Application by a Licensee under s. 14 of the Liquor Licence Act to Remove Conditions
Between:
2440982 Ontario Ltd. o/a 1032 Queen West/Wallen
Applicant
and
Registrar of Alcohol, Gaming and Racing
Respondent
DECISION AND ORDER
Adjudicator: Jonathan Batty, Associate Chair
Heard in Writing
DECISION AND ORDER
Introduction:
1By written application received September 13, 2017, the representative for 2440982 Ontario Ltd. o/a 1032 Queen West/Wallen (the Licensee/Applicant) requests the removal of a condition on its liquor licence #808865, pursuant to section 14(2) of the Liquor Licence Act (the “Act”), on the grounds that there has been a change in the circumstances that led to its imposition.
2The issue I am deciding is whether it is plain and obvious that there has been a change of circumstances, in which case I may remove the conditions. If I do not find it plain and obvious, then I will order the Registrar to issue a Notice of Proposal and the issue may proceed to a full hearing where the question of a change of circumsatnces can be fully explored with all interested parties present.
Background:
3Pursuant to section 18(1) the Act, the Registrar of Alcohol, Gaming and Racing (the “Registrar”) issued the Applicant a liquor licence, dated July 19, 2016, attaching a number of conditions that take into account the interests of the nearby community. The Applicant now seeks to remove one of those conditions, which is:
The main floor, indoor area of the establishment shall not be operated as a nightclub, and without restricting the foregoing, the establishment shall not have any area for dancing, shall not have live music that is amplified in any way, shall only play background pre-recorded music and shall have a seat available for every patron in the establishment at all times.
4The Applicant requests this condition be removed because it believes:
(1) The Registrar is no longer enforcing these types of conditions and “does not have the expertise to enforce these types of conditions.”
(2) There has been a change “in the culture and environment of the neighborhood and in particular the area in which these premises are located” and other establishments in the area have opened and obtained licences without a similar condition being imposed.
5The Registrar has taken no position on the application.
6Several submissions have been received by the Tribunal from residents of the community who live near the Applicant’s premises. These submissions complain about noise the Applicant’s premises generates and disturbances caused by patrons outside the Applicant’s premises.
Legal Test:
7Under s. 14(2) of the Act, I may remove the condition if I find on the evidence before me that there has been a change of circumstances. If I do not find a change of circumstances then I am required to direct the Registrar to issue a notice of proposal to refuse to issue a condition. Should the applicant appeal the notice of proposal, the matter will proceed to a full hearing on the question of a change of circumstances.
Analysis:
8Having reviewed the application and other documents submitted by the Applicant and the Registrar, and having considered their written submissions, I conclude that there is not sufficient evidence at this time to show that there has been a change of circumstances that would warrant the removal of this condition.
9The Applicant submits there has been a change of circumstance for two reasons. I will address each in turn.
10First, the Applicant submits that the Registrar does not enforce this sort of condition and has not got the expertise to do so. This submission appears to be directly contradicted by the information before me.
11In fact, the condition the Applicant wishes removed has been the subject of investigation. I understand the condition was breached on December 9, 2016. On July 19, 2017, following an investigation into the matter (Incident No. 839046), the Alcohol, Gaming and Racing Commission wrote to the Applicant advising that the Deputy Registrar would not, at that time, pursue any administrative action in connection with the infraction but issued a warning to the Applicant that sanctions could be sought, in future, should other violations occur on the premises.
12Second, the Applicant submits the culture and environment of its neighborhood has changed and other nearby establishments have opened and obtained licences without a similar condition being imposed. This is not established by the information I have been provided.
13The Applicant has provided no evidence of recently-issued licences in the vicinity of its premises to support this submission. I have no evidence of what types of conditions are imposed on nearby premises. Therefore, I am not able to conclude there is a change in the competitive landscape in the area.
14The submissions received by the Tribunal from nearby residents all voice concerns about the Applicant’s request to remove the condition at issue. This calls into question the submission from the Applicant that there has been of a change in the local culture and environment. Thus, it will require further evidence to determine if the condition is no longer proper to give effect to the purposes of the Act.
15For these reasons, I will not grant the application to remove the condition at issue because, at this juncture, it is not plain and obvious from the information submitted to me that there has been a change in circumstances that would allow the removal of the condition from its liquor licence.
Direction:
16Therefore, in accordance with the authority set out in section 14(3) of the Act, I direct the Registrar to issue a Notice of Proposal to Refuse to Remove Conditions in accordance with section 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 section 21(4) of the Act.
LICENCE APPEAL TRIBUNAL
Jonathan Batty, Associate Chair
Released: July 24, 2018