Licence Tribunal
Appeal d'appel en
Tribunal matire de permis
2012-06-29
FILE:
7241/LLA
CASE NAME:
7241/LLA v. Registrar of Alcohol and Gaming
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 Ð to Review an Application for a Liquor Licence.
The Graduate Students Association of McMaster University o/a Phoenix Bar & Grill
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
-and-
Lou Ferro, Hafez Shuhaibar, Ann Mclaughlin and Jurek Kolasa
Resident Objectors
DECISION
ADJUDICATOR:
Harinder S. Gahir, Vice-Chair
APPEARANCES:
For the Applicant:
Asif Lasani, Counsel
For the Respondent:
Michelle Samaroo, Counsel
For Objectors:
Angela Papalia, Agent
Heard in Hamilton:
May 30 and June 1, 2012
The Deputy Registrar of the Alcohol and Gaming Commission of Ontario (the ÒRegistrarÓ) under the Liquor Licence Act R.S.O. 1990, c. L19 (the ÒActÓ) issued a Notice of Proposal number 19059 dated February 3, 2012, to review an application by Graduate Students Association of McMaster University (the ÒGSAÓ) operating or intending to operate as Phoenix Bar & Grill, (the ÒPhoenixÓ), for a liquor licence at 1280 Main Street West, Main Floor, McMaster University, Hamilton, establishment number 815313. This is an appeal, by way of a request for a hearing, to the Licence Appeal Tribunal (the ÒTribunalÓ) from the Proposal.
Decision
After considering all the evidence and submission of the parties, the Tribunal approved the Application on the conditions set out below.
Background
The GSA has been operating as Phoenix Bar & Grill at a location on the perimeters of McMaster University Campus (the ÒUniversity) since 1969. As a liquor licence is location specific, the purpose of the present application is to facilitate the relocation of the Phoenix from its present location to a central location within the campus. In January 2012, the Objectors filed an objection to the Registrar against the issuance of the new licence. The Objectors allege, among other things, that:
Ò[É] the neighbors along Forsyth Avenue on the east side of McMaster Campus have video tape and other evidence that shows McMaster University Campus is grossly over licensed and the drunkenness and rowdiness that occurs on Thursday and Saturday nights, especially, is beyond tolerance and no amount of policing has seemed to reduce the incidence of vandalism and rowdy behavior.1Ó
The GSA submitted that the Objectors cite alleged problems relating to alcohol consumption on the Campus in general, and does not in any way make specific reference to any such problems in relation to the Phoenix or its patrons.
Preliminary Matters
At the onset of the hearing, RegistrarÕs Counsel advised the Tribunal that the Registrar took no position on the public interest aspects of the hearing.
During this time, the Applicant made a motion2 for an Order that:
(a) The expert evidence of Dr. William Jacyk shall be inadmissible as evidence for the purpose of the within hearing;
(b) The studies and other materials related to alcohol consumption disclosed to the Applicants (and to the Tribunal) by the Objectors, shall not be admitted as evidence for the purposes of the within proceedings;
(c) The video recording sent to the Applicant by the Objectors under the cover letter dated May 9, 2012, shall not be admitted as evidence for the purposes of the within proceedings.
The basis of the ApplicantÕs Motion was that various documents that the Objectors had submitted relate to general alcohol policy of McMaster University and consequences of binge drinking at university campuses across North America and its potential impact on the community. The Applicant submitted that the articles and studies do not directly relate to the issues before the Tribunal. The ApplicantÕs Counsel further submitted that this motion was made to avoid prolonged hearing due to ObjectorsÕ documents3 that are not directly related to the issues before the Tribunal.
The ObjectorÕs Counsel submitted that these documents contain highly relevant information, which the witnesses during their testimony will connect with the operations of the Phoenix and the problems that the Objectors are facing. The Counsel assured the Tribunal that she would not be relying on each and every document she has submitted, and that the hearing would not be prolonged beyond the scheduled hearing days. She further submitted that, due to the important and relevant information contained in these documents, her clients would be highly prejudiced if the documents were excluded.
After considering the submissions of the parties, the Tribunal ruled to allow the ObjectorsÕ documents to be marked as exhibits. The Tribunal relied upon the Objectors CounselÕs submission that the Objectors, during their testimony, will tie up the information contained in these documents with the operations of the Phoenix and the problems they are facing.
Evidence
In addition to the documentation, the Tribunal heard the oral testimony of six witnesses. The summary of the testimony of the witnesses and documentary evidence is as follows:
Elaine Shuhaibar
She and her family have been residing at Forsyth Avenue Road for the last 20 years and she has been working with the University for the last 15 years. She testified that her family and neighbors have been harassed by the intoxicated students roaming in and around the campus. She believed that the situation has been deteriorating day by day. She narrated incidents of dealing with intoxicated students such as students jumping at the hood of her husbandÕs car; drunken students leaving a shopping trolley on their property and drunken students stealing her lawn furniture. Ms. Shuhaibar complained numerous times to the university security but their issues were never resolved. She had to put a fence around the house to stop tress passing by drunken individuals. However, this did not stop the problem. In order to reduce the effect of noise caused by intoxicated pedestrian students, she put triple pane windows in her house, which again were of little help.
She referred the Tribunal to the pictures, which she had taken, of the rowdy behavior of the drunken students4. These pictures depict a collection of empty beer bottles and a liquor bottle, a bike hanging on to a tree, broken lamp, damaged landscape, litter and broken tree branches, drunken female students incapable of walking and indecent behaviors such as public urination. She testified that the other alleged behavior of the drunken students includes yelling and howling around the neighborhood. Due to the behavior of the drunken students her familyÕs weekend nights are constantly disrupted which was further affecting her and her husbandÕs job too; her husband is a cancer specialist and sleepless nights led to fatigue and stress.
Approximately three years ago, she had contacted security several times regarding the late night noise issue from Phoenix. She alleged that security was not co-operative and made no attempt to resolve the situation. In October 2007, she wrote a letter5 to the Alcohol and Gaming Commission of Ontario outlining her concerns. In this letter she complained about the issues she and her family were facing due to the intoxicated patrons of another pub at the Campus. Apart from other details, she mentioned in her letter that ÒÉ many other incidents have taken place just after the closing time at [name deleted] (another bar not the Applicant) large number of students, many of whom are drunk, end up leaving the pub and flooding our street invariably yelling and shouting out obscenitiesÓ.
However, during her testimony, in an answer to a question regarding whether she knew from which bar the students were coming, she stressed that the students were coming from the campus but did not know from where exactly they were coming. She also referred the Tribunal to various email communications between the residents, University, City of Hamilton and Hamilton Police6. She stressed that the various efforts of the residents to resolve the alcohol abuse and subsequent events has been in vain.
During cross-examination Ms. Shuhaibar agreed that the grocery cart may have been left at her house by someone other than patrons of Phoenix. In an answer to a question regarding the relocation of Phoenix she testified, ÒYes, I would like them to move away from my houseÓ. She also agreed that the new location of Phoenix is away from her house. In an answer to the TribunalÕs question, she testified that the present location of Phoenix is about 7 minuteÕs walk and that the new location will be 9 to 10 minute walk from her house.
Lou Ferro
He is a lawyer by profession and resides at Forsyth Avenue, which is the street immediately adjacent to the east boundary of the McMaster campus.
He, recently, along with another professor, filmed the DVD ÒMcMaster Student LifeÓ.
This ten minute video recording is part of a five to six hour recording. The video provides examples of, and shows extensive use of foul language used by the students towards those documenting the incidents. Many of the students are clearly seen to be highly intoxicated as also stated by the arresting officers, when students did not obey the police orders to disperse.
In addition, there are scenes of violence, threatening behavior and individuals taking baseball bats out of their vehicles. During one occasion, a fight seems to have broken out, attracting many students to surround the area and block the streets and consequently obstructing road traffic. There is immense disruption in the neighborhood with evidence of groups of intoxicated students running through the streets screaming profanity in addition to students dancing and walking amongst incoming traffic, confronting and insulting drivers. Sterling, an exit ramp for students is also disrupted due to it becoming highly populated by students. There are also scenes of damage to public property, particularity when one student takes a pylon and start to destruct a speed control pylon. Such behavior is encouraged by fellow students/onlookers. In addition, another scene shows a young male hitting into a garbage can and as a result falls down most likely injuring himself. Such behavior is not just limited to evenings and nights. There are scenes of a gathering of students drinking outside a residential house during the day and playing loud music. This group of students is using a beer funnel in public, also known as a Beer Bong, in order to channel large amounts of beer pitchers to be then consumed by these individuals. Traditionally as a result, this creates a high, often dangerous alcohol consumption level. The costumes of some of the drunken individuals indicate that some of the incidents pertain to Halloween and St. PatrickÕs Day.
Mr. Ferro echoed the concerns raised by Ms. Shuhaibar, which include the issues regarding loud noise on weekend nights, vandalism, violence, eggs and other debris being thrown at homes, broken beer cans and bottles scattered on his properly, property damage to fence structure and landscape. One more disturbing behavior noted was that often students are left lying on the sidewalks from being so intoxicated, with students vomiting on property and sidewalks.
Mr. Ferro testified that many residents in the neighborhood are in high profile professions and in many cases their spouses work at the University. They are forced to tolerate such behavior because they are left with little options due to fear of retaliation by the students at the University. Mr. Ferro alleged that the University is becoming too commercialized with the sale of liquor and it is producing more drinkers than thinkers. He alleged that there are approximately 4,400 licensed seats and there is no prohibition or limit of alcohol consumption in student residence on campus. In April 2012, he forwarded a letter to the University President outlining his concerns regarding the relocation of Phoenix. He stated7:
É We also want to suggest McMaster review its alcohol policy. We are suggesting you appoint an independent investigatory panel that would look at alternative distribution model of alcohol for students. We are not saying students should not drink. What we are saying in that the ÒwarehouseÓ bar model is dangerous. We think the model for liquor distribution on campus, if there needs to be liquor distribution on campus, should be many smaller ÒpubsÓ much in the model of the European universities that have lived with the same problem for centuries.
In Mr. FerroÕs opinion, the University took no notice of the problem and stressed that they have never received any co-operation from the University with respect to the problems he and other neighbors were facing.
Mr. Ferro also alleged that the current students who run the Phoenix are not professional, they do not respect Smart Serve, and they show a lack of respect for the surrounding neighborhood and create an intolerable atmosphere that shows a fundamental flaw in the organization.
Mr. Ferro further added that the new location is a horse-shoe type area surrounded by student residences and another bar. He stressed that the two bars in close proximity will provide a great potential of bush parties. He suspected the music at Phoenix will create a party environment and the concentration of so many students in a small area will be a problem. He also stressed that the campus security cannot do anything outside the campus and that the Hamilton Police cannot go to the university, which causes a problem of split jurisdiction. He suggested that the granting of a licence to the Phoenix should be deferred for two years in order to allow the University to reconsider its alcohol policy.
Dr. William Jacyk
Dr. Jacyk has been a licensed doctor in Ontario since 1964. His experience includes working as staff physician in specialized psychiatry (addictions), substance abuse and Trauma Safety Program for the concurrent treatment of Addiction and Posttraumatic Stress Disorder8.
He has, in the past, appeared before different courts as an expert witness in the area of alcohol addiction.
During his testimony, he expressed his expert opinion that loud music and lights in a bar create an environment which encourages people to consume more alcohol. He further testified that availability of alcohol in excess also encourages people to consume more alcohol. Therefore, the new location of the Phoenix will add to the neighborhood alcohol availability. In his opinion, considering the licensed bars and availability of alcohol, presently there is a liberal use of alcohol at the campus. In these circumstances, there is a likelihood of having a crowd which is impaired to the extent of becoming a mob. The actions of the intoxicated patrons will create stress and post-traumatic stress for the neighborhood as well.
He stressed that the servers in the bar have to be responsible and ensure that the patrons do not get out of the bar drunk. In his opinion, the smaller facility would have better control on the patrons. In his report he noted:
In referring to the specific issues of these proceedings, it is of grave concern that the seating capacity between two establishments potentially can be increased by 320 seats. This would bring to a total of over 1000 customers and it is safe to assume a significant proportion would be impaired enough to have created a significant potential for harm and hazard. When these individuals are discharged into the neighborhood at closing, it creates the possibility of an impromptu congregation of individuals who will attempt to continue to celebrate, stimulated by music, by numbers, or by exaggerated emotional states which can turn from positive to negative almost instantaneously. The potential creation of this set of circumstances legitimately presents a threat to the peace, sanctity and safety of the immediate neighborhood and its residents.9
Witness CAW
CAW lives five blocks from the current location of the Phoenix and works with the University. She has been a regular customer of the Phoenix for the last 15 years. She has had positive experiences at the Phoenix and is a regular customer. She never had any concerns regarding intoxicated patrons. She stressed that a lot of faculty, grad students, and undergrad students go to the Phoenix for its good food and because it is a good place to socialize. She did not think that the noise and intoxicated students disperse onto the street from the Phoenix; rather it is from other students coming or going to the campus. Under cross-examination, however, she testified that she had never been to the Phoenix after midnight.
Stephen Hanson
Mr. Hanson is the vice-president of services of GSA and has been on its board of directors since April 2008. He is responsible for the oversight of the Phoenix and plays other roles as well. He is also a chair of an executive committee of GSA which runs Phoenix. The executive committee has six members including a general manager (GM) of the bar. The GM manages the day to day operations of the bar. Her mandate is to operate the bar where graduate students can go to for good food and socialize. Phoenix operates at 1% profit target and its yearly revenues are around one million dollars.
Mr. Hanson testified that the current building where Phoenix is housed is proposed to be demolished. Explaining the decision to move the Phoenix, Mr. Hanson stated that there were several layers of decision making to relocate. The move received approval at the general meeting of GSA. Once the decision was made, a joint steering committee of the University and GSA was constituted. The committee included the vice president of GSA, Phoenix GM, Assistant Dean Graduate Life and Research and Training, Director of Hospitality Services of the University, Construction Project Manager and Director of Parking and Security Services. Mr. Hanson further clarified that as part of the approval process, GSA consulted with the security services with respect to the security of the bar and screening of the guests to prevent unwanted guests.
In response to ObjectorsÕ concerns, in January 2012, the GSA sent a letter to the Objectors explaining their position10. Relevant portion of the letter state:
We share your concerns regarding binge-drinking on campuses and the management of the Phoenix is diligent in ensuring that customers are not over served. In the 40 years of operating, the Phoenix has never had a liquor licence infraction. While the Phoenix does serve alcohol, the vast majority of those sales are in draft beer from premium draft-breweries. In addition, the majority of our sales are in food and our business time is during the lunch rush. As most of our clientele are faculty, employees and graduate students the Phoenix is not open on the weekends and does not host ÔclubÕ nights on Thursday or Saturday nights. It is first and foremost a restaurant. Our new location is the original cafeteria of McMaster and as such this is the tradition we intend to keep. (Exhibit 9, tab 6)
He assured the Tribunal that, GSA operates Phoenix responsibly, and that GSA wants to be a model for the rest of the university.
He stressed that the majority of the business at Phoenix is between noon and 2 pm, and 55% revenues are from food sales. He also assured the Tribunal that, GSA does not intend for live bands to play at the Phoenix as it is not a club. The primary objective of the Phoenix is to provide graduate students with a venue to socialize. During cross-examination, Mr. Hanson testified that he is sympathetic with the issues of the Objectors but insisted that those issues are not created by Phoenix.
Susan Blythe
She has been working with Phoenix for the last 15 years as a general manager. She testified that GSA sets the policy to make for a comfortable place for socialization and discussions. She added that Phoenix does not have flashing lights, and she ensures that the music in the restaurant area is light so that people are able to sit and talk and enjoy the excellent quality food that Phoenix serves.
She stressed that PhoenixÕs liquor licence is a very valuable asset for the GSA and they take this responsibility very seriously. They have a strict alcohol policy, which includes verification of ID for everyone who looks under 30. They also deny entry to people who smell of alcohol. Phoenix does not book end of year parties where people tend to drink a lot and it is also not open on St. PatrickÕs Day after 4:30 pm as it has never wanted to be involved in the extreme drinking of the patrons.
She further testified that the Phoenix does not have a bar service and only provides table service in order to ensure that alcohol consumption is monitored. She sells alcoholic drinks at market price so that people are not coming only to drink. Phoenix offers free parking and free non-alcoholic drinks for designated drivers.
The house staff has Smart Serve. Everyone is Smart Served although not required as only servers are required to be by law. She follows up on the servers regularly. If they serve underage they lose their jobs. Almost all of the servers are professionals, none of them are students and most of them are mature women. The restaurant supervisors are mature women with an average age of 30. She further testified that although they presently have 443 licensed seats, at no point does the restaurant go over 140 seats. The Phoenix has never had any infraction of the liquor license laws or criminal conviction in the last 43 years.
Ms. Blythe further testified that the Phoenix is not a regular nightclub, which would primarily sell liquor. In support of her assertion, she stated that the Phoenix conducted a customer survey, during January 30 to February 3, 2012, to determine its customer base11. During this time 1,067 guests were surveyed out of which 30.8% were McMaster staff, 32.2% grad students, 34.8% undergrad students and 2.2% others. She further testified that sales for the period June 2010 to May 2011 comprised of 45 % from bar sales and 54.6 % from food sales12. A Baptist Pastor plays betel songs to provide entertainment and Òopen mikeÓ is done a couple of times in a year. The Phoenix has no plans to change this at the new location. Regarding the new location, she assured the Tribunal that at there will be no speakers on the patio and no loud music will be played inside the restaurant. She stressed that the new restaurant building has windows that open. She also stated that the Phoenix is very strict as to who comes in and will have surveillance cameras and on busy times they will have security as usual.
The new location of the Phoenix will be 1200 feet further away from the objectorsÕ residences. Regarding noise complaints, she insisted that in her past 15 years with Phoenix she had received only three noise complaints and she immediately addressed those complaints.
She further testified that the intoxicated individuals in the DVD recording are not Phoenix customers as it does not host Halloween parties. Under cross-examination, Ms. Blythe stated that normally the Phoenix has an attendance of 180 people at a given time except for special occasions. At present, the provision of live music is only once a week Phoenix is not meant to be a club or party bar.
Analysis
Relevant portions of Section 6 of the Liquor Licence Act set out the requirements for registration under the Act. It provides:
Licence to sell
- (1) A person may apply to the Registrar for a licence to sell liquor.
Requirements
(2) Subject to subsection (4) or (4.1), an applicant is entitled to be issued a licence to sell liquor except if,
(a) having regard to the applicantÕs financial position, the applicant cannot reasonably be expected to be financially responsible in the conduct of the applicantÕs business;
(d) the past or present conduct of the persons referred to in subsection (3) affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty;
(e) the applicant or an employee or agent of the applicant makes a false statement or provides false information in an application under this Act;
(f) the applicant is carrying on activities that are, or will be, if the applicant is licensed, in contravention of this Act or the regulations;
(g) the premises, accommodation, equipment and facilities in respect of which the licence is to be issued are not, or will not be, if the applicant is licensed, in compliance with this Act and the regulations;
(g.1) the applicant is not able to demonstrate to the satisfaction of the Registrar that he, she or it will exercise sufficient control, either directly or indirectly, over the business, including the premises, accommodation, equipment and facilities in respect of which the licence is to be issued; or
(h) the licence is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located.
Ms Papalia submitted, and the Tribunal agrees, that the public interest encompasses a broader scope; compliance with and respect for the law governing the operation of a licensed establishment. As held in Re ChuckÕs13 public interest hearings raise difficult issues which require a balancing of the interests of those who live in the community with those who would earn their living there. An issue in this hearing is whether the granting of a licence to the Applicant is in the public interest having regards to the needs and wishes of the residents of the municipality in which the premises is located. The onus is on the objectors to establish, on a balance of probabilities that the issuance of a liquor licence is not in the public interest. In determining whether the needs and wishes of the residents are bona fide the Tribunal must consider the totality of the evidence to evaluate whether the subjective concerns and fears of the residents are supported on a valid and objective basis.
Ms Papalia further submitted that the drunken students jeopardize the peace and sanctity of the residents. Since the bar will be located close to the student residences, it will promote gatherings. A large number of patrons and loud music at the bar will create stimuli for them to drink more. She submitted a list of conditions14 to be attached to the licence of the Phoenix in case the Tribunal allows the licence at the new location of the Phoenix. She conceded that GSA definitely managed its responsibility in the past but wanted to make sure that it will continue to so when it moves to the new location and that there are no more issues. She also submitted that it is her clientsÕ intention to meet with McMaster to reduce or to stop the concentration of licensed seats in the university.
The ApplicantÕs Counsel, Mr. Lasani submitted that the GSA has been running this bar since 1969 without a single infraction of the Act. He submitted that the Phoenix will surrender its current licence upon relocation. Currently, Phoenix is licensed for 443 (inside and patio seats) and the new location will have 362 total, indoor and outdoor combined seats. He further submitted that the new location will be central in the campus and away from the residences that will alleviate the noise related concerns of the Objectors.
He also submitted that AWWCA, another association of the residents located in the area around the Campus has no objection to the relocation and continued licence of Phoenix. In response to request for comments by GSA, the Ainslie Wood/Westdale Community Association (AWWCA) provided following comments:
The AWWCA is the largest dues-paying neighborhood association in Hamilton, with about 600 members. We are a volunteer, nonprofit association with the mission of preserving, protecting, and enhancing the Ainslie Wood/Westdale community and the quality of life for all residents, and of organizing, communicating, lobbying, and pursuing the needs of the members of the association.
The Phoenix Bar & Grill currently sits in the border of McMaster and the rest of the community. It has come to our attention that the Phoenix is planning relocation to a more central space on campus, and that this relocation requires a transfer of the liquor license.
The AWWCA has no negative concerns with this proposal.
Mr. Lisani referred the Tribunal to Arena Entertainment Inc. (Circa) (Re)15. In Circa, the Objectors opposed the granting of the liquor license for a 2,926 seating capacity, on the basis that the Toronto entertainment district was well above capacity to absorb more patrons and there were not sufficient resources to deal with the problems the residents were facing. There were also issues with respect to the past conduct of the principal of the applicant. The Board approved the application for the licence and attached conditions. The decision of the Board was upheld by the Divisional Court16.In reaching its decision, the Board in its deliberations on public interest followed the following principles laid out in Elm Flameburger17:
¥ The public must be aware that under the LLA, a person is entitled to a licence unless he becomes disentitled under any of the clauses (a) to (g) inclusive of subsection 6(1) of the LLA now subsection 6(2);
¥ Since a person is entitled to a licence, the onus is on the objector to prove, on the balance of probability that, in this case, it is not in the public interest to issue it;
¥ The public interest must be determined in light of two aspects: (a) needs and (b) wishes;
¥ The issues of needs and wishes will not be decided solely on the basis of a head count;
¥ The concerns of the objectors must be bona fide; and
¥ The needs and wishes of the immediate residents will be given more weight than those of the transient trade.
The Board further made a finding that:
É. the ResidentsÕ Association did not give sufficient consideration to this particular Application for its objections to be considered bona fide. It did not negotiate or even meet with the Applicant and made no attempt to review the operational plans of the club and to propose conditions. Instead, it seeks a blanket prohibition of any new nightclubs in the area. The Board considers this unreasonable and places any Applicant in an untenable position with no recourse to a possible resolution.
The Tribunal is sympathetic to the predicament of the Objectors. Particularly, the kind of life they have had to live due to the drunkenness of some individuals. The behavior of these individuals include: shouting, urinating defecating, littering and damaging the landscape of the private properties in addition to passing out on public streets. However, the Tribunal finds that GSA cannot be punished for the fault of few students, particularly when there is no evidence that the situation is created by the patrons of Phoenix. The testimony of the ObjectorÕs witness Ms. Shuhaibar is quite credible that the (intoxicated) students were coming from the campus, but she did not know where exactly they were coming from. Mr. Ferro testified that the current students who run the Phoenix are not professionals. They do not respect Smart Serve. They show a lack of respect for the surrounding neighborhood and create an intolerable atmosphere that shows a fundamental flaw in its organization.
However, The Tribunal does not agree. The Tribunal finds that the Phoenix GM, Ms. Blythe and GSA representative, Mr. Hanson were quite professional. Contrary to the assertion of Mr. Ferro, Ms. Blythe is a mature person having been employed with Phoenix for the last fifteen years. She testified that none of the Phoenix staff are students, but they are mature ladies with an average age of 30 years. It is commendable that the GSA has been running Phoenix since 1969 without a single infraction of the Act.
The Tribunal notes that any establishment that is licensed under the Act is licensed to sell and serve liquor within the prescribed boundaries of the establishment. The evidence presented by the Objectors has established abuse of liquor by individuals who had open bottles of liquor and littered beer bottles and empty liquor bottles, none of which is sold for take out by any licensed establishment including the Phoenix. The Tribunal finds that this does not in any manner lead to the conclusion that the Phoenix operations are contributing to the trouble around the neighborhood.
This hearing is about the issuance of a liquor licence to the Phoenix. The Tribunal does not have mandate to review the general alcohol policy of the University. In reviewing Mr. FerroÕs suggestion that the granting of a licence to Phoenix be deferred two years to allow the University to reconsider its alcohol policy, the Tribunal finds that the Act does not provide the Tribunal with such authority.
Moreover, the Objectors erroneously believed that issuance of the liquor licence for the new location of the Phoenix will increase the licensed seats in the Campus. The present licensed seats of the Phoenix are 443 however, the application for the new license is asking for the 362 seats, which is 81 short of the present licensed seats.
The Tribunal is satisfied that, contrary to the evidence of Mr. Ferro, the new Phoenix location is further away from the ObjectorsÕ residences and further away from the another bar on the campus18. This should relieve the ObjectorsÕ concerns regarding noise coming from the Phoenix. Ms. Shuhaibar testified that she wants Phoenix to be moved away from her house, and agreed under cross-examination that the new location is indeed further away from her house.
The evidence presented on behalf of GSA established that the patio of the new location has a steel fence around it that will restrict the entry and exit of the patrons to and from the patio19. The Tribunal finds that this measure will help monitor alcohol consumption in the patio area.
The Tribunal found the testimony of ObjectorsÕ expert witness, Dr. Jacyk, was quite informative in regards to general alcohol abuse in and around university campuses. However, it cannot be a basis to deprive Phoenix of its licence as the Tribunal did not find any evidence that would indicate that the Phoenix is contributing the drunkenness around the campus.
The Tribunal cannot conclude that the past conduct of the GSA and its operation of Phoenix suggests that it will not carry out its responsibilities in compliance with the Act. The Tribunal finds that the numerous conditions suggested by the ObjectorsÕ Counsel will unreasonably restrict the operations of Phoenix. However, the Tribunal, in weighing the public interest concerns, finds that conditions on the licence are appropriate.
Therefore, for the reasons stated above and pursuant to the authority vested in it by section 23(10) of the Liquor Licence Act, the Tribunal directs the Registrar to issue the licence and orders that the following conditions attach to the licence:
There shall be no music played on the patio after 9 p.m.
All electronic surveillance equipment must be maintained in good working order. All surveillance recordings, for 30 day period, must be stored and available for review by police and/or AGCO inspectors upon a request.
The Licensee shall post a prominent sign at each exit that reminds and/or encourages departing patrons to be considerate of the surrounding community.
The Licensee shall provide a telephone number 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 establishment is closed.
LICENCE APPEAL TRIBUNAL
Harinder S. Gahir Vice-Chair
Released: June 29, 2012
Footnotes
- Exhibit 10, tab 2B
- Exhibit 10, tab 1
- Objectors Book of documents, Supplementary Book of Documents and Expert opinion of Dr. William Jacyk
- Exhibit4, tab6
- Exhibit 4, tab10
- Exhibit 4, tab 15
- Exhibit 4, tab 11
- Exhibit 4, tab 4
- Exhibit 10, tab 2E last paragraph
- Exhibit 9, tab 6
- Exhibit 8, tab 5
- Exhibit 8, tab 6
- ChuckÕs Burger Bar Inc. o/a ChuckÕs burger Bar released November 8, 2011
- Exhibit 12
- Decision of the Board of the Alcohol and Gaming Commission of Ontario released July 27, 2007
- 2008 CanLII 13359 (ON SCDC), 2008 Carswell Ont 1697, 235 O.A.C. 195
- Decision of the Commercial Registration Tribunal (unreported)
- Exhibit 8, tab 3
- Exhibit 14, tab 9