I don't remember the first time I heard the phrase "They're licensed as a restaurant but behaving like a nightclub,".
I don’t remember the first time I heard the phrase “They’re licensed as a restaurant but behaving like a nightclub,” but it was already very familiar in 2001 when concert promoter Dan Burke’s attempt to move his operations from the recently sold El Mocambo to Ted’s Wrecking Yard was thwarted by zoning regulations keeping clubs off College. But no one could explain why a live music venue had been allowed previously at that location, or how all the other clubs and bars on College were permitted.
There’s been little analysis of why so many venues are technically considered restaurants. The truth is that most bars have no choice.
“The AGCO [Alcohol and Gaming Commision of Ontario] doesn’t distinguish between types of licences,” explains Jerry Levitan, a lawyer who specializes in Ontario’s liquor laws. “Many years ago they had different brands of liquor licences, but not any more. Whether you’re a restaurant or a bar or a nightclub, you have the same kind of licence.”
For reasons no one has been able to explain, there is no bar-specific business licence in Toronto. This means that most bars are actually licensed as restaurants, because nightclubs are restricted to what was once known as the club district.
The licence may say “eating establishment,” but operators are allowed to have stages for live music, dance floors and DJ booths as long as they serve food. But in recent years, bylaws on Ossington, West Queen West and Parkdale have introduced further restrictions in an effort to prevent bar-like activities. It also became common practice to ask operators to consent to a range of extra conditions, and operators who did not would be brought to the Licence Appeal Tribunal.
Even bar owners who enjoy a good relationship with their local city councillor and neighbours feel uncomfortable with the grey area in which they are forced to operate.
“For five years I’ve been told there will be some new lounge licence that will cover music venues as well, but it has never appeared,” says the Garrison’s Shaun Bowring. “It’s definitely the most bizarre Catch-22 you can imagine.”
While Bowring has had fairly positive experiences negotiating around the inevitable issues of running a venue, many owners report expensive court battles to prove they’re not violating city policies.
“The city bylaw officers charged us once with running a nightclub without a licence because they said we didn’t have enough seating for our capacity,” recalls Andy Poolhall owner Michael Sweenie. “In court I showed the Crown our city-approved floor plans, and the Crown admonished the inspectors and threw the case out. We have spent around $50,000 on lawyers’ fees over the last 14 years and have won every time.”
Three years ago, the Horseshoe was visited by inspectors from the Municipal Licensing And Standards division, says owner Jeff Cohen. They were fined for not having the entertainment licence. “It’s ridiculous, because live music clubs do not require any kind of city of Toronto business licence. However, that did not stop these inspectors from coming, fining our venue, threatening to close us down, all on the basis that the Horseshoe has a dance floor and provides live entertainment,” he says.
Like Sweenie, Cohen also won the case, but not before dropping lots of money on legal fees. Cohen also ran up against convoluted regulations at his other main venue, Lee’s Palace, since the upstairs Dance Cave has DJs instead of live music. But when he tried to play ball and get the required entertainment facility licence, he found out what operators in the dance music world have long been dealing with.
“We contacted each inspector and the city, gathered all the info required and went back and forth with the city over an eight-month period getting the necessary paperwork, architectural drawings, proof of insurance – the works. At the end of the day, the city still rejected our application. The reason: the Annex is not zoned for a dance club. If the powers that be think dance clubs need to be regulated, fine, but it’s ridiculous to claim only one area in a city as big as ours is zoned for dance clubs.”
Most of the venue owners contacted for this story begged us not to draw attention to them. However, the general public (and most city councillors) have no idea how many important spaces would be lost if the rules were applied consistently. We hope that rather than seeing this list as targets for prosecution, the city instead recognizes that the vast majority of these places are assets, not enemies.