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-
Maya Records Inc., operating as or intending to operate as Music Mansion Applicant
-and-
David D’Netto Objector
DECISION
Panel: Allan Higdon, Board Member Eleanor Meslin, Board Member
Decision Date: February 3, 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 Maya Records Inc., Applicant ) Mitchell Worsoff and ) Maya Worsoff, Representatives Objectors ) David D’Netto, On his own behalf ) and on behalf of the resident objectors
The Application
- The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18403 dated November 10, 2010 to review the application for a liquor licence made by Maya Records Inc. (the “Applicant”), operating as or intending to operate as MUSIC MANSION, 512 Jarvis Street, Toronto, Ontario, M4Y 1M1 (the “establishment” or the “premises”), establishment number 814551, on the basis the AGCO has received one or more written objections to the Application. A hearing of the application was held on January 6, 2011 in the City of Toronto.
Decision
- The application for a liquor sales licence for the indoor and outdoor areas of Music Mansion is DENIED. Reasons to follow.
Preliminary Matters
David D’Netto was granted party status by the Board, on consent, to represent the Objectors.
Ms Brooks, on behalf of the Registrar, advised the Board that the Registrar would not be taking a position on the application. She also submitted the following exhibit – Exhibit 1 – Package of Objector’s Letters.
Mr. Worsoff objected to Leah Eichler and Josh Kerbel being referred to as owners of 510 Jarvis Street. At the Board’s request Ms Eichler testified that she was a one-third owner of 510 Jarvis Street which the Board accepted.
Objectors’ Evidence
David Richard D’Netto owns a triplex next door to Music Mansion and shares a property line at the back, with them. He resides at 109 Glouster Street.
Although he opposes the application, he has good relations with the Applicants.
His major concern is that noise from the establishment will affect the enjoyment of the surrounding residential units. He is also concerned about garbage removed and the possibility of rats and vermin.
Mr. D’Netto testified that 80 per cent of their shared property has no fence and eleven windows from his property overlook Music Mansion.
Although some efforts have been made to decrease the noise, his tenants still complain about music and noise.
The coach house on the Applicant’s property is used as a rehearsal studio and the interior of 512 Jarvis Street (the establishment) is a recording studio. He did not know if the owner’s reside at 512, but believes it is zoned as a residence. The previous owners ran it as a Bed & Breakfast. The City has indicated that there have been no zoning or use changes to the property and, as of yesterday, no application for zoning or use changes had been made.
He is also concerned that if the owners do not reside there, how the use of alcohol can be monitored and who will control the dispensing.
If the outside licence is allowed it would affect the residential character of the neighbourhood and disrupt the neighbours’ quiet enjoyment of their back gardens.
Mr. D’Netto also testified that his tenants have told him they will leave if the licence is granted, which will severely impact his livelihood.
There is also the problem of parking. There is no parking allowed on Jarvis Street and the owners of 512 and 514 Jarvis have only four to six parking spaces.
He pointed out that 514 is tenanted by young people in their teens and early 20s. Although 512 seems to have no occupants, each property is over 4,000 feet and could accommodate many more young people.
In response to Mr. Worsoff’s questions, Mr. D’Netto replied that his objections regarding noise and garbage stem from his not knowing if the premises are going to be a bar. He was surprised to hear that the liqour licence was only to be used for serving tenants.
Mr. D’Netto expressed concerns for future owners use of the licence, if approved.
Mr. Worsoff showed the witness a rough drawing of the property (Exhibit 2) including the backyard.
The reason he did not complain about the previous Bed & Breakfast having parties outside was that there were only a few weddings and although they served alcohol, there was no loud noise. In five years there were no more than six weddings per year.
Regarding the noise complaints, he has not called the police, but did see them there, once. However, his tenants have texted him about the noise.
He admitted that there had been no garbage problems lately and no noise over the past few months. He did acknowledge that renovations had been made on the coach house to help the noise problems.
Leah Eichler runs a business at 510 Jarvis Street, of 16 multi-residential units.
She had had four tenants complain about the noise levels. Her concern is that tenants will leave if the applicant is granted a liquor licence.
Her property abuts 512 and the tenant’s balconies overlook the Applicant’s outside area.
Her rental apartments are high-end luxury and her tenants expect quiet enjoyment of their property.
She e-mailed her objections to the AGCO (Exhibit 1) indicating her concerns that, if a licence is granted, the establishment may turn into a bar.
In response to Mr. Worsoff’s questions, Ms Eichler stated that she is representing her tenants who are threatening to move if a licence is granted. None of the tenants put their concerns in writing, either to her or to the AGCO, their concerns were all made verbally to her.
She is also concerned for the long-term, if a licence is approved.
To Mr. D’Netto’s questions regarding complaints not in writing, Ms Eichler stated that since she managed customer service in her building, tenants generally complained verbally to her about issues.
Applicant’s Evidence
Sandra Halket is a friend of the owners and did an internship at the establishment to learn about the music business. She was there from June to August, working from 9 a.m. to 5 p.m. in a basement office at 512 Jarvis. She dealt directly with Maya Worsoff.
While she was there two bands called Metric and Envy stayed for a few days in the premises, as did Maya’s son, when he was in town.
She never experienced any noise problems while at work. There was no music in the coach house, only some from 512. She never heard music from on the patio. Ms Halket did receive two noise complaints on voicemail, they did not give her their names. She reported the first complaint to Maya, who instructed her to write a note to the tenants of 514, telling them to cut down the noise after 11 p.m. or they would be evicted, and Maya signed it. After the second complaint, Maya had her write another note, which Maya signed, evicting them.
In response to Mr. D’Netto’s questions, Ms Halket responded that she only worked during the day and had posted both notes on the tenants’ doors.
She stated that Music Mansion was a recording studio where bands could live while they were recording.
To Mr. Worsoff’s reply question, Ms Halket said she had helped plan one outdoor event in August which ran until midnight. There were no complaints received about the party.
In response to the Board’s question regarding tenant occupancy, Ms Halket indicated that she did not know how many people were in residence when she was there, only that it was sporadically occupied.
Maya Worsoff is the owner of Music Mansion.
She testified that if a Liquor Licence was granted it would only be used for tenants staying in the Music Mansion. Twelve people now live in 512/514 Jarvis. There is enough space to accommodate ten more people.
Her son, who lives at 514 manages the property when he is not on tour. When he is not there, she manages it.
She does not intend to offer alcohol to the public, it will only be for her tenants.
Ms Worsoff stated that she has 12 recycling bins for garbage and has had no problems with garbage disposal.
Responding to the questions from Mr. D’Netto, she indicated that all her tenants are musicians and range in age from 19 to 29. She only rents to musicians she knows, because her 19-year-old son lives there and she does not want him exposed to drugs and drunks.
The recording studio is fully soundproofed but is now only used as a music office. Steve Major is her main floor tenant and is a song writer. All her tenants have a one year lease with a four year renewal option. Her rooms are not available for lease to the public.
All the tenants at 514 have their own kitchens and there is nothing in their leases preventing them from buying their own alcohol. She wants the liquor licence in order to sell alcohol to about 25 people when there is a CD release party at the premises.
The Fire Department indicated it would approve her providing alcohol, if she served it with food. She intends to serve snacks with the alcohol to convenience her tenants.
Ms Worsoff stated that she would have a manager for large events and if there were any problems, she would evict those tenants.
Her rehearsal space is now completely soundproofed and there have been no noise complaints over the last two months.
To the Board’s question of why S.O.P.’s cannot be used for outside events, Ms Worsoff responded that the events could happen on very short notice once a recording was finished, and it takes too long to get an S.O.P.
She also indicated that she does not allow alcohol in the tenant’s rooms.
To Mr. D’Netto’s questions about other licensed establishments nearby, Ms Worsoff replied there was a Keg House and a restaurant called Honey’s Bistro.
Objectors’ Submissions
Mr. D’Netto submitted that the neighbourhood plan was to preserve the heritage character of the area. He pointed out that both 512 and 514 Jarvis had previously been B&B’s without liquor licences. 514, before that, had been the office of Virgin Records and was zoned residential. 512 has never been zoned for offices.
The liquor licence application is to cover both properties inside and outside. B&B’s cannot have liquor licences nor can office space.
The objectors do not see how a liquor licence can positively impact their neighbourhood. For the convenience of her tenants, there are a number of licensed establishments serving food that are less than a one minute walk from Music Mansion.
Mr. D’Netto stated that the objectors are not satisfied that there will be sufficient staff to control the noise, consumption and waste disposal, since no business plan was presented. There is the possibility that impromptu parties could have 120 people or more, on a daily basis and there is no plan to handle these events.
There does not seem to be any recent zoning changes and the Applicant wants to change the use to get around that fact.
It appears from Ms Worsoff’s testimony that she and her 19-year-old son would be running a licensed establishment with no plans for other staff, occupancy control or complaint handling. Mr D’Netto stated that he had never been approached by the Applicant with a detailed business plan.
Residents of nearby properties want the quiet enjoyment of their properties and parties on short notice would not be in their best interests.
Regarding the notice of the liquor licence application, it was not in a location where neighbours were aware of it. There was also no posting regarding a change in use application or that one had been granted.
Both he and Ms Eichler rely on their tenancies and could go out of business if the liquor licence is granted.
At this point, the objectors have no faith in the owners of Music Mansion. If the liquor licence is for the convenience of the tenants, then why not allow alcohol as part of their tenancy lease.
If the Board grants the liquor licence, the objectors ask that they be given the opportunity to submit conditions before implementation.
Applicant’s Submissions
Maya Worsoff presented the submissions.
She submitted that one of the objectors’ main concerns was losing tenants, but that after eight months, they have brought no proof of losing even one tenant.
Regarding zoning, she pointed out that the law allows business operation in residential areas. That is how both Virgin Records and the B&B’s could operate. Music Mansion had gone to City Hall regarding this and was told that they could ask for a change in use to allow them to operate.
As to the noise complaints, Ms Worsoff submitted that, since they had soundproofed, Mr D’Netto testified, there had been no noise problems.
He has presented no evidence that Music Mansion had not acted in good faith. Her witness Ms Halket testified that when her tenants did not act on the noise problem, she had them evicted.
Regarding 512 Jarvis, since they took over, it has only been used as an office.
As to the signage application, it had to be moved to a location that the AGCO Inspector approved. Which they did.
In regard to the patio area, there is a building between the patio and Mr. D’Netto’s house. The patio is separate from both Mr. D’Netto’s and Ms Eichler’s properties.
Ms Worsoff stated that she had read all the objectors letters and tried to fix all problems to create a good environment.
Although Mr. D’Netto claims he wants the area to remain residential, he pointed out that it is full of licensed establishments. Why, then, should her business not have a liquor licence.
She is trying to provide privacy for her tenants by confining the sale of alcohol to her tenants, since they do not want to go to public venues. She is trying to create something unique by bringing bands from everywhere, giving them private accommodation, a recording studio and top service.
As to the staff issue, Ms Worsoff submits that she can’t speculate about the staffing needs until she has the liquor licence.
There has been no proof offered that she has not dealt with any of the problems raised. No tenants appeared at the hearing to object. She is willing to accept a one year condition on the liquor licence to prove she can manage it.
Reply Submissions
The question still remains about how granting the liquor licence will impact the quiet enjoyment of the neighbourhood.
The property management system is not being controlled and the problem will increase with more people. The reason there have been no problems in the past three months is because there is no liquor licence.
The reason that no tenants appeared is because they have no vested interest in the property. They complain to the landlord and if he doesn’t solve the problem they can either withhold their rent or leave.
It is not sufficient for the owner and her son to handle the liquor licence problems, the objectors want assurances of a business plan, and a control protocol.
Regarding Ms Worsoff’s assertion, that if a party of 120 people were causing problems she would evict them, this is highly unlikely, since they would have a contract for the party.
Analysis and Reasons
The Board has carefully reviewed the evidence and submissions.
Public interest hearings often raise difficult issues which require a delicate balancing of the interests of those who live in the community and those who would earn their living there.
The Board recognizes the very real impact that a licensed premises and patio may have on the surrounding community. The onus is on the objectors to prove, on a balance of probabilities, that the issuance of a liquor licence for the premises and a patio 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 these needs and wishes are bona fide, the totality of the evidence and subjective concerns and fears of those residents must be supported by a valid objective basis.
Regarding the Applicant’s request for a licensed outdoor patio, there has been no valid reasons given for needing a liquor licence for sporadic events, when the SOP process is exactly the vehicle designed for such events. To use the excuse that the events could happen very suddenly and the SOP process takes too long, underlines the Board’s concerns regarding the Applicant’s lack of a plan to manage outside events.
As to the outside noise issues, the Applicant’s solution of evicting the event participants who are too noisy would not only be impractical but unreasonable for any sizeable event.
The fact that there was no business plan provided to the objectors or the Board regarding the management, occupancy or staffing for these outside events is of great concern to the Board.
The Board accepts the evidence of the objectors as bona fide that granting a patio liquor licence is against the public interest given the needs and wishes of the residents of the municipality in which the premises are situated.
Therefore, the Board DENIES the granting of a liquor licence for the outside patio.
Regarding the Applicant’s request for a liquor sales licence for the indoor areas of the premises, the objectors have put forward a number of concerns.
One of those concerns deals with the use of 512 Jarvis as a recording studio and the coach house as a rehearsal studio. Ms Worsoff testified that 512 is now only used as an office and that 514 is fully soundproofed.
The fact that 512 is currently being used as an office does not guarantee that it will not be used as a recording studio in the future. She also submitted that the City advised her that she could apply for a change in use to operate as a business.
Mr. D’Netto testified that he had been advised by the City that there had been no zoning or use changes or applications made by the Applicant. The Board accepts Mr. D’Netto’s testimony.
As to the Applicant’s reasons for an inside liquor licence, Ms Worsoff stated that although there is nothing in the tenants’ leases preventing them from purchasing alcohol for their own use and that there were a number of licensed establishments nearby, she wanted to control the use of alcohol in the residences because she has a 19-year-old son who also lived there. This is the same individual who she testified helped manage the establishment and the outdoor events.
The fact that the Applicant has not prepared a business plan outlining how it intends to operate, manage and control the sale or service of alcohol if granted is unacceptable to the Board.
Order
- For the above reasons, the Board hereby DENIES the granting of a liquor sales licence for the indoor and patio areas of Maya Records Inc., operating as or intending to operate as MUSIC MANSION, 512 Jarvis Street, Toronto, Ontario, M4Y 1M1, establishment number 814551.
DATED AT TORONTO, THIS 3rd day of FEBRUARY , 2011.
ALLAN HIGDON, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER