Application by a Licensee under s. 14 of the Liquor Licence Act to Remove Conditions
Between:
1402019 Ontario Inc. o/a Hair of the Dog
Applicant
and
Registrar
Respondent
DECISION
ADJUDICATOR: Katherine Livingstone, Member
APPEARANCES:
For the Applicant: Keir McRae, Counsel
For the Respondent: Rena Khan, Counsel
Heard In Person in Toronto on: March 5, 2019
INTRODUCTION
1The applicant is 1402019 Ontario Inc., operating as The Hair of the Dog, a licensed establishment in Toronto, Ontario. By written application dated September 22, 2018, the applicant requests the removal of four of the conditions on its’ liquor licence # 90554, 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 establishment was granted a liquor licence on August 18, 2000. The licence was granted after a public interest hearing during which several persons voiced concerns about the granting of the licence.
3The applicant seeks the removal of several of the conditions namely:
a. # 2: There shall be no music on the patio.
b. # 5: The operator shall not permit line-ups outside the establishment or on the patio during busy times.
c. # 7: The operator shall install lighting that comes on, at, or around sundown.
d. # 8: The operator shall conduct perimeter checks hourly throughout the evening and upon closing.
4The applicant’s position is that, with the exception of condition #2, the conditions are not presently enforceable. Additionally the applicant argued the area surrounding the business had undergone a significant change since the licence was granted. As a result condition # 2 was no longer necessary.
5The respondent agreed that # 5, 7 and 8 are not conditions presently enforceable under the Act. However the respondent stated condition #2 fell under section 46 of Regulation 719(90) of the Act.
6A case conference on this matter was first convened on January 3, 2019. At that time the applicant referred to a decision of the Toronto and East York Community City Council that he felt might positively impact his present application. The applicant forwarded the material to both the respondent and the Tribunal.
7The material disclosed a decision on May 2013 by the Toronto and East York Community Council extending the operating hours of the applicant establishment. The extension was granted without any restrictions with respect to music on the patio.
ISSUE
8The 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
9Subsection 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
10As part of his material the applicant relied on an affidavit from the co-owner of the establishment which briefly outlined the operation of the establishment since the granting of the licence. The affidavit argued the establishment has been a good neighbour both in terms of the manner in which the business is run and in the way they have involved themselves in community projects and fundraisers. To this point, the respondent was not alleging any past misconduct.
11The applicant also argued there has been a significant change in circumstances since the licence was granted, most particularly in the street scape of the area. There is a two storey condominium being built in close proximity to their business, resulting in increased noise to their outdoor customers, something they feel could be elevated by music. Additionally, the nearby former Maple Gardens building is now both a bustling grocery store and part of Ryerson University thereby increasing the flow of pedestrians and vehicular traffic in the immediate vicinity of their establishment
12While the affidavit was informative in terms of the issue of change of circumstances, there was nothing in the material to demonstrate the applicant had advertised his intention to seek the removal of conditions. This was of concern given the fact the licence was granted after a public hearing where there had been voiced opposition to the licence.
13To address this issue, on February 1, 2019, the applicant posted a notice in the front window of the business outlining the intention of the business to seek removal of the conditions. The notice provided information on the nature of the conditions seeking to be removed and where persons could write if they wished to make submissions on the proposed removal of conditions. The notice remained in the window until February 15, 2019.
14Additionally, on February 1, 2019 the applicants prepared an information letter outlining the conditions they wished removed and made it available to persons who wanted to write in support of the application.
15No letters in opposition to the application were received by either the applicant or the respondent. Several letters of support were received by the applicant.
16A case conference was held on March 5, 2019 at which time the results of the notice were reviewed. The applicant asked, in light of all of the above information, that the conditions be removed.
17The respondent took no position with respect to the application. I asked the respondent whether they would have more to add if written submissions were required before a determination was made. The respondent indicated their position would remain the same, that is, they would not take a position.
18I then asked both parties if they were agreeable that I, as adjudicator on the case conference, make the decision on whether there had been a change of circumstances. Both parties were content that I decide the issue.
19Having reviewed the application and the other documents submitted by the applicant and the Registrar of the Alcohol and Gaming Commission of Ontario, I conclude there has been a change in circumstances in that
a. The decision on May 2013 by the Toronto and East York Community Council extending the operating hours of the applicant was granted without any restrictions with respect to music on the patio,
b. The respondent agreed the Registrar does not have the ability to enforce conditions # 5, 7 and 8,
c. In 2000, the conditions were imposed on the licence after a public meeting was held to address objections from members of the public. In February of this year, the public was provided an opportunity to address their objections to the application for removal of the conditions and no objections were received,
d. The street scape of the area has changed significantly since the imposition of the conditions and is now a busy area with increased traffic noise that could be elevated by music.
e. The Registrar takes no position with regard to the applicant’s application and has not advised me of any adverse disciplinary history of the applicant.
Consequently, in accordance with my authority set out in s. 14(2) of the Act, I order:
20I am satisfied there has been a change in circumstances and the Registrar has not taken a position on the removal of the conditions. I order the following conditions currently attached to the applicant’s liquor licence be removed:
a. # 2: There shall be no music on the patio.
b. # 5: The operator shall not permit line-ups outside the establishment or on the patio during busy times.
c. # 7: The operator shall install lighting that comes on, at, or around sundown.
d. # 8: The operator shall conduct perimeter checks hourly throughout the evening and upon closing.
LICENCE APPEAL TRIBUNAL
Katherine Livingstone, Member
Released: April 5, 2019