operated two licensed restaurants, one in Grimsby and another in Hamilton. She has also managed a licensed establishment in Oakville for seven years. She will manage the establishment if the Application is approved.
Ms Leonard filed a letter dated October 15, 2010 from herself to the Rileys, a letter dated October 27, 2010 from the Rileys to Ms Leonard, and a letter dated November 2, 2010 from Ms Leonard to the Rileys. The Board entered the letters as Exhibits 3, 4 and 5, respectively. The letters set out questions and concerns of the Rileys and Ms Leonard’s responses to them.
Ms Leonard stated that she expects that there will be a 50/50 split between food and beverage alcohol sales at the establishment.
She does not know, at this time, the hours of operation of the establishment, as they will be dictated by customer demand.
The establishment will have a 25 foot bar with twelve seats.
The establishment will probably have five or six televisions. Sporting events will be televised, but not advertised.
They do not plan to play loud music on the patio which would interfere with conversation. They will probably have one or two speakers on the patio.
Ms Leonard filed a Proposed Concept Plan, a Google map showing the location of the establishment and the Riley’s residence, and a list of the tenants at 4040 Palladium Way. The Board entered these documents as Exhibits 6, 7 and 8, respectively.
Referring to Exhibit # 6, Ms Leonard indicated that currently nothing backs onto the patio.
Referring to Exhibit # 7, Ms Leonard indicated that it takes seven minutes to walk from the establishment to the Riley’s residence. However, the City will be erecting a fence, making it necessary to walk around the fence to reach the establishment from the Riley’s residence.
Referring to Exhibit # 8, Ms Leonard indicated that Snap Fitness, also located at 4040 Palladium Way, is opened 24 hours seven days a week. Most of the other businesses which will be located in the plaza at 4040 Palladium Way are not yet open.
Ms. Leonard indicated that the establishment will be a community restaurant, not a bar or night club.
Submissions
Ms Riley summarized that the reason she is opposing the Application is the potential for noise and disturbances from an establishment which serves alcohol. She also believes it is unusual to have a licensed establishment so close to a day care.
Ms Leonard indicated that the establishment will attempt to attract an older, family-oriented clientele. She will not allow unruly patrons in the establishment. All of the staff will be Smart Serve certified. The employment of staff who over-serve patrons will be terminated, and anyone who looks under twenty-five will be asked to show identification before they are served alcohol.
Reasons and Analysis
At issue in this hearing is whether the granting of a licence for a patio is in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises is located. The onus is on the objectors to establish, on a balance of probabilities, that the issuance of the licence is not in the public interest. In determining whether the needs and wishes of the residents are bona fide, the Board must consider the totality of the evidence to evaluate whether the subjective concerns and fears of the residents are supported on a valid and objective basis.
In this case, there was only one objector who attended the hearing. She was not authorized to speak for anyone else except her husband, who was a joint signatory on the one letter of objection which was entered into evidence (Exhibit 1).
The Riley’s residence does not back directly onto the establishment or the mall’s parking lot. The residential owners who do back onto the parking lot and, therefore, who are in closer proximity to the establishment than the Rileys, did not file letters of objection or sign a petition opposing the Application.
The owners and staff of the day care located at 4040 Palladium Way, and the parents of children enrolled in this day care, did not write letters of objection or sign a petition opposing the Application. In fact, according to Ms Riley’s evidence, the owner of the day care believes that the safety of the children will not be compromised if the establishment’s liquor licence was approved.
Ms Riley’s concerns pertaining to the Application were all purely speculative. There was no evidence that the Applicant would not comply with the Liquor Licence Act and regulations.
The Board cannot make a decision based on conjecture and speculation from one resident about potential negative impacts of a licensed establishment.
There was no evidence that Ms Riley represented the needs and wishes of the residents of the municipality where the establishment is located.
Therefore, the objector did not meet the onus of establishing, on a balance of probabilities that the issuance of a liquor licence is not in the public interest.
Order
- For the above reasons, the Board APPROVES the Application for liquor licence made by 2204159 Ontario Inc., intending to operate as the BLACK SWAN (THE), (the “establishment”) 4040 Palladium Way, Unit 1, Burlington, Ontario, L7M 0C2, establishment number 814614, subject to compliance with all statutory conditions and municipal regulations.
DATED AT TORONTO, THIS 2nd DAY OF February , 2011.
ALLAN HIGDON, BOARD MEMBER JACQUELINE CASTEL, BOARD MEMBER