Application by a Licensee under s. 14 of the Liquor Licence Act to Remove Conditions
Between:
Pepper Mill Steak and Pasta House (The)
Applicant
and
Registrar of Alcohol, Gaming and Racing
Respondent
DECISION AND ORDER
Adjudicator: Jeanie Theoharis, Vice Chair
Heard in Writing
DECISION AND ORDER
1By written application received March 19, 2018, the Pepper Mill Steak and Pasta House (licensee/applicant) requests the removal of a condition on its liquor licence # 200720, pursuant to subsection 14(2) of the Liquor Licence Act (the Act) on the grounds that there has been a change in the circumstances that led to the imposition of the condition.
2The condition imposed on the applicant’s liquor licence was as a result of a public meeting held pursuant to the Act.
3The applicant requests that the following condition be removed from its liquor licence:
a. The sale and service of alcohol for consumption in the outdoor area shall cease no later than 11:00 p.m.; and no live entertainment or recorded music on the premises.
4The applicant indicates that it understood, upon the transfer of the liquor licence to it, that the condition only related to the outdoor area. However, an enforcement officer has recently indicated that the second portion of the condition “and no live entertainment or recorded music on the premises” relates to the full licenced area and is not restricted to the outdoor area.
5The applicant requests that the condition be amended to read as follows:
a. The sale and service of alcohol for consumption in the outdoor area shall cease no later than 11:00 p.m.; and no live entertainment or recorded music in the outdoor area.
6By correspondence dated May 10, 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 this condition in a public meeting held pursuant to the Act. The Registrar indicated that it did not take a position with regards to the applicant’s application.
Issue:
7The issue to be decided is whether there has been a change in circumstances such that the condition on the applicant’s liquor licence is no longer proper to give effect to the purposes of the Act.
Law:
8Subsection 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.
9If 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 applicant, upon providing notice to the Tribunal and Registrar, is entitled to a hearing before the Tribunal.
Analysis:
10Having 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 show that there has been a change of circumstances that would warrant the removal of the condition.
11I understand the applicant’s desire to play music inside the premises, and to continue to offer a live Yuk Yuk’s stand-up comedy dinner show. The applicant indicated that it was its understanding that the condition only applied to the outdoor area as explained to it during the transfer of the liquor licence. However, there is no indication when the transfer of the liquor licence occurred, how long the applicants have offered the dinner show, what the business operations were prior to and subsequent to the transfer of the liquor licence, and whether there have been any adverse events or disciplinary history of the applicant related to its current operations.
12Also, the applicant asserts in its application that various AGCO enforcement officers have agreed with the interpretation that the live entertainment and recorded music only applies to the outdoor area and not to the whole premises. However, there is no evidence before me to indicate which enforcement officers interpreted the condition in this fashion.
13In regards to the imposition of the condition as a result of the public objection received, neither party provided evidence to show: when the public concern was raised; what the public concern related to; whether the public concern is still an issue for the community that still needs to be addressed; when the condition was initially imposed on the liquor licence; how the removal and/or proposed change to the condition may affect the public interest; and, whether the public interest concern still applies to the licensee’s current operations.
14The applicant’s submissions, without supporting evidence, is not sufficient to show that there has been a change in circumstances that would allow the removal of the condition from its liquor licence. I conclude that it is in the public interest for the issue of a removal of condition to be dealt with at a full hearing before the Tribunal.
Direction:
15Therefore, in accordance with its authority set out in s. 14 (3) of the Act, I direct the 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: May 25, 2018