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-
2250459 Ontario Ltd., operating as Fanny Chadwick’s
Applicant
-and-
Alvaro Mallarino
Resident Objector
DECISION
Panel: Patricia McQuaid, Vice-Chair, AGCO Eleanor Meslin, Board Member
Decision Date: January 20, 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 ) Richard Kulis, Representative
2250459 Ontario Ltd., Applicant ) Stephen Hancock, Leanne Martineau, ) Reid Pickering, and Sarah Baxter, On ) their own behalf and on behalf of the ) Corporation
Alvaro Mallarino ) 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 18343 dated October 20, 2010 to review the application for licence for additional licensed areas made by 2250459 Ontario Ltd. (the “Applicant”) operating as FANNY CHADWICK’S, 268 Howland Avenue, Toronto, Ontario, M5R 3B6 (the “establishment” or the “premises”), licence number 201221, on the basis the AGCO has received one or more written objections to the Application. A hearing of the application was held on December 13, 2010 in the City of Toronto.
Decision
- The Board APPROVES the application for the additional indoor area, but defers a decision on a licensed patio. Reasons follow.
Preliminary Matters
Alvaro Mallarino was granted party status by the Board, on consent, to represent the Objectors.
Mr. Kulis, on behalf of the Registrar, advised the Board that the Registrar would not be taking a position on the application. He also submitted the following exhibit: Exhibit #1 – Package of Objection Letters.
The numerous exhibits submitted by the parties are listed in Schedule “A” to this decision.
Objectors’ Evidence
Sarah Scott has lived with her husband at 253 Howland Avenue for 16 years. It is located across the road from Fanny Chadwick’s.
She is concerned about noise, since her windows are often open. Although the former restaurant was smaller and closed at 10:00 p.m., there was still noise from patrons leaving.
She believes there should be a condition limiting the hours of service, with a closing time of 10:00 p.m. although she would concede to an 11:00 p.m. closing with alcohol sales stopping at 10:00 p.m.
She also objects to a patio, since there are houses right beside the patio location and a low-rise apartment on its other side.
Ms Scott testified that she would not accept a patio under any conditions. She also opposed any increase in the number of patrons inside.
She presented the following exhibits:
Exhibit 2(a) - Photo showing the restaurant and adjacent buildings;
Exhibit 2(b) - Photo of proposed patio area and adjacent residences.
In response to questions from Mr. Hancock she indicated that although she had not signed the letter of objection, it was signed by her husband, Ken Scott, with her support.
She admitted that there was also noise from two nearby restaurants – The Indian Rice Factory (across the street) and Tournesol Bistro (2 doors east of Fanny Chadwick’s) when patrons exited. However, that noise did not disturb her at her location.
Mr. Hancock asked Ms Scott why she or her husband had not responded to the Applicant’s calls and letter. Ms Scott responded that she felt the matters would be dealt with at the hearing.
In reply, Mr. Mallarino for the objectors, presented Exhibit #3, a letter to Objectors Representative (Alvaro Mallarino) dated September 30, 2010.
To his questions, Ms Scott indicated that she felt the letter was very general and did not address the noise concerns.
In response to the Board’s questions, Ms Scott replied that the noise from the previous restaurant was from people leaving, not from any music.
Replying to Mr. Hancock’s question of whether the noise could have been from people waiting for the bus at the stop located in front of the restaurant, Ms Scott replied that the stop was not at the front, but around the side of the restaurant, on Dupont Street, and she did not hear that noise, if any.
Linda Goldman has lived at 244 Howland for 37 years. Her house is located next door to the fire hall.
After she received the Licensee’s letter (Exhibit 3) she spoke to one of the owners, Sarah Baxter, and indicated that she supported the restaurant but had concerns about noise and the proposed patio.
One concern was about the possibility of the patio being rented out for parties and the resulting noise.
She stated that she is not opposed to the increase in capacity inside.
She pointed out that Tournesol does not have a patio and that although the Indian Rice Factory does, it’s located on Dupont Street and causes no noise problem for her.
In response to Mr. Hancock, Ms Goldman said she was not aware of the design of the proposed patio, but was aware that it would be very small and would be next to backyards. Her concerns regarding noise there were directed more towards the future and she believes that now is the time to take action.
Replying to Mr. Mallarino, she indicated that she was not opposed to a patio serving only breakfast and lunch.
In reply to the Board’s question, Ms Goldman said she did not discuss possible patio conditions with the Licensee.
Ms Goldman presented Exhibit 4, her hand drawn diagram of the immediate area.
Carole Bland has lived at 417 Dupont Street for 58 years. Her home is west of the low rise apartment building that is adjacent to the proposed patio, just east of Albany Avenue which runs parallel to Howland Avenue. She testified that her concerns are with noise from a patio because of the proximity of the adjacent houses and the apartment building and for future residents who might be dissuaded from moving in because of noise problems.
She is also concerned about where deliveries and garbage pick-up will be made if the three rear parking spots are removed for the patio. She pointed out that there is no parking or stopping on Howland until past the fire hall. There is also no parking or stopping on Dupont between 7 a.m. to 9 a.m. and 4 p.m. to 6 p.m. Both Dupont and Howland are permit parking between 12:01 a.m. and 7:00 a.m.
Ms Bland also expressed concern about garbage storage, since there is not room for a dumpster. She then entered Exhibit 5, a photo she had taken showing the Indian Rice Factory and its patio. She indicated that the Indian Rice Factory closes between 7 and 8 p.m.
Ms Bland said she would not accept any conditions regarding the patio, since outside noise could not be controlled.
She stated she was also authorized to speak for Joyce Mondel of 415 Dupont Street.
Her concern regarding increased capacity inside was that the physical size of the restaurant would not hold that many more people, without people standing.
In response to Mr. Hancock’s questions, Ms Bland stated that after receiving the Applicant’s letter, her neighbour Sheila spoke to Leanne Martineau and felt their concerns would not be met. Ms Martineau would not meet individually, only in a group. Ms Bland did not respond herself, she felt that after Sheila’s call there would be no use in her calling. A group meeting was never held.
Regarding Exhibit 5, Ms Bland said it was to show that the barn (in the photo) acted as a buffer between the Indian Rice Factory patio and the homes nearby.
She was not aware that the Licensee would be leaving one parking spot empty, as a buffer.
Alvaro Andres Mallarino bought his house at 264 Howland Avenue in 2009, which is right next door to the restaurant. He has not moved in, since he is renovating the property.
He is concerned about changes to the family character of the neighbourhood by the noise, general disturbance and parking issues. An increase in capacity would increase the parking problems.
He is also speaking for Joel Simpson, his tenants at 264 Howland Avenue, who spoke to Leanne Martineau after receiving the Fanny Chadwick letter. Mr. Mallarino did not call the Applicant, but did communicate by e-mail about his concerns and received no reply.
In response to Mr. Hancock’s questions, Mr. Mallarino said that the Simpsons were tenants in his house until he moves in. Regarding Mr. Simpson’s conversation with Ms Martineau on September 29, 2010; although they agreed to meet the following Sunday, Mr. Mallarino e-mailed that he was unavailable and received no reply.
Responding to the Board’s questions, Mr. Mallarino stated that although he didn’t reside there, he attended numerous times to check on construction and had both parking and garbage problems.
He and the objectors he represents would not agree to any conditions regarding either the patio or increased inside capacity.
Applicant’s Evidence
Chris Chaggaris is the landlord for the building at 268 Howland Avenue. His parents operated a restaurnant there for many years and lived upstairs from 1967 to 1991. He now lives at 173 Howland Avenue.
He disagrees with objectors who say it is a quiet neighbourhood. There is noise from the fire hall, from traffic on Dupont, from freight trains and from the industrial area north of Dupont.
He is not aware of any garbage problems.
The previous restaurant owners closed in March 2010 and had so many liquor and health violations he cancelled their lease. He believes Fanny Chadwick’s is exactly the kind of upscale, community restaurant that the neighbourhood needs. They should be given the extra capacity to be successful.
The patio backs on a small apartment building. He pointed out that no one from that building was at the hearing to object. Of the three parking spots at the rear, two will be used as the patio and one will be left for tenant parking.
In response to Mr. Mallarino, he stated that he did not believe an increase in capacity was more than the Applicant could handle.
He does not believe the new owners will have noise problems with the patio because as a family restaurant they would not want to disturb their neighbours.
Replying to the Board’s questions, Mr. Chaggaris stated that the lease does not include the patio area at this time; he will limit the hours of operation to 12:00 a.m. He also added that a garbage area will be fenced in from the street.
Sarah Baxter has resided at 195 Howland Avenue for 10 years. She stated that she is one of the owners of Fanny Chadwick’s and also owns and rents 197 Howland Ave.
She believes that Fanny Chadwick’s will attract more of the neighourhood families because the Indian Rice Factory is very expensive and Tournesol serves only a fixed price dinner.
As to the parking issue, most of their patrons will walk to the restaurant, but there is also street parking on Dupont and two free large lots at the nearby George Brown Casa Loma campus. The owners will also be asking the City for bike lock-up space.
Regarding the patio, Ms Baxter stated that there would be no outside speakers and there would be an enclosed fence with a pergola over the top of the patio. She presented two exhibits to show the patio plan and elevation (Exhibit 6(a) Patio Plan 6(b) Patio Elevation). She pointed out on Exhibit 6(a) that there would be one parking spot for their tenant and that the privacy fence would have a form of styrofoam padding on three sides to block out sounds and a planter box at the fence. Exhibit 6(b) shows that the fencing will be 6 ½ feet high. Both exhibits have been submitted to the City for approval.
Ms Baxter stated the patio plans had not yet been approved by the Committee of Adjustment. Two issues were involved:
The building is designated as legal, non-conforming but the patio would increase the size of the restaurant so as to require approvals and;
The drawings showing the pergola and attached fence are in conflict with zoning by-laws as relate to the setback issue.
In response to questions from Mr. Mallarino, Ms Baxter stated that they want to use the planters to distinguish the private drive from the restaurant.
She indicated that there would be no take-out menu to cause short-term parking problems and that they would operate from 11:00 a.m. to 11:00 p.m.
They are willing to compromise on closing times to 10:00 p.m. on weekdays and 11:00 p.m. on weekends.
To questions from the Board, Ms Baxter indicated that the restaurant was not presently open for business, but planned to open in January. There are currently no liquor licence restrictions in place and they could serve alcohol until 2:00 a.m. when they open.
Objectors’ Submissions
The objectors are strongly opposed to an increase of inside capacity and to opening a patio. The issues they see are: noise, which would affect the quality of life in the immediate neighbourhood; parking problems and garbage removal.
They are not satisfied that the Applicants will operate as they have indicated in their evidence, once the licence is approved. They feel there is no guarantee that the business will succeed and that a subsequent owner would follow the same rules and restrictions.
The objectors are not opposed to the restaurant, just to a patio and the increase in capacity, inside.
Applicant’s Submissions
Mr. Hancock stated that the objectors want a guarantee about not changing the family neighbourhood character which none of them can give. He pointed out, however, that he has as much interest in this as they do, and referred to his past history (Exhibit 3). He also questioned Exhibit 4 listing houses with children and not showing his own and another (supporter) with children in the same area.
The restaurant would not be a bar or noisy establishment. The request for an increase in seating would help ensure the success of the business, by making it more financially viable.
Objectors’ Reply
Mr. Mallarino indicated the objectors were not looking for guarantees, just for appropriate conditions. Their major concern is for the future of the establishment.
The Board asked Mr. Hancock if the City departments that are responsible for setting capacity have done so, for the inside and the patio. Mr. Hancock replied that those issues had not yet been approved by the City.
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, with those who would earn their living there.
The Board recognizes the very real impact that the licensed premises and patio may have on the surrounding community. The onus is on the objectors, however, to prove on a balance of probabilities that the issuance of a licence for additional licensed areas 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 patio, the Board will not pre-empt a decision to be made by the City’s Committee of Adjustment on whether to approve the patio. Whether the Applicant is even permitted to have a patio, given the zoning issues to which Ms. Baxter has referred, is a critical factor to be determined before the Board can consider whether a patio at this location is appropriate given the public interest concerns. Therefore, the Board is deferring its decision on the patio until such decision is made.
If the Committee of Adjustment approves a patio and there are no appeals of its’ decision and the Board receives confirmation from both parties of this approval, the Board will then render its decision on licensing the patio.
As to the issue of increasing the inside capacity, most objectors’ concerns deal with noise, parking and closing times.
Although it appears that their major noise concerns are centered around the patio, they were also concerned about noise made by patrons exiting the establishment.
The Board agrees that noise does occur when patrons leave, however this is not unique to this establishment and, by itself, is not sufficient grounds to deny the application.
The parking issue is of some concern to the Board although a majority of objectors did not raise this as an issue. Parking is generally a problem for any establishment adjacent to or on a busy commercial street.
Ms Baxter, for the Applicant, pointed out that most of their patrons will likely walk to the establishment and that there was street and metered parking on Dupont Street. She pointed out that the restaurant would not be open during the hours when parking on Dupont is restricted. She also indicated there was free parking on the Casa Loma campus nearby. Additionally, she testified that the restaurant was applying to the City for bike lock-up space.
On the parking issue, the Board believes that an increase of the inside capacity will not exacerbate what is already a problem in the area, and the Applicant, by asking for bicycle parking, is attempting to reduce the problem.
On the basis of the evidence heard and reviewed by the Board, it believes there is insufficient evidence to refuse to grant the increase in capacity to the Licensee. As to the question of closing times, it should be pointed out that the previous Licensee had a closing time of 2:00 a.m. If the current Licensee were to open before this decision regarding the additional capacity, it would be licensed to stay open until 2:00 a.m.
The objectors are asking for a 10:00 p.m. closing. The Licensee has, in an attempt at a compromise, offered to close at 10:00 p.m. on weekdays and at 11:00 p.m. on weekends.
After reviewing all the evidence and submissions, the Board FINDS that the objectors have not met the onus to prove, on a balance of probabilities, that the issuance of a licence for increased capacity is against the public interest, having regard to the needs and wishes of the residents.
The Board finds this compromise as an acceptable alternative and ORDERS that the hours of operation Sunday to Thursday be 11:00 a.m. to 10:00 p.m. and Friday and Saturday be 11:00 a.m. to 11:00 p.m.
Order
For the above reasons, the Board APPROVES the application for an additional inside capacity of 47 persons made by 2250459 Ontario Ltd., operating as FANNY CHADWICK’S, 268 Howland Avenue, Toronto, Ontario, M5R 3B6, licence number 201221, subject to compliance with all statutory conditions and municipal regulations. For the reasons set out in paragraphs 70 and 71, the Board’s decision on the patio application is hereby DEFERRED.
Further, the Board ORDERS that the following conditions be attached to the licence:
- Hours of operation Sunday to Thursday are from 11:00 a.m. to 10:00 p.m. and Friday and Saturday are from 11:00 a.m. to 11:00 p.m.
DATED AT TORONTO, THIS 20 day of JANUARY , 2011.
PATRICIA McQUAID, VICE-CHAIR, AGCO ELEANOR MESLIN, BOARD MEMBER
Attached
SCHEDULE “A”
EXHIBITS
- Package of Objectors Letters;
2 (a) Photo of Fanny Chadwick’s and adjacent buildings;
2 (b) Photo showing proposed patio area and adjacent residences;
Letter from Licensee to Alvaro Mallarino dated September 30, 2010;
Hand drawn diagram of the area, by Linda Goldman;
Photo of the Indian Rice Factory and its patio, taken by Carole Bland;
(a) Patio Plan;
(b) Patio Elevation.