Registrar, Alcohol and Gaming Commission of Ontario v. Brydec Consulting Corporation, 2008 CanLII 91794

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-

Brydec Consulting Corporation operating or intending to operate as Dragon’s Fire Golf Club Applicant

-and-

Amanda John and Graham John Resident Objectors

DECISION

Panel: Patricia McQuaid, Vice-Chair, Joan Lougheed, Board Member

Decision Date: June 30, 2008

Hearing Location: Hamilton, 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 ) Richard Kulis, Representative Brydec Consulting Corporation, Applicant ) Charles Montgomery, Representative Resident Objectors ) Amanda John & Graham John, on their own behalf

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued a Notice of Proposal number 16268 dated May 13, 2008 to review an application for liquor licence from Brydec Consulting Corporation, the “Applicant”, operating or intending to operate as DRAGON’S FIRE GOLF CLUB, 342 8th Concession, Lot 6, Concession 7, Flamborough, Ontario, L8N 2Z7, establishment number 813135. A hearing of the Application was held on June 13, 2008 in the City of Hamilton.

Decision

2After considering all the evidence and submissions the Board APPROVES the Application with conditions to be attached to the licence as set out below. Reasons follow.

Preliminary Matters

3Richard Kulis appeared on behalf of the Registrar. He advised the Registrar took no position on the Application.

4Mr. Montgomery advised that he was appearing as representative to the Applicant at the hearing, to provide assistance, for no fee.

5Amanda and Graham John are residents of the municipality and object to the Application for licence. They appeared before the Board on their own behalf. On consent of all parties, the Board ordered they be made parties to the proceedings. Their letter of objection, dated February 25, 2008 was filed as Exhibit 1 to the proceedings.

Resident Objectors’ Evidence

6Mrs. Amanda John presented their concerns, stating that the family property backs on to the golf course with a distance of approximately 900 feet between the house and the golf course. A corn field separates the two properties. The family chose this location, moving from the City of Burlington, to raise children in a quiet, open green space. This is their dream home; they were there first and they do not want the area to change.

7Mrs. John indicated that they do not object to the golf course, only to the service of alcohol and special events that might occur into late hours, especially on weekends. Their bedrooms are at the back of the house and would be most directly affected by the noise emanating from any functions. There is a line of trees between the properties, but she can see the golf carts from her house.

8Their concerns relate to noise in a usually quiet rural area emanating from:

a. Departing clients, closing car doors and blowing horns. b. Music, both live and DJ produced. c. Liquor and outside entertainment that could continue until 2:00 a.m. d. Smokers using the patio and talking loudly. e. Noise emanating from the building as patrons go inside and out.

9On cross-examination, Mrs. John indicated that, in terms of noises that they do hear, there is a train that can be heard in the distance as well as the drone of the Flamborough Speedway, the latter being an example of how sound travels in their environment. However, that noise ends at dusk. The noise from a licensed clubhouse would continue into the small hours of the morning.

10In response to questions from Mr. Montgomery, Mrs. John stated that she did not know the exact location of the proposed clubhouse but felt that no matter where it was, noise would be heard. She indicated that they do hear traffic from the road, a 70-80 km zone, but it is less travelled at night and their house is 200 feet from the road. She stated that the golf carts are electric and quiet therefore not a problem. Mrs John has not heard noise from the golf course in the last two weeks that it has been operating. She has not been to the golf course property.

11Mrs. John responded to questions about the noise from the gun club located not far from their property. It can be heard from a distance, but only for short periods during daytime hours and most often on Sunday mornings.

12In response to Mr. Montgomery’s questions, Mrs. John stated that the golf club is not the issue, her concern is about service of liquor until 2:00 a.m. on the patio and the noisy dispersal of guests of the golf course that could occur every night of the week. Mr. DeCunha has indicated to them that without a liquor licence a golf course cannot exist and the issue then becomes that every weekend might be filled with a wedding or other such event, with the loud music and noise late at night.

13Mr. Graham John explained that they bought the home in a quiet rural setting looking for a lifestyle that would not be impacted by “city noise”. He would never choose to live by an entertainment facility with continuous noise and “boom-boom” of music. Their setting is tranquil and he hoped it would remain so. Mr. John indicated that daytime noise was not the problem but rather, the concern relates to “night-time encroachment”.

Applicant’s Evidence

14Mr. DeCunha is the principal of the Applicant. He stated that the property was zoned for a golf course in 1998, before the John family moved to the area. The Applicant purchased the property in 2005. He profiled the site of the clubhouse, stating that the site is 200 acres, and was previously a tree farm and heavily forested. Stands of mature trees remain. More than 100 people live in the area and some are closer than the Johns. No one else has complained.

15Mr. DeCunha stated that an upscale clubhouse is planned. Their golf fees will be the highest in the region; they will cater to a corporate clientele. They will not attract rowdy parties

16Mr. DeCunha stated that there is a row of mixed trees and a corn field between the golf course property and the John home. Prevailing winds blow from the west and away from the John house. In terms of other noise that may affect the Johns, Mr. DeCunha indicated that a train track passes at, by his estimate, less than one half mile away, the gun club is nearby and they are located on a major arterial road.

17A letter was received from the AGCO encouraging Mr. DeCunha to meet with the Johns. He stopped by the house to discuss the matter and invite them to tour the property. In response to Mrs. John’s questions at that meeting, Mr. DeCunha stated that alcohol consumption is controlled by staff having Smart Serve certification and liquor laws being strictly enforced. He has experience operating a golf course before, with liquor licences. He never had a single complaint about noise though he could not guarantee that that there would be no noise at all.

18Mr. DeCunha stated that he is in a very competitive business and could not survive without a liquor licence. The season is short, as there are only five months to earn enough income for the entire year. Food and beverage sales account for about 25% of a golf course’s revenue. Tournaments, and the occasional wedding, are critical to their success. Mr. DeCunha stated that it was in the business’ best interest to control untoward behaviour.

19Exhibit #2, a map of the golf course layout was submitted by Mr. DeCunha who reviewed its details.

20Responding to questions from Mrs. John on cross examination, Mr. DeCunha clarified that there are 100 neighbours or people, not houses, in the vicinity. Five homes are on the 8th Concession. He explained that the clubhouse, for which construction has not yet commenced, will be 11000 square feet. The patio will comprise 2000 square feet. They anticipate that construction of the clubhouse will be completed by March, 2009. Presently on site is a ‘tent’, deemed to be a building, which has a capacity for 140 persons, with an outdoor area with a capacity of 64 persons. The ‘tent’ is located adjacent to the proposed clubhouse. No tournaments have been booked so far for this season.

Resident Objector’s Submissions

21Mrs. John stated that noise generated by the sale of liquor is the main issue. Without the liquor licence there would not be night-time noise. Ms. John asked if there was something that could be done as a compromise, such as no sale of liquor after 9:00 p.m.

22Mrs. John stated that although the Applicant feels a liquor licence is critical to its income she believes that golf should be the primary purpose and everything else happening on the property should be secondary. It should not be a given that a liquor licence is issued to a golf course. Noise after dark is an issue. Mrs John stated that the distances relative to their home (as shown on Exhibit 2) are not as far as one would think.

Applicant’s Submissions

23Mr. DeCunha stated that he wanted to be a good neighbour and would provide his cell phone number to the Johns so that any concern could be dealt with promptly. As well he would accept conditions to his licence, to minimize outdoor noise such as keeping doors to the patio closed and having no music on the patio.

Decision and Analysis

24The Board has carefully considered the evidence and submissions by the parties. At issue in this hearing is whether the granting of this liquor licence is in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located. The onus is on the objectors to establish, on a balance of probabilities, that the issuance of the licence is not in the public interest. In determining whether the needs and wishes of the residents are bona fide, the Board will look at the totality of the evidence to evaluate whether the subjective concerns and fears of the residents are supported on a valid objective basis.

25There is no question that public interest hearings often raise difficult issues which require a delicate balancing of the interests of those who live in a community with those would earn their living there. The Board has heard from Mr. and Mrs. Johns, the only residents to object to this application. Their primary concern is the potential for noise and its impact on their lives in a relatively quiet community. The Board does not doubt that concerns expressed about the potential impact of a licensed establishment were heartfelt and genuine. The Johns have invested time and effort in putting forward a thoughtful opposition to this application. However, the Board cannot make a decision based on conjecture and speculation about potential negative impacts of a licensed premises. A change to the environment need not be negative. No concerns were expressed about the Applicant, its principal or the manner in which the premises would be operated. Mr. DeCunha has indicated his intention to be a good neighbour and his willingness to be responsive to their concerns. There is no suggestion on the evidence that the Applicant (and Mr. DeCunha, its principal, has experience as an operator of a licensed premises) will not comply with the Liquor Licence Act and its regulations.

26The Board understands that the Johns’ concerns are very real to them, but given the circumstances of this case and the evidence adduced, the Board finds that the objectors have failed to meet the onus upon them. However, responding to concerns of noise, and acknowledging that noise can be intrusive on neighbouring home-owners in a relatively quiet rural setting, the Board has concluded that it would be appropriate, especially given Mr. DeCunha’s stated willingness to be responsive, to attach conditions to the licence.

27Finally, the Board notes some confusion about what premise is to be licensed and at what capacity, in this application. The Notice of Proposal, apparently in error, cites an application for indoor and outdoor areas with capacities of 24 and 67 persons. Mr. DeCunha indicated that the clubhouse as built would, he anticipates, have an indoor/outdoor capacity of 240 and 67 persons. However, the structure for which a licence is currently being sought has indoor and outdoor capacity of 140 and 64 persons. It will be incumbent upon the Applicant to address any licensing issues when the permanent structure is complete. In the interim, the Applicant has the opportunity to show itself to be a good neighbour, responsive to the reasonable concerns of those living around it.

Order

28For the above reasons, the Board APPROVES the Application for liquor licence made by Brydec Consulting Corporation for indoor and outdoor areas with capacities of 140 and 64 persons for DRAGON’S FIRE GOLF CLUB, 342 8th Concession, Lot 6, Concession 7, Flamborough, Ontario, L8N 2Z7, establishment number 813135, subject to compliance of all statutory conditions and municipal regulations, for the current premises situated at the location.

29Further, the Board ORDERS that the following conditions be attached to the licence:

1. No live or amplified music on the patio.
2. Doors and windows shall remain closed. Doors to the patio may only be opened for the purposes of ingress and egress.
3. The licensee shall provide a telephone number which will be answered by a staff member during hours of operation and be equipped with an answering machine when the establishment is closed, which shall indicate a number by which Mr. DeCunha can be contacted, for residents to register concerns or complaints.
4. During specially booked events, there will be a designated employee on duty at all times to ensure that patio and exiting patrons are not causing a disturbance to neighbouring residents.

DATED AT TORONTO THIS 30th DAY OF JUNE, 2008.