Registrar, Alcohol and Gaming Commission of Ontario v. Waterfront Dome Inc., 2011 CanLII 19786

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-

Waterfront Dome Inc., operating as or intending to operate as

Waterfront Dome (The)

Applicant

-and-

Brenda Mutter

Resident Objector

DECISION

Panel: Kirsti Hunt, Vice-Chair, AGCO Beryl Ford, Board Member

Decision Date: February 28, 2011

Hearing Location: Wasaga Beach, 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 Waterfront Dome Inc., Applicant ) Nick Vidinovski, On behalf of the ) Applicant Brenda Mutter ) On his own behalf and on behalf of ) the resident objectors

The Application

1. The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 18333 dated October 15, 2010 to review an application for a liquor licence by Waterfront Dome Inc. (the “Applicant”) intending to operate as Waterfront Dome (The), 9 Main Street, Unit B, Wasaga Beach, Ontario, L0L 2P0 (the “establishment” or the “premises”), establishment number 807005, on the basis that the AGCO has received one or more written objections to the application. A hearing of the application was held on November 29, 2010 in the Town of Wasaga Beach.

Decision

2. After considering all the evidence and submissions the Board APPROVES the Application made by Waterfront Dome. Reasons follow.

Preliminary Matters

3. Mr. Nick Vidinovski appeared on behalf of his wife Christion Dawn Taylor, the principal of the corporate applicant. He presented as Exhibit 1 a letter of authorization to act on behalf of his spouse and he waived his right to be represented by legal counsel.

4. Ms Brenda Mutter appeared on behalf of her husband who had sent in a letter of objection to the application. On consent of parties, Ms Mutter was made party to the proceedings on behalf of the objectors.

5. A package of objection letters was made Exhibit 2.

6. A letter dated November 29, 2010 from Rick Seip, explaining why be could not attend the hearing, was made Exhibit 3.

7. A letter of support dated November 29, 2010 signed by Cal Paterson, the Mayor of Wasaga Beach, was made Exhibit 4.

8. Ms. Khan took no position on behalf of the Registrar and agreed to assist parties.

Objectors’ Evidence

9. Ms Brenda Mutter stated that she was giving evidence on her own behalf and on behalf of her husband who is out of the country. She indicated that she agrees with the points that he made in his objection letter which is part of Exhibit 2. Her husband is more knowledgeable than her because he builds building across North America. The building for the premises in question does not fit the criteria of a permanent structure. Approving this application would set a precedent by licensing a temporary tent-like structure. There is a shell on the dome but in previous years that has always been removed. It is still on the dome at the present time. The structure is not heated in winter. There are no permanent washrooms and portable washrooms were used for past events. There are no kitchen facilities. Food has been catered by other restaurants. The structure is a glorified tent and does not adhere to the strict requirements of the AGCO for liquor establishments.

10. Ms Mutter asked the Board not to bend to political influence considering that the tent is on Town property. She asked that a permanent licence not be issued but she has no objection to special occasion permits for events in the summer.

11. On cross-examination, Ms. Mutter agreed that there are two permanent washrooms but added that they were for handicapped users.

Applicant’s Evidence

12. Mr. Nick Vidinovski gave evidence on behalf of the applicant. He stated that in March of this year, he and his wife took over the property for non-payment of the mortgage. At the location of the dome, there was a bar for about 11 years and a bar at 10 Main Street for 8 years before November 2007 when a fire destroyed the properties at 9 to 13 Main Street. The previous operators put up the Dome, landscaped and put up a fence around it. There are also a couple of small buildings, washrooms and an electrical room on the site. There is roughed in infrastructure at 10 Main Street where washrooms are to be built for 9 to 13 Main Street. The area is a pedestrian mall with no vehicular traffic.

13. Beach Front Development or First Street Entertainment used the property for entertainment and concerts. They used the licence from Dardanelle which is owned by Beach Front Entertainment.

14. The beach front area is going through a depressed period and the Town does not know if anything will be opening there next summer. The Town depends on the summer tourists. He does not want the area to be closed. Also the Town asked him to do something and if there are restaurants and bars on the beach front, people will have a place to go to eat and for entertainment. If there is no licensed establishment, people will go into the parking lot and drink anyway.

15. When they had Swiss Chalet operate the Dome for 2 to 3 weeks under a catering endorsement, AGCO Inspector Harry Quirt told them that they have to apply for a permanent licence and they informed him that they had applied for one. They have a lot of requests for weddings, corporate parties and fundraisers but they can’t hold those without a liquor licence.

16. Along the beach front on Beach Drive there are events like the Beach Fest (Exhibit 5) operated under the caterer’s endorsement of licensed establishments. For these, there are temporary structures that are erected on the beach.

17. Mr. Vidinovski submitted as Exhibit 6, a drawing of the structural property of the Dome and surrounding area.

18. He explained that the Dome was lit up as part of World Diabetes Day and is featured on the International Diabetes Federation web site (Exhibit 7) and in an article in the Wasaga Sun (Exhibit 8). The venue was also used for the Breakfast Television show in July. The Township asked to use the Dome in case it rained. They also have a huge patio that faces the waterfront. People will be able to sit and enjoy the view and have a soft drink, or an alcoholic beverage and lunch. In the past year, a couple of jazz bands entertained customers in the Dome.

19. The Dome uses a part of the public parking lot and the Town uses part of the Dome’s property as a parking lot. Their plan for the future is to build a permanent structure in the same area. They have had a lot of requests for weddings, corporate parties and special functions but they have not been able to put on these events because it was too late in the season after they applied for a liquor licence.

20. On cross-examination, Mr. Vidinovski stated that the dome is a permanent structure engineered to be up all year round for an estimated 20 year life span. Eventually they will put up retail shops and condos and will demolish the Dome. The Dome will not be up forever, but they want to use it while they restructure.

21. He agreed that they have no kitchen but have refrigeration, and food preparation tables and sinks where food brought in from outside can be assembled and heated. There are coolers for liquor.

22. They will be operating in the summer months from the May 24^th weekend to Labour Day weekend. Mr. Vidinovski agreed to a condition on the licence that the Dome will operate from the Friday prior to Victoria Day to the Tuesday after Labour Day.

23. They have all the necessary approvals, zoning, health and fire departments, from the Town.

24. In response to questions by the Board, Mr. Vidinovski stated that they will have bonded security guards and waitresses with Smart Serve training. The chef will serve food such as salads, sandwiches, pizzas and foods which can be heated in ovens or microwaves.

25. There are businesses on Beach Drive and several bars. All other bars in the downtown area are under bankruptcy and it is not known what will be open next season. Lots of people have lost their jobs and he will be hiring staff if the premises are licensed to sell alcohol.

26. Mr. David Foster is a banker and the Deputy Mayor of Wasaga Beach. He is in support of the letter of the Mayor, Cal Patterson (Exhibit 4) and the application for a permanent licence for the Waterfront Dome. The waterfront is the main entertainment area and the “bread and butter” for the Town. The economy of the Town is dependent on the tourism industry and it is good for people visiting to have options.

27. On cross-examination, Mr. Foster disagreed that the dome is just a tent. It is fixed permanently to the ground and has faced severe weather conditions.

28. Bill Frieday stated that he is with BeachBoosters.com and is a director of the Wasaga Beach Lions Club. He is in support of this application. He knows how much Mr. Vidinovski cares for the community. When the Lions Club asked him to support World Diabetes Day, he did not hesitate to allow them to use his property. Mr. Vidinovski has also indicated that the Lions Club can use the Dome for any fundraising events.

29. The dome is not a tent but is more like the dome at Ontario Place in Toronto. It is a permanent structure. One cannot call it a tent.

30. The Dome is recognized world wide along with the Eiffel Tower, the CN Tower and the Opera House in Australia as a beacon of light for the World Diabetes Day. As a result, the Dome is part of an international website courtesy of the Applicant. He is very community minded and has been in Wasaga Beach for a long time and his efforts should be supported.

31. When asked on cross-examination what the World Diabetes Day had to do with a liquor licence, Mr. Frieday explained that the Applicant’s participation in that event shows that he is a community minded person and that is an important consideration when granting a licence.

32. Joseph Bickerstaff stated that he is a taxpayer in Wasaga Beach. He is the founder of Bickerstaff Boosters Streetscapes Ltd. which promotes the beach. He promotes business in the community which is a unique one in that tourism is its only industry. He knows Mr. Vidinovski and his philosophy and community mindedness.

33. The Dome is in an appropriate commercial part of the Town. The beach is 14 kilometers long but there is only a 3 block commercial section which has been designated as such since 1915.

34. Mr. Bickerstaff stated that he is not an architect but disagreed that the Dome could be called a tent. It is a geodesic dome with a strong metal structure mounted to the ground. It is a permanent structure.

35. The patio circles around the Dome and from it one can see 14 kilometers of sand beach. It is a beautiful spot on the beach and there is no reason why it shouldn’t be part of the community. His business is to promote Wasaga Beach. Mr. Vidinovski is a respected businessman who has been in the Town for many years. The Town needs business down at the beach and a liquor licence is necessary for any successful business.

36. On cross-examination, Mr. Bickerstaff agreed that he did not know the AGCO requirements for licensing a permanent facility but added that he believes they know what they are doing and licensing this facility would not be licensing a tent.

Objectors’ Submissions

37. Ms. Mutter submitted that the Dome was built as a temporary structure. She hoped that the officials for the AGCO would visit the site to see if it fits the standard for a liquor licence. Granting this licence may set a precedent for licensing a temporary structure like the Dome.

38. It was originally built to be temporary until the owners of Beach Front Development could get the financing to build a multi-million dollar resort. They went bankrupt and now the structure is turning into a bar. She and her husband are objecting because it does not fit the criteria for a permanent liquor licence.

Applicant’s Submissions

39. Mr. Vidinovski submitted that the Dome is a structure that they need to use temporarily for 3 or 4 years until they build a permanent structure on the site. The Dome is not a tent, it is a domed structure. With a licence, they can also provide a nice patio for people on the waterfront where they can enjoy a drink or lunch. The Town wants something on the waterfront to be open next year and there is a concern about any of the other licensed places opening.

Reasons and Analysis

40. The Registrar issued a Notice of Proposal to review this application based on letters of objection from residents of the municipality to licence the Waterfront Dome.

41. The Board reviewed the evidence, the exhibits and submissions before it.

42. The main concerns of the objectors are the temporary tent-like structure of the Dome, the lack of washrooms and kitchen facilities, noise emanating from the Dome and no necessity for more licensed establishments in the area.

43. The first concern is that the Dome is a temporary tent-like structure that does not meet the standards required for a permanent liquor licence and licensing it would set a dangerous precedent of licensing temporary structures.

44. The physical structure of a building, washrooms and kitchen facilities etc. are not for the Board to decide. They are municipal matters and ones for the Registrar of the AGCO to decide. No licence is granted until all applicable Municipal compliance letters are received by the AGCO. Furthermore, under subsection 6(2)(g) of the Act, an Applicant is not entitled to be issued a licence to sell liquor if the premises, accommodations, equipment and facilities in respect of which the licence is to be issued are not, or will not be, if the applicant is licensed, in compliance with the Act and Regulations.

45. One objector, Mr. Rick Seip, was not able to attend the hearing due to being out of the country (Exhibit #3). His concern was the noise from the location. In his view, the canvas covered dome acts like a drum which sends noise in every direction. He received information from the Town’s By-Law Department that there were problems with noise from this location in the past. Also he did not feel that another licensed establishment in the area is necessary.

46. It is not clear from Mr. Seip’s letter whether the past noise problems related to the previous operator, which would not be relevant to this application, or to this Applicant who operated a few Special Occasion Permit events at this location. However, the Board notes that no evidence was given by the Town’s By-Law Department in opposition to the application. Furthermore, the evidence is that the establishment is in a commercial area and there is no evidence of nearby residences whose occupants would be affected by any activity at the Dome. Based on his letter, Mr. Seip operates a licensed establishment in the area and would be a competitor if this licence is approved. Therefore, his objections have to be considered with that in mind. Economic considerations resulting from competition between licensed establishments are not matters for the Board to adjudicate. Limiting or allowing more licensed establishments in a specific area is a Municipal decision and not one for the Board.

47. The objection of Mrs. Mutter was to a permanent licence but she had no concern if the Applicant operated on a seasonal basis using Special Occasion Permits (“SOPs”). However, as pointed out to Mr. Vidinovski by the AGCO Inspector, he cannot operate a business on a long term basis using SOPs. Furthermore, Mr. Vidinovski indicated that the premises would be operated only on a seasonal basis and even agreed to have a condition on the licence that the premises would be operated from the Friday prior to Victoria Day until the Tuesday after Labour Day.

48. The Applicant is entitled to a licence except under specific circumstances stated in section 6 of the Act with public interest under 6(2)(h) being one. Therefore, the onus is on the objectors to show that the issuance of a liquor licence is against the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located. Having reviewed all the evidence, the Board finds that the objectors have not met that onus.

49. Furthermore, the Board accepts the evidence of Mr. Vidinovski that this will be a seasonal operation and finds no compelling reason to impose specific dates of operation as a condition on the licence

Order

50. For the above reasons, the Board APPROVES the application of Waterfront Dome Inc., operating as or intending to operate as WATERFRONT DOME (THE), 9 Main Street, Unit B, Wasaga Beach, Ontario, L0L 2PO, establishment number 807005, subject to compliance with all statutory conditions and municipal regulations.

DATED AT TORONTO, THIS 28 day of February , 2011.

KIRSTI HUNT, VICE-CHAIR, AGCO BERYL FORD, BOARD MEMBER