Application by a Licensee under s. 14 of the Liquor Licence Act to Remove Conditions
Between:
9308423 Canada Inc. o/a Atari
Applicant
and
Registrar of Alcohol, Gaming and Racing
Respondent
DECISION ON APPLICATION TO REMOVE CONDITIONS
Adjudicator: Jeanie Theoharis, Vice Chair
Heard in Writing
DECISION AND DIRECTION
Overview:
1By written application received February 28, 2018, the applicant requests the removal of conditions on its liquor licence # 803860, pursuant to subsection 14(2) of the Liquor Licence Act on the grounds that there has been a change in the circumstances that led to the imposition of the conditions.
2The appellant requests that the following three conditions be removed:
a. No live entertainment or amplified music be permitted after 9:30 p.m. daily.
b. There shall be no live or amplified music on the roof top patio permitted after 9:30 p.m. daily.
c. The sale and service of alcohol beverages on the roof top patio shall cease each night from Sunday through Thursday at 10:00 p.m. and Friday and Saturday at 11:30 p.m. On the statutory holiday of July 1, the sale and service shall cease at 11:30 p.m.
3By correspondence dated June 19, 2018, the Registrar of Alcohol, Gaming and Racing advised the Tribunal that the original application for a liquor sales licence resulted in an objection from a member of the public. The public interest concern raised through clause 6(2)(h) of the Act was resolved by the imposition of these conditions pursuant to that Act. In particular the conditions were imposed by Tribunal Order 9014/LLA dated December 18, 2014. A copy of the decision was attached to the appellant’s application. The Registrar further indicated that no objections were received for the application for removal of conditions, and that he does not take a position with regards to this application.
Issue:
4The issue to be decided is whether there has been a change in circumstances such that the conditions on the applicant’s liquor licence are no longer proper to give effect to the purposes of the Act.
Law:
5Subsection 14(2) of the Act permits the Tribunal, on an application to remove a condition from a licence, to remove conditions if there is a change in circumstances.
6If the Tribunal decides not to remove the condition, the Tribunal shall direct the Registrar to issue a notice of proposal to refuse to remove the condition. Thereafter, the appellant, upon providing notice to the Tribunal and Registrar, is entitled to a hearing before the Tribunal.
Analysis:
7Having reviewed the application and other documents submitted by the applicant and the Registrar of the Alcohol and Gaming Commission of Ontario, and having considered its written submissions, I conclude that there is insufficient evidence to establish that there has been a change of circumstances that would warrant the removal of the conditions.
8The applicant asserts in its application, among other submissions, that there has been a change in ownership/licensee on July 31, 2015; and that this change in ownership resulted in the licensee no longer being affiliated with the adjacent nightclub, which nightclub was owned and operated by the prior licensee. However, it is unclear if the applicant continues to operate the establishment in the same manner as the previous licensee; or if there has been a change in business models. As noted in the Tribunal decision, the prior licensee, Sopra Ristorante, was a full service ‘fine dining’ restaurant. The applicant asserts now that it operates as a full-service restaurant with seated restaurant service, handmade cocktails, small plate servings, and is tailored around light ambient background music while dining. It is unclear how the prior and current business model has changed such that it would be a change in circumstances which would warrant the removal of conditions.
9Also, the licensee has made modifications to the sound equipment to support the new ambiance, including for instance replacing all amplified speakers with new short throw self-powered speakers that are each on a separate control, which allows for sound to be directed and controlled within the space. It is unclear what equipment the prior licensee had in its premises for music amplification.
10The Tribunal member indicated that the reason for the conditions being attached to the licence was the proximity of the property, in particular the patio, to residential units. There is no evidence to suggest that the residential units are still not within the same proximity; and that they would not have the same or similar concerns.
11The applicant’s assertions that it has been compliant with municipal noise bylaws and that they have letters and gestures of support from neighbours extending patio operating hours, without supporting evidence is not sufficient to show that there is a change in circumstances which would warrant the removal of conditions from the applicant’s liquor licence.
12I am not satisfied that there has been a change in circumstances.
Consequently, in accordance with its authority set out in s. 14(3) of the Act, I direct:
13The Registrar to issue a Notice of Proposal to Refuse to Remove Conditions in accordance with s. 21(1) 8 of the Act within fifteen (15) days of the date of this direction, after which the applicant may choose to exercise the appeal rights set out in s. 21(4) of the Act.
LICENCE APPEAL TRIBUNAL
Jeanie Theoharis, Vice Chair
Released: July 5, 2018