ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The : Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
B E T W E E N:
Registrar, Alcohol and Gaming Commission of Ontario Registrar
-and-
Canadian Niagara Hotels Inc. O/A Fallsview Indoor Waterpark Applicant
-and-
Ken Murphy Resident Objector
DECISION
Panel: David C. Gavsie, Chair Beryl Ford, Member
Decision Date: June 1, 2007
Hearing Location: Niagara Falls, Ontario
Appearances
Registrar, Alcohol and Gaming Commission ) Bryna Kaplan, Representative Canadian Niagara Hotels Inc, Applicant ) Ori Ovics, on behalf of the Applicant Mr. Ken Murray, Objector ) ) On his own behalf
The Application
- The Registrar of the Alcohol and Gaming Commission of Ontario issued a Notice of Proposal dated February 28, 2007, to review an application for a liquor licence dated December 28, 2005, from Canadian Niagara Hotels Inc. (the “Applicant”), for additional indoor and outdoor areas at Fallsview Indoor Waterpark, 5685 Falls Avenue, Niagara Falls, Ontario, L2E 6W7, licence number 811950, (the “Premises”). A hearing of the Application was held on May 4, 2007, in the City of Niagara Falls.
Decision
- After considering all the evidence and submissions the Board approves the Application made by the Applicant, for indoor and outdoor areas at Fallsview Indoor Waterpark, 5685 Falls Avenue, Niagara Falls, Ontario, L2E 6W7, licence number 811950. Reasons for these findings follow.
Preliminary Matters
The Applicant was represented at the hearing by Ori Ovics, its General Manager. Mr. Ovics was advised that the Licensee had the right to be represented by a licensed representative. Mr. Ovics waived that right on behalf of the Applicant.
Mr. Ken Murphy, an objector to the Application, was made a party to the proceedings, on consent.
Ms. Kaplan on behalf of the Registrar advised the hearing that the Registrar would not be taking a position for or against the Application.
Objector’s Evidence
KEN MURPHY
Mr. Murphy said that the Premises are located on top of a 5 ½ floor parking facility. His residence is about 4 ½ blocks north of the Premises. He has submitted 2 letters in objection to the application, the first dated December 3, 2006, and the second dated January 23, 2007. Both were placed in evidence (Exhibit #1). His main concern is protecting the value of his home and neighbourhood. There is an unwelcome noise intrusion from an elevated area being the Premises which is more than 5 stories in the air. Mr. Murphy indicated that speakers amplify music and the squeals and yelling of children are also a source of noise. The latter was particularly so during the past March school break. He walked to the source and confirmed it was coming from the top of the garage. There is an outdoor swimming park, and in Mr. Murphy’s view, they do not need a liquor licence for that area. Kids play around the pool where alcohol is proposed to be served. This would be inappropriate.
Mr. Murphy said that the Applicant has a number of properties and businesses within a one block area between Clifton Hill and Bender Hill – 3 hotels, Planet Hollywood, Hard Rock Café, Rain Forrest, Perkins Restaurant and possibly others. There is also a plan to build a 65 story hotel structure in the same block area. Mr. Murphy stated that the Applicant must hold 20 or so liquor licences within this area with 6 or more to be applied for on completion of the hotel. Mr. Murphy asked why they need one more in what is primarily a children’s area.
In answer to questions on cross-examination, Mr. Murphy indicated that some of the music noise came from another facility. He tracked down the offending noise to another location during the winter when the Premises were not open. However, he said there is still the potential for loud music to come from the Premises. Mr. Murphy said that the noise only bothers him if he is in his backyard or in his house with the windows open.
Applicant’s Evidence
ORI OVICS
The Applicant employs over 2,000 people and has 8 liquor licenses. The Waterpark is not open to 2 a.m. Normally it closes at 10 p.m. It opens at 9 or 10 a.m. in the summer months. The licence being sought is for the area around the outdoor activity pool. It is not exclusively for children as adults use the pool too. The Premises are located within a one block area of Casino Niagara, the Rainbow Bridge, Highway 420 and Falls Avenue. It is a tourist district with every location contributing to the noise. There are 4 hotels and 200,000 square feet of a conference centre. There is a 1,200 car parking garage under the waterpark.
The waterpark has been open for about a year. There have been no complaints from any neighbours other than Mr. Murphy. The waterpark is open from mid-June to mid-September and during the Spring Break.
On cross-examination, Mr. Murphy asked Mr. Ovics if he would agree to do things with the speakers, or even put plexiglass around the waterpark. Mr. Ovics answered all questions in the negative, politely, and giving reasons why it was not appropriate or necessary to do so.
Objector’s Submissions
- Mr. Murphy said he has made a complaint about the noise to the Mayor of Niagara Falls, but he does not have others supporting him because complaints against tourist operators generally create apathy among residents. Residents know they cannot stop things in the tourist industry so they have ceased trying. In application after application, the large commercial operators say they want to be good neighbours and corporate citizens. Mr. Murphy stated these businesses have no right to impose their noise on neighbours. They can take steps to mitigate the noise.
Applicant’s Submissions
- Mr. Ovics states his company had invested 45 million dollars in the waterpark. Music was an important part of the experience for the guests. The area being discussed is a family pool area, not a bar, club or disco.
Objector’s Reply
- Mr. Murphy, stated that if the area is a family activity area, then it would be inappropriate for the area to have a liquor licence.
Decision and Reasons
The Application for additional indoor and outdoor areas is granted.
The one objection of Mr. Murphy who lives some 4 ½ blocks away from the Premises cannot be said to contribute a widespread public interest objection to granting the Licence. The scheme of the LLA is for the Registrar to grant a licence applied for, unless there is a reason for not doing so. Such reasons are found in subsection 6(2) of the LLA. The only possible reason for not granting the licence is the wording of paragraph 6(2)(h) which reads:
Contrary to subsection 6(2)(h) of the Liquor Licence Act, the licence is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located.
- Mr. Murphy had the burden of proof to establish that paragraph 6(2)(h) of the LLA applied to the application. He did not do so as the sole objector.
Order
- For the above reasons the Board approves the Application made by the Applicant, for additional indoor and outdoor areas at Fallsview Indoor Waterpark, 5685 Falls Avenue, Niagara Falls, Ontario, L2E 6W7, licence number 811950.
DATED AT TORONTO THIS 1st DAY OF JUNE, 2007.
DAVID C. GAVSIE, CHAIR BERYL FORD, BOARD MEMBER
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