Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2013-04-04
FILE: 7821/LLA
CASE NAME: 7821 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
Little River Inc. o/a The Real Jerk Applicant
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Registrar of Alcohol and Gaming Respondent
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Dana Rotenberg , Paul Seaman and David Simpson The Added Parties
DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Applicant: Robert Davis, Agent
For the Respondent: Rena Khan, Counsel
For the Added Parties: Dana Rotenberg and Paul Seaman, on their own Behalf and on behalf of David Simpson and the Resident Objectors
Heard in Toronto: March 11 & 12, 2013
REASONS FOR DECISION AND ORDER
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, number 19610, dated December 6, 2012, to review an application for a licence by Little River Inc. operating or intending to operate as The Real Jerk (the “Applicant”), on the basis that the Registrar has received one or more written objections to the application.
As a preliminary matter, Ms Khan advised that the Registrar was not taking a position with respect to the Notice of Proposal and submitted copies of the letters of objection received by the Registrar which, on consent of the parties, were filed as Exhibit 3. Exhibits 1, 2, 4 and 5 were also filed on consent. The Added Parties objected to the filing of further exhibits by the Applicant on the basis that disclosure was made on March 8, 2013, two days after the March 6, 2013 disclosure date set out in the Tribunal’s February 28, 2013 Pre-hearing Order. The Tribunal accepted Exhibit 6 as it comprised non-controversial photographs of the proposed location of the Applicant’s establishment. The Tribunal also accepted , as Exhibit 7, an e-mail dated November 29, 2012,, noting that the Tribunal was prepared to afford the Applicant some leeway given it was not represented by legal counsel and that the relevance of the exhibit would be weighed accordingly. A decision on a DVD prepared by the Applicant was deferred until its potential relevance could be determined in the context of the testimony.
BACKGROUND
The Applicants have applied to the Alcohol and Gaming Commission (“AGCO”) for a liquor sales licence for the indoor area, with a capacity of 92 persons, at the premises located at Unit 107, 625 Queen Street East.
625 Queen Street East is a six storey condominium building zoned for mixed residential and commercial use by the City of Toronto. There are approximately sixty five condominium residences in the building. The first floor comprises both residential units and commercial spaces. A patio space is located adjacent to Unit 107.
Following publication of notice of the application for the licence on October 17, 2012, the AGCO received 23 written objections to the application from individuals owning or residing in 18 units at 625 Queen Street East. In addition, a brief letter of objection signed by 58 residents representing 40 units at 625 Queen Street East was submitted to the AGCO (Exhibit 3).
The Tribunal is presenting the evidence of the parties in some detail below in order to establish the full context for its analysis of the issue before it.
OBJECTORS’ EVIDENCE
Five objectors gave affirmed testimony in support of the objections to the application set out in the letters of objection received by the AGCO.
Objector R. H. lives in a fifth floor unit at 625 Queen Street East which faces west over the Don Valley Parkway and is directly above the location of the patio adjoining the space the Applicant is proposing to occupy. After attending meetings organized by the Applicant, R.H. understood that the Applicant was planning to open a bar or lounge on the street level of the building. He wrote a letter of objection to the AGCO hoping that some restrictions would be imposed on the Applicant.
R. H. testified that 625 Queen Street East is “very private and quiet”. His concerns are about noise and public safety. He stated that people and alcohol do not mix well, that when people drink, they raise their voices. A bar could mean noise from people “screaming”, from people entering and leaving and from what he described as the “pumping” of drums.
With respect to public safety, R. H. testified that he is concerned that drinking will increase disorderly behavior such as fighting, people falling down and people getting sick. He then stated that he is not opposed to a restaurant but to a bar or lounge and suggested that a closing hour of ten p.m. would be “perfect”.
R.H. stated that the building is very quiet and that he currently has no issues with transmission of noise. He does use his balcony and hears only a humming sound from the Don Valley Parkway.
When asked if there were challenges in the neighbourhood, R.H. responded that there are female prostitutes and homeless people on the street. With respect to security in the building, he stated that the building’s underground parking was broken into two years ago. Mr. Davis asked R.H. if he was aware of the principle of “natural surveillance” and R.H. responded that he was and then agreed that street life helps prevent crime.
Mr. Davis asked R.H. why he believed the Applicant’s establishment was going to be a bar or a lounge. R.H. responded that this was his impression following his attendance at the public meeting where live bands and karaoke were mentioned. He then repeated that he had no issue with a restaurant but he believed that no live entertainment or karaoke should be permitted.
Objector C.S. testified that she chose to live at 625 Queen Street East because it was a quiet, professional building and stated that noise and security are her primary concerns with the proposed liquor licence. She begins work early in the day and therefore usually goes to bed at ten p.m. She lives on the floor directly above the Applicant’s proposed establishment and fears noise would travel. She also stated that as a single female, she was concerned about increased pedestrian traffic and the potential for encounters with people under the influence of alcohol. C.S. indicated that she believes a reasonable closing time for the Applicant’s establishment would be 10 p.m. and that no live music should be allowed.
Objector B.A. lives in a third floor unit on the west side of 625 Queen Street East. He purchased his unit believing the building would be quiet. He was aware of the commercial spaces at street level but expected them to be occupied by retail establishments. He stated that the building has low sound transmission and he rarely hears anything within it. B.A.’s primary concern with the Applicant’s proposed establishment relates to potential noise, particularly from music. He is familiar with The Real Jerk at the Applicant’s former location where he went both for dinner and to hear bands and it is this experience which raised his concerns. Because B.A. goes to bed and gets up early during the week, he is concerned that noise from the proposed establishment would keep him awake at nights. B.A. believes that a restaurant in the location operating until nine or ten p.m. would be reasonable. B.A. further stated that while he had no empirical evidence, he has received information from friends in the real estate business and believes his property value would decrease if the Applicant’s licence were granted.
Objector A.H. resides in a condominium unit directly above the Applicant’s proposed premises. He testified that he knows The Real Jerk from its previous location and had positive experiences there, stating it was a lively atmosphere but noting that it was not simple to hold a conversation there.
A.H. testified that he works long hours and is concerned about noise, hours of operation and safety given the proximity of the entrance to Unit 107 to the residents’ entrance at 625 Queen Street East.
A.H. stated that he could hear people talking in Unit 107 when they were merely looking at the space. He also hears vibration noise now from neighbours’ activities because units have polished concrete floors and noise travels. He does not understand the commitments the Applicant is making about future decibel levels and therefore does not know what they mean for him. A.H ‘s concerns have not been satisfied. No noise studies have been done. He stated that he can hear the Don Valley Parkway but that it creates only white noise when the windows are closed.
Asked what hours of operation would be reasonable for the Applicant’s premises, A.H. referred to a chart he prepared which compares the hours of operation of a number of local restaurants. On cross-examination, he stated that he did not include certain large establishments which are pubs or bars and agreed he did not know which of the restaurants he listed are licenced or if there are any restrictions on the licences.
With respect to safety, A.H. explained that his concerns were about the potential for inebriated individuals on the street or people loitering around the building’s entranceways.
Objector B.I. testified he moved to 625 Queen Street East because it was a small boutique building in a quieter area with less traffic than where he previously resided. He lives on the second floor. One wall of his unit is above the Applicant’s proposed location.
B.I. attended the meeting held by the Pottingers. He stated there were about 40 people present who were expressing concerns about noise as well as other issues such as garbage pick-up and traffic. B.I.’s understanding was that the restaurant was going to be higher end than it was at its previous location. When people asked if events such as karaoke and live bands were going to be held, the answer was no.
B.I. testified that his greatest concern is with noise. He had heard that the Pottingers were asking for a standard of 95 decibels within their premises and that they were also talking about events such as karaoke.
B.I. testified that he hears noise in the unit above him because of the concrete floors and he hears music from neighbours. He recognizes this is part of condominium life but, having lived in a number of condominiums, stated that sound transmission at 625 Queen Street East is particularly bad.
When he purchased his unit, B.I. was aware of the potential for retail units to be located at street level. His concern is that there will be a bar in Unit 107.
APPLICANT’S EVIDENCE
Edward Pottinger testified that he operated The Real Jerk for 28 years, initially at 1362 Queen Street East, and then, from 1989 until its closing in May, 2012, at 709 Queen Street East. At the time of its closing, The Real Jerk provided employment for twenty five people.
The Real Jerk held a liquor sales licence during its operation and had no disciplinary action with respect to that licence. Its only violations during its operation were two conditional passes received from the Toronto Public Health department under the DineSafe program, one when an exit light was not functioning, and the other when the glass washer pump did not work properly.
Mr. Pottinger stated that The Real Jerk is neither a nightclub nor a bar. At its former location, it had 170 seats, of which only 5 or 6 were at the bar. The number of bar seats never changed over the years of operation. Bands did perform on occasion on the premises. Mr. Pottinger indicated that The Real Jerk hosted one particular corporate party annually with an amplified live band providing music. On Sundays, one person played the steel pan during brunch hours. Approximately three years ago, karaoke nights began to be held on Thursdays. Mr. Pottinger testified that The Real Jerk was never cited for noise violations during its years of operation. In contrast, he believes the Irish pub which replaced The Real Jerk at its former location has had two or three noise violations since its opening in August, 2012.
When asked why he wished to relocate to 625 Queen Street East, Mr. Pottinger indicated that he liked the available space and that it was in the same neighbourhood as his previous establishment. When it was announced that The Real Jerk was closing, he learned through the ensuing “Save the Jerk” write-in campaign that most of his supporters were located in the area. Finally, he indicated that the builder/owner of the space approached him to canvass his interest.
Mr. Pottinger described 625 Queen Street East as being very loud and noisy due to traffic because of its location at the corner of Queen Street and the Don Valley Parkway. In his opinion, it would be difficult for people residing in the building to hear two people having a conversation in front of the proposed location of The Real Jerk.
Asked if he had decided if he was going to rent the patio space, Mr. Pottinger stated that initially the patio was one of the attractions of the available space but that he is now having second thoughts. He indicated that while the patio is slightly below street level and is enclosed by glass, he would have to give great consideration to whether or not he would use it because if patrons could not hold a conversation, it would be a challenge for his clientele.
With respect to his plans for the Real Jerk at 625 Queen Street East, Mr. Pottinger was asked why he was proposing to increase the number of bar seats from 6 of a total of 130 seats to 12 to 15 of a total of 92 seats. Mr. Pottinger stated The Real Jerk is predominantly a food location. Bar seats would be used by people waiting either for seating in the restaurant or for takeout orders as is common practice in the restaurant business.
On the weekend of December 1, 2012, Mr. Pottinger hosted an open house at the proposed location to meet with residents. When asked what the Condominium Board’s reaction was when he indicated he wished to do this, he stated that he received an e-mail stating there was no need for a meeting because the residents had made it clear that The Real Jerk was not welcome in the location. When asked what he thought the e-mail meant, Mr. Pottinger stated “It would seem they meant the restaurant”. Asked why he would then continue to pursue the space, he stated that he had been in business for 28 years, had an outstanding reputation and should not be banned or barred from operating anywhere in Toronto.
With respect to the objectors’ concern about noise, Mr. Pottinger testified that he has a tentative agreement with the landlord of the proposed space to address noise. He noted that the space is currently unfinished with an open ceiling and holes in the walls and that noise may carry today. This will be resolved by the installation of sound dampening materials on the ceiling.
With respect to the objectors’ concern about potential crime, Mr. Pottinger testified that when he first moved to his former location at 709 Queen Street East, the neighbourhood was “a little seedy” due to prostitution and drugs. The Real Jerk was located in a former bank building and the banks had all moved out. He stated that he believes the Real Jerk was partially responsible for helping to clean up a rough neighbourhood. He believes it was the was the longest standing full service restaurant in the area and was a substantive part of the local community. Mr. Pottinger stated that he tries to get involved in the community by participating in events such as the City of Toronto’s “Tasty Thursdays” or local beer fests. The Real Jerk has received recognition from the Toronto Star, the Toronto Sun, Now magazine and Chatelaine and, two to three years ago, he won a Harry Jerome award
During his testimony with respect to street noise, Mr. Pottinger referred to the video he had produced at 625 Queen Street East. After considering Ms Rotenberg’s objection to its admission, the Tribunal decided to allow the video to be entered into evidence as Exhibit 8, noting that because the video had not previously been disclosed that its weight would be considered accordingly. Two short videos comprising Mr. Pottinger briefly speaking at two outside locations in the vicinity of 625 Queen St. East were then viewed.
On cross-examination, Mr. Pottinger acknowledged that his previous location at 709 Queen Street East had no residential spaces immediately adjoining it. The closest residential space was above a restaurant located across the street.
Ms Rotenberg questioned Mr. Pottinger with respect to the frequency with which the Real Jerk had live music at its previous location and referred to a number of Internet printouts submitted with the letter of objection written by Mr. Seaman (Exhibit 4, Tab R). Mr. Pottinger confirmed that the Real Jerk did advertise its availability for parties (Schedule E) and estimated that parties with DJ’s providing music took place three to four times a year. Ms Rotenberg pointed out advertisements for a 2012 St. Patrick’s Day party (Schedule G), an April 28, 2012 birthday party with a DJ (Schedule H), a May 19, 2012 party with a DJ (Schedule I), and a May 25, 2012 party with a DJ (Schedule J). Mr. Pottinger responded that advertising availability for special events is part of being in the hospitality industry and that the St. Patrick’s Day party, held to show solidarity with the new tenant of 709 Queen Street East, and the May parties, were all specifically related to the closing of his former location. He reiterated that DJ’s were only present three to four times a year.
Ms. Rotenberg asked Mr. Pottinger if he intended to hold events at the new location similar to those held at his previous location. Mr. Pottinger replied that, as a concession to coexist with residents, he is prepared to stop holding karaoke nights, With respect to other events he hopes to hold, he would be prepared to give advance notice to residents. With respect to his plans to mitigate the effect of noise on residents, Mr. Pottinger stated that he had been in business for 28 years and had always operated with consideration and noted that a new location requires new consideration. He indicated he was prepared to do “whatever we can” to minimize the impact on residents, noting that if there was no noise, there would be no problem. He stated that as part of his lease negotiations, the performance of a sound test to determine how much noise could be heard was proposed, but stated that he did not know if that test had been conducted yet. Asked if he would be prepared to accept a condition on the liquor licence limiting the number of events that could be held, Mr. Pottinger responded “I think that would be more of a lease consideration”.
Mr. Pottinger indicated that he decided to lease Unit 107 at 625 Queen Street East in approximately February, 2012 and confirmed that he had not yet signed a lease. Asked to characterize the building, Mr. Pottinger acknowledged that it was a mixed use building, comprising between 60 and 70 residential units and, on the first floor, three commercial units. Referring again to Mr. Seaman’s letter of objection and its appended photographs, Ms Rotenberg asked Mr. Pottinger to estimate the distance between Unit 107 and residential Unit 209. Mr. Pottinger acknowledged that part of Unit 209 was directly above Unit 107.
Ms Rotenberg asked Mr. Pottinger how he would characterize the letters of objections submitted to the AGCO. Mr. Pottinger stated that he thinks the objectors have legitimate concerns but that he was disappointed that his proposed relocation was received in this manner. He then stated that he thinks some of the objections are unfounded but he is willing to work on the issues and has been doing so for the past nine months.
Ms Rotenberg then asked Mr. Pottinger how he had set about organizing the December open house he had held. He replied that he had sent a letter to the Condominium Board and had undertaken to try to deliver flyers to each resident’s door. Asked if he was aware that no one on the second floor had received the flyer, he replied that he did not deliver them himself but understood that getting admission to the building was a challenge and that Mr. Davis, who did deliver the flyers, had run out of them.
With respect to noise, Ms Rotenberg asked Mr. Pottinger what concrete steps he had taken to address the issue. Mr. Pottinger repeated his earlier testimony that sound dampening materials would be installed in the space and that he was prepared to eliminate the potentially noisy weekly karaoke event. Asked if it anything had been done, to date, to the space, Mr. Pottinger replied he was not aware of anything. Asked if it had been determined if Unit 107 could be made soundproof, he replied that while the sound test will determine this, he believes that it is more than possible. He then indicated that in discussions with the landlord, there was agreement that a level of what he believes is 89 decibels would be the target. He stated that he had looked at sound attenuation equipment but to date nothing had been ordered or purchased. Asked if he knew what the decibel level had been at his former location, he stated that on a normal operating day “we might be considered a little loud” and this was part of The Real Jerk’s appeal to customers. He then stated that The Real Jerk operated within reason, that they did not want to annoy customers and discourage them from coming back.
When asked what he would like his hours of operation to be, Mr. Pottinger replied he would open at 11:30 a.m. and close at 10 p.m. Monday through Wednesday, 12 a.m. on Thursday, 1 a..m. on Friday and Saturday and 10 p.m. on Sunday. He then indicated that he had always operated with a licence that allowed him to sell alcohol until 2 a.m. Asked to explain the discrepancy between the proposed hours for operation of the restaurant and the liquor licence, he responded that he did not think there was a discrepancy. Operating hours would be set based on customer demand and a standard liquor licence would allow flexibility to remain open later if demand was there or if an occasional party was held.
Referring to Schedule K of Exhibit 3, Tab R, the print out of a June 29, 2012 Town Crier article which quotes an interview with Mr. Pottinger, Ms. Rotenberg asked Mr. Pottinger what the phrase “There will also be more emphasis on the bar” meant. Mr. Pottinger reiterated his previous testimony that it meant the bar would be larger to accommodate take-out.
Mr. Pottinger stated that while he did view some of the concerns expressed by the objectors as unfounded, he was concerned with co-existing with the residents and repeated that he was prepared to give up karaoke in order to do so. He stated that The Real Jerk would have no dance floor and, if his music was too loud on a regular night, he would fix it. Asked how residents would be able to communicate any concerns, he suggested e-mail. With respect to how quickly he would be able to respond, he said “If I said 24 hours, the event would be over. But we’d know for next time”. Asked if he would be willing to accept a licence condition addressing a complaint mechanism for residents, he responded that he believed the lease would cover it.
Mr. Pottinger testified that it was difficult to answer how often he anticipated having parties or events with live music, a D.J. or steel pan. He did say that his aim was to have events and noted that not all events have this type of music. “Within reason”, he would be willing to put a limit on the number of events The Real Jerk could hold. Asked if he could be certain that live music events would not impact the residents’ enjoyment of their homes, he stated that it should not be an issue if sound dampening was done properly but that until a sound test was conducted, he would not know.
Mr. Pottinger stated that security is always a serious concern and he would address it by installing video cameras in his establishment for the safety of both his customers and his staff but that as a tenant he did not believe he had any ability to access the exterior of the space.
Although Ms Khan indicated that the Registrar was not taking a position in this matter, the Tribunal allowed Ms Kahn to ask clarification questions of Mr. Pottinger. She asked Mr. Pottinger if his intent was to operate as a restaurant, noting that on his September 24, 2012 application for a liquor licence he had described his premises as “seating lounge/bar/saloon”. Mr. Pottinger indicated that he could not recall what the choices had been when he completed the application, but that he was prepared to accept a condition on his liquor licence stating The Real Jerk would be operating as a restaurant.
Ms Khan asked Mr. Pottinger to clarify his proposed hours of operation. He reiterated that he was in the process of negotiating the lease with respect to hours of operation. Those hours would be: opening at 11:30 a.m. with last call at 10 p.m. and closing at 11 p.m. Monday to Wednesdays; opening on Fridays at 11:30 a.m. with last call at 1 a.m. and closing at 2 a.m.; opening at 2 p.m. on Saturdays with last call at 1 a.m. and closing at 2 a.m.; opening at 3 p.m. and closing at 10 p.m. on Sundays. Hours for Thursday are to be determined. Asked if he was prepared to have these hours of operation as a condition on his liquor licence, he stated ‘no’ because it would not allow him any flexibility to have a Caribana party or to cater a special event or hold a party on a Tuesday or Wednesday. He agreed that his application for a liquor licence is for service of alcohol between the hours of 11 a.m. to 2 a.m., that is with no conditions or restrictions, and confirmed that the only conditions he was prepared to consent to on a licence were that the premises be described as a restaurant and that no dance floor be allowed. He stated he was not prepared to consent to a condition forbidding karaoke or any form of sound amplification system.
On redirect, Mr. Davis asked Mr. Pottinger to clarify his negotiations with the landlord with respect to sound. Mr. Pottinger stated that the landlord was proposing to soundproof the premises to a sound level of what he believed was 89 decibels and this would be a condition in the lease. Asked if any other conditions were being discussed, Mr. Pottinger stated “just to be respectful of the neighbours”.
ANALYSIS
The issue to be addressed in this hearing is whether or not the granting of a licence to the Applicant is in the public interest. The Act recognizes the impact that the establishment of licensed premises may have on its community: section 6(2)(h) states that an applicant is entitled to be issued a licence to sell liquor except if “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”.
The onus is on the objectors to establish, on a balance of probabilities, that the issuance of a 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. The Tribunal must balance the interests of the community residents with those who would earn their living there. In determining whether the needs and wishes of the residents are bona fide, the Tribunal must consider the totality of the evidence to determine if the subjective concerns of the residents are supported on a valid and objective basis.
In making its decision, the Tribunal has considered the evidence of the parties as well as the submissions of the Applicant and the objectors and the cases submitted by the objectors for the Tribunal’s consideration, in particular, 7600 v. Registrar of Alcohol and Gaming, 2013 CanLII 5999, Re: M & B Toulany Enterprises Ltd, NSUARB 120, and Re: 1413952 Ontario Inc., 2009 CanLII 78699.
In this case, all of the objectors are owners or residents of 625 Queen Street East, the proposed location of the Applicant’s establishment. The objectors represent those in closest proximity to the proposed licensed premises and therefore those who will be most affected; their wishes and needs merit close consideration.
Twenty three individually signed letters of objection and a short letter of objection signed by 58 individuals living in 40 units in a building with an approximate total of 65 units represents a significant portion of the resident population at 625 Queen Street East. A review of the letters submitted to the AGCO (Exhibit 3) reveals a number of concerns expressed by the residents including, among others: potential noise; safety concerns with respect to the residents’ entrance and the street outside the building due to loitering or drunk or disorderly behaviour; garbage handling; food smells; the potential for pests; and a loss in units’ potential resale value. A number of residents noted that when they purchased their units they had been advised that the ground floor commercial space would be used for retail businesses.
In the Notice of Appeal, the Applicant states the reason for the appeal is “The opponents to my application have not provided any empirical evidence that would support denial of my application. As such the matters of opposition represent unfounded, frivolous and vexatious innuendo about the good character of the management and ownership of the restaurant" (Exhibit 1).
The objectors at this hearing presented their case in an organized and dispassionate manner. While they expressed some skepticism about the efforts the Applicant has made to date to address their concerns, the Tribunal found those concerns to be genuinely held. The Tribunal does not find their opposition to be either frivolous or vexatious or to be directed at the character of the management of The Real Jerk: a number of objectors in fact indicated that they had enjoyed the restaurant at its former location.
The objectors do, however, find themselves in a difficult position. Because the Applicant is not yet operating at 625 Queen Street East, the objectors face a challenge in demonstrating to the Tribunal that their fears and concerns are supported on an objective basis. In this regard, their testimony referred to a published article in which the Applicant was interviewed, to published reviews and their own direct knowledge of the Applicant’s former establishment, and to their own experience living at 625 Queen Street East.
The concerns expressed by the five objectors who testified at this hearing were focused on two issues: safety and noise.
With respect to safety, the concerns expressed by the objectors related to the potential for drunk and disorderly behaviour from patrons of The Real Jerk. Residents entering 625 Queen Street East might have to navigate through these individuals or through patrons who might be on the street smoking. Concern was also expressed about the potential for patrons gaining unauthorized entry into 625 Queen Street East’s residents’ door which is a few meters from the door which would be the entry to the licenced premises. Some of the concerns, such as those of Objector R.H., specifically related to the potential behaviour of bar, as opposed to restaurant, patrons.
Mr. Pottinger testified that The Real Jerk at 709 Queen Street East had 130 seats, of which approximately 5 or 6 were bar seats. The application for a liquor sales licence at 625 Queen Street East is for 92 seats, of which 12 to 15 would be bar seats. The June 29, 2012 Town Crier article entered into evidence does not quote Mr. Pottinger but states “there will be more emphasis on the bar”. Concern was expressed in both written letters of objection and in testimony by R.H. and B.I. that the establishment might be a bar creating the potential for drunk and disorderly behaviour. Ms. Khan noted that the description in the application for a liquor licence states the premises will be a “seating lounge/bar/saloon”. However, Mr. Pottinger testified that he intended to run a restaurant and indicated that he was prepared to accept a condition in his liquor licence stating that the establishment will be operating as a restaurant. Objectors R.H. and B.A. both specifically indicated that The Real Jerk operating as a restaurant with early closing hours would be acceptable to them. Objector C.S. also indicated an establishment that closed early would be acceptable. When Objector A.H. was asked what hours would be reasonable for the restaurant to operate, he referred the Tribunal to a chart he had prepared of the published closing hours of other establishments along Queen Street East (Exhibit 3, Tabs 1 & 2).
Objector R.H. testified that the area in which 625 Queen Street East is located has some street challenges today relating to prostitution and drugs. He further testified, and, some the written submissions indicated, that the garage at 625 Queen Street East has had break-ins. He agreed with Mr. Davis, however, that more active street life contributes to the safety of an area.
Objectors B.A. and A.H. both testified that they were patrons of The Real Jerk at its former location and neither spoke to any experience relating to safety issues. Mr. Pottinger testified that he believed that the establishment of The Real Jerk at its former location was a significant factor in creating a better neighbourhood. He described his former location as being “seedy” when The Real Jerk opened but believed the restaurant to be responsible for helping to clean up the area.
While the Tribunal does not wish to diminish the fears of the objectors, the safety related concerns they expressed are speculative. Mr. Pottinger’s opinion that the former Real Jerk was a factor in creating a less “seedy” neighbourhood is subjective. However, Mr. Pottinger’s testimony that, in its 28 years of operation, The Real Jerk had no disciplinary action as a result of its liquor licence is significant.
There is no evidence before the Tribunal that the approval of a liquor licence will compromise the safety of the residents of 625 Queen Street East. The fears of the objectors were largely presented in the context of an establishment operating as a bar rather than as a restaurant. Mr. Pottinger has indicated he intends to operate as a restaurant. Mr. Pottinger’s testimony that the Real Jerk had no disciplinary action as a result of its liquor licence was not refuted. Further, the Tribunal notes that the Act places obligations on a licence holder to ensure responsible service of alcohol. Mr. Pottinger indicated he was prepared to put cameras inside his premises but, because he is not the owner of the building, he did not believe he had authority to place them on its exterior. The Tribunal notes, however, that the Act also requires all liquor licence holders to have reasonable measures in place and make reasonable efforts to prevent or minimize the harm caused by their patrons outside their licensed premises.
With respect to noise, the proposed licenced premises would be directly below and beside residential condominium units. The residents of 625 Queen Street East moved into a building adjacent to the Don Valley Parkway with the knowledge that the ground floor contained commercial space with the potential to be rented to a broad range of enterprises. Notwithstanding the fact that some of the objectors testified that the building was in a quiet location, any expectation that the outside environment would be quiet is not reasonable given the building’s proximity to major roadways. The Applicant made this point through videos taken in the area of the proposed licenced premises. However, the Tribunal finds that the Applicant’s videos are not relevant to the primary issue raised by the objectors, that is, the potential for noise from the licenced premises to transmit within the building.
All five objectors who testified at this hearing and each of the written letters submitted to the AGCO indicated that the potential for noise transmission from the licenced premises to the residential units is a major concern of the residents. Objectors A.H. and B.I. both described how they could currently hear some sound transmission within the building. A.H. noted that when the vacant space in Unit 107 was being shown, he could hear voices from below, although the Tribunal notes that Mr. Pottinger testified the space is currently unfinished. In written submissions, objectors indicated “Noise carries here. I can hear music and even people talking” (Exhibit 4, Tab O) and “...the building does not have the best soundproofing to begin with” (Exhibit 4, Tab K). The Tribunal acknowledges that both R.H. and H.A. testified that sound transmission was low within the building. The discrepancy among the objectors’ testimony can be explained, however, by factors such as their specific location in the building or simply by varied activities of their neighbours.
The existence of a liquor licence is not in itself the cause of noise. Rather, it is the way in which premises are proposed to be operated which raises the potential for the creation of unwanted sound. The nature of the objectors’ concern relates directly to the nature of the business conducted by the Applicant.
Mr. Pottinger testified that The Real Jerk had the occasional live band or a D.J. at special events, a steel pan player at Sunday brunch and karaoke each Thursday at its previous location. While he indicated he is prepared to no longer hold karaoke events, he hopes to continue to hold special events although he noted that not all events have music. When Ms Khan asked if he was prepared to accept a condition on his liquor licence that prohibited karaoke or amplified music, he said he was not. Many of the letters of objection submitted to the AGCO attached a print out of the summary description from the Internet site www.yelp.ca which describes the noise level of The Real Jerk at its previous location as being “very loud”. While the “yelp” review is not a scientific source, Mr. Pottinger himself testified that on a normal operating day at his previous location “we might be considered a little loud” and this was part of The Real Jerk’s appeal to customers.
Mr. Pottinger testified that The Real Jerk had never been cited for noise violations. The objectors noted, however, that The Real Jerk’s previous location was in a standalone building. The Applicant is not proposing to move into a strictly commercial location. The residents at 625 Queen Street East have the right to expect peace and quiet in their homes. This is recognized through the enactment of municipal noise bylaws which set out limits for noise in residential areas during specific hours. Given the testimony of the objectors with respect to noise transmission in the building and the evidence that the operation of the former Real Jerk was loud coupled with Mr. Pottinger’s stated intent to operate in essentially the same manner, the Tribunal finds that the concern of the residents with respect to noise is not unreasonable, notwithstanding the fact that until The Real Jerk opens it is at least partially speculative.
The matter before the Tribunal is made somewhat more complicated by the fact that the Applicant is still in the process of negotiating the lease for Unit 107 at 625 Queen Street East. In his testimony, Mr. Pottinger referred to a number of concessions he was prepared to make to respond to objectors’ concerns by way of inclusion of certain terms and conditions in a lease. He will not hold karaoke nights. The Real Jerk will not have a dance floor. He is working with the landlord and believes noise can be contained within the premises. Sound dampening material will be placed in the ceiling to reduce noise transmission with the intent of soundproofing the premises to what Mr. Pottinger testified he believes to be 89 decibels. There will be a mechanism for building residents to contact the establishment with respect to noise. Hours of operation are being negotiated.
Mr. Pottinger was very clear that he did not wish to see all of the concessions he was prepared to make in a lease included as conditions in a liquor licence. He was also very clear as to the reason for this: he hoped to negotiate the ability to hold a number of special events as exceptions to the general lease conditions.
The lease is not finalized and the landlord was not a witness at this hearing. While the Tribunal has no reason to doubt Mr. Pottinger’s sincerity in terms of the commitments he spoke to, there is also no tangible evidence such as a letter of intent before the Tribunal to confirm them. Significantly, Mr. Pottinger testified that he did not believe any sound testing had been performed and there was no report before the Tribunal of what specific measures would be taken to address the transmission of sound from the licenced premises to the residential units or what the actual result of controlling sound to 89 decibels would be.
The Applicant has been a successful restaurant operator for some twenty eight years. Mr. Pottinger testified that The Real Jerk had no disciplinary action with respect to its liquor licence and no noise violations in that lengthy period of operation. The Real Jerk employed twenty five people and Mr. Pottinger indicated that he strived to be a positive contributor to his community. While the Tribunal recognizes the legitimacy of the concern of the objectors with respect to potential noise transmission within the building, measures can be taken to reduce that potential exposure, whether through leasehold improvements, lease terms, or liquor licence conditions. As noted above, objectors testifying at this hearing indicated they were not opposed to the operation of a restaurant with reasonable hours and Mr. Pottinger indicated he was prepared to accept a licence condition specifying The Real Jerk would operate as a restaurant.
The Tribunal therefore finds that the objectors have not, on balance of probabilities, established that the issuance of a liquor licence is not in the public interest.
In the absence of tangible evidence confirming commitments and/or specific actions to be taken to soundproof the proposed leased space, the Tribunal cannot rely on potential leasehold improvements and lease terms and conditions as a means of addressing the objectors’ concern with respect to noise. In their absence, conditions on the Applicant’s liquor licence are warranted.
In their written submissions to the Tribunal, the objectors presented potential conditions to be included in a licence should the Tribunal decide to direct the Registrar to grant one. The Tribunal has reviewed those proposed conditions in the context of the testimony at this hearing from all parties, and, in particular, from Ms Khan with respect to their enforceability.
The Tribunal is not going to order the Applicant to install soundproofing as a condition of its licence. However, it strongly encourages the Applicant to conduct a thorough sound test and to implement whatever measures are necessary to ensure that sound from its premises does not transmit to adjacent residential units.
ORDER
The Tribunal directs the Registrar to approve the application for a liquor licence made by Little River Inc. o/a The Real Jerk for the premises at Unit 107, 625 Queen Street East, Toronto, subject to the filing of all usual and required municipal clearance letters and application requirements and subject to the following conditions which shall attach to the licence:
- The licensee shall operate as a restaurant.
- Food service shall be available from the time of opening until at least 10 p.m. or until closing, whichever is earlier, on all days that the premises are open for business.
- The licensee shall ensure that a seat is available for a majority (greater than 80%) of the approved occupancy during all hours of operation.
- From Sunday to Thursday, the sale and service of alcohol shall cease at 10 p.m. and all signs of service shall be cleared by 10:45 p.m. On Friday and Saturday, the sale and service of alcohol shall cease at 1:00 a.m. the following day and all signs of service shall be cleared by 1:45 a.m.
- The licensee shall provide a telephone number with a functioning message service and/or an e-mail address for residents to register concerns or complaints. The licensee shall respond to all concerns or complaints within 24 hours.
- There shall be no dance floor permitted at the premises.
- There shall be no live amplified music, including karaoke singing, permitted. Live unamplified music is permitted on Fridays and Saturdays but shall cease no later than 11:00 p.m. The playing of recorded music is permitted at all times provided it is at a background level no higher than that over which a conversation in a normal voice may be readily heard.
- The licensee shall ensure that any line-up of people waiting to enter the premises forms on the west side of its entrance door.
- The licensee shall post a prominent sign at each exit that reminds and/or encourages departing patrons to be considerate of the surrounding community.
- At all times while the premises are open, the licensee shall ensure that there are clearly visible and functioning security cameras located at each entrance and exit door and positioned to provide full video surveillance of the path to the doorway. All digital video shall be retained for 30 days after the date of recording and shall be made available immediately on demand by Toronto Police Services and/or AGCO enforcement officers.
LICENCE APPEAL TRIBUNAL
Released: April 4, 2013