1948023 Ontario Limited dba Copacabana Ottawa v. Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, 2019 CanLII 43879

Date: 2019-05-09

Application by a Licensee under s.14 of the Liquor Licence Act to Remove Conditions

Between:

1948023 Ontario Limited dba Copacabana Ottawa Applicant

and

Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 Respondent

DECISION and CONSENT ORDER

Adjudicator: Jacqueline Castel, Member

Appearances:

For the Applicant: Jerry Levitan, Counsel

For the Respondent: Tamara Brooks, Counsel

Authorities: Pier 21/East Coast Kitchen Re 2010 Can LII 86041 (ON AGC)

Heard by Teleconference on: May 8, 2019

INTRODUCTION

1The applicant, 1948023 Ontario Limited dba Copacabana Ottawa, requests the removal of all the conditions of its liquor licence # LSL1105926. The request is made 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 conditions on the applicant’s liquor licence are

1. The request for additional capacity to the Parent Street patio is WITHDRAWN. There will be no increase in capacity to this patio.

2. That the outdoor additional capacity of Murray Street patio be limited to an increase of 40 persons.

3. The Licensee shall provide a telephone number and email to Ms. Birkenheier and the residents to give them the opportunity to register concerns or complaints.

4. Monthly meetings are to be scheduled at a set time between Mr. Stephen Monuk, a principal of the Licensee and Ms. Tina Birkenheier, or their delegates to discuss issues regarding the licensed premises.

3The above conditions were placed on the licence of a previous operator of the establishment by the Board of the Alcohol and Gaming Commission of Ontario (“the Board”) in 2010, based on an agreement between the resident objector and the applicant. (See: Peer 21/East Coast Kitchen (Re) 2010 CanLII 86041 (ON AGC)

4On April 4, 2019 the liquor licence of 1663256 Ontario Inc. transferred to a new operator. The new operator, the applicant in this case, is not connected to the original liquor licence holder and will be a different type of business, namely a Brazilian steakhouse.

ISSUE

5The issue I am deciding is whether 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

6Subsection 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

7On May 8, 2019 a telephone case conference took place. During this case conference, the parties agreed to me, as the case conference adjudicator, making the decision on whether there has been a change in circumstances.

8The applicant’s position is that over 8 years have elapsed since the 4 conditions outlined in paragraph 2 above were imposed on a different licence holder that has no connection to the applicant, which will be operating a different type of business (i.e., a Brazilian steakhouse).

9Mr. Levitan submitted that the first two conditions pertain to the initial application to licence the patio. He indicated that the current applicant is not seeking to increase the capacity of the patio and may not even operate a licensed patio given the new business model. However, in the event that the applicant wishes to increase the capacity of the patio in the future, a new application would be required. As such, the applicant’s position is that the first two conditions are vague and unnecessary.

10Mr. Levitan also indicated that the applicant contacted Ms. B, who is mentioned in conditions 3 and 4. She was surprised that her name was on the liquor licence and wanted it removed. S.M., who is mentioned in condition #4 was a previous owner, and has no involvement in the current operation. According to Mr. Levitan, the monthly meetings do not appear to have taken place for many years; Ms. B told the applicant that she believes such meetings are unnecessary; and a condition of this nature cannot be enforced in any case.

11The respondent agrees that there has been a change in circumstances and that the removal of the conditions is not contrary to the public interest. As such, the respondent consents to all four conditions being removed, subject to the addition of a condition that the applicant will have a telephone number, equipped with a functioning message service, for residents to register complaints or concerns. Mr. Levitan confirmed that the applicant is agreeable to the addition of this condition.

12Having reviewed the application and the other documents submitted by the parties, and having considered their submissions, I conclude there has been a change of circumstances.

13Accordingly, under s. 14(2) of the Act, I order:

The following conditions currently attached to the applicant’s liquor licence be removed:

1. The request for additional capacity to the Parent Street patio is WITHDRAWN. There will be no increase in capacity to this patio.

2. That the outdoor additional capacity of Murray Street patio be limited to an increase of 40 persons.

3. The Licensee shall provide a telephone number and email to Ms. Birkenheier and the residents to give them the opportunity to register concerns or complaints.

4. Monthly meetings are to be scheduled at a set time between Mr. Stephen Monuk, a principal of the Licensee and Ms. Tina Birkenheier, or their delegates to discuss issues regarding the licensed premises.

The following condition shall be added to the applicant’s liquor licence:

1. The Licensee shall provide a telephone number for residents to register concerns or complaints. The line shall be equipped with a functioning message service for those times when the Licensee’s staff are unavailable or the establishment is closed.