Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2012-09-24

FILE:

7403/LLA

CASE NAME:

7403 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 to Review an Application for a Licence

2200608 Ontario Limited o/a Duffy’s Tavern

Applicant

-and-

Registrar of Alcohol and Gaming

Respondent

-and-

David Ast

Objector

DECISION AND ORDER

ADJUDICATOR:

Patricia McQuaid, Vice-Chair

APPEARANCES:

For the Applicant:

David Winer, Counsel

For the Respondent:

Kate Varva, Paralegal

For the Objector:

Self-represented

Heard in Toronto:

July 6, 2012

DECISION AND ORDER

The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, number 19201 dated May 7, 2012 to review an application for licence for additional outdoor area by 2200608 Ontario Limited o/a Duffy’s Tavern, on the basis that the Registrar has received one or more written objections to the application.

The licensed premise is located at 1238 Bloor Street West, at the corner of Bloor and Margueretta Streets. The proposed additional licensed area, an outdoor patio for 72 persons, would be located on the Margueretta Street flankage. Pursuant to municipal requirements for a ”boulevard café”, a poll of local residents was taken. Ninety-one ballots were mailed – 49 were returned, 47 of which were not in favour of the application. At the time of the hearing, the Applicant did not have municipal approval for the patio (the “boulevard café”), nor had a date been set for the matter to proceed to Community Council, the next step in the municipal approval process. However, the Applicant chose to proceed with this hearing regarding the liquor licence application.

Mr Ast was made a party to the proceedings, on consent of the other parties, on his own behalf and on behalf of the resident objectors. In his evidence, which will be summarized later in these reasons, he suggested that the local City of Toronto Councillor has indicated that she will not be supporting the application at Community Council and therefore it is unlikely to pass Council, making this liquor licence application moot. The Applicant’s position is that the outcome of that proceeding is equivocal. While optimally, significant municipal issues are resolved before a liquor licence hearing given that any approval for licence is always subject to compliance with municipal requirements, the Tribunal is not precluded from determining the public interest issue pursuant to the provisions of the Act.

By way of preliminary matters, the Tribunal wishes to address one other issue, the timing between the Notice of Appeal and this hearing. The Notice of Proposal was issued on May 7^th. The appeal was filed on or about May 16, 2012. A pre-hearing was held on June 18^th at which time this hearing was scheduled for July 6, 2012. Mr Ast expressed concerns about the short time between the pre-hearing and the hearing and the impact upon the residents’ ability to adequately prepare for the hearing. A request for adjournment of the hearing was denied by the Tribunal Chair. This matter did indeed come to hearing in a very time efficient manner. In the circumstances, the Tribunal permitted the parties to make written, versus oral, submissions following the evidence, thereby giving the objectors additional time to summarize the evidence heard and make their final arguments regarding the application.

EVIDENCE

The Tribunal heard from three witnesses opposed to the application: Sally Morgan, Christine Saraceno and David Ast, all of whom live on Margueretta Street. Ms Morgan, who resides on Margueretta Street approximately 10-12 houses north of Bloor Street, spoke to her concerns about activities that take place in the parkette situated immediately north of the laneway that runs behind Duffy’s Tavern. She finds bottles and needles in the parkette making it, at times, an unsafe play area for her daughter. The proximity of the proposed patio, with its large capacity, would, in her view, add to the issues in the area. She acknowledged in cross examination that it may not be Duffy’s patrons who are frequenting the parkette, but did state that she has seen people leave Duffy’s, go to the parkette and then later re-enter the bar, often after 11 pm.

Ms Morgan could not speak to the noise issue personally though she was aware that some of her neighbours have indicated that they are bothered by noise. She did acknowledge that while the current owner of Duffy’s, Mr Mazis, has “cleaned up” the establishment and made improvements, she, at times, still feels uncomfortable walking past Duffy patrons who are standing outside the bar. The size of the proposed patio and its close proximity to the parkette creates, in her view, a public safety issue.

Christine Saraceno resides on Margueretta Street approximately eight houses north of Bloor and on the west side of the street. She is often bothered by late night noise from the bar, which includes both loud music being played within and patrons spilling out of the premises. She has concerns about the public drunkenness of patrons and their lack of regard for the neighbourhood and disrespect for public property, including those who misuse the parkette. The large groups of patrons who congregate outside Duffy’s make her feel unsafe as she walks by them. Ms Saraceno also acknowledged that some improvements have been made by Mr Mazis, but noise issues persist and will only be exacerbated, in her view, if there is an increase in the licensed capacity. She is also of the view that conditions on the licence will not alleviate neighbours’ concerns because she perceives a problem with their enforcement.

David Ast also resides on Margueretta Street at the same address as Ms Saraceno. He articulated the community’s fear that with the increase in capacity, and in particular, on a patio, their issues with the bar will increase. The poll conducted by the City is indicative of the neighbourhood’s opposition to the patio as was the community meeting held in advance of the hearing at which 25-30 people were in attendance, most of whom live on Margueretta Street, north of Bloor Street and in close proximity to Duffy’s. These neighbours remain overwhelmingly in disagreement with the patio, even with conditions on the licence as proposed by Mr Mazis at the meeting. Mr Ast stated that the community would be better assured of Mr Mazis’ accountability to them if the issues raised by them such as the noise from music and patrons were rectified before an increase in capacity is granted.

Mr Ast stated that the concerns about personal safety expressed by Ms Morgan and Ms Saraceno need to be addressed by Mr Mazis, but there is a sense among the residents that Mr Mazis is of the view that issues arising outside the bar are not his responsibility.

Geoffrey Parkin, a long time and now regular patron of Duffy’s, gave evidence in support of the application. He does not live in the immediate neighbourhood. Mr Parkin has come to know Mr Mazis and has witnessed the evolution of Duffy’s from an unsafe establishment to a safe one. He views the addition of a patio as part of the urban landscape and Mr Mazis’ plans, in particular, as an improvement to the corner of Bloor and Margueretta, improving public safety. He feels that Mr Mazis, through his management, has gotten rid of the ‘riff-raff” who used to frequent the bar. As a result, he feels more comfortable and has become a regular, often attending 2-3 times per week. He is, however, seldom at the bar after 11 pm so could not comment on the late night noise experienced by the neighbours. Mr Parkin clearly was supportive of Mr Mazis’ operations, as a patron, but the Tribunal gives little weight to his evidence in the context of the public interest issues of the local residents which are before it.

Harrison Mazis is the principal of the Applicant, which he purchased in November 2007. He testified about the changes he has made to the management of the bar, dramatically altering the demographic of the patrons. He has installed video surveillance cameras inside and out, two of which are directed to Margueretta Street. These cameras serve as a deterrent to illegal and other unacceptable behaviour.

Since assuming ownership, he has invested a significant amount of money in a proper ventilation and air conditioning systems. As a result, the doors and windows are no longer left open, which has reduced the volume of noise escaping the premises. In addition, he has recently installed a fire-rated soundproof rear door and, at the time of the hearing, was constructing a fence behind the building which will inhibit patrons from wandering into the laneway and from there to the parkette. As well, should he be granted a patio licence, he would likely hire up to eight additional staff, doubling his staff numbers.

Regarding the parkette, Mr Mazis stated that the people who frequent it are not his customers. He has seen young men there, drinking and smoking drugs at midday, before his bar is open. In his view, it is an endemic social issue, not one related to the operation of his establishment. He does not see it as his responsibility to ask people in the parkette to respect the peace of the neighbours.

Mr Mazis circulated a petition in support of his application. Though there are 586 signatures, he did concede that only 40 are residents of Margueretta Street. He was not aware that a number of those reside south of Bloor Street. In his evidence, he put forward conditions that he would agree to attach to his patio licence (the petition – Exhibit 6- sets out four conditions which are, in effect, the same though more fully articulated). These are:

1. Patio to close at 11 pm (with the exception of the period of the Bloor Street Festival).

2. No music on the patio.

3. Doors and windows to be kept closed.

4. Patio area to be kept clean.

SUBMISSIONS

At the conclusion of the evidence on July 6^th, timelines were agreed to for written submissions by the parties, all of which were received within the relevant timelines, that is, by the end of July. The Registrar made no submissions as Ms Varva had earlier confirmed that the Registrar, as is often the case, was not taking a position with respect to the public interest aspect of this application. As all parties received copies of the various submissions, the Tribunal will not reiterate these in detail. However, the Tribunal in reviewing the submissions, noted that references were made to information not put in evidence and suggestions made that the Tribunal pursue certain other avenues for further information. The Tribunal will not comment on each such instance, but does state that in each instance, the Tribunal disregarded the particular submission as improper, irrelevant or both.

The Tribunal does reiterate that its rulings made in response to objections made at the hearing will not be re-visited as proposed by Mr Winer (at paragraph 31 of the Applicant’s submission); nor will the Tribunal attribute any improper motive to a party who makes an objection in the hearing context (at paragraph 31 and 42 of the Applicant’s submission).

ANALYSIS

The jurisprudence for public interest hearings under the Act is well established. The difficult issues raised in such hearings require a delicate balancing of the interests of those who live in a community with those who would earn their living there. Under the Liquor Licence Act, there is a qualified right to a liquor licence, subject to the considerations of the “public interest”. The Act recognizes the very real impact that a licensed premises (and in many instances the impact of an outdoor licensed area, the issue here) may have on the surrounding community. By virtue of the Act, the local residents are provided with a forum in which their concerns can be voiced.

The onus is on the objectors, however, to prove on a balance of probabilities that the issuance of the licence for the additional area is not in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises are situated (s. 6(2)(h) of the Act). It is also well settled that the bona fide concerns of residents in the immediate area who are most affected by the establishment (here, the residents of Margueretta Street, north of Bloor) are given greater consideration than those of other residents in the municipality who are less directly affected. However, in determining whether the needs and wishes are bona fide, the Tribunal must look to the totality of the evidence, to determine if the subjective concerns and fears are supported by an objective basis.

Before addressing those concerns, the issue raised by the parties in submissions about the number of objectors, or supporters, will be addressed. Mr Winer suggests that the Tribunal take note that only 3 residents attended the hearing and that the Applicant’s petition contains 500 signatures, 40 of whom live at Margueretta Street addresses. Yet he also concedes that the jurisprudence is clear: public interest hearings are not determined on the basis of a “head count.” Further, when considering the objections to an application, the Tribunal does not, absent other factors which may have bearing, consider the concerns of a tenant less valid than a homeowner.

It is not unusual to have the local municipality, which may be deemed to represent a broad public interest, take a position at these hearings. The City of Toronto did, for its purposes, as noted above, take a poll. The poll results showed those who responded to be overwhelmingly against a boulevard café. However, the position of the City of Toronto, and specifically, the local councillor cannot be ascertained in any meaningful way from the evidence put before the Tribunal.

The concerns expressed by the residents through their evidence, and well articulated in their written submissions, centre on three principal issues: excessive noise emanating from the interior, loitering and anti-social/ drunken behaviour of patrons outside the establishment and in the area (the parkette) adjacent to it and the possibility of further expansion to the bar area beyond that contained in this particular application.

On that last point, the Tribunal can only decide on the application currently before it. It cannot make a decision based on what the establishment may become in the future, as that would be mere speculation at this stage.

The other concerns expressed are genuine and validly held. Ms Saraceno and Ms Morgan expressed feelings of unease for their personal safety when walking past the bar. The Tribunal in no way intends to minimize those concerns; however, there is insufficient objective evidence before the Tribunal to attribute the public drunkenness/ disorderly behaviour and possible illegal activities to the patrons of Duffy’s. The evidence is anecdotal. There is no history of infractions of the liquor laws or municipal bylaws before the Tribunal. There are other licensed establishments in the area which may also contribute to the problems to which the residents testified .The Tribunal notes, however, that all licensees have clear obligations placed upon them under the Act and regulations which relate to some of the very issues before it.. Section 45.1 of OReg 719/90, in particular, speaks to these:

45.1 The licence holder shall ensure that reasonable measures are in place and reasonable efforts are made to deter disorderly conduct on property adjacent to and in the vicinity of the premises and to minimize damage, nuisance or other harm to such property arising out of disorderly conduct engaged in by patrons of the licence holder or persons attempting or waiting to enter the premises or leaving the premises. O. Reg. 354/07, s. 9.

What is clear on the evidence is that the residents appear to have “lost faith” in the management of Duffy’s. Mr Mazis in his evidence stated that he had made positive changes to the establishment and was continuing to make physical improvements to mitigate any impact that his establishment may be having on his neighbours. If these same neighbours seemed unaware of the measures taken, this only underlines, for the Tribunal, an apparent failure of communication between the parties.

The Tribunal finds that the residents have not met the onus upon them as there is insufficient evidence on which to base a refusal of the application. However, given the proximity of the proposed patio, which is on a residential flankage, the Tribunal does not discount that there may well be an impact upon the residents. The licensee appears to have acknowledged this: Mr Mazis has proposed conditions to respond to both the noise concern and the concern about unacceptable/unneighbourly behaviours. The Tribunal, at a public interest hearing, has broad powers to order conditions to attach to a licence and here, upon hearing all the evidence, concludes that such conditions responsive to the concerns articulated, are necessary and appropriate. It is noteworthy, here, that in approving this application at this time, there are, in fact, no municipal approvals in place for the Applicant to operate a patio. What this period of time prior to potential municipal approval does afford is an opportunity to foster the trust and goodwill between Duffy’s and the local residents which, through the hearing, was absent.

ORDER

Therefore, the Tribunal hereby orders that the application made by 220608 Ontario Limited o/a Duffy’s Tavern (liquor licence number 90126) is approved, subject to all statutory and municipal regulations. Further, the following conditions, should municipal approval be granted, shall attach to the licence:

1. There shall be no amplified or live music, nor TV or any other electronic device that emits sound on the patio;

2. Sale and service of alcohol on the patio shall cease at 10:15 pm with the signs of that sale and service to be cleared by 11:00 pm, at which time the patio will be closed to patrons;

3. Windows and doors on the Margueretta Street flankage are to be kept closed, except for the purposes of entering and exiting;

4. There shall be a designated employee on the patio during its hours of operation to ensure orderliness on the patio and to ensure that patrons do not cause a disturbance to nearby residents as they are leaving the premises;

5. The Licensee shall post a prominent sign at each exit that reminds patrons to be considerate and respectful of the neighbours;

6. The Licensee shall ensure that the patio and all areas immediately adjacent to the establishment, including the laneway to the north of the premises, are clean and free of litter, refuse and other debris;

7. The Licensee shall provide a telephone number for residents to register concerns or complaints. The 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 answering service for those periods when the establishment is closed.

LICENCE APPEAL TRIBUNAL

________________________

Patricia McQuaid, Vice-Chair

Released: September 24, 2012