Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-09-30
FILE:
8147/LLA
CASE NAME:
8147/LLA v. Registrar of Alcohol and Gaming
Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 - to Review an Application for a Licence
Cornerhouse Pub Ltd operating or intending to operate as The Corner House Pub
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
-and-
M.C and N.S.,
Added Parties/Objectors
DECISION AND ORDER
ADJUDICATOR:
Alex McCauley Member
APPEARANCES:
For the Applicants:
John Park, Counsel
For the Respondent:
Kate Varva, Paralegal
For the Added Parties/Objectors:
Self represented
Heard in Toronto:
September 18, 2013
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, number 19835 dated May 29,2013 to review an application for a liquor licence by Cornerstone Pub Ltd., on the basis that the Registrar has received one or more written objections to the application.
The Applicant has applied for a liquor licence for a proposed establishment to be known as The Cornerhouse Pub. The pub would be located at 1801 Gerrard St. in Toronto. This was the location of a previous licenced establishment known as McCarthys. The Applicant has applied for a liquor licence with indoor capacity of 67 persons and an outdoor capacity of 50 persons. The Applicant has proposed a complete face lift for the premises as illustrated in Exhibit. 6.
McCarthys was not a popular venue in the area. There were 62 letters of objection from local residents filed by the Registrar on their behalf..
A number of local residents were in attendance at the hearing, seven of whom gave evidence. The Applicant’s principal gave evidence on behalf of the Applicant.
The Registrar took no position on this application.
The objection letters from residents had a common theme. There was concern about noise in the neighbourhood, especially in the evening hours. The objectors in their letters cited problems with the previous licenced establishment, McCarthys.
Some objectors were concerned about the licenced premise’s close proximity to schools and daycare centers. Some were concerned about the negative influence that patrons may have on their children.
It is noteworthy that no one from these institutions, the schools or daycare facilities objected to the granting of this liquor licence either in person or by letter.
Some objectors complained that there were sufficient licenced establishments in the area, at least seven in a one kilometer area.
EVIDENCE
Added Party MC
MC in her evidence, spoke of her concerns about noise and unruly behaviour, citing her experience with the previous licenced premise, McCarthys. She was also opposed to further bars being licenced in the area.
She attended 3 community meetings but was not satisfied that her concerns had been fully addressed. She was concerned about the size and location of the proposed patio at the rear of the premises. She was also concerned as to whether or not the proposed establishment would have a bar atmosphere or a restaurant theme.
In cross examination, MC stated she did not speak for the entire municipality. Her concerns primarily were based on the previous licenced establishment, McCarthys. She also pointed out that in her opinion there were already too many licenced establishments in the area.
Added Party NS
NS’s evidence mirrored that of MC for the most part. In addition, she was concerned about what she believed was lack of transparency between the licensee and the residents. She was concerned about elements of construction and the issuing of permits, matters which were outside of the authority of the Tribunal.
In cross examination, she conceded that McCarthys was not a well managed establishment.
Objector EA
EA lives close to the proposed establishment. During the time that McCarthy’s was operating, the noise at times was unbearable. She was forced to move her bedroom to the rear of their home.
She is concerned about the possibility of increased capacity in the proposed establishment and that an atmosphere similar to that when McCarthys was in operation will repeat itself.
Objector GG
GG has 25 years in the hospitality industry as a senior manager. He initially was concerned about the inclusion of a patio, but clearly added in cross examination that wasn’t his only concern. GG is concerned about loss of privacy with the proposed licenced premise only 5 doors from his residence.
Objector MD
MD is not in favour of any new bar under any circumstance. She is most notably concerned about drunken behaviour from patrons.
Objector LR
LR was concerned about process and that certain aspects of oversight from various agencies including the AGCO appeared to be at odds about issuing the licence to the proposed licensee. The Tribunal advised to LR that processes he was alluding to were outside its purview.
Objector CSJ
CSJ’s concerns mirrored those of the previous witnesses. In addition, he stated that McCarthy’s Pub was mismanaged and never operated properly. He stated that the community was upset about McCarthys, but took no direct action to change things. In re-examination, he did state that the residents had often complained about McCarthys.
The Applicant’s Evidence
Christopher Norman Potts is the principal of the Applicant. He stated that his company is a very reputable firm in the City of Toronto. His intention is to bring in a management team headed by a family member who has many years in a management position within the hospitality industry, dealing with major hotel properties. He intends to give the premises a complete facelift. This will enhance the building’s exterior and present a better presence in the community.
There will be no rear patio which was of concern to some of the residents. The patio will be on the side. The licenced premise will be set in the motif of a British pub. There will be tables and chairs and the interior decor will limit the proposed occupancy. This should allay some of the objectors concerns about increased occupancy.
Mr. Potts advised that live music will be limited to the Celtic variety, often a one person band. There will be no rock music nor will there be a dance floor. A juke box will be installed as part of the overall plan for music.
He advised that sick and dangerous trees were removed or will be removed from the property.
The current building is old and requires extensive renovation from the bottom up. He has experience in this area and also has the tools, being an executive of a successful construction company.
The noise issues will be addressed. The building will be designed to reduce unwanted sound from being emitted to the community. In summer, windows and doors will be closed. There will be no music amplified to the patio.
Mr. Potts stated that he has attempted and will continue to attempt to be inclusive with his neighbours in the community. He has held several community meetings with the residents.
Submissions
The Objectors, in summation stated that the proposed licenced establishment did not fit into the community’s values. They are concerned about noise and feel strongly that another licenced establishment is not required in the area.
The Applicant, for its part, indicated that the resident objectors are assuming the proposed establishment will mirror the previous licenced establishment McCarthy’s. This could not be further from the truth. The Applicant plans to have a clean and professionally run establishment that will be a positive addition to the community.
THE LAW
The relevant provisions of the Act state as follows:
Sec. 23 (10): Following a hearing to consider a proposal to review an application for a licence to sell liquor, the Tribunal may direct the Registrar to issue the licence or to refuse to issue the licence. 2011, c.1, Sched. 1, s.6 (29).
Sec. 23 (12): Following a hearing, the Tribunal may attach to a licence or permit any condition that the Tribunal considers proper to give effect to the purposes of this Act. R.S.O. 1990, c. L.19, s. 23 (12); 2002, c. 18, Sched. E, s. 7 (4); 2011, c. 1, Sched. 1, s. 6 (30).
APPLICATION OF LAW TO FACTS
The Objectors were passionate in their cause, but fell short of demonstrating that granting a liquor licence to Cornerstone Pub Ltd. would not be in the public interest.
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 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 objectors, however, to prove on a balance of probabilities that the issuance of 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 situated (s. 6(2)(h) of the Act). It is also well settled that 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.
Therefore, community interests must be carefully balanced and must include the interest of the Applicant. It is the opinion of the Tribunal the efforts of the Applicant to transform the current facility, which appears to be an eyesore, into the proposed premise as outlined in Ex. 6 is commendable and goes a long way to improving the overall appearance of this part of the community.
The Applicant has and continues to have meaningful dialogue with the community. The Tribunal strongly endorses those types of initiatives and encourages participation by all parties.
The Objectors were focused on the behaviors emanating from McCarthys. There was no evidence to indicate that this Applicant has any intention of emulating that behavior. The evidence supplied by the Objectors on this point is based on speculation and conjecture and not supported independently. The Tribunal has not heard any evidence to support the Objectors’ opinion that this proposed licenced establishment will operate similar to McCarthys. In fact quite a contrary picture was displayed by the Applicant.
The Tribunal is satisfied that the proposed establishment can cooperatively exist in the community in harmony with the community institutions such as schools or other community facilities. As noted previously, there was no objection from the City of Toronto nor from the local councilor to the granting of this liquor licence.
In addition, as pointed out earlier there was no objection lodged by the local school or management board of the day care facilities.
The Tribunal concludes that granting a liquor licence to Cornerstone Pub Ltd. located at 1801 Gerrard St. East Toronto is not contrary to the public interest as set out in the Act
However, the Tribunal, given the concerns articulated by the Objectors regarding potential noise and security concerns, has determined that conditions on the licence to address those concerns are appropriate in these circumstances.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to issue the licence orders that the application to Cornerstone Pub Ltd. at 1801 Gerrard St. East, Toronto On, subject to all statutory and municipal regulations and subject to the following conditions which shall attach to the licence;
There shall be no music amplified or otherwise at any time on the outside patio.
The Applicant will ensure that there is a qualified security person available to ensure orderly conduct of the patrons within and outside of the licenced premise on Friday and Saturday evenings between 9:00pm to closing
LICENCE APPEAL TRIBUNAL
Alex McCauley, Member
Released: September 30, 2013