Registrar, Alcohol and Gaming Commission Ontario v. Trailside Bistro & Café Inc., 2007 CanLII 47101

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

BETWEEN:

Registrar, Alcohol and Gaming Commission Ontario Registrar

-and-

Trailside Bistro & Café Inc. intending to operate as Trailside Bistro & Cafe Applicant

-and –

Jennifer Oakes Objector

DECISION

Panel: Dianne Axmith, Board Member S. Grace Kerr, Board Member

Decision Date: October 24, 2007 Hearing Location: Brampton, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission: Bryna Kaplan, Representative Trailside Bistro & Café Inc., Applicant: Angela Marino Jennifer Oakes: On her own behalf and on behalf of the Objectors

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario issued Notice of Proposal number 15613, dated August 29, 2007, to review an application by Trailside Bistro & Café Inc. for a liquor license at Trailside Bistro & Café, 14935 Airport Road, Caledon East, Ontario, L7C 1H9 (Establishment No. 812570). A hearing of the Application was held on October 10, 2007 at the City of Brampton.

Decision

2After considering all of the evidence and submissions, the Board APPROVES the Application. Reasons follow.

Preliminary Matters

3Ms. Bryna Kaplan appeared on behalf of the Registrar and advised that the Registrar was taking no position with respect to the application.

4Ms. Kaplan filed two letters of objection to the application, dated March 14, 2007 and April 10, 2007, respectively, which were collectively made Exhibit 1. Both of these letters are from Jennifer and Jeffrey Oakes.

5Ms. Jennifer Oakes appeared on behalf of the objectors and requested party status, which was granted with the consent of the Registrar and Ms. Angela Marino, the principal of the Applicant.

6Ms. Marino was advised of, but waived her right to have legal representation.

Resident Objectors’ Evidence

7Ms. Jennifer Oakes testified on behalf of the objectors and identified their concerns as follows:

1. Caledon East is a small town of 2,604 people, or 848 households, which already has four licensed establishments. They do “not need” another one;
2. There are problems with “garbage and litter” coming onto one neighbour’s property; it takes 3-4 days before the owners of the establishment clean it up;
3. The Robert F. Hall high school is “close” to the applicant establishment;
4. “Too much noise”, “loud people”, and “loud music” is a problem;
5. There are “too many kids” hanging around the establishment;
6. A licensed establishment is “not needed” in the “centre of town” when there already are others at each end;
7. The outdoor patio is problematic to residential neighbours; and,
8. There is already “too much spill over of people and garbage” onto the streets of Caledon East.

8Ms. Oakes also filed a letter of objection from Grace and Craig Hamilton, dated October 9, 2007, which was made Exhibit 2. The concerns raised in this letter are summarized as follows:

1. “the negative impacts of living near Airport Road have increased exponentially” over the last 22 years this couple has lived in Caledon East;
2. Since “truck traffic has been diverted from Bolton’s core” and there is “construction on highway 10 near Caledon, and Broadway in Orangeville, (their) little village has become the new truck thoroughfare”;
3. They used to “be able to breathe (sic) somewhat fresh air here only two plus years ago, but no longer. Diesel fumes linger all day, every day”;
4. While trying to make an exit either north or south (onto Airport Road, presumably), “(they) have to deal with trucks, buses, vans, parked on the west side of the road, sometimes both sides”;
5. “Not only do (they) have to deal with increased noise, increased pollution, increased traffic, unsustainable parking problems, (they) also have to deal with traffic coming out of the building complex, the Trailside café, and the other little side streets all trying to get onto Airport Road”;
6. Now they “will have to deal with inebriated clients in addition to these traffic problems”.

9The Hamiltons conclude that if the Trailside Bistro and Café gets a liquor license, the Town would be “acting irresponsibly, and with ignorance considering the danger that already exists in the area”.

10In answer to questions from the Board, Ms. Oakes admitted that the concerns raised in the Hamiltons’ letter relate to the Municipality generally and not to the Trailside Bistro and Café specifically.

11A petition, dated October 9, 2007 and bearing the names of 10 individuals or couples objecting to the Application, was also filed by Ms. Oakes and made Exhibit 3. A few of the concerns described by Ms. Oakes in paragraph 7 above were extracted from this Exhibit (e.g. “just don’t need it - small town, enough licences already”; “already problems with garbage/litter”; “enough licensed places”; and, “too close to F.F. Hall”).

12In cross-examination, Ms. Oakes, who does not frequent the Trailside Bistro and Café herself, stated that she has never complained to Ms. Marino, the police, or the Municipality about the establishment, or her noise concerns more particularly. She admitted that the “noise” matter is a “fair-weather issue” and that it only happens in the hours after the establishment is closed.

13Ms. Oakes further testified that she could see no benefits to the establishment obtaining a liquor license. She said that it “opens up all types of concerns”. She doesn’t believe that proposed changes to the establishment’s menu (i.e. offering additional foods) will help. According to Ms. Oakes, the establishment “is not that type of place”; it “doesn’t have the atmosphere”.

Applicant’s Evidence

14Ms. Angela Marino gave evidence on behalf of the Applicant. She submitted a petition bearing 75 signatures of local residents supporting the establishment’s application for a liquor license. This petition was made Exhibit 4.

15Ms. Marino, in her evidence, testified as to each of the concerns raised by the resident objectors. She does not believe any of them to be valid.

16She said that she has never received a complaint from anyone about her outdoor patio, and indicated that this concern was being newly raised at the hearing.

17Ms. Marino indicated that the ‘kids that hang out’, if at all, do so at a nearby variety store and not at her place; she said that if they come in to her establishment for a coffee, she asks them to leave after about 15 minutes

18She also testified that she does not have a large clientele of ‘kids’.

19As to the ‘noise’ issues, Ms. Marino told the Board that she has been particularly sensitive to that concern since first receiving a copy of the Oakes’ March 14, 2007 letter. She says that, regarding the allegation that “vehicle drivers rac(e) around, squealing their tires”, her parking lot is too small for it to happen in.

20Ms. Marino advises that she has about 20 parking spots available for her establishment, cumulatively located at the front and rear of the building and on the street.

21Secondly, as to the ‘noise’ issue, Ms. Marino says that she always asks for the music to be turned down in her establishment if it gets “too loud” as she is very sensitive to noise herself. She advised the Board that she is prepared to “turn it down more” if it is still a problem.

22According to Ms. Marino, the establishment’s menu has been in effect since the business opened in September, 2006. She says that it is always posted as well as being available to patrons. A copy of the menu was made Exhibit 5.

23Ms. Marino stated that the allegation in the Oakes’ letter (Ex. 1), which specifies their concern “that there will be under age clients being served or that alcohol will be served by underage, under qualified servers”, is an “insult”. Ms. Marino stated categorically that “she wouldn’t do it”, “it’s illegal”, and “she would lose her business”. According to Ms. Marino, the establishment is “all (she and her husband) have; it is (their) bread and butter”.

24Ms. Marino indicated that one of the four other existing establishments does not have a liquor license and that she applied for a liquor license because “this is what the community wanted”.

25According to Ms. Marino, the Oakes purchased a home in a commercial area that has noise issues related to traffic, and not from her establishment. Ms. Marino stated that trucks gear up and down while traveling the main street (where the establishment is located). This creates considerable traffic noise so that you sometimes can’t hear over it if using the establishment’s patio.

26Where her establishment is located has been a retail operation for at least 13 years.

27Ms. Marino testified that, if her establishment is licensed to serve liquor, she has no intention to allow her customers to become inebriated. Also, she has taken the Smart Serve course.

28Ms. Marino advised the Board of her numerous community interests and activities. She indicated that she cares about her community and will not allow the addition of a liquor license for her business to create a negative situation for the community.

29Ms. Marino testified that no members of the community have come to speak to her about any concerns: her first notice was the Oakes’ letter (Exhibit 1).

30In anticipation of obtaining a liquor license, Ms. Marino conducted a risk assessment, independent of the intensive financial and personal investigation undertaken by the AGCO in response to her application. As a result, she took steps to enclose her patio, added a doorway going into and out of the building to the patio, and added a locked gate to the patio. While the patio is already monitored by a VCR device, Ms. Marino will be adding a second monitor so that all the staff inside can see what is going on out there.

31Exhibit 6 is two photographs, one being an inside and the other an outside shot of the establishment. Ms. Marino advised the Board that, even with the addition of a liquor license, she intends to keep the restaurant looking as it currently does, that is, as a family restaurant and not a bar.

32In cross-examination by Ms. Oakes, Ms. Marino advised that the ‘drive-through’ window will continue to serve only coffee and items from her bakery. If she obtains a liquor license, she said that she may eventually phase out the bakery component of her business but has no plans to do so in the short term.

33Ms. Marino further stated that she is the registered owner of the corporate applicant and that she is responsible for its day-to-day operations.

34In response to questions from the Board, Ms. Marino testified that she has never received any complaints from the Municipality or the police either about her establishment and its operation or about noise or garbage.

Resident Objectors’ Submissions

35Ms. Oakes submitted that her concerns were already raised in her evidence and that she would not repeat them for the purposes of making submissions.

36She acknowledged that Ms. Marino is making changes, appreciates her sensitivity to the concerns raised, and has noticed a difference.

37Ms. Oakes reinforced her concern about underage patrons being served by the establishment and indicated that this was a concern for the future.

38As regards the ‘squealing of tires’ concern, Ms. Oakes states that this relates to traffic coming and going from the establishment and acknowledges that this problem does not occur in its parking lot because it is too small.

39If a liquor license is granted, the resident objectors would ask that two conditions attach to it, namely: that the establishment not be allowed to serve alcohol beyond 9:00 p.m. from Monday through Thursday or beyond 11:00 p.m. on Fridays and Saturdays; and, that there be no amplified music allowed on the establishment’s patio.

Applicant’s Submissions

40Ms. Marino asked that no conditions attach to a liquor license if one is granted to her business. In that regard, she submits that her establishment has not proven to be a problem. Also, to attach such conditions would be unnecessary; her business only stays open until 10:00 p.m. in any event, according to her.

41Ms. Marino argues that she would not have applied for a liquor license if she did not think that adding one to her business would benefit the community. Furthermore, she submits that she will serve alcohol responsibly and will not allow people to become inebriated in her establishment.

42Additionally, she indicates that one of the other licensed, local establishments is actually located closer to the high school than is her business.

43Finally, Ms. Marino states that she endured a ‘gruelling’ investigation by the AGCO, which she passed. She submits that the delay in obtaining a liquor license since she first applied for one has cost her at least $18,600 in lost revenue, calculated at the rate of $100 per day, due to the resident objectors’ complaints.

Analysis/Reasons/Findings

44At issue in this hearing is whether granting this application for a liquor license is in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises are located.

45The objectors have raised non-specific and generalized potential ‘negative’ impact problems if a liquor license were given to this establishment.

46The Board cannot give any weight to the resident objectors’ allegations in respect of the Trailside Bistro and Café when the unequivocal evidence before the Board is that none of them have complained to the Municipality or the police about any concerns related to this establishment. Furthermore, the applicant has never been charged with an offence by either the Municipality or police.

47Additionally, until receiving the Oakes’ letters (Exhibit 1), and being presented on the day of the hearing with the petition (Exhibit 2) and the Grahams’ letter (Exhibit 3), Ms. Marino never received any complaints about her establishment from any of the resident objectors.

48While the Board appreciated receiving the evidence on behalf of the resident objectors, it finds that none of the objector’s concerns are or can be related directly to the manner in which the licensed space would be operated by this particular establishment

49The Board finds that the concerns raised by the Grahams (Exhibit 3) as well as those identified by Ms. Oakes on behalf of the resident objectors are issues for the municipality generally and do not relate directly to this application or to the operation of the Trailside Bistro and Café specifically

50The Board accepts the evidence in support of the Application indicating that this establishment has been operated in a manner conducive to the best interests of the public as well as the needs and wishes of the neighbourhood’s residents since its inception. It also finds that the Applicant is likely to continue to run its business in the future in a similar fashion if granted the liquor license it has requested.

51The Board is of the opinion that Ms. Marino is trying to make her business both thrive and grow. Presumably, these are good things for the neighbourhood/town.

52The Board does not believe that any conditions should be imposed on the license. On the facts of this case, noise-related constraints regarding amplified music and time-constraints upon the service of alcohol are unnecessary; importantly, they are also not supported by the evidence before the Board at the hearing.

53Thus, given the circumstances of this case and the evidence adduced, the Board finds that the objectors have failed to meet their onus that it would not be in the public interest to grant this license having regard to the needs and wishes of the residents.

Order

54Therefore, and for the above reasons, the Board APPROVES the Application for a liquor license for Trailside Bistro and Café Inc. intending to operate as Trailside Bistro & Café, 14935 Airport Road, Caledon East, Ontario, L7C 1H9 (Establishment No. 812570).