Registrar, Alcohol and Gaming Commission of Ontario v. 2157600 Ontario Ltd., 2008 CanLII 52560

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-

2157600 Ontario Ltd. intending to o/a Grill 69

Applicant

-and-

Gracia Janes

Resident Objector

DECISION

Panel: David C. Gavsie, Chair Brian J. Ford, Board Member

Decision Date: August 27, 2008

Hearing Location: St. Catharines, 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 ) Brad Alton, Representative , Applicant 2157600 Ontario Ltd., Applicant ) Sara J. Premi, Representative Gracia Janes ) on her own behalf and ) on behalf of the Objectors

The Application

1. The Registrar of the Alcohol and Gaming Commission of Ontario (AGCO) issued Notice of Proposal number 16274 dated May 21, 2008 to review an application for a liquor licence from 2157600 Ontario Ltd. (the “Applicant”), intending to operate as GRILL 69, 233 King Street, Niagara-on-the-Lake, Ontario, L0S 1J0 (the “Premises”), establishment number 813176. A hearing of the Application was held on July 9, 2008 in the City of St. Catharines.

Decision

2. After considering all the evidence and submissions the Board APPROVES the Application. Reasons for these findings follow.

Preliminary Matters

3. Registrar’s counsel tendered (Exhibit #1), an e-mail of objection authored by Ms. Janes, and a letter from the zoning clerk of the town of Niagara-on-the-Lake (the “Town”) as Exhibit #2.

4. Counsel for the applicant tendered (Exhibit #3), and Ms. Janes tendered a hand-drawn sketch of the area as (Exhibit #4).

5. Ms. Gracia Janes is a resident of the municipality and objects to the Application for licence. She appeared before the Board on her own behalf. On consent of all parties, the Board ORDERED Ms. Garcia be made party to the proceedings.

Objectors’ Evidence

6. Ms. Gracia Janes stated that she has lived at the corner of Johnson and King Streets for twenty-four years. Ms. Janes described the area where she lives, referring to a hand drawn sketch (Exhibit #4) of the area bounded by Simcoe, Queen/Picton, Wellington and Johnson/Platoff. The sketch also showed a number of licensed establishments, with special attention paid to those with patios.

7. She then noted the location of the Premises and that of the Irish Harp Pub, which is across the street from her residence, on the corner of Johnson and King Streets.

8. Ms. Janes stated that the traffic is heavy and at times there is little parking for patrons of the nearby establishments. She also felt that due to the number of establishments serving liquor in the area, there was a real problem related to drinking which causes a problem for the neighbourhood.

9. Ms. Janes stated that she had no problem with the serving of liquor inside the restaurant but that she objected to the patio and particularly to the service of alcohol on the patio. She also stated that she had no problem with the owner of the establishment.

10. Ms. Janes also stated that parking is a real problem. There is not enough parking for the establishments in the area and they continually have a problem with people parking in front of their laneway.

11. Ms. Janes said that she was concerned about the amount of noise that would be generated from an outdoor patio with liquor being served.

12. Ms. Janes has had problems with the Irish Harp Pub that is located on the corner of King and Johnson across from her residence. The primary problem has been with noise when the doors of the pub are left open at night.

13. On cross-examination, Ms. Janes admitted that even without a liquor licence there could still be a patio in front of the Premises. She said alcohol would have a negative impact.

14. Ms. Janes also admitted that the area is zoned commercial and that restaurants with patios are allowed. She further stated her problems have been with the Irish Harp Pub but that she and her neighbours did not want any other problems.

15. Ms. Janes reiterated that she was not opposed to the liquor licence inside the restaurant but was opposed to service of alcohol on the patio.

16. In response to a question from the Board, Ms. Janes stated that she was not opposed patios in general but just to one at this particular location because of noise.

17. Joseph Robert Janes is the husband of Ms. Gracia Janes and he tendered a letter of objection from Ms. Lorraine MacMillan dated July 8, 2008 (Exhibit #5). In her letter, Ms. MacMillan stated she has lived peacefully in the area for fifteen years until the Irish Harp Pub opened. Since it opened she has had problems with noise from the pub. They leave the doors open when they have live music at least four nights a week, until as late as midnight an sometimes later.

18. It was Mr. Janes’ opinion that the space at the front of the Premises was too small for a patio. He added that a former town planner said that a restaurant was not an appropriate use of the Premises.

19. Mr. Janes was concerned about the parking on the street and noted that there was not enough parking for the number of establishments in the area. He also stated that there had been a number of accidents at the corner of King and Johnson because of the traffic volume.

20. Mr. Janes noted that there is a school within a block east of the corner of Johnson and King and teachers take children around the area to see the town. He believed it is not right for children to see drinking on a patio of the Premises as applied for.

21. Mr. Janes also objected to people parking trucks to make delivery of alcohol and food to establishments on King Street near Johnson.

22. Mr. Janes noted that the establishment was formerly a wine tasting place. That was okay and appropriate and he did not have a problem with it.

23. Mr. Janes is concerned because he believes that the Town of Niagara-on-the-Lake has no policing after 6:00 p.m. to enforce by-laws.

24. On cross-examination, Mr. Janes admitted that the matter of parking in the area had been dealt with at an Ontario Municipal Board (OMB) hearing. Parking, he noted, is a problem regarding the Irish Harp Pub.

Applicant’s Evidence

25. Mr. John Perry was qualified as a professional land use planner expert witness. His C.V. was referred to in Exhibit 6, tab 5.

26. Mr. Perry stated that he was the town planner for the Town of Niagara-on-the-Lake from 1991 until 2002. He was responsible for all types of planning including the Official Plan, zoning changes and anything to do with the Planning Act.

27. Mr. Perry retired in 2002 and since 2003 has done consulting on a part-time basis. He noted that he has appeared before the OMB and a number other tribunals as an expert witness.

28. Mr. Perry noted that there was a minor variance to allow parking for restaurants and retail stores (Exhibit 3, tab 14). He also pointed out that all the properties on the east side of King Street between Queen and Johnson are commercial properties. On the west side there is a mix of commercial and residential properties.

29. Mr. Perry reffered to parking areas in the aerial photo (Exhibit 3, tab 14) on both sides of King Street and the access points of the parking areas. He also noted that there are a number of parking spaces for Grill 69 behind the establishment that has access from Johnson Street.

30. Mr. Perry noted that on the east side of King Street at Queen, the Prince of Wales Hotel has a patio along the outside edge. The patio extends from in front of the hotel on Picton Street down the side on King Street.

31. Queen Street/Picton Street and King Street is the focus of the commercial area for Niagara-on-the-Lake. The area is primarily a commercial area for service for tourists, consisting of restaurants, hotels, and gift shops. The area south of Johnson Street was primarily residential.

32. There was an issue of parking for the Premises. The issue was dealt with through a minor variance. The Town planning staff supported the application for the minor variance to the Committee of Adjustment. The Committee of Adjustment denied the variance. However, the OMB allowed the minor variance, which allowed restaurants to have a reduced parking requirement.

33. Prior to 1991 there was no by-law concerning patios and in 1992 the Town passed a by-law as an amendment to its zoning by law that dealt specifically with patios (Exhibit 3 tab 8a and 8b). Mr. Perry stated that the proposed patio of the Applicant conforms to the by-law. He also noted that patios are allowed to operate only between the hours of 8:00 a.m. and 11:00 p.m. and from March 1 until October 31 each year.

34. Mr. Perry also noted that the lighting of the proposed patio is deflected away from the residential area and the patio is located entirely on private property. The by-law dealing with patios prohibits the use of outdoor public address systems or music on the outdoor patio.

35. The Irish Harp Pub is a noisy bar. He noted that they have no parking. However, Mr. Perry stated that the Town has been proactive in recognizing the lack of parking in the area and has established specific parking areas for businesses in the area.

36. Mr. Perry noted that there is a traditional problem with deliveries in the commercial area and delivery vehicles are allowed to park in the centre of the road on Queen Street. Most deliveries are made in the early morning when traffic is at a minimum.

37. On cross-examination, Mr. Perry pointed out for the Board that the Applicant intends on running the establishment as a high end restaurant. He noted the proposal of the establishment is for an allowance of 106 patrons inside and 46 outside.

38. Mr. Perry noted there is plenty of room for deliveries at the back of 233 King Street if the deliveries are made early in the morning.

Mr. Perry noted that the back of 245 King Street has three parking spaces after than they have to park on the street. 245 King Street is the Irish Harp Pub.

39. Mr. Perry reiterated that the parking for the Applicant is sufficient under the by-law’s parking requirements.

40. Barbara Wiens is the principal planner for the Town of Niagara-on-the-Lake. She succeeded John Perry. Ms. Wiens advised the Board that the Town had no objection to the Application. She also stated that the both the restaurant and patio are permitted uses and that the area is properly zoned for the activities applied for. Ms. Wiens noted that other patios in the area are all licensed.

41. Ms. Wiens stated that she was aware of the noise complaints regarding the Irish Harp pub and that a letter had been written to the Irish Harp by the by-law enforcement section of the Town.

42. Giorgina Angelakopoulos is the Applicant and she tendered two letters of support (Exhibits #7 and #8).

43. Ms. Angelakopoulos stated that she lives in a town approximately five minutes away from the establishment.

44. Ms. Angelakopoulos stated that she was born into the restaurant business and food industry. Her family has been involved for all of her life.

45. Ms. Angelakopoulos delineated for the Board the photographs at Exhibit #3, tab 14:

46. Irish Harp Pub;

47. the clothing store;

48. back of Irish Harp Pub;

49. also back of Irish Harp Pub;

50. back of Irish Harp Pub;

51. & 7. parking for Irish Harp Pub; 8 & 9 parking again;

52. back of establishment;

53. vacant area above the establishment which will be converted to apartments;

54. 13. and 14. parking for the establishment at the rear of premises.

55. The Applicant then went through a number of photographs showing the establishments and rental units on King Street. She pointed out the Janes’ home.

56. Ms. Angelakopoulos then showed a number of photographs of other patios in the area. They were all open including the front door of the establishments was also open.

57. Ms. Angelakopoulos then showed the Board photographs (Exhibit #9a - #9h), which gave views of both the interior and exterior of the establishment. She noted that renovations were presently under way.

58. The Applicant stated that they have a professional landscaper who will be working on the outdoor patio to beautify it.

59. The Applicant stated that her establishment would be a fine dinning establishment that would feed off tourism as well as locals as clientele.

60. The Applicant then talked about Exhibit # 8, the proposed menu for the establishment, which is consistent with a high-end restaurant. The hours of operation for the restaurant will be 11:00 a.m. to 11:00 p.m. and there will be approximately fifteen staff all of which will have the Board approved server training.

61. Ms. Angelakopoulos stated that her establishment is not a bar and she does not anticipate any drunks such as sports bars.

62. Ms. Angelakopoulos stated that she has in the past managed a number of restaurants such as the Old Town Restaurant, which had a staff of thirty-two.

63. She stated that the capacity for the bar area of the establishment was originally for twenty-one. It now is licensed for ten. The capacity for the lounge area was eighty-five and is now seventy, and the capacity for the patio was originally forty-six and it is now forty-two for a total capacity of one hundred and twenty-two.

64. Ms.. Angelakopoulos noted that she had a received a letter from the AGCO with regards to the objectors and some suggestions of conditions that she might want to entertain in an effort to come to some sort of compromise.

65. One of the suggested conditions was the use of plastic cups on the patio. This was not acceptable to her as she is running a fine dinning establishment not a pub. The closure of the front door to the patio, another suggested condition, was also not acceptable as she noted that all the other establishments with patios do not close their front doors. She feels that this would put her establishment at a competitive disadvantage. She again reiterated that her establishment is a fine dinning restaurant not a pub.

66. The Applicant noted that the objectors have an issue with the Irish Harp Pub and stated that she does not have music nor will she have rowdy patrons.

67. Ms. Angelakopoulos stated that the patio also has a buffer of one and one-half foot from the sidewalk that will be filled with flowers. She also stated that most deliveries could be done at the back of the building.

68. Ms. Angelakopoulos stated that she is a responsible and respected businessperson and will abide by all the laws that apply to her business. She also noted that she has never had a problem.

69. On cross-examination she noted that the flowers on the patio would be on the railing and in the buffer area. She also stated that she wants all deliveries to come through the back door not through the front and through the eating area.

70. The Applicant stated that the by-law requires that she close the patio at 11:00 p.m. but that she will remain open inside past that time.

Objectors’ Submissions

62. Ms. Janes does not object to the issuing of a licence for the inside of the establishment but objects to the licensing of the patio. Her main concern is noise and she noted the noise that emanates from the Irish Harp Pub.

63. Ms. Janes said she disagrees with Mr. Perry and his assessment of the parking issue in the area and referred to the OMB hearing report, which she also disagrees with.

64. Ms. Janes does not believe that there is enough room for a capacity of forty-two in the area of the proposed patio.

65. Ms. Janes also noted that there is considerable traffic in the area particularly at night.

66. Ms. Janes stated that she would prefer that there be no alcohol on the patio but if it must be that it ceases to be served at 8:00 p.m.

Applicant’s Submissions

67. Sara Premi, counsel for the applicant stated that the issue is the licence for the patio, parking and noise. She noted that the proposed patio is a lawful permitted use in the area as stated by the Town planner.

68. Ms. Premi also noted that the Town of Niagara-on-the-Lake has a by-law which regulates patios.

69. Ms. Premi noted that that the area of Queen and King Street is a major commercial area and a very well know tourist area. That area extends down King Street to Johnson.

70. Ms. Premi noted that it is the intention of the Applicant to take advantage of the tourism in the area with a high-end establishment.

71. Ms. Premi also feels that there is no evidence to deny the issuance of a liquor licence for the patio.

72. Ms. Premi feels that a licence should be issued without conditions. She noted that Ms.. Janes has not met the onus as to why a licence should not be issued.

Reply

73. Ms. Janes stated that she is worried about the character of the residential area they seem to be losing it.

Decision

74. The Board has carefully evaluated the evidence before it with respect to this matter.

75. The Board notes that the primary concern of the objectors is the noise that will emanate from the establishment patio. They base their concern for noise on the record of the Irish Harp Pub, which is located across the street from the Janes’ residence. The Town by-law officials are aware of the issue of noise from the pub and have taken steps to address it.

76. The other concern of the Objectors is the issue of parking which has been a long-standing issue with the objector not only as it relates to this Applicant.

77. The Board heard from the Town Planner who stated that the establishment meets all requirements, related to their application including parking, and that the Town has no objections to this application.

78. The former Town planner and expert witness, Mr. Perry, told the Board that the Town recognized in 1991 that they needed to address the issue of patios in the Town and developed a comprehensive by-law to regulate outdoor patios.

79. Mr. Perry also informed the Board that the issue of parking for this establishment was dealt with at an OMB hearing and meets all of the requirements for parking.

80. The Board heard evidence from the Applicant that she is planning a high-end restaurant that will cater to tourist and locals. Her patio is located entirely on her property and meets all of the standards of the town’s patio by-law.

81. There is no evidence before the Board that would indicate that this Applicant would not abide by and follow all the laws governing the running of a licensed facility. This Applicant has an extensive background in the running of a high-end restaurant.

82. The Board also heard evidence that all the other establishments similar to the one proposed have out door patios with no conditions.

83. The Board also heard evidence from the Town Planner and Mr. Perry, the former town planner that the area in question is the major commercial/tourist area for the Town of Niagara-on-the-Lake.

Order

84. For the above reasons, the Board APPROVES the Application for a liquor licence made by 2157600 Ontario Ltd. intending to operate as GRILL 69, 233 King Street, Niagara-on-the-Lake, Ontario, L0S 1J0, establishment number 813176, subject to all statutory conditions and municipal regulations.

DATED AT TORONTO THIS 27th DAY OF AUGUST, 2008.

DAVID C. GAVSIE, CHAIR BRIAN J. FORD, BOARD MEMBER

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