Registrar, Alcohol and Gaming Commission of Ontario v. Grrlmet Foods Inc. operating as The Windjammer Inn, 2010 CanLII 81003

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-

Grrlmet Foods Inc. operating as The Windjammer Inn Applicant

DECISION

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

Decision Date: December 16, 2010

Hearing Location: Port Stanley, 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 ) Rena Khan, Representative Grrlmet Foods Inc., Applicant ) Kimberley Anne Saunders, Self-represented

Authorities Cited

Sunset Grill (Re), [1997] O.L.L.B.D No. 272

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18190 dated July 22, 2010 (the “NOP”) to refuse to remove a condition on the basis the AGCO has received one or more written objections to an application by Grrlmet Foods Inc. (the “Applicant”), operating as WINDJAMMER INN (The), 324 Smith Street, Port Stanley, Ontario N5L 1C5 (the “establishment” or the “premises”), liquor licence number 807480 (the “licence”), to remove a term or condition on the licence. A hearing of the application was held on October 14, 2010 in the Village of Port Stanley.

Decision

2After carefully considering all of the evidence at the hearing, together with the submissions of the Applicant, the Registrar taking no position in the matter, the Board APPROVES the application to remove a condition on the licence. Reasons follow.

Other Matters

3Rena Khan appeared on behalf of the Registrar. She advised the Registrar took no position on the public interest aspects of the hearing. She filed a letter of objection, from Alicia Brodie dated June 11, 2010, as Exhibit 1.

4Kimberley Anne Saunders is an officer, director and shareholder of the Applicant. She was advised of, but waived her right to legal representation.

5No objectors attended the hearing despite receiving the required notice.

Applicant’s Evidence

6Kimberley Anne Saunders testified on behalf of the Applicant. She is the owner/operator of what she describes as a “fine dining” establishment.

7The licensed capacity is for 30 persons inside, plus an additional 40 people on the establishment’s wrap-around veranda. As well, there are five rooms for overnight guests.

8When Ms Saunders took over the establishment, the Licence was subject to 2 conditions, as follow. First, no amplified music or a dance floor were allowed. Also, operations were to cease by midnight. Her application is to remove the first condition (“the condition”). These conditions have been in place since the Licence was first issued in 2000.

9Ms Saunders testified that in the time she has operated the establishment, the condition has proved unnecessarily restrictive. It does not allow her to take part in local events or festivals entailing music or to cater to the increasing wedding market, anniversary parties, and other events involving some sort of musical component.

10Ms Saunders’ establishment is the only one in town to which this condition applies.

11Less than 20 per cent of her sales are alcohol-related. She closes at 9:00 p.m. each night, by choice, except for New Year’s Eve when she closes later but still before midnight.

12Although the establishment remains situated in a residential neighbourhood, there is a commercial component along William Street. Also, there is another licensed establishment about one block away, and another one about two blocks away. None of the licensed areas face the residential areas.

13Neither of the two neighbours, directly across and facing the establishment, object to this application.

14About one year ago, Ms Saunders successfully applied to have her outdoor patio licensed, despite objection from the same objectors.

15Ms Saunders suggested that the village’s demographics are changing. Particularly, its tourism industry is developing strongly, and the condition restricts her from developing accordingly.

16For example, last July the village hosted a 4-day CanFest event. It was geared to families and featured a large musical component. The establishment was not able to participate fully in this event because of the condition.

17Ms Saunders does not intend to materially change from being a fine dining establishment, that is to become a bar or have a late-night band.

18She would like to be able to host small weddings or parties with music. She envisages light live music occurring during brunch or afternoons.

19Presently, Ms Saunders does not intend to expand the capacity of the establishment. In her words, “Really, there is no where for it to go” (physically).

20On one occasion, Ms Saunders had some friends visiting who had recently formed a band. Between the hours of 5:00 – 7:00 in the late afternoon/early evening, they were playing (live) from the driveway of the establishment. The Exhibit 1 objector called the police to complain. Initially the police, and later the AGCO, investigated this complaint but found no wrong-doing on the establishment’s part.

21In fact, Ms Simpson, the AGCO inspector suggested that Ms Saunders apply to have the condition removed.

22Ms Saunders has owned the establishment for 4½ years, and has recently completed her 5th summer operating the business there.

23Before acquiring the establishment and moving to Port Stanley, Ms Saunders was the owner/operator of three licensed establishments in Toronto. She has operated under a liquor licence since 1996, and has never received any infractions.

24She would like to feature local, predominately acoustic-based (e.g. classical guitar, harp) music played by two to three people, maximum. Such a small group would be located inside the dining room and could play during service hours.

25If she was hosting a wedding, then the musicians could be set up to play on the corner of the veranda that abuts William Street. This is the furthest point on the property from the residential neighbours.

26Ms Saunders lives two doors down from the establishment. She is the first and last person to leave each day; it is a fully hands-on operation.

27William Street is being developed commercially. The street is zoned ‘commercial’ as is Ms Saunders’ business. The zoning has not changed since 2000, but the development has – more businesses have been, and are being built along the street.

Applicant’s Submissions

28Ms Saunders understands that she needs to control noise levels emanating from the establishment and to protect the residential component of the area. On the other hand, she also needs to be able to operate on a level playing field with other local businesses.

29She is very invested in the community: she lives there; she has invested a great deal of energy and personal money into her business; she sits on the Board of the local Business Improvement Association; she is active in the local heritage society; and, she sits on the steering committee for an initiative called “Savour Elgin”, which is a tourism initiative based on culinary as well as agri-tourism in Elgin County.

Registrar’s Submissions

30The Registrar did not make any submissions.

Reasons, Analysis and Decision

31The Board has carefully reviewed the evidence and the Applicant’s submissions and approves the application, for the following reasons.

Background

32On April 12, 2000, liquor licence 807480 was issued to 1404483 Ontario Limited with the condition that:

“No live music nor dance floor allowed in the indoor areas.”

On May 10, 2005, the condition was amended to:

“No dance floor or amplified music in the licensed area.”

On March 21, 2006, the liquor licence was transferred to Grrlmet Foods Inc. with the condition attached.

33The Applicant operates the premises known as The Windjammer Inn under a sales licence.

34The Applicant applied to the AGCO to remove the condition.

35As the AGCO received one written objection from a resident of the municipality to the removal of the condition, the NOP was issued and this hearing was scheduled.

The Law and the Onus of Proof

36The applicable legislation is subsection 14.1 of the LLA, which provides as follows:

“14.1 The Registrar may, on the application of a licensee, remove a condition that was attached pursuant to subsection 10(4), 11(5), 11.1(4) or clause 14(1)(a), if there is a change in circumstances that satisfies the Registrar that the condition is no longer appropriate.”

37In accordance with the Sunset Grill decision, the Applicant bears the onus, on the balance of probabilities, to establish that there has been a material change in circumstances since the condition was imposed. The Applicant must also prove that removal of the condition is not contrary to the public interest, having regard to the needs and wishes of the residents of the municipality.

38In this case, the Board finds that this onus has been met. In coming to its decision, the Board has relied upon the following evidence.

Material Change in Circumstances

39There has been a significant change in the demographics of, as well as in the tourism industry in Port Stanley.

40Specifically, there is a growing market for the type of dining and ambiance offered by the establishment (e.g. small weddings, anniversary parties, family-oriented special events such as CanFest and Savour Elgin) since Ms Saunders took over ownership of the establishment in mid-2005. Often, music is a component of such events.

41Also, the area around the establishment is becoming increasingly commercialized. Since the Licence was granted in 2000, with the condition attached, the location has changed to become more of a mixed commercial/residential-type neighbourhood.

42As a result of these changes, Ms Saunders’s business is somewhat competitively disadvantaged by virtue of the condition on the Licence, which is quite restrictive in nature. No other licensed establishments in the village are subject to a similarly constraining condition.

Public Interest

43Having successful local businesses is in the public interest.

44Ms Saunders has a demonstrated commitment to the public’s interest, for example, by her stated intention to promote local musicians in the establishment (if the condition is removed), through her involvement in various business development and improvement associations, and by investing considerable energy and personal money in growing her business and in trying to respond to the changing market demands.

45Ms Saunders has a long-standing record as a responsible Licensee.

Needs and Wishes of the Community

46The one person who filed a written objection with the Registrar did not appear at the hearing.

47Two neighbours, whose homes are located directly across from the establishment, do not object to the application.

48Ms Saunders does not intend to materially change the nature of her business.

49Only one noise complaint has been made against the Applicant, and no action was taken by either the police or the AGCO inspector after investigation. In any event, the Board concludes that this was a one-off situation, and is unlikely, if ever, to happen again.

50The type of small-group, acoustic music the applicant proposes to offer in the establishment, if the condition is lifted, is unlikely to be disruptive to the neighbours.

Conclusion

51For all of these reasons, the Board finds that there has been a change in circumstances since the condition was imposed on the Licence, and that removing the condition is not contrary to the public interest. In making this finding, the Board has also had regard to the residents’ needs and wishes.

Order

52The Board APPROVES the application to remove the condition on the Licence, that provides:

“1. No dance floor or amplified music in the licensed area.”

DATED AT TORONTO, THIS 16th day of December, 2010.