1841900 Ontario Limited dba Elements v. Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, 2019 CanLII 37533

Date: 2019-04-26

An application for removal of conditions presently attached to the liquor licence

Between:

1841900 Ontario Limited dba Elements

Applicant

and

Registrar under the

Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996

Respondent

DECISION

Adjudicator: Katherine Livingstone, Member

Appearances:

For the Applicant: Darryl Moore, agent

For the Respondent: Tamara Brooks, counsel

Heard by teleconference on: April 17, 2019

OVERVIEW

1The applicant is the owner of 1841900 Ontario Limited o/a Elements, a licenced establishment in Kitchener.

2When the establishment was originally granted a liquor licence they operated as a night club. The business has now changed their operating focus to a concert hall and event venue.

3The applicants were initially applying to remove the following conditions from their liquor licence:

1. The licensee shall not open for business before 9:00 p.m. on any day;

2. The licensee shall retain paid off duty police officers from 11:30 p.m. to 3:00 a.m. on Friday/Saturday and Saturday/Sunday in numbers to be determined in consultation with Waterloo Regional Police Service to be sufficient working with licensee security staff to direct and control the behaviour of incoming and exiting patrons;

4These conditions were added, on consent in 2000, with the City of Kitchener being the only objector to the application for a liquor licence.

5After the initial case conference on March 7, 2019, the parties entered into offline discussions with a view to assessing whether any of the conditions attached to the licence, including the ones being requested for removal, were still necessary and/or enforceable by the respondent.

6As a result of those discussions, and prior to the case conference set for April 17, 2019, the applicant filed an amended application on April 12, 2019, requesting all of the conditions be removed. Specifically:

1. The licensed capacity shall be limited to 1250 persons;

2. The licensee shall not open for business before 9:00 p.m. on any day;

3. The licensee 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;

4. The licensee shall ensure that the main entrance is flush with the abutting buildings to prevent the accumulation of waste material or the creation of an unsafe recessed space;

5. The licensee shall employ and ensure professional training for a uniformed, appropriately radio-equipped security staff, including a security manager, for internal and external security duty in numbers adequate to control anticipated patronage and provide training for such staff to handle emergency evacuation of all floors of the building satisfactory to the Fire Chief and the Police Chief;

6. The licensee shall retain paid off duty police officers from 11:30 p.m. to 3:00 a.m. on Friday/Saturday and Saturday/Sunday in numbers to be determined in consultation with the Waterloo Regional Police Service to be sufficient working with licensee security staff to direct and control behaviour of incoming and exiting patrons;

7. The licensee shall become a member of the Kitchener Downtown Business Associations’s Licensee & Entertainment Committee and attend its meetings;

8. The licensee shall comply with the said Licensee and Entertainment Committee’s Code of Conduct for liquor licensees

9. There shall be no expansion of the building;

10. The licensee shall notify the Kitchener Downtown Business Association and the Clerk of the City of Kitchener of any change to its licence at the time the application for the change is made to the Alcohol and Gaming Commission (AGCO).

11. The holder of the licence (applicant for a licence) shall submit by 2013-11-01 a proposed Compliance Plan to the Registrar of Alcohol and Gaming for review and filing that addresses the objectives for a Compliance Plan identified by the Registrar of Alcohol and Gaming.

12. The holder of the licence (applicant for a licence) shall comply with the Compliance Plan filed with the Registrar of Alcohol and Gaming.

ISSUE

7The issue is whether there has been a change in circumstances that warrants the removal of the conditions.

LAW

8Subsection 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

9The parties were very proactive in reviewing the conditions to assess their enforceability and necessity. The respondent advised the Tribunal in correspondence dated April 15, 2019 and confirmed at the case conference on April 17, 2019, that all of the conditions fell outside the mandate of the AGCO and/or were unenforceable. The respondent added that, with respect to condition #10, the requirement for server training was already mandated by statute.

10Additionally, the respondent provided correspondence from Staff Sergeant Sheridan of the Waterloo Regional Police Service (WRPS) advising that, with the change in the club’s demographics, the WRPS were not opposed to the removal of condition #6, which required the presence of off duty police officers during certain days and times.

11During the case conference both the applicant and the respondent consented to the case conference adjudicator, making the decision on whether there had been a change in circumstances.

12The Tribunal has reviewed both the original and amended application and other documents submitted by the applicant and the respondent. Their submissions have also been considered. The Tribunal concludes there has been a change of circumstances in that:

1. The operating focus of the applicant’s establishment has shifted away from a nightclub genre to a concert hall and event venue.

2. The respondent is not opposed to the removal of conditions as they are either not necessary, not enforceable or otherwise mandated by statute.

3. The police, recognizing the change in the club’s demographics, are not opposed to removing the condition with respect to the presence of off duty police officers.

13Consequently, in accordance with the authority set out in s. 14(2) of the Act, the Tribunal orders the following conditions currently attached to the applicant’s liquor licence be removed:

1. The licensed capacity shall be limited to 1250 persons;

2. The licensee shall not open for business before 9:00 p.m. on any day;

3. The licensee 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;

4. The licensee shall ensure that the main entrance is flush with the abutting buildings to prevent the accumulation of waste material or the creation of an unsafe recessed space;

5. The licensee shall employ and ensure professional training for a uniformed, appropriately radio-equipped security staff, including a security manager, for internal and external security duty in numbers adequate to control anticipated patronage and provide training for such staff to handle emergency evacuation of all floors of the building satisfactory to the Fire Chief and the Police Chief;

6. The licensee shall retain paid off duty police officers from 11:30 p.m. to 3:00 a.m. on Friday/Saturday and Saturday/Sunday in numbers to be determined in consultation with the Waterloo Regional Police Service to be sufficient working with licensee security staff to direct and control behaviour of incoming and exiting patrons;

7. The licensee shall become a member of the Kitchener Downtown Business Associations Licensee & Entertainment Committee and attend its meetings;

8. The licensee shall comply with the said Licensee and Entertainment Committee’s Code of Conduct for liquor licenses;

9. There shall be no expansion of the building;

10. The licensee shall notify the Kitchener Downtown Business Association and the Clerk of the City of Kitchener of any change to its licence at the time the application for the change is made to the Alcohol and Gaming Commission;

11. The holder of the licence (applicant for a licence) shall submit by 2013-11-01 a proposed Compliance Plan to the Registrar of Alcohol and Gaming for review and filing that addresses the objectives for a Compliance Plan identified by the Registrar of Alcohol and Gaming;

12. The holder of the licence (applicant for a licence) shall comply with the Compliance Plan filed with the Registrar of Alcohol and Gaming;

LICENCE APPEAL TRIBUNAL

_________________________

Katherine Livingstone, Member