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-
Femab Bar and Sport Entertainment Inc. operating as Femi’s Place Applicant
-and-
City of Toronto Objector
DECISION
Panel: Brian J. Ford, Board Member Allan Higdon, Board Member
Decision Date: August 22, 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 ) Tamara Brooks, Representative Femab Bar and Sport Entertainment Inc., Applicant ) Femi Abosede, On his own behalf City of Toronto, Objector ) Ray Kallio, Representative
The Application
- The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18676 dated April 21, 2011 to review the application for a liquor licence made by Femab Bar and Sport Entertainment Inc. (the “Applicant”) operating as or intending to operate as FEMI’S PLACE, 1812 Weston Road, Toronto, Ontario, M8V 2N1, (the “establishment” or the “premises”), establishment number 814816, 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 Toronto.
Decision
- After considering all the evidence and submissions the Board approves the Application made by Femab Bar and Sport Entertainment Inc. for the indoor area of the premises with a capacity of 30 persons at FEMI’S PLACE, 1812 Weston Road, Toronto, Ontario, M8V 2N1, on the conditions set out below. Reasons for these findings follow.
Preliminary Matters
The Registrar’s representative advised the Board that the Registrar took no position with regard to the Application.
Mr. Abosede had no legal representative and was advised of right to have one. Mr. Abosede declined the right to a legal representative.
Mr. Kallio asked that the City of Toronto be granted Party Status to the hearing.
Mr. Abosede did not object to the City of Toronto being made a party to the hearing.
The Board granted party status to the City of Toronto represented by Mr. Ray Kallio.
Mr. Kallio advised the Board that he had given disclosure to Mr. Abosede, however the City of Toronto had received no disclosure from Mr. Abosede.
Objectors’ Evidence
Frances Nunziata is a counsellor for the City of Toronto and has been one since 1985.
Ms. Nunziata stated that there have been problems with the establishment and that the police have visited the establishment. Ms. Nunziata stated there have been efforts with the community, and the police, to clean up the crime in the area of Weston Road where the establishment is located.
Ms. Nunziata stated that the Weston Road area is a problem area in the city with issues of violence and crime. She also stated the area has been targeted as a high crime area.
Ms. Nunziata stated she met with the Applicant in April 2011, and was told by the Applicant that he wanted to open a family restaurant. The Applicant told Ms. Nunziata that he never had any complaints or problems.
Ms. Nunziata stated that she was subsequently told by the police that there were issues of a booze can and criminal activity at 1808 Weston Road, next door to the Applicant. Ms. Nunziata also learned that the Applicant owned 1808 Weston Road.
Ms. Nunziata stated she has received several complaints from residents in the area regarding noise and illegal activities. She stated there were problems with fights and broken beer bottles.
Ms. Nunziata stated it was her belief that the Applicant owned 1808 Weston Road. and was running a booze can.
Ms. Nunziata stated she put forward the motion at City Council objecting to the Application.
Ms. Nunziata stated that when she asked the Applicant if he owned 1808 Weston Road, he said he didn't.
Ms. Nunziata stated that as long as 1808 Weston Road is a booze can, the Applicant should not have a liquor licence.
Under cross-examination Ms. Nunziata was asked who told her he was the owner of 1808 Weston Road and she stated the police.
Sergeant (“Sgt.”) Steve Lorriman is a Toronto Police Officer and has been for 15 years.
Sgt. Lorriman stated that he is familiar with the Weston Road area. He stated it is a high crime area that is patrolled by nine police officers and has surveillance cameras. He also stated there is violent gang activity in the area.
Sgt. Lorriman stated he was familiar with the Applicant and had spoken to him.
Sgt. Lorriman stated he did a walk through at 1812 Femi's Place and found the establishment to be clean and orderly, at the time Mr. Abosede was not there.
Sgt. Lorriman made a second visit and met with the Applicant. Sgt. Lorriman stated he learned that the Applicant used to run the basement of 1808 Weston Road and was renting it out to a friend.
Sgt. Lorriman stated the police had received complaints of a booze can at 1808 Weston Road. They also received complaints of a male person selling booze out of a white van. There were also complaints of prostitution at the rear of 1808 Weston Road.
Sgt. Lorriman stated that 1808 Weston Road is three stories. There is an apartment occupying the top floor, a hair salon on the first floor and a booze can in the basement.
Sgt. Lorriman stated he spoke to the Applicant about the booze can at 1808 Weston Road. Sgt. Lorriman stated Mr. Abosede told him he no longer has anything to do with 1808 Weston Road, but that a friend of his rents it. It was Sgt. Lorriman's impression that Mr. Abosede owned 1808 Weston Road or was the primary lessee.
Sgt. Lorriman stated Mr. Abosede said that he would speak to his friend and tell him to pack it up.
Sgt. Lorriman stated he returned to meet with Mr. Abosede three times and on the third time Mr. Abosede stated he would change the locks on 1808 Weston Road.
Under cross-examination Sgt. Lorriman stated he made three visits and spoke to Mr. Abosede three times. He also stated all the visits were casual and there were no problems.
Sgt. Lorriman stated that there were no liquor offence charges in relation to 1808 Weston Road.
Sgt. Lorriman stated it was his belief that Mr. Abosede had some involvement with 1808 Weston Road as he rented it to his friend.
In response to a question from the Board, Sgt. Lorriman stated his first involvement with Mr. Abosede was to do with his Application and that he had no prior contact with him.
Sgt. Martin Levesque is a member of the Toronto Police Service. Sgt. Levesque stated he is familiar with Femi's.
Sgt. Levesque stated his first involvement with the area near Femi's was as a result of a call regarding a fight involving 10 people at 1806 Weston Road.
Sgt. Levesque stated at the time a male and female were standing at the back entrance to 1808 Weston Road. He tried to gain entry but could not. He went to get a battering ram from his vehicle and when he came back to the door, it was open.
Sgt. Levesque stated he went downstairs and at the time there were 20 people in the basement. He noted there were broken beer bottles on the floor. He noted the time as 6:15 a.m.
Sgt. Levesque asked what was going on and was told it was a birthday party.
Sgt. Levesque stated his contact with Mr. Abosede was in the basement of 1808 Weston Road.
Sgt. Levesque stated another police officer told him Mr. Abosede was in charge. The officer also said Mr. Abosede told him access would not be an issue if the police came back again.
Under cross-examination Sgt. Levesque stated that he did not know whose party it was on January 30th.
Sgt. Levesque also stated that the officer who told him Mr. Abosede was in charge, stated Mr. Abosede was the one who directed individuals to leave.
Sgt. Levesque stated that Mr. Abosede did not say that he was in charge.
Applicant’s Evidence
Arowna Brooks is the wife of the Applicant. Ms. Brooks stated she used to have 1808 Weston Road as a studio, and it was decorated as a studio. She also stated that Mr. Abosede does not own 1808 Weston Road and he is no longer there, nor is he responsible for renting it out.
Ms. Brooks stated that she and her husband do not want a booze can and that is not what they are about. Ms. Brooks stated Femi's is a family restaurant and jazz lounge.
Ms. Brooks stated she is a painter and decorator and holds fashion shows.
Ms. Brooks stated there are decent people living in the area and Femi's is trying to provide a place where they can go.
The Applicant entered into evidence a number of photos as Exhibit # 5 and Exhibit #6. The photos are a before and after of the premises of Femi's. There is also a photo of a flyer for a fashion show and Femi's Caribbean menu at 1812 Weston Road.
Under cross-examination Ms. Brooks stated she is there when she can be and helps out.
Ms. Brooks stated that on a good night there would be 20 people in the establishment.
Ms. Brooks stated there is a cover charge on Saturday night only. She also stated that they have a chef who cooks African and Caribbean food.
Ms. Brooks stated it has been well over a year since their involvement with 1808 Weston Road.
Silvana Jansuzian stated she had gone to Femi's Place on one of the Aphrodisiac nights when they had an open mike. She was not aware of what the area around Femi's was like.
Lesley Whelan at one time lived in the Weston Road Area. She stated that when she grew up there it was not a positive place. Ms. Whelan stated she went into Femi's and found it to be a very comfortable place to be.
Ms. Whalen stated she found Femi's to be very clean and a place that would be very good for the community.
Mr. Shirley Blake has worked at Femi's since May of 2011. He stated that the establishment opens at 11 a.m. and closes at 2 a.m. He also stated that he usually closes the establishment at night.
Under cross-examination he stated he was the chef at Femi's and before him it was Mr. Abosede.
In response to a Board question Mr. Blake stated he works full time at Femi's six days a week.
Femi Abosede is the Applicant and owner of Femi's. Mr. Abosede stated he has owned Femi's since 2009.
Mr. Abosede stated that he refurbished the premises and spent approximately 30 to 40 thousand dollars to bring it in shape.
Mr. Abosede stated his mother passed away and he used his inheritance to purchase the establishment.
Mr. Abosede stated he did rent 1808 Weston Road, and used it for music and art. Mr. Abosede stated that both 1808 and 1806 Weston Road used the parking lot behind 1808 Weston Road.
Mr. Abosede stated he was happy to see the police presence in the area. He also stated that he has no problems with the police.
Mr. Abosede stated he is a musician and plays jazz. He helps kids in the neighbourhood practice on the piano and other instruments.
Mr. Abosede stated his establishment will serve a mix of African and Jamaican food.
Mr. Abosede stated the police came to inspect his establishment and that he tried to get the councillor to come, but she did not come by.
Mr. Abosede stated he did not own 1808 Weston Road, he only rented it prior to opening his establishment. He stated that he knows the person who rents it, however he has no authority over the building.
Under cross-examination Mr. Abosede stated that he was a musician and had no previous experience with the sale of alcohol.
Mr. Abosede stated it was his intention to sell alcohol at 1812 Weston Road. He also stated the establishment would have seating for 30 patrons and a bar.
Mr. Abosede stated that he did not own or rent 1808 Weston Road. He stated that he rented 1808 from 2008 to January of 2011. He further stated that his connection with 1808 ended six months prior to June of 2011.
Mr. Abosede stated he was at 1808 when the police arrived on January 30, 2011, and that the gathering was a birthday party. He also stated there was alcohol served at the time. He stated the party was made up of friends and family.
Mr. Abosede stated that on January 30, 2011 he did present himself to the police and opened the door for them.
Mr. Abosede stated that he did not own 1808 and therefore he could not have changed the locks. However, he did say to Sgt. Lorriman that he would speak to the owner of the building.
Objectors’ Submissions
Mr. Kallio stated that the past and present conduct of the Applicant should be taken into consideration when considering granting a licence to sell liquor.
Mr. Kallio stated that the issues of 1808 Weston Road are relevant to the liquor licence for the Applicant.
Mr. Kallio stated that councillor in the area has very serious concerns about the area and the issuing of a liquor licence to the Applicant.
Mr. Kallio stated the evidence of the police points to the operation of a booze can at 1808 Weston Road and the Applicant had rented that premises.
Mr. Kallio surmises that Mr. Abosede had a connection with 1808 Weston Road.
Mr. Kallio stated Sgt. Lorriman testified in his evidence that he brought the concerns of 1808 Weston Road to the attention of Mr. Abosede and that Mr. Abosede stated that he would do something about it.
Mr. Kallio surmised that the Applicant would not carry on business in accordance with the law and that it was not in the public interest to issue a licence to sell liquor to the Applicant.
Mr. Kallio also stated that if the Board did issue a licence to the Applicant, that there be conditions attached to the licence.
Applicant’s Submissions
Mr. Abosede stated the he is asking to get a licence to sell liquor and that he has done nothing wrong. He has never been charged with anything under the liquor licence act or other laws.
Mr. Abosede stated that his establishment would be something positive in the community.
Mr. Abosede stated he has nothing to do with 1808 Weston Road and he is not the landlord. He stated he told Sgt. Lorriman that he would speak to the landlord of 1808 and he did.
His intention is to have a jazz bar and bring music to the community.
Reasons and Analysis
The Board notes the evidence of Councillor Nunziata was primarily based on hearsay evidence, which she stated came from a police officer. She did not have any direct evidence to support her claims that the Applicant ran a booze can at 1808 Weston Road.
Sgt. Lorriman’s evidence was that he had visited the establishment as a routine liquor licence application inspection. He stated that he found the establishment to be clean and orderly, and there were no problems.
Sgt. Lorriman stated he learned later of the booze can at 1808 and spoke to the Applicant about it. He was told by the Applicant that he was not renting it but that he would speak to the person about it.
Sgt. Lorriman was of the belief the Applicant owned 1808 Weston Road, however no evidence of that was presented at the hearing.
Sgt. Levesque stated he received a call on January 30, 2011 regarding a fight behind 1806 Weston Road, and responded to it. He also stated there was a man and a woman standing at the back door to 1808 and he went to investigate.
Sgt. Levesque stated when he first tried to enter the rear of 1808 he could not and went to his vehicle to get a battering ram to knock the door in. He stated that on returning to the door it was open and he went in with other officers.
Sgt. Levesque stated he saw broken beer bottles on the floor of the basement of 1808 and approximately 20 people there.
Sgt. Levesque stated he was told by another officer that Mr. Abosede seemed to be in charge at the time. The officer also told him that Mr. Abosede told him that if the police came back entry would not be a problem.
Sgt. Levesque stated that Mr. Abosede told him that the event in the basement of 1808 Weston Road was a birthday party.
Mr. Abosede in his evidence admits that he was in the basement of 1808 Weston Road on January 30, 2011 and that it was a birthday party for him and that friends and family were in attendance.
Mr. Abosede also points out that he has never been charged with any violation.
Witnesses for the Applicant spoke highly of the establishment and Mr. Abosede.
The Board carefully reviewed the evidence and submissions. The Board notes that Mr. Abosede has never been charged with any violation and that there was no evidence before the Board that Mr. Abosede ever ran a booze can at 1808 Weston Road.
Sgt. Lorriman`s evidence is trustworthy, however there is room for doubt regarding his conversation with the Applicant. The Applicant admits he said he would speak to the landlord of 1808 who he knows. It could be this that led Sgt. Lorriman to believe that the Applicant had some control over 1808 Weston Road.
The Applicant also admitted being at 1808 Weston Road for a birthday party. No charges, it is noted, were ever laid in connection with that incident.
The Board notes that Mr. Kallio in his submission stated that if a licence were issued, that conditions be applied, which were attached to Exhibit #1.
The Board asked the Applicant if he would agree to the conditions as set out in schedule B of Exhibit #1. The Applicant stated he would not agree to the first two conditions under the heading “Licence to Operate the Business.”
The Applicant however agreed to all of the other conditions.
Order
After considering all the evidence and submissions, and for the reasons stated above, the Board APPROVES the application made by Femab Bar and Sport Entertainment Inc. for a liquor sales licence at FEMI’S PLACE, 1812 Weston Road, Toronto, Ontario, establishment number 814816 subject to compliance with all statutory conditions and municipal regulations.
Further, the Board ORDERS that the following conditions be attached to the licence:
Food Service shall be available from the time of opening until closing on all days that the establishment is open for business,
The Licensee shall provide a telephone number to the residents and the Ward Councillor so they are able to register concerns or complaints. The line will be answered by a staff person during the time the premises are open for business, the line will be equipped with a functioning answering service for those periods when the licensee's staff is otherwise occupied or when the premises are closed,
At all times when the premises are open the Licensee shall ensure that there are clearly visible and functioning security cameras. The video system shall be checked prior to opening the business each day,
There will be one camera for each entrance and exit. Each camera will be no more than 8 feet above the floor,
Cameras will be positioned to provide full video surveillance of approach paths to each doorway,
There will be a camera situated to survey the laneway at the rear of the premises,
The Licensee shall retain all digital records from the security cameras for a minimum of 30 days and will be made available upon request to any law or AGCO liquor enforcement person upon request at no charge,
The Licensee shall use best efforts to ensure that all areas immediately adjacent to the establishment are clean and free of litter, refuse and other debris,
The Licensee shall use best efforts to arrange garbage pickup and recycling at times that will not disturb nearby residents,
There will be no sound from any part of the licensed premises causing audible noises to any residential building after 11 p.m.
The CCTV system shall be suitable for night viewing and the quality of the video system shall be;
a) Frame size: 640 X 486,
b) Image Rate: 60 images per second,
c) Digital format: MPG4, CIF4, no transcoding between formats is permitted for evidentiary purposes,
d) Archive requirement: write to storage medium at 50 per cent quality or better.
DATED AT TORONTO, THIS 22nd day of August , 2011.
BRIAN FORD, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER