Application by a Licensee under s. 14 of the Liquor Licence Act to Remove Conditions
Between:
2326718 Ontario Inc .o/a Dark Horse
Applicant
and
Registrar of Alcohol, Gaming and Racing
Respondent
DECISION and CONSENT ORDER
Adjudicator: Katherine Livingstone, Member
APPEARANCES:
For the Applicant: Jerry Levitan, Counsel
For the Respondent: Tamara Brooks, Counsel
Authorities: Dark Horse, [2203] O.A.G.C.D. No. 98 and Dark Horse, 2008,Can LII 91797 (ON AGC)
Heard by Teleconference on: February 11, 2019
INTRODUCTION
1The applicant is 2326718 Ontario Inc. operating as Dark Horse, an establishment in Toronto. By written application dated September 28, 2018 the applicant requests the removal of all the conditions of its liquor licence # 806463, pursuant to section 14 (2) of the Liquor Licence Act (the Act), on the grounds there has been a change in circumstances that led to the imposition of the conditions.
2The applicant seeks the removal of the following conditions:
The applicant shall not permit music to be played or transmitted outside the licensed premises, and shall ensure that the premises have non-opening windows and a double door main entrance to eliminate indoor music being heard outside.
There shall be no licensed outdoor patio on Armadale Avenue, on the roof of the premises, or on any other portion of the property upon which the licensed premises, save and except for a patio on Bloor Street West.
There shall be no additional lighting or music on the outdoor licensed area
The licensee shall erect a soundproof barrier acceptable to the local Municipal Councillor, to separate the Bloor Street West patio from Armadale Avenue, and from 2407 Bloor Street West
There shall be no deliveries at the licensed premises after 6:00pm
Sale and service of liquor on the outside licensed area shall cease at 10:15 p.m. daily and all signs of the sale and service of liquor shall be cleared from the outdoor licensed area by 11:00p.m.
The licensed capacity on the outdoor patio premises on Bloor Street West shall be limited to 48 person.
3The conditions were placed on the licence after a public hearing in the fall of 2002 (see Dark Horse, [2003].). In 2008 the applicants applied to remove condition #6, arguing there had been a change in circumstances. After a hearing, during which evidence was received from objectors, the Tribunal refused to remove the condition. ( see 2008 Can LII 91797 (ON AGC) )
ISSUE
4The issue I am deciding is whether there it is clear there has been a change in circumstances such that the conditions on the applicant’s liquor licence are no longer proper and necessary to give effect to the purpose of the Act.
LAW
5Subsection 14(2) of the Act permits the Tribunal to remove conditions if, on an application to remove a condition from a licence, the Tribunal finds there is a change in circumstances.
ANALYSIS
6On January 8, 2019 a telephone case conference took place at which time I heard from both the applicant and the respondent.
7The applicant’s position was that many of the conditions of the licence are not presently enforceable nor are they supported by the AGCO under its present policy. He argued the only one still enforceable is condition # 6, dealing with the timing of ending daily liquor sales and service.
8The Registrar initially did not take a position with respect to the application. However during the case conference it did concede that, with the exception of condition #6, the remainder of the conditions were in all likelihood unenforceable by the AGCO and covered by regulations under other legislation or zoning bylaws.
9The applicant advised that in February of 2018, a Boulevard Cafe agreement was entered into between the applicant and the City of Toronto. Clause 20 in the agreement dealt specifically with the hours of service of food and drink, as follows:
The licensee shall ensure that the boulevard café is closed and cleared of patrons, food and drink at or before 11; 00 pm 7 days a week
10This clause therefore polices the hours the applicant can serve alcohol. The applicant argued, as such, there was no need for the conditions attached to the present licence.
11The applicant did not have a copy of the agreement during the case conference however undertook to provide one to the Registrar and the Tribunal immediately after the case conference. The case conference was adjourned to February 11, 2019 to allow the applicant to provide a copy of the agreement and give the Registrar an opportunity to review it before taking a final position on the request to remove conditions.
12The applicant forwarded a copy of the boulevard agreement, and the respondent, as well as I, had the opportunity to review it prior to the case conference on February 11, 2019.
13On reconvening the case conference the respondent advised that, in light of the agreement between the applicant and the City of Toronto, they were satisfied there had been a change in circumstances and they were not opposed to the removal of all of the conditions on the licence.
14Additionally both the applicant and the respondent consented to me, as the case conference adjudicator, making the decision on whether there had been a change in circumstances.
15Having reviewed the application and the other documents submitted by the applicant and the Registrar of the Alcohol and Gaming Commission on Ontario, and having considered their submissions, I conclude there has been a change of circumstances in that:
a. The conditions, other than # 6, are presently not enforceable by the AGCO or are addressed in other regulations or bylaws and
b. The limitation set out in condition # 6 with respect to the service of alcohol is sufficiently addressed in the aforementioned boulevard agreement. Therefore having the condition remain as part of the licence in redundant and unnecessary.
16Consequently, in accordance with my authority set out in s. 14(2) of the Act, I order that the following conditions currently attached to the applicant’s liquor licence be removed:
The applicant shall not permit music to be played or transmitted outside the licensed premises, and shall ensure that the premises have non-opening windows and a double door main entrance to eliminate indoor music being heard outside.
There shall be no licensed outdoor patio on Armadale Avenue, on the roof of the premises, or on any other portion of the property upon which the licensed premises, save and except for a patio on Bloor Street West.
There shall be no additional lighting or music on the outdoor licensed area
The licensee shall erect a soundproof barrier acceptable to the local Municipal Councillor, to separate the Bloor Street West patio from Armadale Avenue, and from 2407 Bloor Street West
There shall be no deliveries at the licensed premises after 6:00pm
Sale and service of liquor on the outside licensed area shall cease at 10:15 p.m. daily and all signs of the sale and service of liquor shall be cleared from the outdoor licensed area by 11:00p.m.
The licensed capacity on the outdoor patio premises on Bloor Street West shall be limited to 48 person.
LICENCE APPEAL TRIBUNAL
________________________
Katherine Livingstone, Member
Released: March 25, 2019