Registrar, Alcohol and Gaming Commission of Ontario v. 1672750 Ontario Inc., 2011 CanLII 10879

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-

1672750 Ontario Inc., operating as Silver City Bar & Grill Applicant

-and-

Joanna Cotton Resident Objector

DECISION

Panel: S. Grace Kerr, Board Member Alex McCauley, Board Member

Decision Date: January 28, 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 1672750 Ontario Inc., Applicant: Pradeep Chand, Representative; Lawrence Gridin, Student at Law Joanna Cotton: On her own behalf and on behalf of the resident objectors

The Application

1A hearing by the Board of the Alcohol and Gaming Commission (AGCO) into Notice of Proposal (“NOP”) number 17766 dated December 9, 2009 and supplementary NOP number 18010 dated April 21, 2010 to review an application for additional licensed areas for liquor licence number 800485 issued to 1672750 Ontario Inc. (“the Applicant”) operating as SILVER CITY BAR & GRILL, 780 Danforth Avenue, Toronto, Ontario, M4J 1L5 was held on November 9, 2010 in the City of Toronto.

Preliminary Matters

2Ms Joanna Cotton was given party status at the hearing as the representative of the objectors.

3The Registrar took no position in this matter.

Decision

4After considering all of the evidence and the submissions the Board DENIES the Application made by 1672750 Ontario Inc., for additional licensed areas for SILVER CITY BAR & GRILL at 780 Danforth Avenue, Toronto, Ontario, M4J 1L5. Reasons follow.

Objectors’ Evidence

5The following Exhibits were entered into evidence at the outset of the hearing:

1. Copy of petition, dated June 10, 2009, opposing the application of Silver City;
2. Letter of objection, dated May 15, 2009, from Iraklis Tsotsos;
3. E-mail, dated May 15, 2009, from Iraklis Tsotsos to Raj Singh, AGCO objecting to the application;
4. A through D, photos depicting four scenes around the applicant premises;
5. E-mail letter of objection, dated April 22, 2009, sent by G. Azadeh to the Licensing and Registration department at the AGCO;
6. Open letter and petition, undated, and entered November 9, 2010 at the hearing;
7. Letter of objection, dated November 8, 2010, by Joanna Cotton and Ren Wiebe of 17 Woodycrest Ave;
8. Letter of Objection (not dated) from Shauna Gray of 24 Woodycrest Avenue;
9. Letter of objection (not dated) from Juliet Sheldon 6 of Woodycrest Avenue;
10. Letter of objection, dated November 8, 2010, from Miguel Prohaska and Joy Akien-Prohaska;
11. Letter of objection, dated November 8, 2010, from Harold Koblin of 7 Woodycrest Avenue; and,
12. Letter of objection, dated November 8, 2010, from Jane Harris-Koblin of 7 Woodycrest Ave.

6Ms Cotton outlined her objection to the application and referred to Exhibits 6 and 7. She described her neighbourhood as a family oriented neighbourhood. Her residence is close to the Danforth and in close proximity to Silver City. It is about half a block up on Woodycrest Avenue, approximately 300 meters from the licensed premises.

7She cannot actually see patrons exiting the front door of Silver City, but she is able to recognize patrons from the establishment.

8Many of her concerns are around disorderly conduct by patrons from the Applicant’s establishment. She recounted instances of large brawls taking place outside the premises and loud noise made by intoxicated patrons around the establishment and on the patio of the premises.

9Her family has witnessed acts of vandalism such as the throwing of beer bottles at passing vehicles. She described patrons vomiting on lawns as they left the establishment intoxicated. Ms Cotton said the worst events have taken place Thursdays, Fridays, and Saturdays, with matters deteriorating later into the night.

10Ms Cotton stated that the establishment was often over-crowded.

11Patrons are openly smoking marijuana around the premises and behind the back door and in the adjacent alley way.

12Ms Cotton stated that their 13 year old daughter and her friend have been subjected to lewd comments from patrons on the patio of the establishment. The children will no longer walk in that area.

13Ms Cotton is deeply concerned with regard to her family’s safety because of activities emanating from the establishment, Silver City.

14In cross-examination Ms Cotton stated that she has called the police over the past two years, about 10 to 15 times. The latest time was six weeks before the hearing when police attended regarding a disturbance at Silver City. She also noticed at that time what appeared to be a bullet hole in the hood of their vehicle but she was unable to ascertain where the cause of the damage came from.

15Ms Cotton has had no need to complain about other licensed establishments located in the same area as Silver City. Ms Cotton stated it was remotely possible noise was emanating from neighbouring bars and not Silver City.

16Ms Cotton recognizes patrons from Silver City because she knows them as “regulars”. She admitted that these regulars may also frequent other area bars.

17Ms Cotton stated that neither her nor her husband’s name appeared on the petition (Exhibit 1) as they were away when it was circulated.

18Ms Cotton stated that she and her spouse became involved two weeks prior to this hearing when advised by Mr. Tsotsos that this matter was proceeding to a hearing.

19Kevin Sczepanski, resides at 5 Woodycrest Ave. Toronto. He submitted a letter of objection (Exhibit 13).

20Mr. Sczepanski resides on the East side of Woodycrest, about 20 meters north of Silver City. From his residence he has a partial view of the front of the establishment as well as the rear of the establishment. His concerns are primarily noise and disorderly conduct. He has often been awakened from sleep at two or three in the morning because of commotions caused by fights amongst patrons at Silver City. He states he has observed intoxicated patrons from Silver City walk down his street to their vehicles, get in and drive off.

21He has heard the back door of the establishment slamming often as patrons go out to the back area of the licensed premises.

22On his morning walks, Mr. Sczepanski has often noticed broken glass from beer bottles in front of the patio of Silver City.

23He has recently observed upwards of 60 persons in a large brawl on the street in front of the establishment.

24Mr. Sczepanski stated that, when recently, Silver City had its liquor licence suspended for two weeks, it was the quietest the area had been since he moved there four and a half years ago.

25Mr. Sczepanski is opposed to any increase in capacity of the licensed premises. His main concern is safety concerns for everyone in general and he wants to see an end to the noise and disruption.

26In cross-examination Mr. Sczepanski stated in four and a half years he has witnessed close to a hundred fights in relation to Silver City. On at least 15 of those occasions he has called police.

27Mr. Sczepanski admitted he never signed the original petition. He became involved this time after being requested to do so by his neighbour, Ren Weibe.

28Mr. Sczepanski stated he was surprised that Silver City had never been convicted under Toronto’s noise by-law.

29Mr. Sczepanski was adamant the noise he has problems with does not come from two bars in close proximity to Silver City.

30Mr. Sczepanski stated he was aware that there are often large groups of people on Danforth Avenue, but that the matters he was testifying to at the hearing dealt with Silver City.

31Michela Pasquali is Kevin Sczepanski’s spouse. She corroborated the evidence of Mr. Sczepanski as it related to the noise and disorderly conduct coming from patrons at Silver City. In addition she stated that she is very frightened by the fighting by patrons at Silver City.

32In cross-examination Ms Pasquali stated she had not encountered intoxicated patrons while walking in the area, but has been awakened by their brawling and carryings on.

33She has a partial view of the patio area of Silver City by looking from her residence through the windows of Pizza Pizza, which is located beside Silver City. She described the location of her residence in relation to Silver City on a Google Map (Exhibit 14). She described her residence as being about 20 to 30 meters into Woodycrest Avenue from Danforth Avenue.

34Ms Pasquali last saw and heard a disturbance outside Silver City the Saturday prior to the hearing. She described it as a male person verbally abusing a female person. The parties then got into a vehicle and drove off. She did not call police.

35In re-examination Ms Pasquali stated she has not seen people exiting the front door of Silver City, rather, only by the rear door. She also stated that she and her husband do not call police in all instances of trouble at Silver City because the incidents are far too numerous.

36Chris Tsotsos resides at 2 Woodycrest Avenue, Toronto. He referred the Board to his letter of objection (Exhibit 15).

37Mr. Tsotsos’s residence is located directly behind Silver City. He has observed intoxicated patrons at the rear of the establishment and on the patio smoking marijuana. He has observed intoxicated patrons in the back laneway, and then banging loudly on the rear exit door to regain entry to the bar.

38He has also observed intoxicated patrons exit Silver City and then get into their vehicles and drive off.

39Further, he has witnessed several brawls outside the licensed premises.

40In addition, his property has been damaged and vandalized by intoxicated patrons from Silver City.

41Mr. Tsotsos recounted an incident from May 2009 when his garage was broken into and a number of expensive tools and equipment were stolen, including a custom-made, table-mounted mitre saw. The next day, he noticed the saw in the hallway of Silver City, close to the rear entrance. Mr. Tsotsos confronted the manager, who stated the saw had been received from a patron in lieu of cash for an outstanding bar bill. The manager would not identify the person who had delivered the stolen property. Mr. Tsotsos did not report the incident to police because he was frightened of retaliation from the criminal element involved in these thefts.

42Mr. Tsotsos and his family are still fearful in their neighbourhood because of the often violent events and atmosphere around Silver City.

43Mr. Tsotsos stated that at about 2:45 a.m. one night during the week before the hearing, an intoxicated female from Silver City was vomiting on their sidewalk.

44Mr. Tsotsos stated that they have had personal property damaged by intoxicated individuals who were patrons of Silver City.

45In the opinion of Mr. Tsotsos, management from Silver City do not want to be good citizens.

46In cross-examination Mr. Tsotsos agreed that he was the son of Iraklis Tsotsos from the same address. The elder Mr. Tsotsos was the person who started the original petition June 10, 2009.

47Mr. Tsotsos’ three main concerns emanating from Silver City are:

1. Noise;
2. Violence at all levels; and,
3. Intoxicated persons shoved out on to the street.

48Mr. Tsotsos said he has reviewed the Safety, Security and Compliance Plan from Silver City. He disagreed that this plan addressed his concerns.

49In cross-examination Mr. Tsotsos stated he was initially in his bedroom when he witnessed a large brawl at Silver City. Combatants were exiting the rear door. He called police but did not know whether charges were laid by the police.

50In re-examination, Mr.Tsotsos stated that he did not believe the Safety, Security and Compliance Plan offered by management of Silver City went far enough in protecting the property rights of residents and property owners around the bar.

51Mr. Tsotsos advised that patron’s park their vehicles at the rear of Silver City, and on Woodycrest and Danforth Avenues.

52Mr. Tsotsos stated he has no confidence that items addressed in the Safety, Security and Compliance Plan will in fact be carried out.

Applicant’s Evidence

53Mr. Ndreka is the owner and manager of Silver City. He has operated the premises for 10 years and purchased it in 2008.

54The establishment is about 2600 square feet in size and has a capacity (currently) of 61 persons.

55Mr. Ndreka wants to increase his capacity so that he will better be able to facilitate special events, such as birthday celebrations, etc.

56Mr. Ndreka employs 13 persons. He buys all of his supplies locally.

57Mr. Ndreka stated that if his request to expand his capacity is granted, he will employ an additional security person.

58Mr. Ndreka stated that Silver City has never been convicted for excessive noise or for any offences dealing with garbage storage.

59Mr. Nodreka has taken steps to control noise. Signs in the premises caution patrons against being loud, and he insinuated that the establishment is located on a noisy street.

60On pages 13 and 14 of the Compliance Plan, noise as well as security concerns are addressed.

61Mr. Ndreka states that the rear door is a delivery door and it is kept closed at night when the establishment is open.

62Mr. Ndreka stated they have purchased a machine to monitor decibel levels in the premises.

63Mr. Ndreka stated that Silver City is currently serving a 60 day licence suspension. This suspension has a financial impact on him. Further, he stated that this suspension signals a turning point for him in the management of Silver City.

64Some of the highlights of the bar’s new policies are:

1. Patrons and their identification are closely checked in order to prevent intoxicated persons entering the premises;
2. Staff are instructed that there is a zero tolerance policy in place regarding intoxicated patrons;
3. After 9:30 p.m. no one under age 19 is permitted on the premises;
4. The use of food and non-alcoholic beverages with patrons is promoted;
5. No alcoholic beverages from outside the premises are permitted inside of it;
6. There is “zero tolerance” for drug use.

65In cross-examination Mr. Ndreka admitted that Silver City’s liquor licence was suspended for disorderly conduct. He could not say how many infractions there were in total, but he recalled ones for “permitting drunkenness” and for “permitting disorderly conduct.”

66Mr. Ndreka admitted that in addition, in 2008 his liquor licence was suspended for 14 days for the infractions of “permitting disorderly conduct, selling off-licence liquor, permitting drunkenness, overcrowding, serving after hours, and failing to facilitate an inspection.”

67In answer to security concerns about drugs on the patio, Mr. Ndreka stated they have a “zero tolerance for drugs” policy. Also, he had no knowledge of broken bottles in the area of the patio.

68In re-examination, Mr. Ndreka explained that the stolen saw in his bar was temporarily left there by a patron whose car had broken down. It was not there in payment for a bar bill.

69Other than Mr. Tsotsos, Mr. Ndreka has not had any communication with the other objectors at the hearing nor with other neighbours.

70Lighting is installed in the rear parking area. It is a sensor-activated light, which was put there to deter vandalism.

Objectors’ Submissions

71The objectors are very concerned about community safety issues as the result of the disruptive behaviours from patrons of Silver City. There have been numerous incidents of violent behaviour by intoxicated patrons of the bar. There has been property damage as well as countless incidents of intoxicated patrons leaving the bar and getting into their vehicles and driving off.

72This licensed premises has a sordid history of prior offences. To date, in spite of the new compliance plan put in place by the owner, residents have not noticed any positive change.

73Neighbours are concerned for their safety as evidenced by their participation at the hearing and the number of names on the petitions.

74In the objectors’ view, this is definitely not the appropriate time for Silver City to expand. If this experiment were to fail, the residents would be the victims.

75The application for additional licensed area should be denied.

Applicant’s Submissions

76In his summation, Mr. Chand argued that the objectors had not shown that the application was not in the public interest.

77There have been past instances of difficulties, but the Licensee has taken steps to correct these deficiencies.

78There are basically two complaints by residents: noise and safety concerns.

79Many of the safety concerns are dealt with by virtue of the establishment’s Compliance Plan of September 2010.

80Regarding noise, the establishment now has a decibel monitor, there is security at the rear door, and signage encourages patrons to be conscious of the neighbours.

81Also, there are now security patrols outside.

82Silver City has never been convicted under Toronto’s noise by-law.

83The Safety and Compliance Plan addresses many of the issues raised by the objectors.

84The Licensee employs 13 people from the community and if the application is approved, it intends to hire three additional persons.

Reasons and Analysis

85The Board has carefully reviewed the evidence and the submissions of the parties and has decided to deny the application.

86First, the Board confirms that clause 6(2)(h) of the LLA provides, in essence, that an application for a licence shall be granted unless it can be shown that it is not in the public interest to do so having regard to the needs and wishes of the residents of the municipality in which the premises are located. In other words, an applicant has a qualified right to a licence: the onus lies upon the objectors to an application to prove, on the balance of probabilities that approval of a licence is not in the public’s interest.

87To this end, the Board must assess the totality of the evidence to determine whether the subjective concerns of the objectors are supported on a valid and objective basis. Each case turns on its own facts.

88In this case, the Board heard testimony from several witnesses on behalf of the resident objectors who urge that the application be denied. All of them live close to the establishment. Their main concerns are noise and safety/disorderly conduct matters relating to patrons of the establishment. They fear that these issues will get worse if the establishment’s capacity is increased.

89The community residents gave their evidence in a frank and forthright fashion.

90The evidence confirms that for years, the residents have put up with violence, property damage, and breaches of their peace and security resulting from patrons of the establishment.

91In particular, Ms Cotton has observed large brawls by patrons outside the establishments. She has seen patrons throw beer bottles at passing cars and vomiting on lawns. She has witnessed the open use of marijuana around the premises, and heard loud noise coming from intoxicated patrons around the establishment.

92Further, Mr. Sczepanski has been awakened in the early morning hours by the sound of the establishment’s back door being slammed and large as well small groups of patrons brawling. Over the years he has witnessed about 100 fights relating to patrons of the establishment and has called the police on at least 15 of those occasions.

93Ms Pasquali has also been awakened at night by the brawling behaviour of the establishment’s patrons.

94Finally, Mr. Tsotsos, as well, has observed patrons brawling outside of the establishment. He has also seen intoxicated patrons smoking marijuana on the establishment’s patio and observed them banging loudly on the rear exit door to regain entry to the establishment. He has witnessed them getting into their vehicles and driving off too.

95What’s more, his father’s property where he lives has been vandalized by patrons of the establishment and an item stolen from his father’s garage was later seen inside the establishment’s back hallway.

96The concerns expressed by the residents were not denied by the Licensee/Applicant. Instead, the Licensee/Applicant admitted to problems that have resulted in a 60-day suspension currently being served, as well as in a 14-day suspension that was served in 2008.

97Indeed, the establishment’s history of lengthy suspensions corroborates the evidence of the objectors. As noted above, in the past two years this Licensee has acquired two previous suspensions. Two major underlying causes for the suspensions were “permitting drunkenness” and “permitting disorderly conduct.”

98Based the foregoing facts, it is the Board’s view that the Objectors have shown, on the balance of probabilities, that to grant this application is not in the public’s interest, taking into account their needs and wishes.

99The concerns about the establishment, raised by the objectors and summarized above, are very serious as well as long-standing. They are also current. For example, Mr. Tsotsos testified that as recently as the week before the hearing, an intoxicated patron from the establishment vomited on the sidewalk in front of his family’s home.

100Taken together, the evidence establishes that the Licensee/Applicant does not have control of the licensed premises at its current capacity. Clearly, to add to the establishment’s capacity is therefore not in the public’s interest.

101Adopting the Safety, Security and Compliance Plan (Exhibit 16) is a positive step by the Licensee/Applicant towards meeting both the residents’ concerns and its responsibilities, more generally, as a Licensee. However, the Board concludes that the Plan is still in the early stages of being implemented and its effectiveness in addressing the valid public interest concerns raised by the objectors remains to be proven. For instance, the plan was published at the end of September of this year, yet, residents gave evidence at the hearing of instances of disorderly conduct still taking place in October of this year.

102For all of these reasons, the Board agrees with the objectors that this is clearly not the time to expand the capacity of this particular licensed premise. That said, the public’s interest may be satisfied at a later date, once the Licensee/Applicant has ensured the licensed premises is compliant to its responsibilities under the law which would help to make it a better neighbour in the community.

Order

103For the above reasons, the Board finds that the application of 1672750 Ontario Inc., operating as SILVER CITY BAR & GRILL, 780 Danforth Avenue, Toronto, Ontario, M4J 1L5, licence number 800485 to licence additional indoor areas for 64 persons is not in the public interest, and as such, the application is DENIED.