Registrar, Alcohol and Gaming Commission of Ontario v. 1413952 Ontario Inc., 2009 CanLII 78699

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-

1413952 Ontario Inc. o/a the Terra Cotta Inn

Applicant

-and-

Bob McLoskey

Objector

DECISION

Panel: Beryl Ford, Board Member S. Grace Kerr, Board Member

Decision Date: December 1, 2009

Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario 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 ) Dan Alakas, Representative 1413952 Ontario Inc. ) Jeffrey Kramer, Representative Bob McLoskey ) Self-represented

Authorities Cited

Registrar, Alcohol and Gaming Commission of Ontario v. Arena Entertainment Inc. o/a Circa, 2008 CanLII 13359 (ON S.C.D.C.)

Registrar, Alcohol and Gaming Commission of Ontario v. 2116784 Ontario Inc. o/a Molly Bloom’s Irish Pub, 2008 Can LII 52575 (ON A.G.C.)

Registrar, Alcohol and Gaming Commission of Ontario v. Eric Macedo and Brad Randy Macedo operating or intending to operate as Midpoint Bistro, 2009 CanLII 29754 (ON A.G.C.)

Registrar, Alcohol and Gaming Commission of Ontario v. 2034233 Ontario Inc. operating as Inter Steer Restaurant, 2009 CanLII 29738 (ON A.G.C.)

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 17323, dated July 15, 2009, to review an application for an additional outdoor area for 150 persons made by 1413952 Ontario Inc. (the “Applicant”) operating as the TERRA COTTA INN, 175 King Street, Caledon, Ontario, L0P 1N0, (the “premises” or the “establishment”), liquor licence number 92069. A hearing of the application was held on October 13, 2009 in the City of Brampton.

Decision

2After considering all the evidence and submissions the Board APPROVES the application for an outdoor area for 150, subject to conditions. Reasons for these findings follow.

Preliminary Matters

3Dan Alakas appeared on behalf of the Registrar. He advised the Registrar took no position on the public interest aspects of the hearing.

4On consent, Bob McLoskey was added as a party to the proceedings on behalf of the Objectors.

Objectors’ Evidence

5Mr. Bob McLoskey testified on behalf of the Objectors. He, his wife, Judy, and their two children are 15 year residents of the village of Terra Cotta. For the first 13 years, they did not have a noise complaint about the establishment as it rarely hosted an outdoor event during that time. On the four to six occasions that an outdoor tent was erected and loud noise came from that area, he and his family did not say anything because it was “occasional”.

6In the year 2008, however, there were 24 outdoor events, which to Mr. McLoskey is a quantitative leap in numbers. Sometimes, there are events two to three nights in a row.

7As a result, Mr. McLoskey complained to the village of Caldon as he felt these noise levels breached the noise by-laws.

8Mr. McLoskey said that his family did not move into an area with an established practice; rather, the establishment fundamentally changed its business when it built the patio. It went from being an indoor restaurant to one that offers “weekly” outdoor events.

9In 2008, Mr. McLoskey called the Ontario Provincial Police (the “OPP”) a total of 12 times with noise complaints relating to the establishment. Then, a similar pattern unfolds. After the police have spoken with Mr. McLoskey (or his wife), they go and speak to someone at the establishment and the noise level is reduced, only to increase again once the police leave. Mr. McLoskey believes that the establishment lacks credibility as a result of this type of repetitive disregard for authority.

10In the summer of 2008, the village of Caledon sent the establishment a letter regarding the noise. In the all, Mr. McLoskey does not think the village has acted in his family’s best interests.

11Mr. McLoskey believes that two noise by-laws are in effect. No acceptable decibel levels are provided for, however.

12Mr. McLoskey testified that, according to the World Health Organization, noise over 35 decibels impacts the ability to sleep and its quality. He also said that the Environmental Protection Act’s definition of “pollutant” includes “noise”.

13In Exhibit 3, which is the McLoskey’s letter of objection sent to the AGCO, he advised that he recorded levels of 67 to 70 decibels emanating from the establishment’s patio; the noise was making the windows in his house vibrate.

14Mr. McLoskey acknowledged that some of the people present at the hearing support the Application. He is not interested in shutting the establishment down and bears it no ill-will. However, he believes that the letters in support of the Application all verify that the noise from the establishment is loud enough that everyone can hear it, though these letters also indicate that the supporters like it.

15Mr. McLoskey stated that a large number of residents benefit financially from their link with the establishment, but also that it may taint their opinion as to whether what they hear coming from the patio is “noise” or “music”.

16In 2008, the establishment did about 24 outdoor events without using their own sound system. In 2009, the establishment installed its own system and the noise levels are better, though not what they should be. Mr. McLoskey reminded the Board that the establishment did not install their system until they were forced to do so by the number of noise complaints.

17Mr. McLoskey said that he and his wife did not make any noise complaints in (February) 2009 because “they had lost confidence” in Mr. Thompson, their area Councillor. In a community meeting to discuss the problem, the issue of “crowd noise” was also raised.

18At the February meeting, Mr. McLoskey thought that the establishment has committed to hiring an acoustical engineer. He had asked the establishment’s manager about it on June 13, 2009 and was told that one had not been hired and that the cost of the baffling material was too high. The manager asked Mr. McLoskey why he did not “just tolerate it”.

19Mr. McLoskey and his wife choose not to air condition their home as a lifestyle choice. When their windows are closed and the furnace is running, “things are better”, but this is in the late spring and early fall times only.

20In cross-examination, Mr. McLoskey acknowledged that he is not a sound engineer. He has worked in “health and safety” for eight years, being a qualified Health and Safety Centre instructor in addition to being a high school physics teacher.

21Mr. McLoskey did not know why no one else in the village of Terra Cotta had called to complain about noise in 2009. He did not bring copies of the Township’s noise by-laws with him.

22Mr. McLoskey agreed that his home is located in an area zoned “commercial” and that he operates a retail store out of it, which is open on Saturdays and Sundays from noon until 5:00 p.m.

23Mr. McLoskey believes that, since the establishment’s patio is already licensed to serve alcohol, increasing the number of persons that can be served in that same space could increase “crowd noise”.

24No charges were laid by the OPP in relation to any of his noise complaints in 2008.

25No charges have been laid by the village of Caledon against the establishment to date in relation to (alleged) breaches of its noise by-laws.

26Mr. McLoskey did not agree that nobody else from the village of Terra Cotta came to object to the Application, except for Mr. Bien because they do not share his views. He suggested that another resident had written a letter and others may not have come because it was inconvenient for them. He did not go around the village to solicit support for his position.

27Mr. McLoskey thinks the list of conditions that the Applicant is willing to agree to (Exhibit 1) would not do very much. For example, the condition that all amplified sound would go through the Applicant’s sound system would not work if there is a live band, in Mr. McLoskey’s opinion.

28While Mr. McLoskey agreed that the Ministry of the Environment legislation applies to land use planning, he believed its standards could act as guidelines for hearings like this one. Also, the establishment had a small patio before building the large patio, which is at issue and which had already been built before the Applicant applied for the first licence that applies to it; in other words, Mr. McLoskey thinks that constructing the larger patio constitutes a change in the land use and that, as such, the land use criteria should apply to it.

29In reply, Mr. McLoskey testified that the patio was enlarged in 2007, was used for a couple of events late in that year and was in full use in 2008. This is what makes him think the liquor licence application to increase the capacity should have been made then and not now.

30Noise is his main concern. Mr. McLoskey would like the establishment to change its practice in a way that does not negatively impact on their neighbor.

31Ms Judy Vella was the Objector’s next witness. She is Mr. McLoskey’s wife; their two children are aged six and 10 years.

32The children’s bedrooms face the establishment. They have never known any other home, which is not air conditioned as a lifestyle choice by her and Mr. McLoskey. The children’s bedroom windows are therefore open a large part of the year and sometimes the noise from the patio is so loud the children can hear all the words/lyrics to the songs being played. Sometimes at 12:30 a.m. the children are still awake, as a result.

33Ms Vella objects to the change in the establishment’s business practice without any input from the community. For two years now, she has been trying to deal with it. Her children are her main concern.

34According to Ms Vella, much of the community is adult households or, if the households have children, the children are older.

35Ms Vella believes that the place located across from the establishment, which is a Bed & Breakfast, gets referrals from the establishment. Her next-door neighbor works shifts and, as such, is not around for the noisy times.

36The noise has also had an impact on Ms Vella’s extended family. Her mother, who wears a hearing aid and is also recovering from some other health issues, cannot stay over anymore because the “bass is so bad”.

37With regard to the proposed conditions (Exhibit 1), Ms Vella is nervous that something necessary to dealing with the problem may be omitted from them.

38She cannot agree to having the noise level capped at 67 decibels, which was the maximum level being suggested; if she were to do so, she felt she would be letting down her children.

39If excessive noise was an occasional thing, Ms Vella would not be concerned. However, the establishment is a ‘for profit’ business.

40Ms Vella said that she and her husband have tried to deal with the noise problem quietly as well as directly (both through the village of Caledon and directly with the owner). She believes the Town is reluctant to enforce its own by-laws. According to Ms Vella, Mr. Thompson is trying to find a middle ground, but “there is no middle ground at midnight”.

41Ms Vella’s children get up at 6:00 a.m. to catch the bus for school and, on Sundays, get up for 9:00 a.m. mass at church.

42Ms Vella believes that many of the people who attended the community meeting in February 2009 were brought in from neighbouring villages and that they do not live close enough to hear the noise. She also thinks that the owners mistakenly believe that she and her husband are trying to shut them down and, to her, this speaks to the owner’s lack of good will.

43In cross-examination, Ms Vella agreed that the noise problems are definitely better when the windows in her house are shut. She does not believe that installing air conditioning in her home is the solution: it does not agree with her philosophy (that is, to leave less of an environmental footprint); further, she finds it offensive that it should be suggested that the responsibility to accommodate to the noise is theirs and that she and her husband are somehow lacking in parenting when the cost of their decision to her children is questioned.

44For about three months in approximately 2002, Ms Vella worked as a special events planning coordinator for the establishment. She was on maternity leave at the time and was asked by her friend, who had bought in with the previous owner, to help out during a time when the establishment’s managers had been let go. There were six weddings that summer and fall. There was a noise complaint one night. Ms Vella told the owner about it, and the music was turned down. There were only a handful of events during that time and, according to Ms Vella, everybody “just sucked it up”.

45Ms Vella’s concern is that the recent improvement in the noise levels is not substantial enough. For a while, it was a free-for-all (that is, when the DJs were bringing their own equipment). According to Ms Vella, “it just can’t be every weekend”. When there were fewer events, there was more tolerance.

46In re-examination, Ms Vella clarified that when she worked as the events coordinator it was not her responsibility to control the noise.

47In answer to a question from the Board, Ms Vella estimated that the children’s bedrooms are located about 500 feet from the end of the patio.

48Mr. Michajlo (Mike) Bien testified next. According to Mr. Bien, the noise coming from the establishment caused disruptions in his sleep patterns, especially in 2008 when the number of events increased. He also explained that there is a “loss of enjoyment of the outdoor” aspect to his concerns as well.

49In Mr. Bien’s opinion, the February, 2009 community meeting was quite divisive to the community. He believes that the village of Caledon did not want to enforce its noise by-laws and, instead, wanted the establishment to take its own steps to deal with the noise issue. Based on the mayor’s letter following that meeting, Mr. Bien believed that the owners did make a commitment to reduce noise levels, and that they had retained an acoustical engineer.

50Mr. Bien believes that everyone agrees that the noise comes from the patio. Different people have different levels of tolerance to it, however.

51No one said that the establishment should not be in business. He just wants the noise to be reduced on evenings and weekends. The establishment is a good corporate citizen, but good corporate citizens do not put the onus on their neighbours.

52Mr. Bien is a customer of the establishment. He moved into his home in 2000; at that time, noise from the establishment was infrequent. When they expanded the patio in 2007, the number of events increased. Sometimes, the events were Friday, Saturday and Sunday nights.

53He believes there is a simple solution: turn the music down.

54In cross-examination, Mr. Bien said he would be satisfied if the music were turned down. He does not know if the establishment has hired a sound expert, if it has purchased sound equipment, or if it has taken any other steps to comply with the terms of the Mayor’s letter.

55His sleep continued to be disrupted by the noise in 2009, as the noise is still there, but it is less of a problem than it was before.

56In response to questions from the Board, Mr. Bien indicated that he lives north of the establishment by about 500 feet. His bedroom windows are further to the front of his house. While he could not say that his windows have been rattled by the noise, he said it awakens him from his sleep. He still hears the noise if his windows are closed; he hears it even over the din of his air-conditioning fan.

57According to Mr. Bien, the village of Terra Cotta is so quiet that one can hear the trees rustle. However, the loss of enjoyment relates to the fact that, starting about mid-afternoon of the days there is an event the bands start setting up and testing their equipment and later, towards evenings, there is noise again from the speeches or bands playing.

Applicant’s Evidence

58Allan Thompson is a Councillor for the Region of Peel. He also lives about one mile south of the village of Terra Cotta, which is located in that Region. One day in late August 2009, he happened to be in the village and walked past the establishment when it was hosting a wedding reception. In his opinion, the volume of the music being played was not bad at all. He had the windows down on his vehicle and had to strain to hear the music. On another occasion in early June, he had also driven into Terra Cotta, parked his vehicle, and was walking around the neighbourhood of the establishment. There was dance music playing. It was around 9:30 to 10:00 o’clock and he saw Roberto Florindi, the manager, walking around the establishment.

59There was a public meeting in February 2009 to discuss the issue of noise emanating from the establishment as for the previous two to three years the Region had received some valid noise complaints. Mr. Thompson believes that the establishment has done a very good job (in reducing the noise levels) for what they have to work with. The establishment has been in the community for many years and provides it with a service. He believed there were noise issues, but they have been mitigated.

60In August 2009, when he attended to check out the noise levels and got closer to where the complainant lived, he realized that the noise/music was coming from the nearby trailer park and not the wedding at the establishment.

61Mr. Thompson has met with residents in previous years regarding the noise issues, but not this year.

62Mr. Thompson supports the application currently before the Board. He believes that the establishment is vital to the community and that it has done its utmost to deal with noise issues. The establishment is a community citizen. He recognizes that the Objector (and his wife) have young children, and he would like them to work together with the establishment to solve their concerns.

63Mr. Thompson pointed out that the zoning map, contained in Exhibit 2, indicates that the area where both the establishment and the Objector (and his family) live is zoned for and permits “commercial uses”.

64In cross-examination, Mr. Thompson acknowledged that when he did his walk through the village in late August, he was not trying to sleep. He agreed that he could hear the words to the songs being played and the speeches being given, and acknowledged that this level of noise might interfere with some people’s ability to sleep. He also agreed that noise can travel based on the topography, or lay of the land.

65Mr. Thompson could not say if, at the February 2009 meeting, the establishment agreed to retain an acoustical engineer and to purchase sound mitigating equipment; he recalled that the establishment was going to bring experts in, and said that they have.

66Mr. Roberto Florindi also testified on behalf of the Applicant. He has been employed by the owner of the establishment since 2001, and its manager since 2004. He has worked in the food and restaurant business from a young age. He studied cooking in Italy as a young man and has been the chef in several high-end restaurants in Toronto.

67Located on a property of some 31 acres, the establishment has four dining rooms and a pub, as well as a terrace located behind it. 20 to 30 people work at the establishment, depending on the season. It is very involved in the local community in charitable and other ways. It has offered outdoor weddings on its grounds since 1960; since Mr. Florindi has managed the establishment, the weddings held there have increased.

68Significant work was done to the patio in 2004 and was ready for and held a wedding there on July 2, 2005. Mr. Florindi did not know why the objectors thought the work was done in 2007 and wondered if perhaps this was when they started to hear noise from the patio. There were four weddings there in 2002; six in 2004; five in 2005; 10 in 2006; 18 in 2007; 24 in 2008; and, 22 in 2009, the season having now ended.

69The rebuilt patio is essentially the same size as it was before, except that it has been ‘squared off’.

70The majority of the weddings occur on Saturday nights, with “the odd Friday” and “the odd Sunday”.

71Mr. Florindi was first approached in 2007 about the noise emanating from the patio. There were no complaints from 2005 until Mr. McLoskey’s complaint in 2007.

72No (noise-related) charges have ever been laid against the establishment.

73The number of weddings being held at the establishment increased in 2008, such that there was one practically every weekend. From a noise perspective, he was bound by all contracts the establishment had already signed; however, he changed the contracts for 2009 (Tab 3, Exhibit 2) to make provision for, or to address noise issues. For example, before 2009, he used to tell DJs to turn the music down if there was a complaint, but slowly it would creep up and he would need to monitor it constantly. Now, the speakers are right over the dance floor, and the mixing board and amplifier are located inside the office where he controls the volume. He took the complainants’ concerns seriously and was trying to make them happy.

74At the February 2009 community meeting, Mr. Florindi said he would go forward and try to have some form of control over the levels of the music and believes he has done so.

75Tab 3, Exhibit 2, is an invoice for the sound equipment that has been purchased for the establishment. Details regarding the specs for the outdoor speakers are also part of this Tab in this Exhibit.

76Tab 4, Exhibit 2, shows the details for the Soundcraft mixing board that is located in the office (referred to in paragraph 73 above).

77All of the foregoing equipment was installed in 2009, with a view to controlling the noise /sound levels.

78Mr. Florindi also purchased a decibel reader. At 11:00 o’clock on every night there was an outdoor patio event in 2009, he walked around the village and tries to get readings. He was looking to keep the readings in the 38 to 45 decibel range because he understands that people can sleep better at that level. He has even gone into the owner, Mr. Micucci’s home, which is located on the property owned by the establishment, to do readings.

79He has taken other steps to try and lessen the noise coming from the outdoor patio. For example, he has had the trees on the property trimmed and pruned to stimulate lower growth. Cedars have been planted along the property line and silver maples along the water to try and stop the sound from traveling.

80Mr. Florindi believes that, overall, there has been a big improvement in noise levels as a result of these steps. In 2009, he had one noise complaint, plus a call from the AGCO.

81According to Mr. Florindi, he is in constant contact with the people who live in the homes closest to the establishment.

82Letters in support of the Application are found at Tab 2, Exhibit 2.

83The conditions the establishment is prepared to agree to are found in Exhibit 1.

84For example, he believes that closing the flaps (Condition #2) would help prevent sound from traveling from the patio out to the east and west.

85Also, for example, the establishment’s offer to be constantly available for contact (Condition #4) shows the establishment’s commitment to “make everyone happy”.

86Finally, for example, Condition #5 offers that staff will monitor the crowd’s/patrons’ noise levels, which is an attempt to be thoughtful.

87The establishment’s patio is currently licensed for 100 persons. To allow for additional persons out there, Special Occasion Permits (SOPs) have been obtained. Mr. Florindi does not believe that there will be higher levels of noise if the application is granted for an additional 150 persons, so that the patio will be licensed for 250 persons (in total).

88In cross-examination, Mr. Florindi agreed that, of the 31 acres of land belonging to the establishment, about five acres is used by by the establishment, the remainder consists of woodlands with a river through the property.

89Mr. Florindi said that the establishment did not require a building permit for the work done to the patio; a Credit Valley Conservation Area permit was obtained, however.

90He did the readings inside the owner, Mr. Micucci’s home while the windows were closed and the air conditioning was on. Mr. Micucci does not reside there on a full-time basis. Mr. Florindi agreed that the readings were quieter in the bedrooms than elsewhere in this house.

91Mr. Florindi did not know if his decibel reader is set to a “slow” or to “fast” response.

92Mr. Florindi acknowledged that the letters in support of this application acknowledge the presence of noise (from the patio), and that he asked the writers if they had any difficulties with what he was doing (in response to it).

93He applied for increased capacity on the patio in 2008 because of the increase in demand that occurred that year; he did not expect it to be as popular as it has become.

94Mr. Florindi says that the establishment will not do weddings on the Friday, Saturday and Sunday nights of a weekend again as this was too much, even for himself and his staff.

95The total capacity for the establishment is 339 persons presently.

96In response to questions from the Board, Mr. Florindi advised that the new sound equipment was installed on June 13, 2009. Baffling has not been installed; he is still looking at various methods to quiet the noise.

97The patio is constructed of a stone base along its sides and has a concrete floor. It is 50 feet by 60 feet in dimensions and is covered by tenting material.

98Currently, 20 events are booked for 2010.

99The establishment did not apply for any SOPs in 2009; the indoor capacity was used to cover any additionally required capacity relating to any special events being held there.

100The mayor’s letter, referred to above, was “just suggestions”. Mr. Florindi has the impression that the by-law officer has been driving around, but no one has come into the establishment this year.

101In response to questions from the Board, Mr. Florindi testified that he is looking at additional things to buffer the noise, but it comes down to budget. Different seat cushions, different flooring, and/or thicker curtains, for example, are more than he can “bite off” right now.

102The changes are a step at a time; it is a “work-in-progress”.

103The Applicant’s next witness was Gary Mackin. His letter of support is found at pages 25 to 26 of Exhibit #2.

104Mr. Mackin lives closer to the establishment than Mr. McLoskey. He has lived in the village of Terra Cotta since 2005, together with his wife and two boys (aged 3 and 4). He is a member of the Peel Regional Police Service.

105Mr. Mackin judges the noise emanating from the patio as “reasonable”. It is not disturbing to either him or his family. He never has any problems sleeping due to it.

106In cross-examination, Mr. Mackin indicated that while he is away from home (due to his shift work) about 25% of the time when the special events occur on the patio, his wife is there essentially 100% of the time.

107In response to questions from the Board, Mr. Mackin stated that the noise levels were slightly-to-significantly higher in 2008. That year, music could be heard coming from the patio; this year, he did not once hear it.

108He estimated that the noise levels have been reduced by about 25% this year. He has never experienced the “setting up the equipment” problem.

109Mr. Mackin has no objection to the application to increase capacity on the patio. His sons, who sleep with the windows open on the main floor on the eastern-most side of the house, sleep without problem every night. His house is not air-conditioned.

110In response to questions arising from those of the Board, Mr. Mackin stated that he has a tree pruning business which has provided services to the establishment as well as to other residents of the village.

111Mr. David Rutherford also testified on behalf of the Applicant. He has lived in the village of Terra Cotta for about 21 years. His house is further west to the McLoskey residence. He supports the application.

112Mr. Rutherford, who has extensive involvement in the local community, testified that under the present management team noise levels, which previously were quite high, have declined. Personally, he does not find the patio noise objectionable. Currently, he cannot hear any noise coming from the establishment.

113In cross-examination, Mr. Rutherford stated that he has not done any paid work for the establishment. He acknowledged that he was not present every night to hear the noise from the events; in 2009, he was there about 12 nights when events were being held.

114He lives about ¾ km or less from the establishment.

115In response to questions from the Board, Mr. Rutherford said that noise levels have reduced to the point where he can no longer hear it (from his residence); in 2008, he could hear it, but it was controlled.

Registrar’s Submissions

116The Registrar made no submissions.

Objectors’ Submissions

117In the Objectors’ submission, the character of the manager or the witnesses who support the Application is neither the issue or relevant to the determination of this Application. Instead, what is relevant is that the noise coming from the patio is too loud. The proof that it is too loud is that it keeps him and his family awake at night and it bothers them.

118The Applicant says it does not have the money to effect further changes to reduce the noise and that some of the changes are too expensive. However, the onus is on the Applicant to mitigate the noise rather than on the Objectors to tolerate it.

119The Applicant has never denied the problem. It should be required to install what is required to mitigate the noise. To date, it has only done the things that have not cost that much.

Applicant’s Submissions

120The Applicant submitted that the test, further to subsection 6(2) of LLA is found in the Arena Entertainment case, as follows: the Objectors must discharge their burden, on the balance of probabilities, that the Application is not in the public’s interest. The public is not just a handful of people.

121Further, in the Molly Bloom decision which decided a similar issue, the Board elaborated upon this test and asked: is the noise excessively loud and disruptive to the community? Therefore, in applying the test enunciated in the previous paragraph, the Board is urged to asked itself this question, acknowledging that there is a balancing or weighing of the respective interests.

122Mr. Florindi, on behalf of the establishment, is a “good neighbour”; he has attempted to take the neighbourhood concerns into account.

123Also, citing from the Mid Point Bistro decision, the Applicant urged the Board not to redo what the municipality has already done to deal with noise issues. The public interest has been addressed by virtue of the public meeting where it was resolved that there is not an excessively loud noise problem with respect to this establishment.

124The Board was also urged to consider the Inter Steer Restaurant decision and specifically to assess whether the subjective concerns and fears in this case are supported on a valid and objective basis given the totality of the evidence. In the Applicant’s submission, the Objectors’ submission that the issue is that Mr. McLoskey cannot sleep and what the other residents feel does not matter is irrelevant and wrong.

125From a factual standpoint, the Applicant submits that the establishment has a long history of hosting outdoor weddings. It is currently licensed for 100 persons on the patio. If the application is denied, there is no basis to believe that there would be a significant difference in the noise levels. If licensed for 150 more persons, there might be a marginal increase in noise levels from the crowd, but otherwise, bands are not louder if there are 100 or 250 people on the patio.

126The establishment is a good neighbor. Mr. Florindi, on its behalf, took seriously the neighbours’ concerns and has taken steps to correct and will continue to try to correct any noise issues.

127This is not an intransigent corporation; rather, it is an establishment that is part of the fabric of the community.

128The Applicant’s witnesses include Mr. Thompson, who has a legislative obligation to represent the community and supports the Application as both a resident and as Councillor. Also, Mr. Mackin’s evidence is particularly important as he lives in the same position to the patio as Mr. McLoskey, but neither he nor his young children have any trouble sleeping from the noise. Also, Mr. Rutherford, who is a devoted, long-term resident of the community, strongly represents the public’s interest in favour of this Application.

129The Applicant urges the Board to conclude, for all these reasons, that the Objectors have not met their onus and the Application should be granted.

Reply Submissions

130Mr. McLoskey asked the Board to consider the provisions of section 46 of the O. Reg which does not speak of the public interest, but rather, that no noise shall disturb any “persons”. The law is meant to protect individuals as well as communities. He submits that where there is both subjective and objective evidence as to noise levels that negatively impact upon sleep (as in this case), then there is an issue.

131The Objectors would be happy if the outcome in this case was similar to what was ordered in the Molly Bloom decision. The Objectors want the Applicant to take all reasonable steps to mitigate the noise hazard that arises from its patio.

Reasons, Analysis and Decision

132The Board has carefully reviewed the evidence and the submissions of the parties and approves the application, subject to conditions being placed on the licence, for the following reasons.

133First, by way of background, subsection 6(2)(h) of the Liquor Licence Act (the “LLA”) provides, in essence, that an application for a licence shall be granted unless it can be shown that it is not in the public interest to do so having regard to the needs and wishes of the residents of the municipality in which the premises are located. In other words, an applicant has a qualified right to a licence: the onus lies upon the objectors to an application to prove, on the balance of probabilities, that approval of a licence is not in the public’s interest.

134To this end, the Board must assess the totality of the evidence to determine whether the subjective concerns of the objectors are supported on a valid and objective basis. Each case turns on its own facts.

135In this case, the Board heard from three witnesses on behalf of the Objectors who prefer that the Application be denied. All of them live within a radius of about 500 metres from the establishment. Their main complaint, objection or concern is singular: the excessive level of noise that emanates from the patio when outdoor events (mainly weddings) are held there, more or less every weekend from late spring until late October. The witnesses testified that, during those occasions, the noise from the patio rattles their windows and keeps them (and in some cases, also their children) from sleeping until late at night.

136The evidence also establishes that, while the Objectors have complained to local authorities as well as to the police about the noise related to the patio, no charges have been laid against the establishment by any public authority. That said, in response to the noise concern, it is not disputed that a public meeting was convened in February of this year specifically to address this issue. The meeting was well-attended by community members.

137Further, even the Applicant’s witnesses, Mr. Thompson, Mr. Mackin and Mr. Rutherford, testifying in support of the Application, acknowledged that there was noise emanating from this establishment when events are held on the patio. What’s more, also the letters in support of this Application speak to the noise emanating from this establishment: the difference between the supporters’ perspective and that of the Objectors’ is what level of noise is acceptable to them as neighbours, specifically, or community members, more generally.

138As a result of this evidence, the Board concludes that ‘noise’ is an objective risk to be taken into account in considering this Application. If only from a common sense perspective, there is a genuine risk that, in granting this application (which increases the licensed capacity to 250 from 100 persons), the crowd noise from the patio could increase. This carries the concomitant risk that the volume of the music (or speeches, as the case may be) could be increased in order for it/them to be heard over the crowd noise.

139While mindful of this concern and risk, in this case a number of factors yet act in favour of granting the application.

140In his testimony, Mr. Florindi, on behalf of the Applicant, stated that the Applicant wants to be a good neighbour to the Objectors, as well as a good corporate member of the community at large. This statement is credible because the Applicant has acted on this promise in several ways to date, as supported by the evidence.

141For example, as a result of the February meeting, Mr. Florindi expressed the willingness and a desire to minimize the potential negative noise effects both relating to this Application and the Objectors’ existing concerns relating to noise from the patio. Since that meeting and as a sign of its bona fides, the Applicant has already taken a number of steps in follow-up to the promises it made in the February meeting to address the noise concerns, which include changing the contracts for events in 2009 to address the sound issue, installing sound equipment that the applicant’s staff will control, and effecting landscaping changes to help mute the sound emanating from the patio.

142To Mr. Florindi’s credit, he candidly acknowledged that the establishment has not done everything possible in this regard, however, due to financial constraints. According to him, the changes will continue to be done “a step at a time”, that it is a “work-in-progress”.

143Also, the Applicant (unsuccessfully) has presented conditions to the Objectors that it was willing to abide by, hoping these might alleviate their concerns (see paragraph 83, supra). By offering to agree to these conditions the Applicant has shown that it has listened to and taken seriously the concern that some members of the community have expressed: this was both a prudent and a responsible thing to do. In making its decision, the Board has considered positively the proposed conditions, both for their content and their symbolic value.

144Further, the Board cannot ignore the significant community support for the Application (Exhibit 2, Tab 2); the considerable show of community support for this application also weighed positively in the Board’s decision. Noteworthy supporters are the area’s Regional Councillor, who testified at the hearing, as well as the people who sent in letters in favour of the Application (Exhibit 2, Tab 2).

145The Board has taken into account that the Applicant is a long-standing business in the community. The manager, Mr. Florindi, has a responsible, respectable and long-standing work history which he brings to the business. The Board believes that this is a conscientious Applicant, and that its manager will be diligent and considerate of the needs and wishes of the neighbourhood/community.

146In this case, the Objectors concede that that the Applicant has good intentions; they are concerned, though, that the conditions proposed will insufficiently address their concerns. However, the possibility of adding one or more conditions to a licence is consistent with the concept of “Risk-based Licensing”, now operational in the Province of Ontario, and is believed to help the Applicant minimize risks identified during the application process. The Board believes that the conditions it has decided to add in the case of this Application should alleviate some of the Objectors’ concerns about adding capacity to the licensed patio.

147For all of these reasons, granting this application appears to be both in the public interest and to represent it.

Order

148For the reasons above, the Board APPROVES the application for an additional outdoor area for 150 persons made by 1413952 Ontario Inc., operating as the TERRA COTTA INN, 175 King Street, Caledon, Ontario, L0P 1N0, liquor licence number 92069, subject to compliance with all statutory conditions and municipal regulations.

149Further, the Board ORDERS that the following conditions be attached to the Licence:

a. In respect of outdoor patio events booked by the Applicant after the date of the Board’s decision in the Application:

i. All contracts will include a requirement that only the Licensee’s sound system may be used and that the Licensee shall control the volume of the music at all times;

ii. On Sundays (unless the following Monday is a statutory holiday), Mondays, Tuesdays, Wednesdays, and Thursdays evenings, no music will be permitted on the patio after 11:00 p.m.

b. Each day, the Licensee will close the east and west sides of the tent covering the patio after 11:00 p.m.

c. On Sundays (unless the following Monday is a statutory holiday), Mondays, Tuesdays, Wednesdays, and Thursdays, the sale and service of liquor shall end at 10:15 p.m. on the outdoor licensed area and the area shall be cleared of all signs of service by 11:00 p.m.;

d. At approximately 11:00 p.m. on Friday and Saturday nights, the Licensee (through its staff) shall measure the decibel levels at its property boundaries to ensure that the volume of music is reasonable, so that it does not permit unreasonable sound levels to be emitted from the patio that are likely to disturb the quiet, peace, rest, enjoyment, comfort, convenience or safety of the nearby neighbourhood inhabitants in their residences;

e. The Licensee (through its staff) shall make every reasonable effort to ensure that guests using the patio do not make excessive noise; and,

f. The Licensee shall provide a telephone number for residents to register concerns or complaints. This line will normally be answered by a staff member during the Licensee’s published hours of operation. This line will be equipped with a functioning answering service for those periods when the Licensee’s staff are otherwise occupied and when the establishment is closed.

DATED AT TORONTO, THIS 1st day of December, 2009.