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-
Jeffery Brian Olmstead O/A Dunn Street Service Station
Applicant
-and-
Andrea Stelmach
Objector
DECISION
Panel: Allan Higdon, Board Member Brian J. Ford, Board Member
Decision Date: September 8, 2008
Hearing Location: Barry’s Bay, 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 ) Phillip Morris, Representative
Jeffery Brian Olmstead, Applicant ) Robert Howe, Representative
Andrea Stelmach ) On her own behalf ) and on behalf of the Objectors
The Application
The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 15854 dated December 17, 2007 to refuse to remove conditions from licence number 808589 issued to Jeffery Brian Olmstead (the “Licensee/Applicant”) operating as DUNN STREET SERVICE STATION (“Dunn Street”), 56 Dunn Street, Barry’s Bay, Ontario, K0J 1B0 (the “premises”). A hearing of the application was held on February 6, 2007 and April 9 and 10, 2007 in the Township of Madawaska Valley.
The Licensee has applied to the AGCO to remove two conditions on the licence which states:
No live or recorded music on the premises
Sale and service of beverage alcohol must cease at 10 p.m. Sunday to Saturday October 16 to May 14th each year and at 1 a.m. for the period of May 15 to October 15 each year.
Decision
- After considering all the evidence and submissions the Board DENIES the Application. Reasons follow.
Preliminary Matters
Mr. Philip Morris, Registrar's Counsel, advised the Board that the Registrar was taking a position of refusing the application to remove conditions. Mr. Morris tendered Exhibits #1 through #9 on behalf of the Objectors.
Mr. Robert Howe counsel, for the Licensee, tendered Exhibit #10 a letter of support.
Ms Andrea Stelmach is a resident of the municipality and objects to the application. She appeared before the Board on her own behalf and as the representative for the Objectors. On consent of all parties, the Board ORDERED Ms Stelmach be made a party to the proceedings.
Applicant's Evidence
Hans Wetzel is a business person who deals in real estate and resides on Highway 62, Cumbermere Road. He is a member of the Economic Development Committee of Madawaska Valley.
Mr. Wetzel introduced a map which shows the area of Dunn Street. He also introduced a copy of the Official Plan of Renfrew County. Referring to page 27, section 4.2, sub-section Objectives, he noted that paragraph 2 speaks to the necessity to support the needs of residents through the promotion of orderly growth. He also spoke to By-law 2006-26, a zoning by-law delineating the types of non-residential uses allowed.
The witness noted Dunn Street is a major artery. The local hospital is accessed by this route and work had been done to widen the road in the past three years.
Mr. Wetzel stated that when he moved to Barry's Bay the site in question was a garage and there was automotive noise emanating from the facility then.
Mr. Wetzel stated the Halliburton Exchange is a group that pairs up with communities to look at economic development in communities. The group prepared a report (Exhibit #15), which was given to the Economic Development Committee. This document noted the community was missing stores or services that one would expect to find in the community. The report also said the community needed to develop a four season appeal and some night life.
Mr. Wetzel was shown a letter to the AGCO from Mr. Craig Kelley, the community development officer for Madawaska Valley, in which he pointed out Barry's Bay is in need of more attractions and tourist-driven outlets. The letter noted that, at present, there were no outlets offering evening entertainment. The development officer supports the application.
The witness stated there had been an increase in waterfront and residential property development but that there has been no increase in commercial development in the area.
Mr. Wetzel delineated a number of commercial establishments that once served liquor but has since closed, the most recent being the Balmoral Hotel which closed in 2007. He also noted there is a need to have a viable commercial/residential balance.
The witness noted the passing of two new by-laws (Exhibit #19 and #20) that facilitated all terrain vehicle (ATV) traffic in order to promote economic development and tourism. He also noted the Township of Madawaska Economic Development Committee supported the removal of conditions on the Dunn Street Service Station. The Committee had previously opposed removal of the conditions.
Mr. Wetzel stated a noise by-law existed that would allow people to complain about noise.
On cross-examination, Mr. Wetzel stated there was a town planner who worked for the county. The witness was not aware of any report present to the Committee from the planner.
Mr. Wetzel also acknowledged that Section 4.2, Objectives, of the Official Plan stated there was a need for compatibility and servicing. He also noted the Plan is intended as a broad brush for the development of a community. It is not specific to the site in question. He also stated the zoning by-law does not stipulate hours of operation.
When asked if there were streets than wider Dunn Street in Barry's Bay the witness stated he did not know. Mr. Wetzel agreed that people living in a house are influenced by what is next door.
When asked about the site when it was a garage, the witness could not say what level of noise was produced on weekends.
Mr. Wetzel agreed that the report from the Halliburton group was not site specific about where future attractions should be located.
Mr. Wetzel also acknowledged there were no members of the public in attendance at the Economic Development Committee meeting when Dunn Street was discussed. The public was not informed of the meeting.
Mr. Wetzel admitted that the map of the subject area (Exhibit #11) showed a high level of residential use. Mr. Wetzel agreed the Halliburton report stated that it was a good location for a young family and that the report did not deal with where the entertainment and fine dinning should be located.
The witness acknowledged the Economic Development Committee did not hear the objections of the residents. When asked if the Committee had a demographer, he stated it did not.
The witness admitted that there was a considerable difference between fine dinning and a bar. When questioned as to the condition of the establishment and shown a photo (Exhibit #9) he admitted the premises looked run down and was in need of a clean-up.
When asked about the noise by-law, Mr. Wetzel admitted that there were no noise numerical standards in the by-law.
On re-direct, Mr. Wetzel noted the Legion has a liquor licence and is located on John Street.
Dawn Byers is a school teacher and teaches at Madawaska Valley High School. She stated she supports the removal of the conditions on Dunn Street Service Station. She testified she teaches physical education and has taken her class to the premises to teach them to play pool.
Ms Byers has been to the premises as a customer to play billiards. She also noted that billiard group tournaments use Dunn Street. She stated there is a negative impact on social activities at Dunn Street because of the 10:00 p.m. closing condition.
On cross-examination, Ms Byers stated that she was not aware that Dunn Street could stay open past 10 p.m. but could not serve liquor past 10 p.m.
Jeffrey Olmstead is the owner of Dunn Street Service Station. He bought the establishment when it was a garage in 1997. He also bought the house on the adjoining property, the house being 54 Dunn Street and the service station 56 Dunn Street.
Mr. Olmstead stated he later converted the garage to a billiard hall and coffee bar but continued to sell gas. The lot on which the establishment is located is 108 feet wide by 131 feet deep. The garage is made of concrete block. The garage door is glass, still works and is kept open in the summer as there is no air conditioning. Mr. Olmstead stated that the building structure could do with a little paint. Thirty to forty cars could be parked on the establishment parking lot.
Mr. Olmstead stated that he was licensed with conditions in 2000. At the time he thought he might be able to get by financially with the conditions but found it difficult. He applied to have the conditions removed in 2004.
Mr. Olmstead stated the local arena has activities after 10:00 p.m. He could accommodate people from the arena if he could stay open after 10:00 p.m. He also finds that when there is a hockey game on television, he has to close at 10:00 p.m. and consequently lose customers.
Mr. Olmstead stated there are three billiard tables in his establishment but he would like to have live music and bring in local talent to play at his establishment.
Mr. Olmstead noted that gas is still sold at Dunn Street and it would be a benefit for ATV and snowmobiler customers if he could stay open longer. Live music would also help. He also noted that in the summer he would be open to motorcycle clubs as a source of business.
Mr. Olmstead stated the legion is able to host weddings, stags and doe parties but he can't because of the restrictions on his licence. He also noted the Bay Caf was licensed after his establishment and they have no conditions. That establishment is similar in size to his. He noted that it was on Highway 60. There are other establishments who were licensed after he was and have no restrictions as well. However, they are not in town.
Mr. Olmstead tendered Exhibit #25, which is the mission statement for his establishment. He stated he is serous about moving ahead. Mr. Olmstead also spoke to Exhibit #26, a letter from the Ontario Provincial Police (OPP) which delineated a number of incidents involving the establishment but that no charges were laid as a result of the incidents.
Mr. Olmstead admitted that he had a verbal altercation with a local Ward Councillor. Mr. Olmstead stated they both lost their cool and he apologized for the incident at a council meeting.
Mr. Olmstead said he drew up a form letter of support for the removal of conditions on his establishment. A number of people signed it and he took it to the Council meeting.
Mr. Olmstead noted that the petition submitted by Ms Stelmach contained the names of people who had changed their mind, moved or died. He stated forty-nine people on the list had changed their mind.
On cross-examination, Mr. Olmstead admitted that Exhibit #32 is an accurate photo of his establishment in winter. He also agreed that the garage looked run down on the outside and there was no air conditioning.
The witness admitted in response to a question that the large garage doors on his premises are opened in the summer and that noise would be heard by nearby residents when they were open.
Asked to describe the inside of the building the witness stated it is a standard garage with the walls painted black (concrete block) with no insulation.
Mr. Olmstead admitted that in 2000 he accepted the conditions on his liquor licence, which are delineated on Exhibit #1. They are:
Sale and service of beverage alcohol shall be limited to beer and wine coolers only;
No live or recorded music on the premises; and
Sale and service of beverage alcohol must cease at 10:00 p.m. Sunday to Saturday October 16 to May 14th each year and at 1:00 am for the period of May 15 to October 15th each year.
It was suggested that he could have objected at that time to these restrictions. He replied he wanted to speed the approval process up so he accepted the conditions.
Mr. Olmstead stated he bought the station in 1997 as a garage. However, it was not economically feasible, so he converted the garage part into a billiard hall and coffee bar. He had originally intended to run the premises as a coffee bar without liquor but it was not financially viable. At that time he got the licence with the conditions attached.
Mr. Olmstead stated he applied to have conditions removed in 2004. He admitted the great concern of the neighbours was the noise that would emanate from his establishment if conditions were removed.
Mr. Olmstead admitted his application for removal of the conditions was based on financial considerations.
He also acknowledged there was nothing on his licence that prohibited him from staying open past 10:00 p.m. He stated that as he could not serve liquor after 10:00 p.m. he had nothing else to offer customers and had to close.
Mr. Olmstead stated that in 2004 the Town Council opposed the removal of the conditions because he had not been able to speak to the matter. However in 2007, he did have a chance to speak to the current application. He spoke at a special Council meeting on August 7, 2007. However, none of the objectors were there.
Mr. Olmstead stated that this time he spoke to neighbours and considered the advice given to him. He also spoke to Councillor Yantha but he continued to object. He stated he apologized to Councillor Yantha. Mr. Olmstead said the altercation with Councillor Yantha took place because he was upset with the Councillor for objecting.
When asked about his mission statement Mr. Olmstead stated he drafted it for the hearing. He stated none of the work outlined in the document has been done but he would do it if the conditions were lifted.
On cross-examination, Mr. Olmstead was asked about the sound proof barrier mentioned in the mission statement. He was not sure what it would be.
Mr. Olmstead admitted that most of the people who signed his petition of support do not live in the immediate area of Dunn Street.
Mr. Olmstead stated he talked with several neighbours and told them what he wanted to do. Some he spoke to on the phone.
Mr. Olmstead in response to a question admitted that his house and the establishment were up for sale. He said he is open to the right offer.
On re-direct Mr. Olmstead stated the properties are not listed with a realtor. He also said he would shut the large garage doors if he had to and maybe one day get air-conditioning.
Carson Dubblastyne stated that he does not live near Dunn Street but had been into the establishment and found it to be well run. He stated young people play pool there and if they make noise they are warned three times then asked to leave.
With regard to the condition of the building, it can't be cleaned up in the winter. He also said it would be hard to put air-conditioning in the establishment.
Carol-Ann August lives in Barry's Bay. While she does not live in the area of the establishment her son and husband are patrons of it. She stated that the owner Mr. Olmstead is a thoughtful person. She said that when her son has had too much to drink Mr. Olmstead has driven him home.
On cross-examination, Ms August said that she does not know Mr. Olmstead socially.
Objectors' Evidence
Dr. Andy Chapeski is a retired medical practitioner and has lived in Barry's Bay. Dr. Chapeski is the father of Andrea Stelmach and was on Council when Dunn Street was rezoned. He stated during the 1970's the location was a garage and gas bar.
Dr. Chapeski stated the area was zoned commercial to accommodate an existing garage. The matter could have put Mr. Cybulsiki who previously owned the garage out of business. He said the options were to expropriate the garage, allow it to continue, or rezone. The rezoning went through with the hope by Council that the area would eventually revert back to residential use.
On cross-examination Dr. Chapeski admitted that there were other isolated problems in Barry's Bay similar to the garage issue. They were there prior to the zoning coming into effect, as was the garage. They had to be accommodated by Council.
Christine Schintgen lives in Barry's Bay at 112 Bay Street near Queen Street. She works at Our Lady Seat of Wisdom Academy (the "Academy"), which is a post-secondary Catholic liberal arts school.
Ms Schintgen has lived in the area for five years and stated that the proposed extended hours in winter and live music would not be good for the community and that she opposes the removal of the conditions.
Under cross-examination Mr. Schintgen stated the Academy has been there since 2000 and has an enrolment of 59 full-time and 20 part-time students.
Gordon Mackenzie lives at 16 Wilno Street and his property faces Dunn Street. He has lived there since December 2005 and in Barry's Bay since 2004.
Mr. Mackenzie is opposed to the removal of the conditions. He stated that patrons of the establishment back onto Dunn Street from the parking lot of the establishment and that it is an accident waiting to happen. He admitted he had not been inside the establishment.
Mr. Mackenzie stated he had two visitors asking why he was opposed to the removal of the conditions. The first visit was from a Jerome Bratton, asking why he opposed the Application. He told Mr. Bratton it was because of traffic. Mr. Olmstead was the second person to visit. Mr. Olmstead asked if he was connected to the Academy and he replied that he was. Mr. Olmstead said two youths from the Academy drowned going through the ice on a nearby lake. Perhaps if his premises had been open they would have gone to his establishment and still be alive.
On cross-examination Mr. Mackenzie stated that Dunn Street was the route most commonly used to go to the hospital. He noted that traffic could be a problem, but consumption of alcohol adds to the problem.
Mr. Mackenzie did not have a problem with live music provided it ceases at 10:00 p.m. and is not allowed outside the premises.
Ronald Young lives at 55 Dunn Street at the corner of Kitt Street. It is directly across the street from the establishment. Mr. Young stated he has lived at this location since 2005. Mr. Young is employed at the Lady Seat of Wisdom Academy.
When Mr. Young bought his house he believed it to be in a good neighbourhood to raise a family. At the present time he occasionally hears people from Dunn Street. However, if the hours are extended, the noise will be much worse.
The noise from the establishment during the summer forces him to close his windows so his children can sleep. Mr. Young stated that during the summer the garage door is generally open and he can hear people talking.
On cross-examination Mr. Young admitted that the odd ambulance goes down the street and sometimes a Greyhound bus goes by.
Agnes Andrecheck lives at 120 Dunn Street south of Wilno and has lived there since 1978.
Ms Andrecheck stated that she objected to the removal of the conditions on the licence because of some of the things she had seen there. She noted she has seen patrons urinating outside the Dunn Street Service Station.
Ms Andrecheck stated that this is not something that children who live in the area should see.
On cross-examination, Ms Andrecheck stated that she had a small home business out of her house, a bed and breakfast.
Ms Andrecheck did not think it is an advantage to have an establishment like Dunn Street in a residential area.
Sylvie Yantha is a Counsellor for the Township of Madawaska Valley. Mr. Yantha stated that he represents the whole township as a counsellor, and has been a counsellor for four and one half years.
Mr. Yantha stated he voted against the removal of conditions on the Dunn Street Service Station liquor licence. His main reason is that noise would be a problem for those living in the neighbourhood. He also stated that he received a lot of phone calls from residents asking him to oppose the removal of the conditions.
Mr. Yantha testified that on July 20, 2007, Mr. Olmstead, the owner of the Dunn Street Service Station, came up to him in a parking lot at a real-estate office and started yelling at him. Mr. Yantha stated Mr. Olmstead swore and cursed at him about his opposing Mr. Olmstead's application to remove the conditions from his licence.
Mr. Yantha further stated that when he tried to leave Mr. Olmstead held the door of his vehicle open and Mr. Yantha had to remove his hand from the door so that he could close it. Mr. Yantha stated that Mr. Olmstead threatened him by saying, "If I go down you are going down with me".
Mr. Yantha stated Mr. Olmstead apologized to him at the August 2007 Council meeting. He noted that between the time of the incident and the Council meeting Mr. Olmstead gave no indication he would apologize. When asked if he lost his cool, Mr. Yantha stated he did not believe he lost his cool.
During cross-examination Mr. Yantha stated that when the establishment was a garage it was never open on Sunday.
When asked, Mr. Yantha replied he would not object to the removal of the conditions if the establishment was in another area and not in a residential one.
Mr. Yantha also said he is the only Councillor from the village of Barry's Bay. He also stated that some people were afraid to sign the petition and asked him to represent them.
In re-direct Mr. Yantha stated Council did not authorize the letter by Mr. Kelly, and that there was no vote on the letter (Exhibit #16).
Mr. Kelly's letter Exhibit #16, talks only about money and cost, but does not address the noise issue.
Mary Golka lives at 62 Dunn Street. Ms Golka stated she bought her house in 1988 and that since the death of her husband she lives at this address approximately fifty per cent of the time, and fifty per cent of the time in Guelph, Ontario.
Ms Golka stated she objected to the removal of conditions in 2004 and objects to the removal of them now as nothing has changed in relation to the establishment.
Ms Golka stated she has had continual problems related to the Dunn Street Service station. Vehicles have hit her fence and damaged it. She spoke to the owner about the matter and asked him to put concrete curbs to stop the damage but he has done nothing so far.
The owner of the establishment has even ploughed snow from in front of his place and piled it up in front of her residence as shown in photo Exhibit #7D. When Ms Golka talked to him about it he said the snow he ploughed was on municipal property. Ms Golka stated it poses a safety issue in an emergency situation.
Ms Golka stated patrons of the establishment throw beer bottles onto her property. She also stated that piles of cigarette butts are dumped onto her property as shown in the photos (Exhibit #7C and #7E). She also stated that broken glass has been dumped onto her property (Exhibit #7H). When Ms. Golka approached the owner he verbally abused her, which caused her to cease talking to him about these issues.
Ms Golka stated she has personally seen patrons of the establishment urinating outside the building as recently as noon hour the day before the hearing. She noted she has seen this on three occasions. She also stated she has been bothered by the noise of patrons fighting in the parking lot area.
Ms Golka stated she has heard music emanating from the establishment while she was inside her home.
Ms Golka stated that she is concerned that removal of the conditions will have a negative impact on her property and noted that if it gets much worse she will be forced to sell.
On cross-examination she reiterated that Mr. Olmstead did not repair the fence when it was broken. She stated one of the patrons who broke it, fixed it. The owner never fixed it on any other occasion when it was broken.
She also stated again that he piled the snow up in front of her property and she had observed him doing it.
Andrea Stelmach lives at 56 Oak Street, which is behind the establishment. The corner of her property adjoins the corner of Dunn Street Service stations property. Ms Stelmach is a lawyer and was born in Barry's Bay.
Ms Stelmach stated that her biggest concern is noise emanating from the establishment. She noted that her family is an outdoor family and enjoys their backyard.
Ms Stelmach has heard noise of a television and a boom box from inside the establishment on occasion and a lot of foul language used by patrons of the establishment while in the parking lot. She noted the problem with noise in the summer is exacerbated by the garage door of the establishment being open.
Ms Stelmach noted that prior to the establishment being a pool hall, it was a garage. They had no problems when it was a garage.
In 2002 the establishment had a factory horn that went off at regular intervals. Ms Stelmach spoke with Mr. Olmstead about it but he was not very responsive and the horn continued for a few months.
When Mr. Olmstead applied in 2004 to have the conditions removed, Ms Stelmach spoke to a number of people about activities at the establishment and had a petition going. She stated she went to Mr. Olmstead and told him that she was objecting, noting that her conversation with Mr. Olmstead as a civil one. She told him she did not want to see an increase in noise in the area.
Ms Stelmach stated that she gets "the finger" and other obscene gestures and a hostile reaction from patrons at the establishment when she drives by it.
Ms Stelmach entered into evidence photographs of Dunn Street, Exhibit #38A through 38H. Photos A through D are of the West side of Dunn Street and E through H are of the East side of Dunn Street.
Ms Stelmach tendered Exhibit #39 which consisted of notes of interview she had with people who live in the area of Dunn Street. She went through the list and pointed out to the Board the comments of the people interviewed. Most of the people interviewed were opposed to the removal of conditions, and some were reluctant to sign a petition. A couple were in support.
During her testimony, Mr. Stelmach reviewed the list of people on the petition and identified those who still oppose the removal of conditions, whose names appeared on exhibit number 35 and number 39.
Ms Stelmach noted the physical appearance of the Dunn Street Service station is run down. She also noted that patrons come out of the establishment and walk to the south corner of the building and urinate against the wall. She also noted that in January 2007 she saw six to eight people standing in front of and next to the gas pumps smoking.
Ms Stelmach tendered a number of photographs of other establishments in Barry's Bay. They were entered into evidence as Exhibits #40 through #45. She noted that six establishments were not in a residential area.
Ms Stelmach stated the municipal process that dealt with the removal of conditions on the establishment was done without the objectors being present. She stated she had no idea there was an Economic Development Committee meeting dealing with the issue.
Ms Stelmach stated she spoke to some Councillors about the issue and was advised by Counsellor Conway that he would oppose. However he voted in favour of removal of the conditions. She also spoke to Ms. Bonnie Mask who said that she would be abstaining from the vote and stated she had been harassed by Mr. Olmstead regarding her opposing position on Council. Ms Stelmach stated she was not aware of the August 2007 Council meeting where the matter was dealt with and she was not invited to the meeting.
During cross-examination, Ms Stelmach stated that she did not know if the letters of objection were circulated to Councillors.
Ms Stelmach saw an article in the newspaper about the removal of conditions and that is when she started to look into the matter.
Ms Stelmach was asked if in 2004 the issue was about a patio. She replied it was not about a patio. It was about the proximity of the establishment to residences. She also stated the interests of Dunn Street Service Station should not override the well-being of the neighbourhood and its residents. She also stated that Dunn Street Service Station is in a residential area. If it was not, she would not oppose. She said she does not want to observe public urination.
Ms Stelmach acknowledged that Dunn Street is a busy major road.
When asked why she did not object to the original application in 2000 Ms Stelmach said that she did not know about the original application as she was away for a year between 2000 and 2001. She stated that when she came back in 2001 she was dismayed to see that there was a bar where the garage had been.
Ms Stelmach stated she has concerns for her safety. People have told her to watch her back. She stated that Mr. Olmstead is not a very nice person.
Ms Stelmach stated that if there is live or recorded music it will be heard outside the establishment and more people will be in the area because of the bar.
Ms Stelmach also noted the recent noise By-law does not protect residents. It only prohibits unusual and unnecessary noise from 1:00 a.m. to 6:00 a.m.
Applicant's Submissions
Mr. Howe noted that a liquor licence with conditions was granted to the Applicant in 2000. He also notes that the Applicant submitted to the AGCO an application for removal of the conditions on his liquor licence on September 17, 2007. The application was for the removal of conditions number two and three but not condition number one.
Mr. Howe then noted the process that led to the hearing of this matter before the Board. Mr. Howe pointed out that the Applicant previously applied to have all three conditions removed from his licence in 2004 and that request was denied by the Board in a decision dated August 4, 2005.
Mr. Howe noted that at the time of the issuance of the licence in the year 2000, there is no record of the circumstance prevailing at the time.
He also noted that the decision of the Board in 2005 was correct based on the evidence presented at the time.
It is his contention that this hearing revolves around whether, during the three and a half years since the previous hearing, there has been a change in circumstances such that it would not be contrary to the public interest to remove two of the three conditions attached to the Applicant's licence.
Mr. Howe stated a witness for the Applicant, Mr. Hans Wetzel, a licensed real estate broker familiar with the planning, zoning controls and regulations in effect in the Township and the County of Renfrew, had put forward a motion at the Township of Madawaska Valley Economic Development Committee, recommending that the Council of the municipality not object to the removal of the conditions in question on the liquor licence of Dunn Street Service Station.
Mr. Howe also noted Mr. Wetzel stated the municipality's zoning by-law had come into effect in 2006, after the date of the last hearing. He also noted the By-law designates the licensed premises as commercial, one of the permitted uses being a place of entertainment. This covers the activities at the licensed premises, existing and proposed.
Mr. Howe noted representations from the Renfrew County ATV Club, regarding the potential for ATV tourism in the municipality which has been enhanced by the enactment of By-law 2005-12 in March, 2007. It permits the operation of off-road vehicles on all highways under its jurisdiction.
Mr. Howe noted that the Applicant in his evidence identified ATV tourists as a group to which the licensed premises could better cater to if the conditions were removed.
Mr. Howe also noted that Ms Stelmach acknowledged that all-terrain vehicles are now being operated on the streets in Barry's Bay and that she had an encounter on Kitts Street near the licensed premises with the operator of an ATV who, in her opinion, was making excessive noise at a fairly early hour in the morning.
Mr. Howe stated that Mr. Wetzel in his testimony talked about the Haliburton Exchange, a delegation of people from Haliburton who visited Barry's Bay and completed a First Impressions Community Exchange report based on their visit to Barry's Bay in August, 2007.
The report noted that Barry's Bay was missing stores or services that one would expect to find, in particular entertainment and fine dining. It also pointed out there was no vibrant nightlife. The report notes that individuals in Barry's Bay were positive about life in the community but added there is not a lot to do at night. The report also notes a lack of entertainment choices, particularly in the evening.
Mr. Howe also noted Mr. Wetzel pointed out there have been a number of recent closures of business that had offered food and beverages in the evening. Mr. Wetzel also noted evidence of potential for growth in the entertainment sector based on increasing real estate prices.
Mr. Howe stated the community development officer noted in his letter to the AGCO that there has been an exponential growth in cottagers, kayakers/canoeists, ATV enthusiasts, campers and more during the summer months. He also notes in the letter there are few choices for the increasing snowmobile and ice fishing traffic. There are no outlets offering evening entertainment in Barry's Bay.
Mr. Kelly also noted in his letter that Madawaska Valley has become renowned for motorcycle enthusiasts looking for a drive through winding roads and scenic views.
Mr. Howe stated it is the intention of the applicant to shift the emphasis in the licensed premises away from billiards, reducing the number of tables, enhancing the food service and offering live entertainment. He noted there are no licensed premises in Barry's Bay that offer such a format.
Mr. Howe noted the Council of the Municipality of Madawaska Valley considered the report of its Economic Development Committee and on November 5, 2007 voted to adopt the Committee's report. He noted three councillors were in favour, Councillor Yantha opposed, and Councillor Bonnie Mask did not vote. Mr. Howe stated that having voted to adopt the Committee's report, Council is now on record as supporting the removal of the conditions.
Mr. Howe referred to the fact that neither Ms Stelmach nor any other objector was given notice of the Council or the Economic Development Committee meetings. Mr. Howe explained that even though they were not present their views were known. He also pointed out that Mr. Olmstead and his supporters were present at the meetings.
Mr. Howe suggested the Board should conclude that Council weighed the objections of certain residents in the immediate area of the Licensed Premises against the interest of the community generally and concluded it was in the public interest that the conditions be removed.
Mr. Howe also noted in a letter from the Detachment Commander of the OPP that there were no occurrences since the last hearing, except for a report of the encounter between Councillor Yantha and the Licensee, which he noted, did not happen on the licensed premises. He also noted there were no liquor infractions.
Mr. Howe stated that community members who attended the hearing found that the owner of the premises treated it as a no-nonsense establishment.
Mr. Howe stated that some people had noticed public urination outside the establishment, but there is no evidence that the Applicant was aware of this.
Mr. Howe felt that the contention that the premises are located in a residential neighbourhood requires some scrutiny. He noted that there are a number of businesses on that street. Admittedly, some of them are home based businesses.
There is now, Mr. Howe notes, a noise by-law in the municipality and a By-law enforcement officer has been hired. The By-law, Exhibit #23, provides that no person shall make any unusual noise or noise likely to disturb the inhabitants of the Township of Madawaska Valley.
Mr. Howe disputed the fact that the By-law is only effective between the hours of 1:00 a.m. and 6:00 a.m. drawing attention to section 5.2 and 5.4 (exemptions) of the by law, which refer to work being undertaken by the Municipality and events such as concerts or special events approved by the Township.
Mr. Howe noted the Applicant's licensed premises will be subject to the Noise By-law, which will afford a measure of protection for those persons residing in the immediate vicinity of the licensed premises.
Mr. Howe noted those objecting to the removal of conditions are concerned about noise. In addition, he notes there have been incidents of urination by patrons of the establishment along the side of the establishment in full public view. While they are unfortunate, he does not believe the incidents are relevant to the removal of the conditions that the Applicant is seeking.
Mr. Howe noted Ms Golka and Ms Stelmach both opposed the removal of conditions on the Applicant's licence in 2004 and again at this hearing. In his opinion it is reasonable to infer that there is nothing in the way of concessions that the Applicant could offer that would satisfy either of these witnesses.
Mr. Howe also noted the Applicant had a confrontation with Mr. Yantha, a municipal Councillor, and the Applicant apologized. He also acknowledged the Applicant had a verbal exchange with Mr. McKenzie regarding the death of two students of the Academy where Mr. McKenzie works, and that Mr. McKenzie was understandably upset over the exchange.
Mr. Howe stated the Applicant may not be the most refined of individuals and unfortunately made inappropriate approaches and/or remarks to both Councillor Yantha and Mr. McKenzie. He feels, however, that the Applicant's personality may be well suited to his maintaining order and enforcing all applicable rules, regulations and conditions in the operation of the licensed premises.
Mr. Howe described the premises as non-conventional, easily recognizable as a service station, and one that still features operating gas pumps in front. "The people door" as he calls it, is a large overhead garage door which accounts for one-half of the area of the front wall and which is left open until the flies and mosquitoes emerge at dusk. The premises are not air-conditioned.
Mr. Howe noted that the removal of a condition on a licence is discretionary as set out in subsection 14(2) of the Liquor Licence Act (LLA), which states, it may remove a condition of a licence if there is a change in circumstances.
Mr. Howe has referred to a number of previous Board decisions in his summations which he maintained are applicable to this matter.
Objector's and Registrar's Submissions
Mr. Morris gave submissions on behalf of the Registrar and the Objectors.
Mr. Morris noted that in 2000 the Licensee consented to three conditions in order to obtain a liquor licence on an expedited basis without having to go through a hearing and face public opposition. He agreed to restrict the type of liquor he could sell, the type of entertainment he could provide and the hours that he could sell liquor.
Mr. Morris stated the Applicant now wishes for a third time to remove two of the conditions despite opposition from many of his closest neighbours whom Mr. Morris noted the Applicant did not attempt to accommodate and who in fact made efforts to intimidate or estrange. He also noted the same neighbours have to look at a run-down converted garage.
It is Mr. Morris' opinion that there has been no real change in circumstances. The general changes in the community referred to in the Licensee's submissions are by and large irrelevant to understanding the impact of his operations has on his neighbours.
The change in Council's position on the issue, Mr. Morris noted, was based on input from only one side and should therefore be discounted as representing the wishes of the community as a whole. The numbers of objectors seriously affected and seriously concerned by the proposed changes remain significant, and the public interest in preserving quiet and order in this residential neighbourhood militates against the removal of the conditions.
Mr. Morris refers to Dr. Chapeski's testimony, which gave background as to why the zoning by-law was enacted, and that was to accommodate the former garage situated on this site. It was hoped that the zoning would eventually revert to residential and there was no discussion of it becoming a licensed restaurant or bar.
Mr. Morris also noted the garage operations did not have an impact on the neighbours as it closed at 5 p.m. or 6 p.m. during the week and was closed on Sunday.
Mr. Morris also noted Mr. Olmstead bought the garage but because he was not a licensed mechanic it was not economically feasible. He then decided to run it as a billiard hall and coffee bar without a liquor licence and also sell gas. When that did not work he decided to run it with a liquor licence.
Mr. Olmstead admitted during testimony that he chose to take the liquor licence with the three conditions in order to receive the licence quickly rather than fight for a clear licence at the time. He then immediately applied to change the condition. The Deputy Registrar at the time said there was no justification (Board Decision Exhibit #8, p.4).
In 2004 Mr. Olmstead re-applied for the removal of the conditions. Ms Stelmach at that time organized the objectors, as was her right.
On cross-examination when Mr. Olmstead asked by Ms Stelmach how he would keep the sound of music down when the building was not sound-proofed and had open doors and windows to allow for ventilation, he did not reply. (Exhibit #8, p. 4-5)
In 2004 Mr. Olmstead intimidated Ms Golka, swore at her, levied verbal abuse, pushed snow from his car park onto her driveway. His customers damaged her fence, and had run-ins with Ms Stelmach (Exhibit #8, p.5).
The Board at that time dismissed the application to remove the conditions of the licence because of the impact on the residents and the attitude of Mr. Olmstead, which caused concern as to how he would operate if the conditions were removed.
It is Mr. Morris' opinion that nothing has changed and, if it has changed, it has changed for the worse. Ms Golka is the next-door neighbour. Mr. Morris noted her opposition to the removal of the conditions and she testified that her fence is still being damaged. Snow is still being ploughed in front of her house and beer bottles are still being dumped over the fence onto her property. He also noted that since the last hearing mounds of cigarette butts are being dumped onto her property even up to the day before this hearing.
Ms Golka testified that she has seen patrons urinating outside the premises three times in eight months. In addition, she has heard music while inside her house, music emanating from the establishment.
Ms Stelmach, who lives 'kitty corner' to the bar, sleeps with her windows open and hears a lot of foul language as people drink and play pool. She was fair in her testimony and stated she did not hear the radio from her property. The garage is a non air-conditioned block structure and when the door is open the noise of the pool hall radiates from it. Ms Stelmach's concerns are that the addition of music and live entertainment and the extension of hours would make the noise and traffic at all hours of the day, and especially at night, unbearable.
Mr. Olmstead responded to Ms Stelmach and the Board's invitation to him in 2004 to accommodate his neighbours by intimidating her, and being hostile and staring at her. He gives her the finger, shifts his pants and pulls up his zipper. This is not a lack of refinement, Mr. Morris stated, as the Licensee would suggest, this is abusive.
Ms Stelmach, Ms Golka and Ms Andrechek all testified that they had seen patrons urinating outside the establishment.
Mr. Young who lives across the street from the establishment said the establishment is open all summer except during black fly season and he is afraid that the combination of music and later hours will compromise the lifestyle of his young family.
When Mr. Olmstead spoke to Mr. Mackenzie he told Mr. Mackenzie that if he spent more time building relations with the students than trying to put him out of business, the drowned students would be alive today.
There is the encounter between Councillor Yantha, who is the only Councillor living in Barry's Bay. Mr. Olmstead approached the Councillor and cursed, swore and shouted at him. This is indicative of the Applicant's attitude. Mr. Olmstead would not let Mr. Yantha close his truck door and leave.
Three days after that incident Mr. Olmstead circled around Mr. Yantha in a parking lot. Mr. Olmstead never approached him to apologize. Mr. Morris further noted that only when he was looking for Council's support did Mr. Olmstead attempt to apologize.
Councillor Yantha testified he received a lot of calls from people opposing the application and people said they were afraid to sign the petition.
Mr. Morris noted that two of the three witnesses for the Licensee do not live in Barry's Bay. One witness, Carol August, does live in the vicinity of the bar on Casey Street. She and her son are patrons. She vouches for the operational skill of the owner but also admits her son has had one too many drinks there on two or three occasions.
In referring to Council's change in position, Mr. Morris noted that Mr. Hans Wetzel, who sits on the Economic Development Committee, and who supports the licence lives out of town. He also noted that Mr. Wetzel is not a member of Municipal Council.
Mr. Morris noted that those in opposition were not invited to either the Economic Development Committee meeting or the two Municipal Council meetings on the matter. He notes that the Ms Stelmach had written three letters to Council about her concerns yet was not invited.
Mr. Morris noted that at the Economic Development meeting Councillor Mask declared a conflict of interest because Mr. Olmstead threatened her job by calling her manager at the LCBO.
Mr. Morris noted the Municipal Council held a special meeting on August 7, 2007, to deal with Mr. Olmstead's concern that Council had referred objection letter to the AGCO. At the meeting were Mr. Olmstead, Ms Kinghorn and a neighbour, Ms Roslyn, who supported him and his legal counsel. Mr. Morris noted that Ms Kinghorn suggested the letters of objection to the application were slanderous against Mr. Olmstead (Exhibit #17, p.1). None of the objectors were invited nor were they present at the meeting.
Mr. Morris noted that despite the unfairness of the process, Councillor Maika suggested, as the Board had in 2004, that Mr. Olmstead made amends or concessions with adjacent property owners who previously opposed the application. Mr. Olmstead never followed up on this suggestion.
Mr. Morris noted that Mr. Wetzel was unable to explain why Silas Lobestskie, the Town planner, never presented a report to the Committee or to Council on the matter. Nor did Mr. Lobestskie testify. Instead, Mr. Morris noted the Licensee substituted the evidence of Mr. Wetzel who, Mr. Morris opines, has no expertise beyond that of a real estate broker and appraiser, to comment on the broad range of planning matters.
Mr. Morris noted that Council at the meeting of November 5, 2007 adopted the Economic Development Committee's recommendations. He noted further that Councillor Mask absented herself and that Ms Stelmach was not invited to make deputations.
Mr. Morris stated that the letter of Craig Kelly, the Community Development Officer (Exhibit #16), postdates Council's decision. In any event, he states Mr. Kelly's focus is clearly limited to working with local investors to expand and/or retain the commercial base in the region - a laudable objective, he notes - but not a balanced one when assessing the public interest in this application.
Mr. Morris noted that the noise by-law has no standards, could only be enforced by a lengthy prosecution process, and its enforceability would depend on how quickly the by-law officer could respond to complaints made late at night.
Mr. Morris suggests Ms Stelmach puts the position best when she stated that the Economic Development Committee and Council forgot this is where people live. Dunn Street residents cannot afford to live by the lake. She also stated that economic development is important for the area but should not take precedence over the people living in the area.
Applicant's Reply
Mr. Howe noted that Mr. Morris referred to the Board Decision dated August 4, 2005 denying the Applicant's previous request to remove the conditions (Exhibit #8). It must be assumed that the decision of the Board at that time was correct, based on the circumstances that existed then. He submitted, however, that the Decision speaks for itself, and that this Board is not assisted by the interpretation of that decision by Registrar's Counsel.
With regards to the evidence of Ms Golka regarding fights, Mr. Howe notes that these fights occurred prior to 2004. He also stated that Exhibits #7a, b, and c were photographs taken for the purpose of the 2004 hearing.
With respect to the incidents of public urination outside the establishment, Mr. Howe opines, that one cannot be certain that the individuals were patrons of the licensed premises. He further stated there is no evidence the Applicant encouraged or condoned such occurrences and further that this behaviour is no more likely to occur, or happen more often, if the conditions are removed.
Mr. Howe stated that the Applicant's licence currently does not restrict the hours of service of alcoholic beverages during the months of May-October, when Ms Stelmach's windows would likely be open.
Mr. Howe noted that the Applicant did try to contact all of those persons who in 2004 signed a petition opposing the removal of the conditions. However he stated the Applicant did not contact Ms Stelmach or Ms Golka, because from his evidence it is apparent that both of these witnesses object in principle to the existence of the licensed premises at this location.
Decision
The Board has carefully evaluated the evidence presented at this hearing. The Board notes that the Applicant applied for and was granted a liquor licence in 2000 with three conditions attached to it. By the Applicant's own admission, he agreed to the three conditions in order to expedite the granting of the licence and to avoid having to go through a public hearing.
Once the licence was granted he immediately applied to have the conditions removed, but the Deputy Registrar denied it at the time. In 2004 he again applied to have the conditions removed and was again denied after a hearing before a Board of the AGCO in 2005. Also, in 2004 the Municipal Council objected to the removal of the conditions on the liquor licence of the Applicant.
The evidence of the Applicant included testimony of a Mr. Han Wetzel, a real estate agent, who sits on the Economic Development Committee for the Municipality of Madawaska. Mr. Wetzel, who supports the removal of the conditions, put forward a motion at the committee recommending "that Council approve the removal of prior objections with the AGCO regarding the removal of existing licence conditions #2 and #3 for Dunn Street Service Station" (Exhibit #18, p.6).
Mr. Wetzel, the Board notes, made this motion without any study or consultation with the residents in the neighbourhood of Dunn Street Service Station. There was no input from any objectors at this meeting. Mr. Wetzel is in real estate and has very limited expertise that would allow him to assess the impact of live entertainment and music, including the impact it has on neighbouring residents late at night.
The Board also heard from Mr. Wetzel regarding a report by the Haliburton Exchange group who found a lack of fine dining and evening entertainment in the Town of Barry's Bay. The report also noted there were other services missing that one might expect to find in the Town, but overall satisfaction with the community was high (Exhibit #15).
The assertion of the Licensee is that there have been significant changes in circumstances that would justify the removal of the conditions to his liquor licence, one of the changes being the removal by Municipal Council of their objection to the removal of conditions on the liquor licence.
The Board notes that the Council voted to support the recommendation of the Economic Development Committee. However, the Board also notes that Council had two meeting to deal with this matter, a special meeting in August 2007, which was attended by the Licensee, his legal counsel and supporters but not by any of the objectors, including Ms Stelmach. The Board notes that Ms Stelmach, who had written three letters to the Council on this matter, was not invited to the meeting.
The Board also notes at the August meeting Council was advised by the legal counsel of the Licensee, Ms Kinghorn, that the letters of objection could be considered slanderous. These same letters were received by the Board and the Board did not find them to be so.
The Board is also concerned that one of the Councillors, Bonnie Mask, had to absent herself from the Council and Economic Committee vote because Mr. Olmstead went to her employer complaining about her Council position. Ms Mask was advised by her employer to abstain from voting.
Mr. Yantha is the other Councillor who opposed this application and is the only Councillor who lives in the Town of Barry's Bay. The Board believes he best understands the resident concerns as he lives in the town. Mr. Yantha was approached by the Licensee and was shouted, cursed and sworn at. The Licensee also physically intimidated him by blocking him from closing his truck door. He also harassed the Councillor on another occasion.
While the Licensee did apologize for his actions, he did not do so until he was at a Council meeting where the removal of their objection to the conditions on his liquor licence was being considered.
The Board also heard evidence that the Applicant harassed and intimidated both Ms Golka and Ms Stelmach prior to this hearing and the hearing that was held in 2004 (Exhibit #8).
Both the previous Board and a member of Municipal Council recommended that the Licensee seek out the objectors and try and reconcile any differences they might have. The Licensee, while phoning a number of people on the petition of objection, made no attempt to contact either of the objectors who live closest to his establishment. In fact, the Licensee intimidated both of the objectors.
Evidence shows that large quantities of cigarette butts have been thrown on the property of Ms Golka as recently as the day before the hearing. The Licensee even admitted to ploughing snow from his establishment and piling up on the road in front of Ms Golka's residence. He has continued to make rude gestures to Ms Stelmach when she passes by or he sees her.
The Board heard that the Legion is located near residences in another part of the town. It is noted that residences do not surround it as they do the applicant's establishment.
Another change that has occurred is the introduction of a noise By-law. The Board concludes that it has limited bearing on this application.
The Licensee, the Board notes, has done nothing to improve his establishment since the last hearing in 2004. Photographs presented at the hearing shows the premises, which appears to be run down. There is no soundproofing and no air-conditioning.
The Applicant did put forward a plan of sorts but it only talked about increasing the type of food being offered and removing a billiard table. The plan did not address the issues that would impact the community, such as soundproofing, air-conditioning and noise emanating from the establishment.
The premises are, in fact, a garage with a large overhead door left open during warm weather, allowing sound to escape into the neighbourhood.
The Board notes that the Board in its Decision of August 2005, made mention that the Licensee treated badly any person who did not agree with his business. This appears to have not changed. In fact, it appears to have escalated.
The Board finds the testimony of the objectors credible and consistent and agrees that the removal of the conditions on the Applicant's liquor licence would have an adverse effect on the neighbourhood.
This Board also concludes that Mr. Olmstead has not given consideration to the wishes and concerns of his neighbours and the residents.
The Licensee has not shown that there is any significant change of circumstances that would warrant the Board to remove the conditions of his liquor licence that were agreed to by him on October 31, 2000.
Conclusion
- The Board therefore DENIES the application by Jeffery Brian Olmstead operating as DUNN STREET SERVICE STATION, 56 Dunn Street, Barry's Bay, Ontario, K0J 1B0, licence number 808589.
DATED AT TORONTO THIS 8th DAY OF SEPTEMBER, 2008
ALLAN HIGDON, BOARD MEMBER BRIAN J. FORD, BOARD MEMBER
BJF/sm