Registrar, Alcohol and Gaming Commission of Ontario v. Maksym Corp., 2011 CanLII 31363

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-

Maksym Corp. operating as or intending to operate as Pizzeria Defina Applicant

-and-

City of Toronto Intervenor

DECISION

Panel: Jacqueline Castel, Board Member Patricia McQuaid, Vice-Chair

Decision Date: April 19, 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: Lorenzo Policelli, Representative Maksym Corp., Applicant: Michael Figol, Representative City of Toronto, Intervenor: Ray Kallio, Representative

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18492 dated January 18, 2011 to review the application for licence made by Maksym Corp. (the “Applicant”), operating as or intending to operate as PIZZERIA DEFINA, 321 Roncesvalles Avenue, Toronto, Ontario, M6R 2M6, establishment number 814756, on the basis the AGCO has received one or more written objections to the Application. A hearing of the application was held on April 14, 2011.

Decision

2On the consent of the parties, the application for a liquor sales licence is APPROVED subject to the conditions on the licence set out below. Reasons follow.

Preliminary Matters

3Lorenzo Pollicelli appeared on behalf of the Registrar. He advised that the Registrar took no position on the public interest merits of this application. He submitted the letters of objection (Exhibit #1) and the letters of support (Exhibit #2) which had been filed in this matter.

Reasons

4Mr. Kallio advised that the City of Toronto and this Applicant, through its representative, Michael Figol, had reached an agreement in this matter, and submitted a consent with Schedule A attached (Exhibit #3) which forms part of this decision. Mr. Kallio stated that should the Board accept conditions and attach them to the liquor licence, the City of Toronto would support the issuance of a liquor licence to the Applicant.

5Mr. Kallio further advised that the resident objectors, none of whom were present at the hearing though given notice of it, had been contacted by City of Toronto representatives and were aware of the conditions to which the City and the Applicant had agreed.

Order

6Based on the Consent, Schedule A, and the submissions of the parties, the Board APPROVES the application for licence made by Maksym Corp., operating as or intending to operate as PIZZERIA DEFINA, 321 Roncesvalles Avenue, Toronto, Ontario, M6R 2M6, establishment number 814756 subject to the filing of all usual and required municipal and application requirements.

7Further, the Board ORDERS that the following conditions be attached to the licence:

1. There shall be no dance floor in the Premises except for special events.
2. There shall be no video games on the Premises.
3. The Premises shall not be used as a place for adult entertainment.
4. In the event that the business is sold or comes under new management, written notice shall be given to all persons residing on and/or owning property within 500 metres of any portion of the Licensee’s property lines. The existing licence shall be secured as part of the transaction.
5. Food service shall be available during all hours of operation.
6. There will be no amplified sound from any part of the establishment causing audible noise to any residential building after 11:00 p.m.
7. The Licensee shall provide a telephone number which will be answered during hours of operation for residents to register concerns or complaints.
8. There shall be no cover charge other than for special charity or corporate events.
9. Subject to the final capacities established by the Fire Marshall, the Licensee shall ensure that a seat is available for every patron.
10. The City of Toronto shall be notified should the Licensee or its successors or assigns make application to the Registrar to remove any of conditions 1 through 9 above.

DATED AT TORONTO THIS 19 DAY OF APRIL , 2011.

JACQUELINE CASTEL, BOARD MEMBER PATRICIA MCQUAID, VICE-CHAIR

Attached

ALCOHOL AND GAMING COMMISION OF ONTARIO

IN THE MATTER OF THE LIQUOR LICENCE ACT, R.S.O. 1990, C.L.19

AND IN THE MATTER OF THE LIQUOR LICENCE OF PIZZERIA DEFINA, 321 RONCESVALLES AVENUE, TORONTO, ONTARIO

Establishment #814756, Notice of Proposal # 18492

CONSENT

WHEREAS Maksyn Corp. (“Licensee”) and City of Toronto (“City”), collectively referred to as the “Parties,” have resolved all outstanding matters with respect to the liquor licence application by the Licensee for the licensed premises known as Pizzeria Defina, 321 Roncesvalles Avenue, Toronto (“Premises”);

AND WHEREAS the City supports the application for a liquor licence for the Premises provided that the conditions, as set out in Schedule A attached to this Consent, are attached to the liquor licence of the Licensee for the Premises;

AND WHEREAS the Licensee has agreed to have the said conditions attached to the liquor licence for the Premises, as set out in the letter dated 5 April 2011, attached as Schedule B to this Consent;

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the Parties agree as follows:

(a) to request that the Registrar of the Board of the Alcohol and Gaming Commission of Ontario (“AGCO”) issue a liquor licence to the Licensee for the Premises, attaching the conditions as set out in Schedule A attached to this Consent; and

(b) that the City shall be notified should the Licensee or its successors or assigns make application to the Registrar to remove the said conditions.

Dated at Toronto this 14th day of April, 2011.

Maksyn Corp. by its solicitor Michael Figol

City of Toronto by its Solicitor, Ray Kallio

SCHEDULE A

Conditions to be attached to liquor licence for Pizzeria Defina 321 Roncesvalles Avenue Toronto, Ontario

Conditions

1. There shall be no dance floor in the Premises except for special events.
2. There shall be no video games on the Premises.
3. The Premises shall not be used as a place for adult entertainment.
4. In the event that the business is sold or comes under new management; written notice shall be given to all persons residing on and/or owning property within 500 metres of any portion of the Licensee’s property lines. The existing licence shall be secured as part of the transaction.
5. Food service shall be available during all hours of operation.
6. There will be no amplified sound from any part of the establishment causing audible noise to any residential building after 11:00 p.m.
7. The Licensee shall provide a telephone number which will be answered during hours of operation for residents to register concerns or complaints.
8. There shall be no cover charge other than for special charity or corporate events.
9. Subject to the final capacities established by the Fire Marshall, the Licensee shall ensure that a seat is available for every patron.

Schedule B

MICHAEL FIGOL BARRISTOR & SOLICITOR 2200 Bloor Street West Suite 200 Toronto, On., M6S 1N4 Tel. 416-760-0524 Fax 416-760-7598

April 5, 2011

City Solicitor Legal Services Metro Hall, 26th Foor, Stn 1260 65 John Street Toronto, ON M5V 3C6

Attention: Ray Kallio, Solicitor

Re: Pizza Defna

I have instructions to agree to the following conditions for the subject liquor licence:

1. There shall be no dance floor except for special events;
2. Establishment must not have video games on the premises;
3. Establishment must not be a place for adult entertainment;
4. In the event that the business is sold or comes under new management; written notice shall be given to all persons residing on and, or owning property within 500 metres of any portion of the Applicant’s property lines. The existing licence shall be secured as part of the transaction.
5. Food service shall be available during all hours of operation;
6. There will be no amplified sound from any part of the establishment causing audible noise to any residential building after 11:00 p.m.;
7. The Licensee shall provide a telephone number which will be answered during hours of operation for residents to register concerns or complaints;
8. There shall be no cover charge other than for special charity or corporate events.
9. Subject to the final capacities established by the Fire Marshall, the Licensee shall ensure that a seat is available for every patron.

This last condition needs some clarification; I advised and you agreed that there may be situations when patrons are standing in the establishment waiting for a seat on a busy day of operations. This would especially be true in winter months when patrons would wish to shelter from bad weather in the restaurant. This situation should be noted in some way as an exception to the condition.

Yours truly,