Licence Appeal Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2013-04-10

FILE: 7442/LLA

CASE NAME: 7442 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 Refuse to Remove Conditions from a Licence

2189516 Ontario Inc. o/a Scruffy Duck Restaurant (The) Applicant

-and-

Registrar of Alcohol and Gaming Respondent

-and-

Michelle Hubert, and Jeff Boyd Objectors

DECISION AND ORDER

ADJUDICATOR: Simon Dann, Member

APPEARANCES:

For the Applicant: Howard Cohen, Counsel

For the Respondent: Kate Varva, Paralegal

Added Party/ Objectors: Jeff Boyd, Michelle Hubert, Tracy Locke, on their own behalf and on behalf of the resident objectors

Heard in Newmarket: November 7 and December 5, 2012, and January 15 and February 7, 2013

DECISION AND ORDER

BACKGROUND

The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued the Notice of Proposal, number 19015 dated January 5, 2012 to refuse to remove conditions from the liquor licence by 2189516 Ontario Inc. o/a Scruffy Duck Restaurant (The), on the basis that the Registrar has received one or more written objections to the application.

The Applicant has applied to remove the following conditions from the licence:

1. Sale and service of alcohol in the indoor portion of the establishment shall cease at 11:00pm Sunday through Thursday, and shall cease at 1:00am Friday and Saturday.

2. No live music on the patio.

3. No amplified music on the patio.

4. Hours of sale and service on the outdoor patio: Sunday-Thursday 11:00am to 10:00pm closing; Friday and Saturday 11:00am to 11:00pm closing.

The principal issue in this hearing is about whether there has been a change in circumstances to support the removal of the conditions pursuant to section 14(2) of the Liquor Licence Act, and whether removing the conditions is not in the public interest.

A number of factors were presented to confirm there has been a change in the licensee’s circumstances including that the Applicant was informed there were no conditions on the liquor licence at the time of the Applicant’s purchase ( in October 2008) of the establishment and that the Applicant was not the holder of the licence at the time the conditions were imposed..

The position of the Objectors is that removal of the conditions would further impact their residential neighbourhood by way of late night noise and disruptive patrons exiting from the establishment.

PRELIMINARY MATTERS

Ms. Varva advised the Tribunal that while the Registrar was opposed to removal of the conditions attached to the Applicant’s licence, the Registrar would not be entering any evidence and would instead rely upon the Objectors’ evidence.

The Objectors’ representative objected to the Tribunal allowing the documentary evidence of the Applicant to be received as it was not received in accordance with the Tribunal’s Rules for Disclosure. The Tribunal noted the date stamp was 9 days prior to the hearing date and ruled in favour of the objection.

On the third hearing day, January 15, 2013, Mr. Boyd, advised the Tribunal he would no longer be representing the objectors as agent and would be replaced by Tracy Locke.

OPENING STATEMENTS:

Mr. Cohen, Counsel for the Applicant, said he intended to show that the Scruffy Duck is today a completely different operation than that run by its previous owner. There have never been any problems with the authorities in the four years the Hills, the principals of the Applicant, have held ownership.

It was submitted that the neighbourhood problems emanate from the nearby Schomberg Pub and not the Scruffy Duck. The demographics of the Scruffy Duck were also said to be older and more “sedate”. There would be evidence to show the establishment is more like a family restaurant and not a “saloon”. There have been no complaints and any issues that have occurred have been resolved and measures are in place to prevent future problems.

Mr. Cohen said there would be evidence to show that the Hills purchased the establishment in the belief that the existing liquor licence had no conditions and later discovered otherwise.

While they chose not to pursue legal action on that matter, there have been changes from the past and they are now seeking to have the conditions removed.

Mr. Boyd, submitted there has been no change in circumstances and that the situation and conditions are actually worse than they were previously. The objectors are opposed to the removal of the conditions and it is their view that the family restaurant time ends early and that is when the drinking starts.

APPLICANT’S WITNESSES:

Constable Diane Smart currently works in the Schomberg Community Liaison Office and has served there since 2010. She has been with the York Regional Police Force (“YRP”) for 27 years.

Constable Smart became aware of the Scruffy Duck issue through an email which was sent to the YRP, Schomberg’s Mayor, bylaw office and the AGCO. This led to an investigation of noise complaints about the Scruffy Duck for the period 2009 to 2011. In the Spring of 2011, she carried out a liquor licence inspection in the company of an AGCO inspector and found the premises to be fully compliant.

Constable Smart said that from 2009 to 2011, her record showed that two intoxicated persons were arrested in the area of the Scruffy Duck and 10 noise complaints were received. There was one attendance in August 2010 due to noise on the patio during a karaoke night.

Constable Smart said she could not give an opinion on whether the liquor licence conditions should be removed and referred to the facts provided in her testimony. She did note that complaints stopped for a while and started again when the application to remove conditions was made.

Constable Smart said her record shows complaints came from two individuals and no one else. She is also aware there were efforts to deal with problems between the Scruffy Duck and their neighbours and that a fence was erected by King Township.

Constable Smart said there have also been complaints about the Schomberg Pub which tends to attract a younger crowd while the Scruffy Duck attracts an older crowd. She said that on visits to both establishments, she did not see food service at the Schomberg Pub but did see food service at the Scruffy Duck.

Responding to a question by the Tribunal, she stated that the distance between the Schomberg Pub and the Scruffy Duck is about 300 metres.

Witness CB (“CB”) described himself as a resident of Schomberg since 2000. He lives about 150 metres from the Schomberg Pub, and is retired from a career of self-employment. He has been doing volunteer work with the YRP for three years, taking complaints from the public both in person and electronic form. He does not have any police powers.

CB testified about noise from the Schomberg Pub “when they have these special parties” while events at the Scruffy Duck are more organized. He said he goes to the Scruffy Duck once a week and has also been there at closing. He has never seen any problems.

He believes the Scruffy Duck caters to an older group and sees kids come in with their families. He feels there have been changes from the previous owners as there is no rowdiness, the food is better as is the atmosphere.

He is in support of the Scruffy Duck’s application and said that “it’s desirable to be open later and if one [pub] is allowed, the other should also be allowed”. He specifically referred to the example of a New Year’s evening and having to go home early from the Scruffy Duck while the Schomberg Pub was still open.

CB is a member of the Schomberg Agricultural Society Fairgrounds, which is next door to the Scruffy Duck, and “if we thought they were a disturbance we would be the first to lobby to have them shut down”.

Ms CB is married to CB and agrees with his testimony. She is employed at a university library and occasionally goes with her husband to the Scruffy Duck on Friday and Saturday nights. On karaoke nights, she might leave earlier than her husband or stay later until about 10:00pm or midnight.

Ms CB said the scene outside of the Scruffy Duck is always very quiet and “maybe [there is] someone smoking but [I] have never encountered problems with patrons”.

She is aware there have been complaints about Scruffy Duck and believes that similar complaints could have been made against the Schomberg Pub.

She has been out on the patio and never seen problems there or seen anyone drunk. She knows security is at the front door or just inside and they walk around, but has never seen security deal with anyone.

Witness SLB has lived in the same Schomberg location for 22 years, which is between 50 feet or 150 feet away from the Scruffy Duck if the 100 foot driveway is counted. She can see the front door of the Scruffy Duck from her home and knows the objectors who live across the street.

SLB works at the Home Depot in Orangeville and can work shifts from 7:00am to 11:30pm. She said she has not heard any noise from the Scruffy Duck and has also been there on karaoke nights. She has not seen any problems and considers the owners to be friends though not socially.

SLB sees differences between previous and current owners saying, “I really think it’s a family restaurant” [and] “I’ve been to the Schomberg Pub and it’s awful”.

SLB feels later hours would be good for her when she works a late shift as there is nowhere else with good food within 30 miles. She does not believe extending the Scruffy Duck’s hours would change anything as they have security and a good handle on what is going on.

In cross-examination, SLB confirmed she does not see the Scruffy Duck patio as it is behind the building.

Witness MD has lived across the street from where the Scruffy Duck is located since 1964 and has no problems with the Scruffy Duck. She usually takes her dog out at 10:00 pm and then goes to sleep at 10:30pm. On occasion, she has been to the Scruffy Duck with family on karaoke night and had no complaints.

MD said she was never in the establishment under the previous owners but now sees an older age group and that people are not rowdy.

In cross-examination, MD said she wears hearing aids but not all the time and takes them out at night. She does not go to the Schomberg Pub because she does not drink.

Witness JE lives in the Orangeville area but has been involved with the Schomberg community for over 20 years as the owner of a construction company located there. Even though he does not live there, he spends “almost 80% of my life” in Schomberg.

He believes the Scruffy Duck is a well-run family operation and a viable part of the community. Over the years, he has been a patron of all the restaurants and bars in Schomberg, including the Scruffy Duck under its previous owners.

JE is in support of the Scruffy Duck’s application as he holds his company’s Christmas party there and later hours would make it easier to be there. He also goes to the Scruffy Duck once or twice a week and has been there on karaoke night and heard no music when standing outside the establishment.

In cross-examination, JE said he does not hear any sounds from the Scruffy Duck when walking from the parking lot to the building.

Witness GP lives four houses away from the Scruffy Duck and has lived there all his life with his mother and brother.

GP said he is a singer and has been going to the Scruffy Duck for karaoke for at least 2 to 2 ½ years. He goes about once every three weeks, and occasionally stays there to closing (1:00am). He said the sound system operator has told him the volume could not be turned up because of complaints.

GP said the karaoke crowd is older and more mature, not the 19-20 year olds. Sometimes they say “let’s go down the road for another drink” because the other bar is open later.

He has not seen any problems at last call or in the parking lot. He knows the closing time for alcohol service and has been told by the licensee, as has everyone else.

Witness Jeff Laidlaw is a former councillor from King Township where he also ran for Mayor, in 2010. He lives across from the Schomberg Pub and is currently working in photography and consulting.

He has been to the Scruffy Duck with some regularity since 2009/10 and has enjoyed the karaoke nights. He is not aware of any objections or complaints about the Hills or the Scruffy Duck. He has heard some complaints about the Schomberg Pub and passed those on to the local councillor for follow-up.

Mr. Laidlaw said the Scruffy Duck appears to have attracted a lot of families and that he was “surprised to see as many children as I did”.

Mr. Laidlaw said his personal viewpoint was that if the Schomberg Pub can have late hours then the “fairness issue” is that the Scruffy Duck should be able to have the same hours.

He does not see any negative impact on Schomberg with the elimination of the conditions on the Scruffy Duck’s liquor licence and believes the complaints about the Scruffy Duck should be addressed by the municipality. He does not hear music from the patio at the front door and believes security has been effective in moving people out front to leave.

Mr. Laidlaw believes that any people walking up and down the street are from the Schomberg Pub. He said that “unfortunately, the Township allowed two establishments on the same street and they should be treated equally [and] one should not be treated differently than the other”.

In cross-examination, Mr. Laidlaw was asked what he thought would be appropriate if one half of the town was suffering [from the Scruffy Duck]. He replied that while he was not sure of what was meant by ‘suffer’, he has suffered from the Schomberg Pub.

Witness VP has lived in Schomberg since 1979 and in proximity to the Scruffy Duck. Her two sons live with her and one has also testified in this hearing. She is semi-retired and has also operates a small gardening business from her home.

VP has known Janet Hill from Schomberg for at least 25 years and also knows Paul Hill. She is in support of the Scruffy Duck’s application and believes it is unfair that one set of rules apply to the Scruffy Duck and another set of rules for the Schomberg Pub.

She is a regular patron of the Scruffy Duck and occasionally visits the Schomberg Pub. She usually goes to bed around 2:30am and has not experienced any problem with noise. She said the complaints about noise “puzzle me” and now pays particular attention when she approaches and also leaves the Scruffy Duck to see if she can hear noise from the outside.

VP said she has seen the police at the Scruffy Duck in the past but not recently and has never seen anyone fighting, committing acts of vandalism or anything to give her reason for concern.

In cross-examination, VP said she has heard about noise complaints but never spoke to anyone about them. She has stood on the street and, not hearing anything, wondered what the complaints were about.

Witness Lisa Danielle Buxton is a native of Schomberg and grew up there but lived out of province until July 2012.

She has degrees in Liberal Arts and Education and taught Grades 10-11-12 English on a First Nations Reserve in Alberta. She is certified to teach teenagers and to work with adults, in Alberta, from 18 years and up.

Currently, she is a bartender and night manager at the Scruffy Duck. Ms. Buxton has obtained her Smart Serve in Ontario and ProServ in Alberta. She confirmed that the security personnel are also Smart Serve certified.

Ms. Buxton described the process they go through when a new patron comes in for service. This includes engaging the person in conversation for a minute or so to assess the intoxication level, if any, of that person.

She has never asked any person to leave for inappropriate behaviour and never seen any fights. She can monitor every server’s customer, and their alcohol consumption, through an electronic service management system and has only refused service twice.

Ms. Buxton said she does not object to police presence but has not seen any and she has never received a call about noise. She described the customers as being predominantly in their 40s to 60s.

When asked about later hours, Ms. Buxton said that the security staff is very mindful of people leaving quietly and peacefully. Some people do come in later in the evening, but generally know the posted hours so no one comes too late.

Witness GD is a patron of Scruffy Duck and lives about 3km to the west of Schomberg. He works in industrial sales and it is not unusual for him to arrive as late as 11:00pm, to get a late meal. He occasionally finds this a problem because of the Scruffy Duck’s hours.

Due to the travel requirements of his work, GD has the opportunity to dine in a variety of establishments. He believes the Scruffy Duck is well run and he has never experienced any altercation or encountered any noise problems.

GD has also been there for karaoke nights and does not find the noise excessive. He has never had any difficulty carrying on a conversation due to noise and believes it is unfair for conditions to be different as the Scruffy Duck is his preference in Schomberg. He has never gone to another place on leaving the Scruffy Duck.

Tony Prioriello is a professional sound engineer and karaoke host entertainer who hosts the karaoke shows at the Scruffy Duck. He also hosts 6 other shows in communities such as Newmarket, Bolton, and Cookstown.

He was first hired about 4 years ago and works every Saturday from 9:00pm to 1:00am. He said he uses a small sound system and has a $5000 spectrum sound analyser to measure decibels (“db”) and frequencies.

This unit can be set for a specific decibel level and if the sound goes over, it will show red on the display panel. Mr. Prioriello said that when the sound level is set for 80-90db, this would allow for conversation between people without preventing them from hearing each other.

Mr. Prioriello said he has used his system to measure the sound level that would be heard at the front door entrance and recorded a 10db level. He said he also installs two window baffles (described as plywood boards) to help reduce sound from going out of the establishment.

Since some singers can be louder than others, Mr. Prioriello said he uses a 2202b Yamaha Compressor, 2 channel, to “crush” loudness and further control the noise level. He acknowledged the only place sound could escape is through the doors, but the door facing the neighbours has been sealed in an effort to further eliminate sound.

Ms. Hubert stated an objection to Mr. Prioriello’s introduction of information about work on the door on the basis that it had been part of what the Objectors considered confidential direct negotiations between the Parties.

The Tribunal determined to allow the reference to the door but said her objection would be noted.

Mr. Prioriello added there is a store attached to the establishment which also reduces sound travel. He was not aware of any sound complaints during his work over the past weekend.

In cross-examination, Mr. Prioriello said he has a degree in sound engineering from Ryerson University. He confirmed his sound check at the outside of the back door showed only a 10db sound level while to the north there is no sound or perhaps 5db if the door is open.

There is also a small boxlike passageway between the establishment and the patio with two doors and these help buffer sound to the outside. He is at the station working throughout the whole show to manage sound levels.

When the Tribunal asked about the installation dates for the new door and insulation, Mr. Prioriello said the new door was done “a couple of weeks ago” while the insulation spray foam around the stage was done over a year earlier.

Paul Hill is the owner of the Scruffy Duck. He purchased the building, which was built in 1844, in October 2008. The restaurant had been closed for 3-4 years but there were two other tenants there, Shaeena’s Kitchen (which is open 8:00am to 5:00pm) and Piety Ridge (which is open 9:00am to 5:00pm).

The Scruffy Duck opened on a Friday in December 2008. There were no complaints the first night but on the Saturday night, there was a telephone complaint from a neighbour. Mr. Hill said there was also a local parade taking place that evening and suggested it may have contributed to the complaint. When he met with the neighbour and her partner, he gave her his telephone number but has not had any calls.

Mr. Hill described new initiatives he has taken to further respond to sound complaints. He has installed a door to make a difference and you have to go through two doors to go to the north side of the building. There are baffles on the windows and while he cannot control the noise of people when they leave, especially 100 feet down the street, he has impressed on his security the need to monitor people leaving and their need to be respectful of the neighbourhood. He plans to install acoustic sound absorbing tiles.

The Scruffy Duck’s capacity is 95 downstairs, 60 seats in the restaurant while the patio capacity is 55. There is no music on the patio. The main room (restaurant) is where karaoke nights occur and occasionally there is live music. The plan for Valentine’s Day was to have live music with a Frank Sinatra theme.

In winter, the patio is only used by smokers while in summer, the patio has service until 11:00pm.

Mr. Hill wants to ensure that people are able to talk to each other during the entertainment and therefore wants the sound controlled.

There are about 15 employees and two security people, the latter arriving between 8:30-9:00pm and remaining until the last people leave. He believes the Scruffy Duck is at a competitive disadvantage as there is another bar “down the street” with longer hours.

Mr. Hill said he has had police come to investigate sound levels and after sitting outside for a while, they came in to say all was okay. He said this happens about 1-2 times a year.

Cross-examination of Mr. Hill confirmed the following additional details:

• the patio is open all year for smoking at the corner of the building and not at the front because of the awning;
• the Scruffy Duck’s policy is to encourage people to smoke out front but he cannot control smoking on the sidewalk though the security personnel have been asked to speak to people who do;
• the door on the side was recently sealed.

Mr. Hill confirmed that when he was in the process of purchasing the establishment,, he was informed that there were no restrictions on the liquor licence, and he has a copy of a licence without restrictions. But when the licence was transferred to his name he found restrictions on the licence. When he contacted the AGCO to inquire about the change, he was told “computers were down that day”.

Mr. Hill said he did not want to sue anyone so he simply accepted the restrictions and moved on.

He confirmed he has not been into the Added Party Objector’s home but has been into another neighbour’s home on one occasion, in December 2008, when a transport delivery truck happened to be blocking that neighbour’s driveway.

Mr. Hill acknowledged he has not been proactive in contacting neighbours but that neighbours have come to speak with him. When asked whether a distance of 2 feet from his property was still his responsibility, Mr. Hill said he tries to be responsible.

On redirect, Mr. Hill added that his maintenance of the property has included cutting down weeds which were 2-3 feet high, for appearance and to keep mosquitos down. He also plans to install surveillance cameras, 3 in front, 1 facing the house next door, to the north side, and 1 facing south. He expects to be able to see people 100 feet away.

OBJECTORS’ EVIDENCE:

Kathryn Smyth is employed as a Clerk in the Township of King’s Clerks Department. She attended the hearing to testify about the Township’s position on the removal of the Scruffy Duck’s liquor licence conditions.

Ms. Smyth refers to the King Township Council’s position by saying the Township’s “only official position” is from 2005 in which …

“… the Council of the Corporation of the Township of King supports a 10:00pm cut off time for the serving and consumption of alcohol on the outside deck of the Main Street Mill Restaurant at 357 Main street, Schomberg.”

She confirmed while there have not been any issues received in the past year, there have been numerous complaints but that it was difficult to define “numerous”.

In cross-examination, Ms. Smyth confirmed there was no formal objection to the inside hours, only to the patio.

Ms. Smyth is not aware of any charges against the Scruffy Duck since the Hills became owners in 2008 and none from the AGCO or the Township’s bylaw department. She has met with the Hills and the neighbours to mitigate any complaints, believing that all parties have “been very concerned and [have] attempted to work to resolve” the issues.

Ms. Smyth said the Township recognizes the difficulty posed by the proximity of the Scruffy Duck property to the residential neighbours and is aware that security staff was hired to monitor activities inside and outside and to also direct patrons away from the front area either to the back, or to leave.

Objector AT lives adjacent to the Scruffy Duck building. The home’s backyard is fenced in and patrons on the Scruffy Duck patio can be heard from her own patio.

AT said there used to be “significant foliage” between the Scruffy Duck’s patio and her own property but it has been cut down. She has used an application on her smartphone to measure the decibel sound level coming from the Scruffy Duck and recorded a 40-50 db sound level. She has never heard anyone come out to quiet people talking loudly heading for their cars and refers to an incident from November 2011.

In cross-examination, AT stated that she and her partner purchased their home in 2010. She acknowledged they knew the Scruffy Duck had a liquor licence at that time.

The Objector stated her belief that the establishment is responsible for the behaviour of their patrons “in the vicinity” and that any expansion of hours has the potential for inappropriate behaviour to occur. When questioned about what she meant, she spoke of men urinating on her property but allows she has only observed five incidents over the years of being in the home. She is not clear about whether extending the hours of operation would worsen the situation or have potential to do so.

The Objector said she does not call police as she does not believe it would be helpful or produce any result. When asked if she considers the owners responsible or irresponsible she replied “I have no way of knowing that”. AT acknowledged she had not spoken with the owners. When asked if what was cut down was foliage or trees, she advised she did not know. Her letter of objection suggested that trees were cut down and that the “owners don’t care about their neighbours” but she did not have any photos.

AT was asked if she would like to have better relations with the Hills, to which she responded that she should not be in contact in a legal matter when the other party is represented by counsel.

As to whether there was noise during the weekend prior to her attendance at the hearing, AT said she did not have her decibel monitoring application working but she did hear the bass and she thinks it was after 11:00pm when she was in bed.

Objector GL is a glass artist with a workshop behind his home. He has lived in the home, which he described as a heritage home, since May 2006 and is in close proximity to the Scruffy Duck.

GL said he has been to the Scruffy Duck and he has met the owners. His letter of objection is based on there being a licensed bar within a residential community. He said it is a residential neighbourhood and he can hear conversations from the bar and has seen evidence of vomit. He has called the police and local by-law officials to “better or less effect” and believes that to be of no use.

He believes if longer hours are allowed the situation will only become worse and the Hills have never pro-actively come to him to resolve the issues. He acknowledged that special events like the Derby, which bring many people to the neighbourhood and to the Scruffy Duck, are extreme situations.

In cross-examination, GL expressed his belief the initial license was a mistake and his preference is to see the liquor license rescinded. One reason for his objection is his belief that it will negatively impact property values but acknowledges he has no information about property values changing and only that it “might be” an impact.

His letter of objection states the owners make efforts to control the noise but knows they cannot. When asked about his objections to service after 11:00pm, the Objector said that patrons are “less liquored up” before that time.

GL acknowledged he has been woken less in recent times, but does not know whether it is due to winter or less business. He is also concerned the Hills could sell the business and someone else would come in and continue to operate if the restrictions were removed.

Closing Submissions

In his closing, Mr. Cohen submitted that Grrimet Foods Inc. (Windjammer Inn) (Re) CanLII 81003 (ON AGC) (“Grrimet”) was very similar to the Scruffy Duck in its physical situation. Specific references were:

• (para 8, 10) there were two conditions on Grrimet’s licence and it was the only establishment which had such conditions;
• (para 11) the Scruffy Duck’s sales are not completely dependent on alcohol but are up to 50% while the Grrimets’ sales were only 20% alcohol related;
• (para 12) the Grrimet establishment was situated in a residential neighbourhood, as is the Scruffy Duck with another licensed establishment about 300 metres away;
• (para 15) that the Scruffy Duck is facing a situation similar to the Grrimets’ argument that the liquor licence conditions were preventing it from developing its business in accordance with the changing community and tourism environments;
• (para 17, 18, 19, 20) that as it was with Grrimet, the Scruffy Duck has no intention of changing its business (to become a bar) or expand the capacity and while there have been complaints about noise, there have been no out-of-compliance findings or charges against the Scruffy Duck since the Hills have owned the Scruffy Duck;
• (para 42) that the Scruffy Duck currently faces a competitive disadvantage;
• (para 44, 45) the licensee has demonstrated a commitment to the community through their involvement and support of local activities and events, as well as operating as a responsible licensee;
• (para 46, 47) the main objector did not appear and there are residents in the immediate neighbourhood who do not object to the Scruffy Duck’s application for removal of the conditions.

Mr. Cohen pointed out to the Tribunal that the most vocal complainant on noise issues, for close to 10 years, did not appear to testify at the hearing. There have also been changes made to the facility, which are permanent, and the low sound level was testified to by Mr. Prioriello.

Mr. Cohen questioned whether there were any real problems in the first place and submitted the very nature of the building is oriented to sound containment. The real problem is about the one home located closest to the Scruffy Duck and that the homeowners knew about the proximity of the home to the Scruffy Duck when they bought it.

Mr. Cohen referred to Constable Smart’s testimony that there were no local complaints except for two neighbours who made 10 complaints. Despite 13 police checks, the Scruffy Duck was always found to be fully compliant.

There is licensed security on the premises on Friday and Saturday nights. A camera and security system has also been installed.

Mr. Cohen submitted that the Scruffy Duck will do everything it can to control and monitor patron behaviour within its proximity. It should also be considered that there have been material changes to confirm the Hills are responsible owners when compared to the previous owners.

As Schomberg’s population has increased so has its commercial growth and changes in the demographics of the community. The Scruffy Duck is part of the ambience of the community and there is a growing demand for services of the kind it provides. The karaoke setup is sophisticated and the only one of its kind in Schomberg.

• (para 42) that the Scruffy Duck currently faces a competitive disadvantage;
• (para 44, 45) the licensee has demonstrated a commitment to the community through their involvement and support of local activities and events, as well as operating as a responsible licensee;
• (para 46, 47) the main objector did not appear and there are residents in the immediate neighbourhood who do not object to the Scruffy Duck’s application for removal of the conditions.

In summary, Mr. Cohen asked the Tribunal to approve the application based on a “plethora” of material changes as recognized by the Grrimet decision.

Ms. Hubert, submitted that the case has been a surprise based on the assumptions made from the pre-hearing.

She submitted she did not know about the witnesses who were called on the first day and asked the Tribunal not to place any weight on the witness testimonies of that day. In addition, the testimony of Constable Smart was submitted to be irrelevant.

The Tribunal heard from Objector CB and others that the conditions are “awful” as well as about problems emanating from the Schomberg Pub. She submitted that there is no evidence of change in circumstances and putting up plywood boards is of no help. In any event, there is no evidence this was actually done.

Ms. Hubert argued that there are dissimilarities to the Grrimet case and specifically there were no objectors; the only person who did object did not appear at the hearing.

She submitted that this case does not address the public interest and that in Grrimet there was testimony about zoning and commercial issues which is not the situation in this hearing.

The Grrimet decision is also different in that there was a request to remove conditions prohibiting a dance floor and amplified music in the licensed area while the Scruffy Duck already has both.

Regarding growth in Schomberg, Ms. Hubert submitted the growth has been residential, not commercial, and most commercial enterprises close at 5:00pm and 6:00pm. Further, if Schomberg is a tourist attraction then, most tourists are gone by dark in the summer season and most traffic clears up early “except for those people who want to drink at Scruffy Duck”.

While the objectors were said to have approached the Scruffy Duck owners, Mr. Hill’s testimony confirmed the claim that he never spoke with any objectors or approached them.

In summary, Ms. Hubert submitted that the sound issue keeps the neighbouring objectors from sleeping due to the thumping bass and people spilling into the street at 1:00 am.

The Tribunal was also asked to give little or no weight to Mr. Prioriello’s testimony as one third of his weekly work comes from the Scruffy Duck.

ANALYSIS and REASONS

The issue in this matter is whether there has been a change in circumstances and whether removing the conditions is not in the public interest.

As noted in Grrimet, the Applicant bears the onus, on the balance of probabilities, to establish that there has been a material change in circumstances since the conditions, in this case, were imposed. The Applicant must also prove that removal of the condition is not contrary to the public interest, having regard to the needs and wishes of the residents of the municipality.

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. While the parties each presented substantial information and evidence through their witnesses and documents, the Tribunal has determined to focus on specific oral and documentary evidence.

The principal concerns of the Objectors is expressed in their submissions that they are unable to sleep at night (AT, Ms. Hubert and GL who acknowledged he has ‘been woken less in recent time’) and the potential for inappropriate behaviour by patrons who are alleged to come from the Scruffy Duck.

Objector AT referred to issues such as observing men urinating on her property and also recording specific decibel levels of noise from the Scruffy Duck while standing on her property. AT said she used a smartphone application and recorded a sound level of between 40 to 50 decibels. This sound level is not considered to be disruptive. She also did not have any record evidence to confirm the complaints.

Objector GL’s testimony was that he had been woken less in recent times and that extended hours would negatively impact property values. He had no evidence to support that view, but was clear in expressing his desire to wishing the Scruffy Duck’s licence would be cancelled as there should not be a licensed establishment in a residential neighbourhood.

Ms. Smyth, on the Municipality’s behalf, confirmed the King Township position that there was no formal objection to the Scruffy Duck’s inside hours but only to the patio and that objection is based on a December 2005 Council position, which was three years before the Hills became the establishment’s owners.

Specific evidence which the Tribunal finds compelling is the following:

• that the Hills were not responsible for the conditions imposed on the licence as they only took ownership of the establishment in October 2008 - ownership change is a specific change in circumstances and in this case sufficient time has passed to establish the manner in which the new owners are running the establishment;
• the testimonies of Constable Smart, Ms. Smyth and Mr. Hill is that there have been no out-of-compliance, police or by-law charges against the establishment since the current owners began operating the establishment - this is found to confirm the improvement in the operation despite the absence of details about the conditions which led to the original conditions;
• Mr. Prioriello’s uncontested testimony regarding his technical ability to control the sound levels on karaoke nights as well as his measurement of the 10 decibel sound level at the Scruffy Duck’s front door;
• that the Applicant has no intention of implementing any material change to the nature of the business.

Therefore, the Tribunal finds that there has been a change in circumstances as required by the Act.

Particularly noteworthy is the copy of the liquor licence dated November 12, 2008. This does not list any conditions. Then, the November 27, 2008 cover notice from the AGCO advises the licensee that “Due to a technical error, the previous licence did not include the establishment’s conditions”.

There is also the fact that in 2005, the Township recommended to the AGCO, that it supported a 10:00pm cut off time for alcohol service on the patio, but indicated no concerns for the inside

In summary, while the Tribunal received no evidence to provide a basis for not removing the conditions applicable to the establishment’s patio, it nonetheless has regard for the proximity of the objectors’ homes to the Scruffy Duck. There is less concern about the removal of conditions applicable to the inside of the establishment’s hours of operation.

However, as the licensee’s physical location is seen to be so close to the neighbouring homes, it is likely that some outside activity by patrons of the Scruffy Duck is likely to be heard by the immediate neighbours and therefore removal of all condition regarding the patio operation is not in the public interest.

Therefore, the Tribunal does not approve the removal of the following conditions:

No live music on the patio

No amplified music on the patio

ORDER

Pursuant to the authority vested in it under the provisions of the Act, and for the reasons stated above, the Tribunal approves the application for the removal of the following conditions on the Applicant’s liquor licence:

“Sale and service of alcohol in the indoor portion of the establishment shall cease at 11:00 pm Sunday through Thursday and shall cease at 1:00 am Friday and Saturday.”

“Hours of sale and service on the outdoor patio: Sunday – Thursday 11:00 am to 10:00 pm closing; Friday and Saturday 11:00 am to 11:00 pm closing.”

The Tribunal directs the Registrar to replace the above conditions with the following:

“Sale and service of alcohol in the indoor licensed area shall cease at 1:00 a.m. Monday through Thursday and at 2:00 am on Friday and Saturday and 11pm on Sunday.”

“Sale and service of alcohol on the outdoor licensed area shall cease at 10:00 pm on Sunday through Thursday and at 11:30 pm on Friday and Saturday.”

The Tribunal orders that all other conditions on the licence remain in place.

LICENCE APPEAL TRIBUNAL

________________________

Simon Dann, Member

Released: April 10, 2013