Simply Acoustic Incorporated o/a The Acoustic Grill v. Registrar of Alcohol, Gaming Regulation and Public Protection Act, 1996, 2021 CanLII 134324

Licence Appeal Tribunal

Date: 2021-12-20

An application for removal of conditions

Between:

Simply Acoustic Incorporated o/a The Acoustic Grill Applicant

-and-

Registrar of Alcohol, Gaming Regulation and Public Protection Act, 1996 Respondent

Decision and Consent Order

Adjudicator: Katherine Livingstone, Member

Appearances:

For the Applicant: Steven Purtelle, owner For the Respondent: Jordan Stewart, counsel for AGCO

Heard by teleconference: December 7, 2021

Introduction

1The applicant is the owner of Simply Acoustic Incorporated o/a The Acoustic Grill, in Picton, Ontario. By written application dated October 5, 2021, the applicant requests removal of two and the amendment of one of the conditions of its liquor licence # 1155840 pursuant to section 14(2) of the Liquor Licence Act, (the Act), on the ground there has been a change in circumstances that led to the imposition of the conditions.

2Over 29 years ago the establishment was granted a liquor licence with the following conditions:

1. The patio capacity will not exceed 16 seats.
2. Patio closing hours will be 9:00 p.m. daily
3. There shall be no live entertainment or music

3The applicant seeks to have the first two conditions removed and the third condition amended, all due to a change in circumstances.

Issue

4The 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

5Subsection 14(2) of the Act permits me to remove conditions if, on an application to remove a condition from a licence, I find there is a change in circumstances. I do not have the jurisdiction to amend a condition.

Analysis

6The matter came before me for a case conference on December 7, 2021.

7At the commencement of the case conference, counsel for the Registrar advised they were not opposed to the removal of the conditions as they were satisfied there had been a change in circumstances. Both the applicant and the respondent consented to me making the decision on whether there had been a change in circumstances. With respect to the proposed amended condition, the parties were content, that if I found a change in circumstances, I could remove condition #3 and the applicant would consent to a condition being added to his licence stating “there shall be no live entertainment or music on the patio”. A copy of that consent is attached to this Consent Order.

8The applicant outlined the change in circumstances: Since the applicant took the establishment over in 2006, it has changed from a “bar” to a full-service restaurant. Additionally, the patio area which was very small has been extended for the sole purpose of the licencee being able to increase their square footage and capacity. There is an establishment with a patio now located directly beside them in the same building and it permitted to have their patio opened until 11pm. The applicant has never had a noise complaint with respect to his patio.

9With respect to condition #3 “there shall be no live entertainment or music”, the applicant explained that he had always understood that condition to mean there could be no live music on the patio. It has only recently come to his attention that the condition is not presently limited to the patio. He said that he has several musical acts inside his establishment over the years with no complaints from compliance officers.

10The respondent advised that a condition with respect to indoor entertainment was frequently part of the older licences however, indoor noise is no longer part of the respondent’s authority. Rather it is a municipal bylaw issue. The respondent confirmed there has been “little to no issue in compliance and nothing relating to disturbance” at the applicant’s establishment.

11I have reviewed the application submitted by the applicant. I have also considered the submissions of the applicant and the Registrar, Alcohol, Gaming Regulation and Public Protection Act, 1996. I conclude there has been a change of circumstances both respect to the indoor and outdoor circumstances of the applicant’s establishment 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.

12Consequently, in accordance with my authority set out in s. 14(2) of the Act, and with the consent of the parties, I order the following conditions currently attached to the applicant’s liquor licence be removed:

1. The patio capacity will not exceed 16 seats.
2. Patio closing hours will be 9:00 p.m. daily
3. There shall be no live entertainment or music.

LICENCE APPEAL TRIBUNAL

Katherine Livingstone, Member

Released: December 20, 2021

Schedule “A”

Tribunal File Number: 13623/LLA-s14

Liquor Licence Act; Liquor Licence and Control Act

Between:

Simply Acoustic Incorporated o/a Acoustic Grill (The) Appellant

And

Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 Respondent

CONSENT TO ATTACH A CONDITION

WHEREAS Simply Acoustic Incorporated o/a Acoustic Grill (The) is the holder of liquor licence LSL1155840 under the Liquor Licence Act, R.S.O. 1990, chapter L-19, as amended, and continued under the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22;

AND WHEREAS the Registrar has proposed, and Acoustic Grill (The) has agreed to consent to add to the liquor licence the Condition as set out below: