Registrar, Alcohol and Gaming Commission of Ontario v. Heidi Hildegard McManamy, 2011 CanLII 45105

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

BETWEEN:

Registrar, Alcohol and Gaming Commission of Ontario Registrar

-and-

Heidi Hildegard McManamy operating as or intending to operate as Coco Cobanas Restaurant and Nite Club Applicant

-and-

Corporation of the City of St Catharines Intervenor

DECISION

Panel: Beryl Ford, Board Member Alex McCauley, Board Member

Decision Date: July 11, 2011 Hearing Location: St. Catharines, 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 Heidi Hilegard Mcmanamy, Applicant ) R.J. Plouffe, Representative City of St. Catharines, Objector ) Nicole A. Auty, Representative

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario ("AGCO") issued Notice of Proposal number 18686 dated April 29, 2011 to review the application for a liquor licence made by Heidi Hildegard McManamy (the "Applicant") operating as or intending to operate as COCO COBANAS RESTAURANT AND NITE CLUB, formerly known as Hypnotiq Lounge, 57 Carlisle Street, St. Catharines, Ontario, L2R 3M7 (the "establishment" or the "premises"), establishment number 803841, on the basis the AGCO has received one or more written objections to the Application. A hearing of the Application was held on June 23, 2011 in the City of St. Catharines.

Decision

2After considering all the evidence and submissions the Board APPROVES the Application made by Heidi Hilegard McManamy for a liquor sales licence of the indoor area of the premises with a capacity of 300 persons on the conditions set out below. Reasons for these findings follow.

Preliminary Matters

3Ms. Auty requested party status at the hearing on behalf of the City of St. Catharines.

4The Registrar's representative advised that the registrar was not taking a position.

Objectors' Evidence

5Ms. Auty introduced the letter of objection of Mayor McMullan and the motion by City Council objecting to the granting of the liquor licence dated December 13, 2010. These became Exhibit #1 to the proceedings. Counsel also submitted committee minutes from the city committee, these were titled "General Committee Minutes" and outlined in some detail the ongoing efforts of the committee to establish future planning issues for the downtown area of St. Catharines. This became Exhibit #2.

6Ms. Auty introduced a list of conditions which the City of St. Catharines would request be attached to the liquor licence if the Board was to grant one. This became Exhibit # 3.

7Ms. Auty referred to the contents of Exhibit #1. She outlined the intent of City Council in its plans for the future of the area. Council was concerned that allowing more licensed premises in the particular area of Carlisle Street may impact negatively upon the City's intent to develop this area by constructing a new arts centre and a parking garage. Council is of the view that this licensed premises is not in keeping with the future revitalization of the area.

8According to Ms. Auty the City is primarily concerned about the timing of this application.

9Ms. Auty had no other evidence or witnesses to call.

Applicant's Evidence

10Mr. Plouffe on behalf of the Applicant stated that the Applicant had done all that was required and met all the requirements necessary for approval of a liquor licence.

11Mr. Plouffe pointed out that the current premises has been licensed, and has been for many years.

12Mr. Plouffe pointed out that the principal of the licencee, Ms. McManamy, has the prerequisite qualifications, is Smart Serve qualified and has experience as a manager in a licensed premises.

13Mr. Plouffe pointed out that there are no objectors to the granting of this liquor licence from any residents or area businesses. He further pointed out that the City of St. Catharines has no firm timeline for any of these proposed changes in the area.

14Mr. Plouffe stated the Applicant is amenable to all of the conditions suggested by the City solicitor, Ms. Auty.

Reasons and Analysis

15Under the circumstances the Board was of the view that the City of St. Catharines had fallen well short of satisfying the Board that it was not in the public interest to grant the liquor licence to the Applicant, Heidi Hildegard McManamy. The reasons provided by the City of St. Catharines through its legal counsel fall short. No independent evidence was called to support the position of the City. Paragraph two of the letter of Mayor McMullan (Exhibit. #1) is hearsay, which is unsupported by independent evidence and therefore will not be considered by the Board. Although hearsay evidence can be considered by the Board, in this case to do so would be extremely prejudicial to the Applicant.

16The Applicant is prepared to accede to the conditions requested by the City of St. Catharines.

17There is a business operating at the proposed site of this establishment so this is not an entirely new event.

18Without more specifics from the City of St. Catharines regarding this matter, there are no grounds to disentitle this Applicant.

19The Board did not require further evidence from the Applicant.

Order

20For the above reasons, the Board approves the application of Heidi Hildegard McManamy for a liquor licence for the premises operating as or intending to operate as Coco Cabanas Restaurant and Nite Club, formerly known as Hypnotiq Lounge, 57 Carlisle Street, St. Catharines, Ontario, L2R 3M7, establishment number 803841, subject to compliance with all statutory conditions and municipal regulations.

21Further, the Board ORDERS that the following conditions be attached to the licence:

1. The Licensee shall hold a valid business licence, issued by the City of St. Catharines for the premises at 57 Carlisle.

2. A sign shall be posted at each entrance of the premises which states "Management Reserves the Right to Refuse Entry or Service."

3. The Licensee shall post a prominent sign at each exit that remains and/or encourages departing patrons to be considerate of the surrounding community.

4. There shall be no loitering in and around the entranceway to the premises.

5. The Licensee shall ensure that all areas immediately adjacent to the establishment are clean and free of litter, refuse and other debris.

6. A current telephone number of the Licence Holder shall be provided to the local Residents Association, the local City councillor and the Niagara Regional Police.

7. Before applying to change any of the conditions contained herein, the Licensee shall provide written notice to the Ward Councillor.

8. Before transferring the liquor licence to any other corporation or individual, the Licensee shall provide written notice to the Ward Councillor and shall meet with local residents to discuss the matter prior to any such transfer.

DATED AT TORONTO, THIS 11th day of July, 2011.