Ronald Jeffrey Young and Michael William Adams o/a Jeffrey’s Lounge v. Registrar of Alcohol, Gaming and Racing, 2017 CanLII 50048

LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards

Tribunals Ontario

Citation: 10702 v. Registrar of Alcohol, Gaming and Racing, 2017 ONLAT 10702

Date: 2017-06-23

Appeal from the Notice of Proposal of the Registrar of Alcohol, Gaming and Racing under the Liquor Licence Act to Review an Application for Licence

Between:

Ronald Jeffrey Young and Michael William Adams o/a Jeffrey’s Lounge

Appellants

and

Registrar of Alcohol, Gaming and Racing

Respondent

and

Edward Klimowski

Objector

DECISION AND ORDER

Panel: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Brian Pipe, Counsel

For the Respondent: Faye Kidman, Counsel

For the Objector: Self-represented

Heard in Brantford:

May 31, 2017

REASONS FOR DECISION AND ORDER

A. Overview

1The Appellants, Ronald Jeffrey Young and Michael William Adams operating or intending to operate as Jeffrey’s Lounge, applied to the Registrar of Alcohol, Gaming and Racing (the “Registrar”) for a licence to sell liquor at 159 Sydenham Street, Brantford, Ontario (the “premises”).

2The Liquor Licence Act, R.S.O. 1990, c. L.19 (the “Act”) provides an opportunity for residents of the municipality to submit their objections to a liquor licence application to the Alcohol and Gaming Commission of Ontario (the “AGCO”) within a specified time period. Edward Klimowski, the Objector, submitted an objection to the Appellants’ application on December 19, 2016, which was within the deadline of December 23, 2016 to submit objections. Other objections were received after that deadline.

3The Registrar issued Notice of Proposal dated February 28, 2017 (the “NOP”) to review the Appellants’ application on the basis that the Registrar received written objections to the application being granted.

4The Appellants requested a hearing by the Licence Appeal Tribunal (the “Tribunal”) to determine whether 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 located.

5The Objector raises concerns about planning, compliance with municipal bylaws and the anticipated behaviour of intoxicated patrons based on the operations of the previous licenced establishment on the premises, which was called the Liquid Lounge. Eight interested persons attended the hearing in addition to Counsel and the Objector.

6At the hearing, Counsel for the Registrar informed the Tribunal that the Registrar was not taking a position on this matter. However, the Registrar did reserve the right to object to conditions that the Tribunal may attach to the licence.

B. ISSUES:

7The following issues are raised in this appeal:

a. Is it in the public interest to grant the Appellants’ application for a liquor licence, having regard to the needs and wishes of the residents of the municipality in which the premises are located?

b. In the circumstances of this case, should conditions be attached to the licence if granted?

8Although the Appellants initiated this hearing, the Objector has the burden of establishing on a balance of probabilities that it is not in the public interest to grant the Appellants’ application for a liquor licence, having regard to the needs and wishes of the residents of the municipality in which the premises are located.

9I find that the Objector has not met this onus.

10I also find that no conditions should be attached to the licence.

C. EVIDENCE:

11The Objector, Mr. Klimowski, gave evidence at the hearing. Mr. Klimowski said that he sent an email dated December 19, 2016 to the AGCO outlining his objections. Mr. Klimowski testified that he is a 77-year-old senior. He said that his objections stem from the previous occupant of the premises known as the Liquid Lounge, which closed a year ago. He stated that noise from the entertainment will be a problem. The previous occupant had thumping music going on until one or two in the morning. There were intoxicated patrons leaving the bar and continuing their loud discussions, waking the residents and their children, then getting into vehicles and driving off drunk. There were loud motorcycles driven by intoxicated drivers roaring down the street. He said that parking has been a problem. Patrons of the previous occupant tried to park in his driveway and he has been verbally abused and threatened when he approached them. Mr. Klimowski spoke of drinking on the street. He has had to pick up beer bottles on the lawns as he walks his dog each morning. He said there have been fights on the street by the patrons of the previous bar. Mr. Klimowski said that the Appellants’ establishment will be less than 100 meters from an elementary school and a Baptist church. He said that, since the previous licenced establishment closed, the area has been a good place to live.

12Mr. Klimowski said that he has difficulty thinking the Appellants’ licenced establishment would be any different than the previous licenced establishment. The hours of operation will be similar. The same type of people will be drawn to the establishment. Drinking outside is a normal thing. He has asked the Appellants not to have entertainment. He believes they will have bands which will be very loud. Mr. Klimowski said he would like the Appellants not to have live entertainment. He would not object to a “Cheers” type of restaurant and bar that does not have entertainment. Mr. Klimowski testified that he and his wife went to the Liquid Lounge every now and then for a steak, but when the music was going, it was an unbearable place.

13Mr. Klimowski admitted that he has assumed the Appellants’ establishment will be like the previous establishment, the Liquid Lounge. He believes that the Appellant, Ronald Jeffrey Young, is from the same family that operated the Liquid Lounge, and it is possible the Appellants will operate their establishment in the same way as the Liquid Lounge.

14Mr. Klimowski testified that he went to see Pastor Stuart at the Baptist Church during the first part of January 2017. He mentioned to the Pastor that a bar would be opening up again where the Liquid Lounge used to be. Mr. Klimowski said that he suggested that the Pastor write to the AGCO about the bar and, as a result, Pastor Stuart wrote his email dated January 10, 2017. Mr. Klimowski said that he does not believe he told Pastor Stuart there were new owners of the premises. He said he probably talked to the Pastor about the Liquid Lounge.

15Mr. Klimowski testified that he also spoke to municipal councillor Dan McCreary, who is one of the Ward 3 councillors in Brantford and that, as a result, Mr. McCreary wrote an email to the AGCO dated March 20, 2017.

16Mr. Klimowski said that he authored the petition sent to the AGCO. He obtained 34 signatures by going door to door. He said he did not put any pressure on anyone to sign the petition. He believes the people who signed the petition were aware of the other commercial establishments in the area, including a laundry business that is owned by the same individual who owns the premises.

17Mr. Klimowski stated that the AGCO would not accept the emails from Dan McCreary and Pastor Stuart or the petition because they were out of time. Objections had to be received on or before December 23, 2016.

18Michael William Adams, one of the Appellants, testified at the hearing. He said that the premises has commercial zoning. The zoning is decided by the municipality. Mr. Adams grew up in the neighbourhood and his parents live a block away from the premises. He said there has always been some commercial activity in the neighbourhood, such as a laundromat, tattoo parlour and barbershop.

19Mr. Adams testified that this will be a family business that he and his wife will run together. He currently works at a manufacturing plant, where he supervises 43 people and believes he is a competent manager. The plan is that he will leave this employment when Jeffrey’s Lounge opens. His wife can no longer work at her previous employment, so this will create employment for her. He stated that Ronald Jeffrey Young is nearing retirement age and will not be involved in the business long term.

20Mr. Adams testified that the Liquid Lounge went bankrupt, and that he has no association with the Liquid Lounge or anyone who used to run that business. The Appellants lease the premises from the owner. He also stated that he has gone through extensive police screening.

21Mr. Adams said that most of the noise and parking issues the Objector has raised are municipal bylaw matters. However, he testified that he has done a lot of work in the premises to attempt to alleviate noise, including enclosing the kitchen, installing double pane exterior windows and installing a second door at the main entrance. Mr. Adams described the premises as a “gut job”, which he has now improved with new flooring, ceiling, the addition of more restaurant seating, a fireplace and televisions. The bar had been made nicer and its location in the premises has been changed.

22He testified that his intention is to create more of an upscale establishment than the Liquid Lounge and is hoping to attract the 30- to 50/60-year-old crowd. He said his anticipated patrons would be too old to fight. Neighbourhood patrons will be welcome. He said the Appellants’ licenced premises will not even be close to what the Liquid Lounge was like. Mr. Adams stated he is committed to the business and has sold his house to finance it. He said he has tried to convince the Objector that the Appellants’ licenced establishment will not be like the Liquid Lounge, but has not been able to do so. He does not plan to come in and run down the neighbourhood. The owner of the premises is not an absentee owner. He lives in Kitchener-Waterloo and is a law abiding citizen who also purchased the laundromat nearby.

23Mr. Adams said that he doesn’t want to violate any laws and doesn’t want the police to have to come to the premises. He would prefer that people take a cab to the establishment. He stated that he cannot control where people park. The premises has parking for 18 vehicles. Other than that, it is up to the municipality to regulate street parking. He will control the entertainment but cannot commit now as to the entertainment format because he is not sure what will work from a business point of view. He plans to comply with municipal noise bylaws and is doing what he can now in the interior renovation of the premises to address noise issues. Mr. Adams stated he does plan to have fundraisers and charity events. It will basically be a sports bar with entertainment and food. He has installed a pool table and a shuffleboard table.

24The Registrar did not present evidence. However, the Registrar’s Counsel advised that the AGCO refused to accept the e-mails it received from municipal councillor Dan McCreary, Pastor Stuart of the Baptist Church and the petition from various residents as objections pursuant to the Act because they were sent after the time limit for objections had expired.

D. LAW:

25The entitlement to a liquor licence is set out in s. 6(2) of the Act. Section 6(2) of the Act provides that an applicant for a licence is entitled to be issued a licence to sell liquor unless certain exceptions apply. The relevant exception applicable to this appeal, the public interest provision, is found is paragraph (h) of s. (2). It provides that an applicant is not entitled to a licence if

(h) 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.

26Also, s. 7.1(1) of O. Reg. 719/90 states:

In the absence of evidence to the contrary, the Registrar shall consider a resolution of the council of the municipality, in which are located the premises for which a person makes an application to sell liquor or holds a licence to sell liquor, as proof of the needs and wishes of the residents of the municipality for purposes of clause 6 (2) (h) of the Act.

27After providing notice of the application under s. 7 (1) of the Act and if the Registrar receives objections, then, pursuant to s. 8 (4) of the Act, the Registrar can issue a Notice of Proposal to review the application for liquor licence. Under s. 21(1), the proposal is to be served on the applicant, who can file an appeal of the proposal under s. 21(4) of the Act.

28The onus is on the Objector in this type of appeal to prove, on a balance of probabilities, that it is not in the public interest to grant a licence to the Appellant.

29The needs and wishes of the residents cannot be decided solely on the basis of a count of how many people support or oppose the liquor licence. The good faith concerns of the residents in the immediate area of the premises at issue who are the most affected by the proposed licence will be given greatest consideration as compared to those who are less directly affected. In determining whether the needs and wishes of the residents are presented on a good faith basis, the Tribunal will look to the totality of the evidence to determine if the subjective concerns and fears of the residents are supported on a valid, objective basis.

30The powers of the Tribunal in such an appeal are limited by statute and are set out in s. 23(10) as follows:

(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.

31In addition to the power granted by s. 23(10), the Tribunal can also impose conditions on the licence pursuant to s. 23(12) which states:

(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.

E. ANALYSIS:

32In a hearing held pursuant to s. 6(2)(h) of the Act, the Tribunal must balance the needs and wishes of the residents with the Appellants’ desire to operate its business, bearing in mind that the Appellant has a presumptive right to a licence unless it 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.

33The Tribunal has heard and carefully considered the concerns of the Objector as expressed in his testimony. Mr. Klimowski is primarily concerned that the Appellants’ new establishment will be like the previous establishment and that the neighbourhood will be subject to objectionable behaviour of patrons as he believes it was in the past. The Objector also expressed concerns about the Appellants being granted a licence because the Appellants are not able to commit to a specific business plan, which the Objector believes is important. However, I find that his concerns are speculative, as they are based on problems that arose at the Liquid Lounge. I am not satisfied based on the evidence that there is reason to believe the same concerns will present themselves at the Appellants’ establishment, given the Appellants’ intention to operate an establishment that differs significantly from the Liquid Lounge.

34I accept the evidence of Mr. Adams that he has no relation to the Liquid Lounge or its former owners. The Objector has not provided any evidence on which I may find that there is such a relationship, other than the Objector’s own suspicion.

35Mr. Klimowski spoke about the conduct of patrons of the previous occupant of the premises. This does not assist the Tribunal in reaching a decision in this case. The Objector has admitted that he has assumed the Appellants’ establishment will be the same as the Liquid Lounge and will create the same issues. The Objector did not present evidence of the capacity of the former Liquid Lounge or whether it had both indoor and outdoor capacity. Nor did the Objector present evidence of the business model of the Liquid Lounge, such as whether it was a night club or other type of bar. The current application is for an indoor venue limited to a maximum of 65 persons. The number of persons will be subject to municipal approval. The intention of Mr. Adams is to run the establishment as a sports bar. There is insufficient evidence to conclude that the establishment will be run in a similar manner to the Liquid Lounge. Further, the evidence of Mr. Adams is to the contrary. Mr. Adams spoke about the renovations to the premises and his intention to create a more upscale establishment. Further, I accept that Mr. Adams is genuinely committed to running his establishment in accordance with the law, and I note that he has done renovations in order to prevent the spread of noise.

36Mr. Klimowski spoke of concerns about noise, parking, planning, a lack of compliance with municipal bylaws, the anticipated behaviour of intoxicated patrons based on the previous occupant of the premises and property damage. Intoxicated patrons, drinking on the street, fights, drunk driving and property damage.

37There was no evidence that the local municipal government shared any of these concerns with respect to the Appellants’ proposed licence. There was no council resolution of the municipality opposing the Appellants’ application.

38The email written by Dan McCreary, one of the municipal councillors, appeared to be submitted by him on behalf of concerned constituents in the effected “neighbourhood”. It appears to be based on the assumption that the Appellants’ establishment will be the same as the Liquid Lounge which he describes as “a former, identical operation in the same location”. This was not borne out by the testimony before the Tribunal, which identified a number of differences between the two businesses. Further, it was open to the Objector to call Mr. McCreary to testify at the hearing, which he did not do.

39The email dated January 10, 2017 from Pastor Stuart of the Baptist Church sent to the AGCO also appears to be based on the assumption that the Appellants’ establishment will operate in the same manner as the Liquid Lounge. Pastor Stuart states, “It is also my understanding that the police were called to intervene at times at the previous bar because of problems that arose.” The evidence before the Tribunal is that the Appellants’ establishment will not be the same as the Liquid Lounge. Pastor Stuart did not testify at the hearing.

40The Objector’s undated petition authored by him and bearing signatures of some 34 people appears to be based on the assumption that the Appellants’ establishment can be equated with the Liquid Lounge. The petition states that the residents who signed it object to the licence on the basis of past conduct:

“Reason(s) for objecting…The fighting and arguments by the patrons as they leave the bar, the noise of the entertainment late at night, the consuming of liquor outside as they have a smoke, street parking congestion caused by the bar patrons and noise of the motorcycles, and the location of a bar in a residential neighbourhood.”

41In some cases more than one person from each residential address signed the petition. None of the persons who signed the petition, except for the Objector, testified at the hearing.

42The Tribunal was left without any sworn testimony from Mr. McCreary, Pastor Stuart or any of the signatories to the petition except the Objector himself. Although these individuals are not objectors under the Act and therefore did not receive notice of the proceeding, it was open to the Objector to call them as witnesses and chose not to do so. Therefore the Tribunal can ascribe little weight to these documents. Further, these documents appear to be based on the incorrect assumption that the Appellants’ establishment will be the same as the Liquid Lounge and in any event, do not outweigh the evidence from the Appellant Michael Adams and particularly his evidence that the Appellants intend to operate the licenced establishment in a more responsible way than the previous occupant of the premises.

43While the Tribunal can appreciate the fears and concerns of the Objector and others, there was no evidence that the feared behaviour of the Appellants’ future patrons will materialize and if it does materialize, that the Appellant will not take appropriate steps to deal with it. I find that the Appellant intends to run the establishment responsibly and in accordance with the law, having sold his home to finance the business and already having taken on renovations to address noise issues.

44The Objector’s speculation, fears and concerns are based on the unfounded assumption that the Appellants’ establishment will operate like the previous occupant of the premises and were not substantiated by evidence sufficient to prove on a balance of probabilities that the issuance of a liquor licence to the Appellants is not in the public interest, having regard to the needs and wishes of the residents of Brantford.

45The Tribunal finds that the Objector has not proven, on a balance of probabilities, that it is not in the public interest to grant a licence to the Appellants.

46Given that the Appellants are establishing a new operation, that the Objector did not request any conditions and given that the Tribunal heard no evidence suggesting that conditions on the licence are warranted, the Tribunal finds that there is no need to impose any conditions on the licence.

ORDER:

47Pursuant to the authority vested in it under the provisions of s. 23 (10) and 23 (12) of the Act, the Tribunal directs the Registrar to approve the application for a liquor licence made by Ronald Jeffrey and Michael William Adams o/a Jeffrey’s Lounge, subject to the filing of all applications and regulatory requirements.