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-
365-Deli Inc. operating as or intending to operate as Café 365 Deli
Applicant
-and-
Erica Gerardi
Resident Objector
REASONS FOR DECISION
Panel: Brian J. Ford, Board Member
Decision Date: September 7, 2011
Hearing Location: Aurora, 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 ) Rena Khan, Representative
Licensee, Applicant ) Olga Lopan, Principal of the corporate ) Applicant
Erica Gerardi, Resident Objector ) On her own behalf
The Application
1. The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18644 dated April 13, 2011 to review the application for a liquor licence made by 365-Deli Inc. (the “Applicant”) operating as or intending to operate as CAFÉ 365 DELI, 160 Wellington Street East, Units 3 & 4, Aurora, Ontario, L4G 1J5 (the “establishment” or the “premises”), establishment number 814666, on the basis the AGCO has received one or more written objections to the Application. A hearing of the Application was held on June 9 and 30, 2011 in the Town of Aurora.
Preliminary Matters
2. When the hearing reconvened on June 30, 20ll, Board Member Brian Ford indicated Board Member Allan Higdon, for personal reasons, was no longer able to preside as a panel member. Upon the consent of the parties, the hearing commenced.
3. Ms Khan advised the Board that the Registrar did not take a position in this matter.
4. Ms Erica Gerardi was granted party Status to the proceeding on consent of the parties.
5. Ms Khan entered into evidence a petition and letter of objection to the liquor sales licence as Exhibit #1.
Objector’s Evidence
6. Ms Erica Gerardi is the property manager for the condominium at 160 Wellington Street East in Aurora, known as York Condominium Corporation 1000.
7. Ms Gerardi stated that there are 68 units in the building and that the ground floor of the building is for commercial use. Café 365 Deli occupies Units 3 and 4 and a flooring company occupies Units 1 and 2.
8. Ms Gerardi stated that the majority of residents in the condominium were senior citizens. She stated the main concern was that there might be excessive noise if a liquor licence was granted, particularly from a patio.
9. Ms Gerardi stated that the residents who objected were also concerned about the potential of property damage that may be caused by persons who have consumed too much.
10. Under cross-examination Ms Gerardi stated that she created the petition. She also stated that she did not speak to any of the persons on the petition personally.
11. Ms Gerardi acknowledged that only 11 people of the 32 who signed the petition, attended a meeting, to discuss the Application with the Licensee.
12. Mr. Ron MacKinnon is the president of the Condominium Corporation. Mr. Mackinnon stated he has lived in the building since 2003.
13. Mr. MacKinnon stated that he has had experience with a bar that was across the street from their building and that the experience was a negative one.
14. Mr. MacKinnon also had concerns about a patio.
15. The Board advised Mr. MacKinnon that the Application being dealt with at the hearing did not include a patio.
16. Under cross-examination Mr. Mackinnon stated that in the past there had been problems with the establishment across the street.
17. Linda Winiewski is a resident of the building and objects to the issuance of a liquor sales licence. She stated she is concerned about the noise that may be generated.
18. It was explained to Ms Winiewski, by the Licensee, that the establishment would only be open from 11 a.m. until 9 p.m. Monday to Wednesday and 11 a.m. until 10 p.m. on Thursday, Friday and Saturday, and on Sundays of long weekends.
19. Beverly Clancy is a resident of the building and stated that she had concerns about parking. She noted that there are 23 parking spots for the commercial units in the building. Ms Clancy stated her concern is that the patrons of the Deli will park in spots allocated to the residents and visitors.
20. Under cross-examination Ms Clancy stated that there was no street parking.
Applicant’s Evidence
21. Olga Lopan is the owner of Café 365 Deli. Ms Lopan stated that she has owned the business at this location for three years. Ms Lopan stated that prior to coming to Canada, she and her husband owned a Deli in the Ukraine for eight years.
22. Ms Lopan stated that several of her customers encouraged her to apply for a liquor sales licence.
23. Ms Lopan stated she does not believe that there will be a problem with parking as there has not been to date. She also stated that several of the tenants’ guests have parked in the parking reserved for the business instead of the visitors parking area. She also noted that delivery trucks and moving vans often park in the parking spots belonging to the businesses.
24. Ms Lopan entered into evidence as Exhibit #2, which included several pictures showing the parking lot and the intersection outside the business and condominium, the layout of the Deli and parking spaces in the rear, along with a petition of support.
25. The street pictures she noted showed a very busy intersection, which she stated generated a lot of noise.
26. Ms Lopan stated that it was her intention to only be open for business Monday to Wednesday from 11 a.m. until 9 p.m. with signs of sale and service cleared by 9:45 p.m., and on Thursday, Friday, Saturday and Sundays of a long weekend, to be open from 11 a.m. until 10 p.m. with signs of sale and service cleared by 10:45 p.m.
27. Ms Lopan stated that she has never had a complaint of any kind against her establishment in the three years she has been in business.
28. Ms Lopan was asked, in cross-examination, if the people who signed the petition in favour of the licence lived in the area. She replied that she did not know, they signed the petition in the Deli.
29. Ms Khan, Counsel for the Registrar, asked when the Application for the licence was made, and was told August 10, 2010.
30. Ms Lopan also explained that the square footage of her establishment was 2,800 square feet, which allowed a capacity of 233 persons.
31. Ms Lopan stated that she did not intend to ever utilize that capacity.
32. Ms Khan noted that the licence allowed for a standing bar of 24 persons and seating of 33 persons. Ms Lopan stated that she was not planning on having a standing bar.
33. She noted that at present she has seating for 18 persons with nine tables and two seats at each table.
34. Ms Lopan stated that there is an Application in the process for an outdoor patio.
35. The Board asked Ms Lopan if she would be willing to accept conditions on her licence that would limit the capacity inside of the deli where liquor is sold to 33 persons and she stated that she would.
36. The Board further asked if she would accept a condition to have the licensed area portioned off with either permanent partitions or movable ones that clearly define the licensed area and she agreed.
37. Ms Lopan was asked if she would also agree to a condition of the licence that would limit the sale of alcohol Monday to Wednesday from 11 a.m. until 9 p.m. with signs of sale and service cleared by 9:45 p.m. and she agreed.
38. Ms Lopan also agreed that the sale of alcohol on Thursday to Saturday and Sundays of long weekends would be from 11 a.m. until 10 p.m. with signs of sale and service cleared by 10:45 p.m.
39. Ms Lopan also agreed that no amplified music would emanate from the premises, no patron will go outside the licensed area of the Deli with alcohol, and the licensed area will be limited to the area where seating is available.
Reasons and Analysis
40. The evidence before the Board was from concerned residents of the condominium corporation who were concerned about noise and damage to property if the Applicant were granted a liquor licence. There was also a belief that the Application included a patio.
41. The Board notes that this Application does not include a patio. As well, it was also a belief that the capacity of the establishment would be 233 persons. This matter was resolved with the Applicant agreeing to the limited capacity of 33 persons as a condition of the licence.
42. The Board heard no evidence that this Applicant would not be a responsible licensee.
43. The Board was impressed that the Applicant agreed to conditions on the liquor sales licence which were acceptable to the objectors present at the hearing.
44. The Board could not find any reason that would not be in the public interest to issue a liquor sales licence to 365 Deli Inc. operating as Café 365 Deli.
Order
45. After considering all the evidence and submissions the Board CONFIRMS its oral ORDER made June 30, 2011 approving the Application made by 365-Deli Inc. operating as or intending to operate as CAFÉ 365 DELI, 160 Wellington Street East, Units 3 & 4, Aurora, Ontario, L4G 1J5, establishment number 814666, subject to compliance with all statutory conditions and municipal regulations.
46. Further the Board CONFIRMS its oral ORDER made June 30, 2011, that the following conditions be attached to the licence:
The capacity of the Licensed area will not exceed 33 people,
The Licensed area will be limited to the area where seating is available,
The Licensed area will be partitioned off with permanent or movable partitions clearly defining the licensed area from the rest of the Deli,
No patron may go outside the Licensed area in the Deli with alcohol, and
No live or amplified music will emanate from the premises.
DATED AT TORONTO THIS 7th DAY OF September , 2011
BRIAN FORD, BOARD MEMBER