Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 9223/LLA
CASE NAME: 9223 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 Application For Licence.
2427144 Ontario Inc. o/a Annette Food Market Appellant
-and-
Registrar of Alcohol and Gaming Respondent
-and-
Gary Hodgins Added Party
DECISION AND ORDER
ADJUDICATOR: Elizabeth Sproule, Vice-Chair
APPEARANCES:
For the Appellant: Jerry Levitan, Counsel
For the Respondent: Tamara Brooks, Counsel
For the Added Party: Gary Hodgins, on his own behalf and on behalf of other Resident Objectors
Heard in Toronto: January 8, 2014
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, dated October 30, 2014, to review an application for a liquor licence by 2427144 Ontario Inc. intending to operate as Annette Food Market at 240 Annette Street, Toronto, (the “Premises”), on the basis that the Registrar has received one or more written objections to the application.
PRELIMARY MATTERS
Ms. Brooks advised that the Registrar was not taking a position regarding the Notice of Proposal.
Mr. Levitan advised that the Appellant would agree to two of the conditions requested by the Objectors, one relating to the provision of contact information to the residents to enable them to register any concern or complaint, and the other relating to the posting of a sign to remind and encourage departing patrons to be considerate of the surrounding community.
Mr. Hodgins, appearing on his own behalf and on behalf of two other Objectors in attendance, advised that the sole issue that the objectors are now seeking to have addressed is the hours of operation of the Appellant. Mr. Hodgins had previously been made a party to the proceedings, with the consent of the Appellant and the Registrar.
FACTS
The Appellant’s Premises is adjacent to The Good Neighbour cafe which is also owned and operated by its principal, Mr. Max Mancuso. The Good Neighbour is on the corner of Annette and Quebec Street. The Objectors are residents living within 6 residential lots of that corner.
The Premises is in an area referred to by the Parties as “The Junction”. Annette Street has both residential and commercial businesses along it and by all accounts is a relatively busy street. Future patrons of the Annette Food Market will enter from and exit to Annette Street.
The Premises was most recently operated as a restaurant called Sagra which did not have a liquor licence. That restaurant operated for under a year prior to the property being leased by the Appellant. The reasons for Sagra’s closing are unknown.
Mr. Hodgins, speaking on behalf of the Objectors, clarified that there was no objection to the granting of the liquor license to the Appellant. Further, he expressed no concerns regarding the type of restaurant proposed to be operated or with how it will be managed. He acknowledged that the current business run by Mr. Mancuso has been operated in accordance with the expectations of the surrounding residents. However, he expressed the concern that a restaurant operating past midnight may impact the residents’ peaceful enjoyment of the neighbourhood. Further, that a level of activity at hours that currently does not exist may change the nature of the neighbourhood.
Mr. Hodgins pointed out that there are a number of existing licensed restaurants to choose from on the nearby, busier and more commercially zoned, Dundas Street West. He also provided information that there are many establishments which have operating hours which do not go past midnight, in support of his assertion that “people do not require the extended hours”.
The Appellant proposes to operate a family style restaurant, aiming to attract patrons from the surrounding neighbourhoods. Mr. Mancuso indicated that his operating hours will be dictated to by the needs of his business. He submitted a petition of over 1600 signatures of supporters of the Appellant being granted an unconditional licence, together with map indicating the location of the supporters - dozens of which appear to be on Quebec Street, the closest residential cross street to the Premises. Mr. Mancuso also submitted a letter of support from the elected Councillor for the neighbourhood, as well as compliance letters from the Building, Fire and Public Health Departments for the City of Toronto.
Four residents testified in support of the Appellant being granted an unconditional liquor licence. The resident in the closest proximity and in direct view of the Premises testified that he has lived in the neighbourhood for 72 years and credits the increase in commercial activity and licensed establishments as having a very positive impact on the revitalization of the neighbourhood. He also indicated that he had no concerns that the restaurant will not be operated in a responsible way based on his observations as to how The Good Neighbour has been operated and its positive impact on the neighbourhood. The other three witnesses testified as to the desire to have an establishment without restrictions on its hours of operation.
ANALYSIS
The onus in on the objectors to establish, on a balance of probabilities,, that the issuance of the liquor licence is not in the public interest. The Tribunal must consider the totality of the evidence to determine if the Objectors‘ concerns are supported on a valid and objective basis. The Objectors have not voiced concern about the licensing of the premises, but rather the hours of operation. Although a general concern was expressed that the neighbourhood might be negatively affected if the business operated after midnight, it was not clear to the Tribunal what that concern was actually based on. On the other hand, there was substantial evidence of support by surrounding residents for the Appellant to be granted an unconditional license.
ORDER
Having considered the submissions of the parties, the Tribunal is not satisfied that the issuance of a liquor licence without restrictions as to hours of operation is contrary to the public interest. The Tribunal hereby approves the application for a liquor licence made by 2427144 Ontario Inc. o/a Annette Food Market subject to the following conditions, consented to by the Appellant, which shall attach to the licence:
The Licensee shall provide a telephone number(s) with a functioning message service and/or email address for residents to register concerns or complaints.
The Licensee shall post a prominent sign at each exit that reminds and encourages departing patrons to be considerate of the surrounding community.
LICENCE APPEAL TRIBUNAL
Elizabeth Sproule, Vice-Chair
Released: January 19, 2015