Licence Appeal Tribunal
Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 – to Review Application For Licence.
File: 7242/LLA
Case Name: 7242 v. Registrar of Alcohol and Gaming
2169945 Ontario Inc. o/a Toronto Underground Cinema Applicant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION AND ORDER
Adjudicator: Elizabeth Sproule, Vice-Chair
Appearances:
For the Applicant: Sedwick Hill and Nigel Agnew, Agents
For the Respondent: Michelle Samaroo, Student-at-law
For the Objectors: Mark Crawford, Counsel, representing the City of Toronto John De Vellis, Counsel, representing Metropolitan Toronto Condominium Corporation #713 Jenny Lee, Objector on her own behalf and on behalf of a group of residents of Toronto Condominium Corporation #713
Heard in Toronto: June 4, 2012
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the "Registrar") under the Liquor Licence Act, (the "Act") issued a Notice of Proposal, dated December 19, 2011, which proposed to review an application for a liquor licence by 2169945 Ontario Inc. operating as Toronto Underground Cinema at 186 Spadina Avenue, (the "Premises"), on the basis that the Registrar has received one or more written objections to the application.
PRELIMARY MATTERS
Ms. Samaroo advised that the Registrar was not taking a position regarding the Notice of Proposal.
Mr. Crawford advised the City of Toronto would not be providing any evidence in opposition of the application provided that the conditions set out in the Consent agreement signed by the Applicant May 30th, 2012, be attached to the liquor licence. The Consent agreement (the 'Consent') was submitted and marked as Exhibit 3 to the proceedings.
Ms. Lee, appearing on her own behalf and on behalf of a number of resident objectors, was made a party to the proceeding.
FACTS
The Applicant has owned the Premises since 2008 and has operated a theatre there since 2010. The Premises is part of a condominium complex which has both commercial and residential units. The Premises is located below ground level and was always intended to be used as a theatre.
The Applicant is licensed to operate as a theatre and as such is not permitted to operate past midnight except on the weekends. During its ownership and operation of the theatre the Applicant has held special events for which it has obtained over 20 special event liquor licences without incident. Mr. Sedwick Hill, a principal of the Applicant, and Alexander Woodside, the Applicant's booking manager, testified as to the nature of the business operated: there was no intention to create a night club atmosphere. The nature of the business would remain the same. The patrons would be coming and going as before, not altering the demands of the current security personal.
Mr. De Vellis advised that his client, Metropolitan Toronto Condominium Corporation 713 (MTCC713), does not object to the Applicant being granted a liquor licence provided that some amendments be made to those conditions set out in the Consent, and four new conditions be added. These proposed amendments and additional conditions were submitted and marked as Exhibit 5. After discussions with the Applicant, during the proceedings, Mr. DeVellis verbally provided the amended conditions as agreed to by the Applicant. Mr. Crawford confirmed that the City did not object to any of the amendments.
Agreement was reached on all conditions in the Consent but one: condition i) This condition addresses where patrons will line up while waiting for entrance into the Premises. The MTCC713 and the Applicant do not agree one this condition; the City of Toronto does not take a position. Condition i) as stated in the Consent provides that waiting patrons are to be accommodated inside the building. The MTCC713 requires that the condition provide that prior to 7 pm, patrons be accommodated on the street outside the building.
Condition i) relates to the use of common elements. As there was a lack of clarity as to what rights the Applicant had in using the common elements or what right the MTCC713 had in restricting the Applicant's use of those common elements. The parties were invited to provide further submissions to the Tribunal on this point. The submissions received from both parties suggest, in essence, that this it not a proper matter to be the subject of a condition: the parties property rights are determine through a different process pursuant to the Condominium Act and therefore are beyond the jurisdiction of this Tribunal. The Tribunal agrees.
With respect to the four additional conditions requested by MTCC713 there the Applicant objects to their inclusion.
Ms. Lee testified on her own behalf and on behalf of a number of residents who had submitted letters of objection (all the same form). Ms. Lee operates a business out of a unit at street level on Spadina Avenue. Ms. Lee testified that the entrance to her business has been obstructed in the past by the Applicant's patrons waiting for admission. This problem has however been corrected by the line up for the Applicant's patrons being organized in a different direction. Ms. Lee also testified that she has felt intimidated by a crowd of the Applicant's patrons on at least one occasion when they congregated on the street after a show although she did not give any details of any behaviour of the individuals other than they stood around and talked.
With respect to the concerns of the other residents, Ms. Lee indicated that they are concerned that there will be an increase in the cost of security if the Applicant gets a liquor licence. They are also concerned that their safety will be in jeopardy and that property values will go down as the theatre may attract the wrong type of individuals.
APPLICATION OF LAW TO FACTS
The only objectors opposing the Applicant's liquor licence application are some of the residents of MTCC713. The general concern of these individuals is that their safety would be put into jeopardy if the Applicant was granted a licence. This concern did not appear to the Tribunal to be based upon any facts. Nor did the concern that there would be increased security costs appear to be based on any clear facts. Ms. Lee acknowledged that the concern she had with the patron line interfering with her business had been addressed. Based on the submissions made by Ms. Lee on her own behalf and that of the residents the Tribunal cannot conclude that approving the Applicant's liquor licence application would be in anyway contrary to the public interest.
The other two objectors, the City of Toronto and MTCC713 have indicated they are willing to consent to the licence being granted provided conditions are attached. There has been some agreement between all the parties as to what these should be and the Tribunal finds that these agreed conditions are appropriate.
The MTCC713 requests that four additional conditions be added which the Applicant objects to. The following are the four addition conditions: (the same lettering has been used as that found in Exhibit 5).
m) The Licensee shall cease the service of alcohol every night at 12:00 a.m. and shall remove all evidence of service by 12:45 a.m. The reason given for this additional condition appeared to be the general concerns of MTCC713 of potential noise, potential increase in costs of insurance, and the potential increase in liability flowing through to MTCC713.
n) All doors are to be kept closed (not propped open) at all times except for entry and egress. The reason for this condition was to prevent noise from escaping. There was no evidence that there has been an issue with noise from the Applicant's business as it has been operated for the last two years.
o) The Licensee with comply with the Declaration, By-Laws and Rules of MTCC 713 as they pertain to the right of unit owners to quiet enjoyment of their property.
p) The Licensee shall hold liability insurance in the amount of $5 million and shall indemnify and hold MTCC713 harmless from any and all liability emanating from the use by the Licensee's patrons, of MTCC713's common elements. The Registrar was opposed to this being added as a condition on the basis that it is not its role to be involved with the insuring of licensees.
The Tribunal has considered these additional conditions and has concluded that none of them appear to be necessary or appropriate to protect the public interest. The Tribunal was not satisfied that there were any facts to establishing that the concerns that condition m) purports to address are legitimate, reasonable or relating to the public interest. There was no evidence of noise issues and it was not clear how the liquor licence would increase the cost of insurance and the potential for liability to MTTC713. With respect to n), there again was no evidence to suggest there are any issues relating to noise from the Applicant's business, which will not change in its nature, and therefore bringing into question the need to change the current routine regarding door closures. Condition o) is merely a restatement of the Applicant's existing legal obligations to the MTCC713, the monitoring and enforcing of which need not involve the Registrar and is not a matter affecting the public. And lastly, the requirement of additional insurance is a matter solely for the protection of MTCC713 and not an issue of public interest. The Tribunal therefore does not believe it is an appropriate condition to attach to the licence.
ORDER
Having considered all the submissions and pursuant to the authority vested in it under the provisions of the Act, the Tribunal approves the Application for liquor licence of 2169945 Ontario Inc. for the indoor area of the Premises with a capacity of 737 persons. Further, the Tribunal orders that the following conditions be attached to the licence:
a) The Licensee shall hold a valid business license, issued by the City of Toronto, to operate solely as a business of the class "theatre", and shall restrict its business operations to those of a theatre. For clarity, the Licensee shall hold no other class of licence including other Places of Amusement classes as identified in Article XVI of the former City of Toronto Municipal code. The Licensed Premises shall not be operated as a "nightclub", which is defined as an establishment that focuses primarily on dancing and drinking, with little or no food service and a cover charge for patrons to enter.
b) Food Service shall be available at all times alcohol is being served at the Premises.
c) The Licence shall ensure that a seat is available for greater than 90% of the approved occupancy at the Premises, as specified on the liquor licence, during all hours of operation.
d) The Licensee shall provide a telephone number at the Premises for residents to register concerns or complaints. This line will normally be answered by a staff member during the Licensee's published hours of operation. This line will be equipped with a functioning message service for those periods when the Licensee's staff is otherwise occupied and when the Premises is closed.
e) A dance floor shall not be permitted at the Premises.
f) Live music at the Premises shall only be permitted if the live music is an accompaniment to the movie picture theatre performance or primarily for a seated audience.
g) The Licensee shall ensure that any sound resulting from the operation of the business is not audible beyond a reasonable distance from the lot line of the property on which the Premise is located. This clause includes, but is not limited to, sound that is generated by any internal or external loudspeakers, conversation by patrons within the premise, bussing, garbage disposal and bottle disposal. A reasonable distance for such sound to be considered in non-compliance is any point opposite the Licensee's Premises that is separated by a public street, public or private laneway or a parting wall between the Licensee's premises and any adjacent space.
h) The Licensee shall ensure that a designated and identifiable employee or security guard is on duty at all times to ensure that entering or exiting patrons are not causing a disturbance that will affect nearby residents.
i) The Licensee shall post a prominent sign at each exit of the Premises that reminds and/or encourages entering or departing patrons to be considerate of the surrounding community.
j) The Licensee shall use best efforts to ensure that all areas immediately adjacent to the Premises are clean and free of litter, refuse and other debris.
k) The Licensee shall use best efforts to arrange garbage pickup and recycling at times that will not disturb nearby residents.
LICENCE APPEAL TRIBUNAL
Elizabeth Sproule, Vice-Chair
Released: July 3, 2012