Registrar, Alcohol and Gaming Commission of Ontario v. Black Cat Pub and Grill Inc., 2011 CanLII 45127

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-

Black Cat Pub and Grill Inc. operating as Black Cat Pub and Grill (The) Applicant

-and-

Sharon Tovey Objector

DECISION

Panel: Bruce S. Miller, Board Member Kirsti Hunt, Vice-Chair

Decision Date: June 14, 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 ) Aviva Harari, Representative Black Cat Pub and Grill Inc., Applicant ) Emilio Bisceglia, Representative Sharon Tovey ) On her own behalf and on behalf of the resident objectors

Authorities

Dark Horse [2003] O.A.G.C.D. No. 98

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18351 dated October 20, 2010 to review the application for additional licensed areas made by The Black Cat Pub and Grill Inc. (the “Applicant”) operating as BLACK CAT PUB AND GRILL (THE), 3513 Dundas Street West, Unit 703, Toronto, Ontario, M6S 2S6 (the “establishment” or the “premises”), licence number 24564, on the basis the AGCO has received one or more written objections to the application. A hearing of the application was held on April 5, 2011 in the City of Toronto.

Decision

2After considering all the evidence and submissions the Board APPROVES the Application made by The Black Cat Pub and Grill Inc operating as BLACK CAT PUB AND GRILL (THE) for additional licensed areas at 3513 Dundas Street West, Unit 703, Toronto, Ontario, M6S 2S6 on the conditions set out below. Reasons for these findings follow.

Preliminary Matters

3Mr. Emilio Bisceglia appeared as representative for the Applicant. Ms. Sharon Tovey appeared on behalf of the objectors. She had been made a party to the proceedings by Vice-Chair McQuaid prior to the hearing based on a letter to her from the Hearings Department dated March 11, 2011. The Board agreed that Ms. Julia Naczynski and Ms. Mary Lovas would assist Ms. Tovey.

4Ms. Harari appeared as representative for the Registrar, took no position on behalf of the Registrar and agreed to facilitate matters for the parties.

5A package of objection letters was made Exhibit 1. It is noted that W.O. has withdrawn her objection.

Objectors’ Evidence

6Julia Naczynski lives five houses away from the premises. She testified that she has lived in the neighbourhood for 21 years. She drafted the objection letter and contacted neighbours. Everyone she contacted signed a letter. She approached those 30 residents and had there been more time, she believed she would have been able to obtain 100 per cent of residents within 1000 yards of the premises to oppose the application.

7Using the map (Exhibit 2), Ms. Naczynski explained that the neighbourhood consists of single family homes and that there is a school down the street from the Black Cat. The residents are against a liquor licence for the patio. The establishment does not provide services which neighbours use. It is not geared to a family neighbourhood.

8There is already a concern about the activities at the premises. The Black Cat’s website (Exhibit 3) promotes the premises as a sports bar using statements like: “The neighbourhood has never sounded so good!” and “Raising the local decibel level.” Neighbours do not want to patronize the premises for its food or booze.

9The photos in Exhibit 4 show the immediate surroundings of the premises. It is literally in their front and back yards. The premises does not fit into their neighbourhood and it is not a good neighbour to them. The patrons and proprietors are disrespectful to the neighbours with late night disruptions. As the premises are licensed now, neighbours have to contend with noise from the music, the patrons and their vehicles. Those vehicles regularly include motorcycles. The majority of the patrons do not live in the neighbourhood.

10The Applicant has a petition with 713 signatures of people in favour of the patio but none of those people are present at the hearing. Ms. Naczynski had reviewed the petition and felt that the petition is not a legitimate submission. About 10 per cent had incomplete addresses and names. In some cases, there was only a first name and a postal code. She went through the names by postal code and as shown in Exhibit 7, most names were outside the local M6S postal code area in places such as Hamilton, Oakville, Hamilton, Waterloo, Whitby and one even from Huntsville. These people will not be affected by a licensed patio at the Black Cat. They don’t have much of a stake in the way the place is operated and the quality of life of the people in the neighbourhood who live within earshot and eyesight of the establishment. Even the owners do not live on or near the property. None of the supporters feels strongly enough about the application to take time off work to argue in favour of it at a hearing.

11Ms. Naczynski gave a history of the establishment as it relates to the previous operator who tried to get a patio in 2007. It was constructed on the west side of the establishment. The City polled the neighbouring property owners and almost unanimously they said they did not want a licensed patio at the Black Cat. The patio was dismantled when residents objected to the City because of by-law infractions. The chronology of that matter and correspondence to Mayor Miller were made Exhibits 5 and 6.

12Ms. Naczynski stated that nothing has changed. The residents still oppose a licensed patio. The patio is quite large and has eliminated at least five parking spaces. If people aren’t able to park in the parking lot, they will park on Priscilla Avenue, which is a residential street.

13Residents have the right to peaceful enjoyment of their homes. They can feel, hear and see the Black Cat which is not an asset to their lives and their community. It is a continuous source of disruption, stress and worry. Residents believe that the proprietors are not responsible enough or sufficiently motivated to control their environment or their patrons. A licensed patio at this establishment is not a suitable or appropriate addition to the neighbourhood. She asked the Board to reject the application. She plans to stay in her home in the years to come and wants to be able to enjoy it.

14On cross-examination, Ms.Naczynski agreed that there is certain amount of noise from the railway tracks, a scrap yard and various commercial establishments on, and north of, Dundas Street as shown in Exhibit 8. She agreed that Dundas is a very busy street and that there are licensed establishments in the area as shown in Exhibit 10 but did not know which of them had a patio nor did she know their hours of operation.

15She agreed to the following:

1. the present owners took over in 2007 or 2008;
2. the previous owners had an illegal patio on the Priscilla Avenue side of the establishment and it was dismantled but she did not know by whom;
3. the present patio is in the parking lot between the Black Cat and another commercial building to the east of it;
4. the patio was operated in the summer of 2010, but it was not licensed:

16Ms. Naczynski indicated that she has been in the Black Cat. In 2007, just before the premises opened, she spoke to J.C. but has not been back since. Most of the customers are sports teams and motorcycle riders and she is not part of that group.

17She counted fewer than 30 people in the M6S postal code area. If the Licensee says there are more, she can’t be certain of that.

18Mary Lovas lives two doors south of the Black Cat. She testified that she supports the neighbours in their request to deny this application. The noise from the establishment at times is excessive. She has called to complain about it. Her house has been renovated and insulated but after 11 p.m., when the main noise on Dundas Street is gone, she can still hear noise from the establishment.

19She is also concerned about the lack of responsibility of the ownership of the bar. Last summer there was a power outage. When she went outside to see what was happening, she observed patrons come out of the Black Cat and urinate on the fence.

20The noise level in the summer is an issue.

21On cross-examination, Ms. Lovas stated that she moved into her home in 2005 and agreed that there was another establishment at the site of the Black Cat at the time.

22Licensee’s representative reviewed Exhibit 10, a list of licensed establishments in the area, with Ms. Lovas. She indicated that she has patronized some of them and knows that some have a licensed patio. She agreed that they are in neighbourhoods similar to her own with commercial businesses that had houses behind them.

23On re-examination, Ms. Lovas stated that none of those businesses were within 100 feet of her back yard. She thought Access had a live band once in a while but did not believe the others did. She did not think those establishment had parking lots with motorcycles and cars with boom boxes.

24Sharon Tovey reviewed the correspondence with the City, Exhibit 11, concerning the previous illegal patio on the west side of the establishment which had been built by the previous operator. The building was then leased to Jason Gauci and J.C. who opened a sports bar called the Black Cat Pub and Grill. The grand opening was in September 2008 with a live band that played until 2 a.m. That became a common occurrence. The door is propped open emitting music and noise from inside. There is also the noise of motorcycles and cars of the patrons.

25In January 2009, she contacted the Municipal Licensing and Standards Division (MLSD) to complain about the noise. She was told that the onus is on the neighbours to document and prove that there has been a by-law violation. The April 16, 2009 weekend was again noisy until 2 a.m. so she contacted Tony Martino, director of MLSD, who asked to give him the next date with a live band at the premises. He came to her residence on May 9, 2009 and found the noise from the Black Cat was at an unacceptable level inside her house at 10 p.m. He called for police backup and they served the owners with noise infractions and then left. At 11:45 p.m. the band struck up again and played until 2 a.m. On other occasions police were called with similar results.

26Ms. Tovey explained that the video clip from May 2009, Exhibit 12, which was taken from her residence, shows J.C. giving her “the finger” after being told by police that there had been a noise complaint. After the police drove off, nothing changed.

27In 2009, as the summer weather improved, the owners added tables to the patio and people were outside eating and consuming beverages from paper cups and plastic glasses. In the afternoon of July 16, 2009, J.C. was outside with patrons drinking from paper cups. Ms. Tovey contacted the AGCO and AGCO Inspectors investigated. Evidence about their visit will be given by Inspector Lina Saldarriaga.

28In trying to get the previous patio removed, she was directed on August 7, 2009 to an individual at MLSD, Orest Hulak, who called the owner of the property and told him to remove the patio. The owner wanted to get quotes on the cost of the removal and was given two weeks. On August 21, 2009 nothing had changed. She called Mr. Hulak informing him that she was the target of increased harassment by the owner J.C. J.C. was riding up on the sidewalk beside her house on his motorcycle, revving it as loudly as possible while glaring at her house. He was attempting to intimidate her and did so very effectively. She became very scared.

29She also told Mr. Hulak that there was no sign of the patio being removed. The owner was then told that the patio had to be removed by the end of August or it would be done by the City at his expense. On September 1, two officials from the City informed the owner that the patio had to be removed immediately or they would do it. That day the owner began to dismantle the patio.

30To illustrate the harassment, Ms. Tovey showed a video clip, Exhibit 13, from August 12, 2009 that was taken by a security camera at the front of her residence. She explained that it shows J.C. coming up to the front of her home, revving the engine and then circling back to the premises where he yells, “Go for it” to others on motorcycles. Three motorcyclists then come and revved their engines in front of her house. Later that afternoon, J.C. is again seen coming to the front of the house revving his motorcycle engine. Again later in the afternoon, J.C. repeats the same action and then burns rubber in the alley behind their back yard. On another day J.C. repeats his performance in front of the house.

31Ms. Tovey stated that the video shows intimidation and that continues today. J.C. knows where she lives and so do his buddies. She fears for her safety and is concerned about coming home late at night because he is “bit of a wild card.”

32On September 9, 2009, she and a neighbour met Inspector Dave Sanders and other officers of the Major Crime Unit to discuss the harassment and provide the video to them. She was told that criminal harassment charges could be laid but she chose not to lay charges in lieu of a promise of increased police presence. When she returned home that day, a clearly very angry J.C. was on the patio glaring at her. She avoided eye contact. Within minutes of her entering the house, he was on the sidewalk in front of her house on his motorcycle. She informed Inspector Sanders. Jason Gauci, the Applicant, is aware of her visit to the police.

33On cross-examination, Ms. Tovey stated her security cameras record twenty-four hours a day, seven days a week. The first video had no sound because it was done on a hand held camera. The motorcycle incidents stopped in September 2009. There were 20 to 30 of the incidents similar to those shown on the video.

34She agreed that when she moved into her home in 2003, there was a licensed establishment in the location of the premises but there were no problems with it. The previous patio was on the other side of the building from the present one.

35Black Cat opened in 2008 and the problem with noise has persisted. At present, the establishment does not have as many band nights, but they do karaoke so there is still a lot of noise. The present patio was built last summer but the weather was poor so almost no one sat outside so there is no test of the noise level from it.

36Lina Saldarriaga is an AGCO Inspector. On July 16, 2009, she went to Black Cat with AGCO Inspector John Hesch. They had been asked to attend because of a noise complaint and people drinking on an unlicensed patio. They arrived at midnight and observed five males seated at a table outside the establishment. There was no patio or barriers, just tables on the side of the building. She entered and Inspector Hesch spoke to the males outside. She identified herself to the bartender who identified herself as D.W. She advised D.W. that the patio was not licensed and asked her if she knew that. D.W. said that she did not know since she had been working there for only two weeks. She admitted serving alcoholic beverages to the males who were outside.

37Inspector Saldarriaga went outside and spoke to J.C. who identified himself as part owner and manager of the establishment. J.C.’s beverage looked like iced tea. J.C. stated that he had been at the establishment for a year but he did not have a server training certificate. He was co-operative throughout the inspection.

38Two other males were consuming from carton coffee cups. She was advised by Inspector Hesch that the contents of the cups smelled like alcohol. She took samples from the two cups and sealed them with AGCO seals number 50343 and 50344.

39She advised J.C. of the infraction of removing liquor from the licensed premises and of her concerns about people consuming liquor in an illegal location and failure to ensure server training certification. J.C. said that he understood and they left at 12:28 a.m. J.C. did admit that they were drinking alcohol.

40The samples were tested at the LLBO lab. Sample 50343 tested 7.8 per cent alcohol by volume. Sample 50344 tested 10.9 per cent alcohol by volume.

41On cross-examination, Inspector Saldarriaga stated that there was no excessive noise while she was at the premises.

42Catherine Trimble is the constituency assistant for City of Toronto Councillor Doucette. She submitted a letter in opposition from the Councillor which was made Exhibit 14.

Applicant’s Evidence

43John Emerson Coulter gave evidence of his background and his Curriculum Vitae was made Exhibit 15. The Board qualified him as an expert witness in acoustics, noise and vibration. Mr. Coulter’s report of February 25, 2011 regarding the Black Cat Pub and Grill was made Exhibit 16. His study of the patio was conducted to determine its compliance with City by-laws for the purpose of getting a liquor licence. He looked at two concerns. First, he calculated that 40 people outside talking and laughing at 2 a.m. would not be louder than traffic noise. Secondly, if the garage style door is open to the patio, noise from inside would be clearly audible. His concern was regarding people overlooking the patio. The most likely place where noise could be heard from the patio was at a second story window. Based on sound levels at 2 a.m., one would most likely hear the pub over other sounds in the community.

44To lower the sound level, he suggests the following:

1. Construction of an eight foot high light duty acoustic fence (a solid wood fence) along the southern and eastern edges of the patio.
2. He suggests a condition that there be no speakers on the patio.
3. If the large overhead door is left open, sound escapes outside. The City’s noise by-law can be met if the sound level in this doorway is reduced in size to a man door size (36”x84”). A door that is closed except for access and egress would not need a sound level limit.
4. A noise-monitoring system (sound alarm) in the access opening to the patio set at 80 Decibels A Weighted (“dBA”) at the garage door opening and at 85dBA on the main door will meet City noise by-law requirements.

45If the operator complies with the conclusions in the report, the premises would meet the City’s noise by-law requirements.

46On cross-examination, Mr. Coulter indicated that no testing was done because the patio with people present was not operating. If sound goes above the set level on the sound alarm, a light goes on which staff would see.

47Jason Gauci is the owner of the Black Cat Pub and Grill. He testified that he has a degree in business management and is a certified accountant as well. He has his Smart Serve certification. He has six years of previous experience in bars. He grew up in the area and now lives on Lakeshore Avenue, a five to 10 minute drive from the premises.

48He took over these premises in March 2008 and established the Black Cat. At the time, he was hesitant about the place because the prior owners had a bad reputation so he decided not to attract the same type of people as before. There was a patio on the west side of the establishment and he had that demolished. He learned from City officials, referred to by Ms. Tovey, that it was not properly built. He renovated and changed the face of the establishment. The establishment started as a local pub and is now a restaurant and bar for a 25 to 30-year-old clientele. He is the sole owner. The establishment is fully staffed and the manager is J.C. They have a full menu for breakfast, lunch and dinner. He sponsors local sports teams since there is a park within walking distance. They are open at 8 a.m. so families come in.

49They have more bands now than in 2008. There is a band almost every week on Friday and Saturday nights. They try to keep the door closed and try to adjust the band volume. He takes routine walks around the premises and the parking lot to listen for the noise level. Because the Inspector could hear noise when the door was opened and closed, they inserted a second internal wood door to try to keep the noise level down. That is a buffer when the back door is open. There is a door on the west side of the premises where the old patio was but they keep that closed.

50They operated the patio for four to five months last summer. He did not receive any complaints. After receiving the letters of objection he reduced the capacity from 74 persons in the application to 40 persons. He had Mr. Coulter do a sound study and he agrees to an acoustic barrier, sound monitor and no outdoor sound system. There is nothing to prevent him from having a sound system on the patio now.

51He wants to have a licensed patio because business is quieter in the summer and people like to sit outside. His competition has patios and he needs a patio to compete.

52He prepared the list of licensed establishments in Exhibit 10. Those establishments are his competitors. He considers anything within a couple of kilometres away to be a competitor. He visited each and estimated the capacity of their patios. Most have surrounding residential houses like his establishment. People like to enjoy a cold beverage outside. His competitors are busy but his establishment isn’t so he needs a patio.

53Mr. Gauci submitted a petition, Exhibit 18, in support, signed by his patrons. He highlighted more than 30 signatures in the local postal code area.

54After the incidents shown on Ms. Tovey’s video, he spoke to J.C. and told him that his job was on the line and he would not continue to work there if his actions continued. He discussed the situation with police too. After the meeting with 11th Division, he was aware of the security camera and knows activities have been monitored since the fall of 2009. Those incidents never happened again.

55Regarding the noise call to the police, if there has been noise, the establishment would have been reprimanded. There has been nothing significant. The noise in his establishment is similar to that in other establishments. He has not been contacted by the previous or the present City Councillor.

56After the incident with the Inspector, he posted signs inside the premises about non drinking areas. There have been no infractions since. They also have better training for staff about what areas of the establishment are licensed.

57On cross-examination, Mr. Gauci stated that he learned about the illegal patio from City officials. That patio had been part of the lease agreement and his rental rate was based on it.

58He has always been the sole owner. He has known J.C. since they were teenagers. J.C. has never been an owner. Initially he incorporated with a couple of partners, J.C. and Chris, but within a week he took sole ownership.

59He is an accountant and works from 9 to 5 p.m. but he does have flexible hours. He agreed that J.C. is the manager. When asked if he is at the premises as much as possible to closing time, Mr. Gauci stated that he isn’t and that is why he has staff. When asked how he can be sure that J.C. is acting responsible, Mr. Gauci responded that there is a lot of work involved in running the establishment and that one needs someone that one can trust. They have been successful and are still open and he trusts J.C. to run the business.

60In reply to questions by the Board, Mr. Gauci stated that he spends about 40 hours a week in the premises, mostly on the weekend and in the evenings. He agreed to a condition to decrease the larger doors to a man sized door. He agreed to keep the doors closed except for access and egress. Both he and the staff have learned to do so. All the staff are Smart Serve trained. He is not sure about J.C. but he will make sure there is a copy of his certification in the premises.

61His proposed hours are 8 a.m. to 2 a.m. with alcohol service from 11 a.m. to 2 a.m. When asked about the discrepancy in the hours of operation shown on the application which are from 8 a.m. to 11 p.m. Sunday, Monday, Tuesday and Wednesday and 8 a.m. to 2 a.m. on Thursday and Friday, Mr. Gauci stated that they would like the option of staying open to 2 a.m. Sometimes they do close earlier during the week.

62The noise alarm will be by the exit to the patio and visible to bar staff and wait staff. When there is live music, staff will ensure that the band decreases its volume, and they will check the open doors. The alarm will be high enough that patrons cannot easily reach it.

63When asked why he had not spoken to the objectors, Mr. Gauci indicated that no one approached him. He is easy to speak to. If there is an issue, residents can come to speak to him. If there is a problem in the evenings, people should tell the manager or wait staff, leave their name and number and he will deal with the matter immediately. Staff members have his cell number to call. He agreed to give his cell phone number to residents.

Objectors’ Submissions

64Ms. Tovey submitted Mr. Gauci is aware of the previous issues with J.C. Residents do not have confidence in him because J.C. is still the manager and they do not believe that J.C. will operate the business in a responsible manner. Therefore, they ask that the application be rejected.

65Another issue is increased activity. The more people that are at the premises, the more issues there will be in the parking lot. There is no confidence that future issues will be managed properly since they have not been in the past.

66The Black Cat has not shown good will to the neighbourhood. This application will create more problems in a quiet neighbourhood and prevent enjoyment of their homes.

67The position of the residents is that the application should be denied. If the Board should grant the application, the residents want the following conditions placed on the licence:

1. The patio should be closed at 10 p.m. every night. Service of alcohol should stop at 9:15 p.m. and sign of alcohol be gone by 10 p.m.
2. Access to the patio should be restricted to a man sized door.
3. Mr. Gauci’s personal cell number should be given to residents.
4. There should be no additional lights on the patio
5. There should be no amplified music on the patio at any time.
6. Access from the parking lot to Priscilla Avenue should be closed. Planters or a chain can be put across the parking lot entrance to Priscilla Avenue so there is access to the parking lot only from Dundas Street.

Applicant’s Submissions

68Mr. Bisceglia submitted for the Applicant that the application should be granted subject to reasonable conditions as stated in the Dark Horse decision of the Board.

69The evidence is that the situation at the premises has not been perfect, but it has improved. There have been no incidents since the summer of 2009.

70It must be noted that there is no sound from the hand-held camera so inferences have to be made about noise. That is supported by the fact that the inspector did not have a problem with noise.

71There is a little of the “not in my backyard” about the residents opposition. There are a lot of bars in the area, some of which have a patio close to back yards. There was an existing bar at this location when residents moved in. There is some inconvenience to living in the City.

72If there is no patio, people will go into the parking lot to smoke. If there is a licensed patio, the smokers will be on the patio which will solve the problem in the parking lot.

73Regarding the proposed conditions, the Applicant has no problem with providing a cell number to residents. There is no agreement regarding closing times. A locked back door is a fire code issue and fire truck access is also needed. Regarding the lighting, the City has a standard of lighting and that is a safety issue.

74There were issues in the past but everyone has learned to deal with them better with experience. The patio was in operation last summer with no problems.

75The Applicant has acted responsibly, hired a sound consultant and agrees to the terms of the report being made conditions on the licence. Also, the capacity has been lowered to 40 persons.

76In the Dark Horse decision, the establishment is located in an area similar to this one and the licence was granted with conditions. The Applicant asks that this licence be granted.

Reasons and Analysis

77The Board has reviewed the testimony, exhibits and case law in this matter.

78The Black Cat Pub and Grill is located on the southeast corner of Dundas Street West and Priscilla Avenue. The patio is on the east side of the building with a parking lot to its east with access to Dundas Street. The lot extends around to the back of the building with access to Priscilla Avenue. There are commercial properties along Dundas Street and to the north of it. Immediately south of the commercial properties are residential properties (Exhibit 8).

79At issue is an application for a liquor licence for a patio with a capacity of 40 persons, which residents of the area are opposing. The Board has received letters and testimony in opposition from residents. The Applicant has submitted a lengthy petition in support of the application, which has been signed by patrons. But, as pointed out by Ms. Tovey, a large proportion of the signatures belong to people who live outside the neighbourhood, so their everyday lives will not be affected by this establishment. The Board does not make a decision based on the number of people supporting or opposing an application, but gives the greatest consideration to the concerns of the residents who live in the immediate area of the premises who will be most affected by activities at this establishment.

80The concerns of the residents are the history of late night noise and disruption from loud music, patrons and their vehicles, patron behaviour and lack of management control.

81One of Ms. Lovas’ concerns was the behaviour of patrons. She observed them coming out of the establishment and urinating on the fence. The Board has a concern about such antisocial behaviour. However, given that it happened during a power outage and doesn’t seem to be a regular occurrence, the Board takes it to be a unique circumstance of the power outage.

82The Board saw clear evidence of the presence and the noise of motorcycles in the video clips presented by Ms. Tovey.

83The Board also heard credible evidence from residents about noise from music emanating from the premises. All objectors agreed that there is noise from businesses on Dundas Street and north of it. That noise abates later in the evening but the noise from The Black Cat persists into the small hours of the morning. The objectors evidence is supported by the findings of Mr. Coulter’s report (Exhibit 16) - that noise emanation from the premises does not meet the City’s noise by-law requirements after 11 p.m. when the rolled up garage style door to the patio is open.

84Regarding noise from the patio, the residents’ concern is that the noise of patrons on the patio would add to the existing noise. The Board notes that the patio was operational last summer and none of the objectors gave evidence of noise disruption from that patio, although Ms. Tovey indicated that it was not used much because of the cool weather last summer.

85In response to the concern about noise, Mr. Gauci agreed with the recommendation in Mr. Coulter’s study that there be no outdoor sound system on the patio and that an acoustic barrier (a solid wood fence), 2.4 metres higher than the deck, be constructed along the southern and eastern edges of the patio. He also agreed to a sound monitor set to a level specified in the report and to constructing a man-sized door to the patio. Mr. Gauci also agreed to provide residents with his personal cell phone number so they can contact him. The Board notes that Mr. Gauci has already taken some steps to mitigate noise from inside the establishment.

86Another concern of the residents is that the management of Black Cat cannot be trusted to properly manage the premises since they have not done so in the past. They gave as an example the previously illegal patio which was not removed by the owners until the residents brought the matter to the attention of City officials, who had to come to the premises on more than one occasion before it was removed. The evidence of Mr. Gauci was that the previous patio was part of his lease agreement and once he became aware of the problem, when City officials arrived at the end of August 2009, the patio was removed. In the Board’s view that matter has been resolved with the owner of the property and Mr. Gauci cannot be held responsible for what was done by the previous operator.

87Of greater concern for the Board is the credible video evidence from Ms. Tovey’s security camera showing harassment by J.C., the manager of the premises, which occurred in 2009 and which ended only after the intervention of the police. Mr. Gauci gave evidence that after the intervention of police, he told J.C. that his job was on the line unless his actions ceased. There is no evidence that further harassment has taken place since that time.

88In support of concerns about the management, Ms. Tovey called as a witness AGCO Inspector Saldarriaga who gave credible evidence about people, including the manager, drinking alcoholic beverages outside in an unlicensed area. She also found that J.C. did not have his required server training certification. Given that the Registrar is taking no position regarding this application, the Board’s view is that the matter of the violations observed by Inspector Saldarriaga have been dealt with appropriately. However, the incident does support some concern about responsible management by J.C. As the manager, he would have known that no outside area was licensed for the service of alcohol.

89A further concern about J.C. is that when police warned him about a noise complaint by Ms. Tovey, the volume of the music continued after officers left. Ms. Tovey’s concern about Mr. Gauci is that he continues to employ J.C. as the manager despite his previous actions and given his past history. J.C. cannot be trusted to properly manage the premises.

90Mr. Gauci’s response to noise complaints to police is that if there were complaints, they would have been reprimanded but that there has been nothing significant. He agreed that there were issues in the past but that they have learned from them and taken steps to ensure compliance. There have been no violations since. He continues to employ J.C. because they have been friends since they were teenagers and he trusts J.C. to successfully operate the premises.

91A concern for the Board regarding the management of the premises is that Mr. Gauci stated that he is the sole owner of the premises. However, the evidence of Inspector Saldarriaga is that J.C. identified himself as part owner and manager of the premises which suggests some degree of control beyond that of a mere manager. Also any evidence of interaction by residents and the Inspector at the premises is with the manager and not with Mr. Gauci. Of concern also is Mr. Gauci’s lack of knowledge about what is happening with his manager. One of the infractions that Inspector Saldarriaga identified on July 16, 2009 was that J.C. did not have his server training certification. At the hearing, almost a year later, Mr. Gauci was not sure if his manager had his certification. Also, he appears to not find significant a visit by police as a result of a noise complaint. The Board points out that operating the premises successfully must include ensuring that the premises are operated within the dictates of the LLA and its regulations. The licence holder is the person ultimately responsible for the actions of employees and for maintaining proper control in and around the premises.

92The position of the residents is that they are opposed to the granting of this licence. In the event that the Board decides to grant the licence, Ms. Tovey did suggest possible conditions as noted in her evidence. The Applicant also agreed to the recommendations of his sound expert as conditions on the licence. The Applicant has decreased the proposed capacity on the patio from 74 persons to 40 persons, and agreed to give residents his personal cell phone number. It also accepts the evidence of Mr. Gauci that he has already taken some steps to attenuate noise emanating from the premises.

93Despite resident’s concerns about noise from the inside of the premises being consistently a problem since the premises opened, the patio was operated last summer without any evidence of problems. The Board finds that the application can be approved with conditions that have been agreed to and others which it finds appropriate. Those conditions should attenuate noise problems and allow residents to enjoy their homes in reasonable comfort.

94The suggested condition regarding blocked access to Priscilla Avenue is not appropriate given concerns about fire equipment access to the premises. Given that the main problem appears to be noise from the interior of the premises, conditions regarding doors and windows are more appropriate than shortening service hours on the patio which was operated last summer without evidence of problems.

95For the information of residents and the Licensee, section 46 of Ontario Regulation 719/90 under the LLA applies specifically to patios and reads as follows:

The holder of a licence that applies to outdoor premises shall not permit noise that arises directly from entertainment on the premises or from the sale and service of liquor to disturb persons who reside near the premises.

Order

96For the above reasons, the Board APPROVES the application by The Black Cat Pub and Grill Inc. operating as BLACK CAT PUB AND GRILL (THE), 3513 Dundas Street West, Unit 703, Toronto, Ontario, M6S 2S6, licence number 24564, subject to compliance with all statutory conditions and municipal regulations.

97Further, the Board ORDERS that the following conditions be attached to the licence:

1. The capacity on the patio is limited to 40 persons.
2. A solid wood fence, 2.4 metres higher than the deck, is to be constructed along the southern and eastern edges of the patio.
3. There is to be no additional lighting, live or amplified music or entertainment on the patio.
4. The Licensee shall construct a man sized door for access to the patio.
5. A sound monitor system is to be installed at the door to the patio and set at a level recommended in the sound report.
6. All windows and doors are to be kept closed, except for access and egress through doors, at all times when there is a band playing or karaoke music in the premises.
7. At all other times, windows and doors are to be kept closed after 10 p.m. except for entrance an egress through doors.
8. Mr. Gauci is to provide to the residents his personal cell phone number.

DATED AT TORONTO, THIS 14th day of June, 2011.