Licence Appeal Tribunal
FILE: 6850 & 6851/LLA
CASE NAME: 6850 & 6851 v. Registrar of Alcohol and Gaming
Appeal from the Notices of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 - to Refuse to Remove Conditions on a Licence and to Review an Application for a Licence
2009915 Ontario Inc. o/a Orchard Beach Lakefront Bar & Grill Applicant
-and-
Registrar of Alcohol and Gaming Respondent
-and-
Objector E Objector
DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Applicant: Jerry Levitan, Counsel
For the Respondent: Rena Khan, Counsel
For the Objector: Kenneth C. Hill, Counsel
Heard in Newmarket: April 23, 2012
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued:
(1) Notice of Proposal, number 18822 dated August 2, 2011 to refuse to remove Conditions on the liquor licence of 2009915 Ontario Inc. o/a Orchard Beach Lakefront Bar & Grill, on the basis that the Registrar has received one or more written objections to the application; and,
(2) Notice of Proposal number 18820 dated August 2, 2011 to review/refuse the application for additional licensed area by 2009915 Ontario Inc. o/a Orchard Beach Lakefront Bar & Grill, on the basis that the Registrar has received one or more written objections to the application.
PRELIMINARY MATTER
Mr. Levitan, Counsel for the Applicant, advised the Tribunal there had been some discussion leading to agreement among the parties that the hearing should only proceed with Notice of Proposal (“NOP”) 18822 regarding the application for removal of conditions and that NOP 18820 be adjourned on the basis that there are municipal issues which prevent resolution of that NOP at this time.
Ms. Khan, the Registrar’s Counsel, confirmed that she was not opposed to the adjournment of that matter but requested that the Tribunal member not be seized of the adjourned matter to which the Tribunal agreed.
Therefore it was agreed that the hearing would only proceed with respect to NOP 18822, the refusal to remove conditions on the liquor licence. While there was no date set for the continuation of the hearing regarding NOP 18820 as the parties expressed the view that it would be resolved through discussions with the municipality, the Tribunal shall be provided with a status update by or before September 10, 2012. In the event the Tribunal receives no such update within ten (10) days of that date, the Tribunal will set a date for the continuation of the hearing regarding NOP 18820.
As a preliminary matter, Objector, E was granted party status, on consent.
APPLICANT’S EVIDENCE
Ken Craine is the owner-operator of the Orchard Beach Lakefront Bar & Grill (“Orchard Beach Bar”). He described it as a family restaurant and sports bar with occasional live entertainment in the dining room. It is an open concept rectangular building with the bar at the north end and a patio on the west side facing the lake.
Mr. Craine reviewed the establishment’s liquor licence (Exhibit 3) and the history of the conditions which were imposed at the time he purchased it. He subsequently applied to have some of these conditions removed which led to a hearing before the Board of the AGCO.
The Order from that hearing is dated April 28, 2005. The Board granted the application with the following conditions:
No music on the patio and cleared of patrons by 10:30 p.m. each day.
All doors and windows to be kept closed to minimise any sound emanating from the establishment.
The hours inside will be 11.am until 2:00 a.m. each day.
The patio hours will be 11.am until 10:00 p.m. each day.
When the revised licence was issued, it contained an inconsistency between Condition 1 & 4. Specifically, condition 1 read that “… the patio is to be cleared of patrons by 10:30 p.m. each day” while condition 4 read that “The patio hours will be 11:00 a.m. until 10:00 p.m. on Sundays” and “The patio hours will be 11:00 a.m. until 11:00 p.m. from Monday through Saturday inclusive”.
When he noticed the discrepancy on the licence, he wrote to the AGCO Board member who wrote the original decision of April 28, 2005. The error was subsequently corrected through an Amending Order, dated June 22, 2005.
The Amending Order stated there had been “a clerical error” in Condition 4 of the Board’s Order and that “the hours of service on the outside patio were incorrectly stated”.
The Amending Order then stated:
“The patio hours will be 11:00 a.m. until 10:00 p.m. on Sundays. The patio hours will be 11:00 a.m. until 11:00 p.m. from Monday through Saturday inclusive.”
Mr. Craine said that the half hour written into condition 4 of the licence should be added to Condition 1 so that the condition of the patio hours should read that it is to be cleared of all patrons by 11:30 p.m. each day (because the patio closing hour should be 11:00 p.m. instead of 10:30 p.m.).
Mr. Craine believes the conditions should allow for the patio to be open to 11:00 p.m. daily and that all doors and windows are to be closed to minimize noise after 11:00 p.m.
Some time after the amending order, he received a call from Mr. Philip Morris, Counsel for the AGCO, to advise him that the licence could not be changed and that it had to revert to the original wording.
Mr. Craine referred to two current competitors, Boston Pizza and St. Louis Bar & Grill, who are located 1 and 2 miles distant from his establishment, and claimed that he is at a competitive disadvantage as they also have patios but are without conditions on their licences for their patios. He said he would like to be able to serve alcohol on the patio to 11:00 p.m. every night of the week and was willing to have all signs of service cleared by 11:30 p.m.
He reviewed photos of the establishment grounds (Exhibits 5A and 5B) to illustrate the neighbourhood layout, the street and neighbouring homes. He said that a noise attenuation wall had been installed in August 2010.
The amplification inside is with ceiling speakers which are turned off when there is live entertainment as performers usually bring their own sound system. The windows and doors are all double pane and he would also like to install garage doors for the sides facing the lake only. His customers have been asking for a TV to be installed outside for viewing on the patio. He would also like to provide recorded music on Sunday afternoons.
Mr. Craine said he would be content with a condition allowing a TV and background ambient music on speakers but no DJs or rock bands on the patio. He would also like to be able to allow patrons to be on the patio to smoke after 11:00 pm but would not serve food or alcohol. He would prefer smokers to be on the lake side where there is sound attenuation instead of going to the parking lot where sound travels and could disturb neighbouring homes.
During cross-examination, it was learned that Mr. Craine has had on-going complaints about noise from one objector but has never received any charges laid by police or tickets, warnings, from municipal officials.
Mr. Hill questioned Mr Craine about the chronology of changes at the establishment as there had been changes in 2003 for sound amplified music, then in 2005 the patio deck was expanded from “8-10’x60’ to 30’x60’. He suggested to the witness that otherwise nothing significant had changed since 2010 to the time he made the 2011 application for the purposes of trying to change the business to survive.
Debra Green is general manager of the Orchard Beach Bar and has been in the position for two years. She confirmed that patrons have asked for changes to patio service. She also said that from speaking with an employee of Boston Pizza, there are no specific hours specified on that establishment’s liquor license and that people do smoke on the patio. She said Boston Pizza’s business hours are 11:00 a.m. to 1:00 a.m. She acknowledged Boston Pizza is located in a commercial area and there are “houses across the river.”
Ms. Green said that service on the Orchard Beach Bar patio stops at 10:30 p.m. though work to stop service “usually starts around 10:00 and 10:15 p.m.”
Ms. Khan introduced Exhibit 7 and noted the Registrar’s opposition to any change to Condition 2 of the Orchard Beach Bar’s licence as there has been no change in circumstances and the Registrar relies on the public’s evidence in support of its position.
It was noted that there are written objections from 3 individuals and 3 families. One additional family was both supportive of the licensee and concerned about late night noise (Exhibit 7). The licensee submitted 2 supporting submissions (Exhibit 8A, 8B).
Ms. Khan advised the Tribunal that the Registrar was not taking a position on Conditions 1 and 4 as the Registrar agreed there is an inconsistency which needs to be clarified.
OBJECTORS’ EVIDENCE
Objector ‘B’ lives in the neighbourhood and was aware of the establishment when he originally built his home as part of his retirement plans. He acknowledged there is a “great view” and occasionally eats there. He does not hear any noise as he wears hearing aids and takes them out at night.
The Objector said that last summer there had been an intruder in his home and he was able to get him out. The police later commented to him that they would likely find the intruder at the Orchard Beach Bar. On another occasion, the Objector said he found an “inebriated” man, who said he had come from Orchard Beach, on his front lawn. In both instances, while the Objector had no follow-up information, he did express his concern about no longer being able to keep his front door and garage door open.
On cross-examination, the Objector acknowledged there had only been the two incidents and there is also the Orchard Beach Golf Club in the area.
Objector ‘T’ has lived in the neighbourhood since 1999 and had also been a customer of the establishment when it had a different owner. He said he was part of a group which had purchased the property and subsequently sold it to the current owner. This Objector also attended the hearing in 2005.
The Objector said that people tend to congregate in the parking to smoke and while he has complained, he would have no response after 2-3 calls. He believes that extended hours would be a problem as people are there at 2:00 a.m. and while additional hours on the deck might not affect him, it would bring in more people. He agreed there is a “million dollar view” and competitor locations do not have the same type of location.
On cross-examination, the Objector confirmed that he understood the inconsistency in the licence conditions, but he also believes that changing the time from 10:30 p.m. to 11:00 p.m. would damage the community. He does not have a problem with people smoking to 2:00 a.m. but is concerned about drinking and drunkenness at that time.
Objector ‘E’ has lived in proximity of the establishment since 1984 and enjoys living there because “it does not change.” He confirmed there was a bar operating there when he moved in and it had many licence conditions as a result of prior problems. Considering the changes being requested by Mr. Craine, he believes the establishment is moving more towards being a bar rather than a place to have a meal.
There was originally no amplified music and they were only affected by noise when the establishment was busy. He said he has called managers about two dozen times regarding noise issues and he knows that Ms. Green has gone outside to check.
The Objector said he has made calls to both the police and the Town’s by-law department. He clarified that he may have only called police 2-3 times and they said they would do a drive-by. He said he had not followed up with police.
He attended the 2005 hearing and he did not want to see more noise or traffic. At that time, the Applicant also made a municipal application for a variance to allow for an ice cream parlour, which was granted but not used. He confirmed he was satisfied with the conditions imposed at the time, but is not sure if the sound barricade has helped. The patio deck also abuts a 2 ft stone wall which reflects sound back into the immediate and neighbouring area.
The Objector said he has significant concern with the doors and windows being opened, particularly if garage doors are installed as he cannot see how noise can be contained. He acknowledged that some nights there is no one there at 10:00 pm and other times, later. He does not see how keeping the bar open later (after 10:30 pm) can benefit the community.
When questioned about his follow-up regarding complaints to the police, the Objector acknowledged he had called 3 times over the years but never pursued the calls.
Objector ‘EM’ is an objector’s partner and also lives in the neighbourhood. The Objector reviewed photos (Exhibits 11, 12, 13) of the neighbouring properties as well as a noise log (Exhibit 14) which had been started in 2010. The Objector confirmed that none of the log entries related to the patio and while there had been problems before 2010, they were not entered in the log.
Debra Green was recalled. She confirmed that the patio is cleared at 10:30 p.m. and there is only noise in the parking lot when there is live entertainment which is “maybe once a month.” Doors and windows are closed after 11:00 p.m.
She said the establishment caters to an older 30s to 40s plus age group and they do not want a younger group. There have been calls from Objectors and the issues have been dealt with. There were no follow-up calls.
The Town had asked for plantings and this was done.
On questions by Mr. Hill, the witness said her day planner had reference to anything going on in November 2010 and in March 2012. She said there were 2 bands for St. Patrick’s Day but that the establishment is “not looking to draw people with weekly live entertainment.”
CLOSING SUBMISSIONS
Mr. Levitan addressed condition 1 by pointing to the inconsistency in the hours as reflected in the conditions on the licence. He submitted that there was no evidence that the AGCO Board member who issued the Amending Order had any problem with it. However, the reversal of the Board member’s decision to issue the Amending Order resulted in “a licence which does not make sense.” Mr. Levitan argued that this is a change in circumstance and he questioned whether the ½ hour change from a 10:30 p.m. closing to 11:00 p.m. makes any difference to the neighbouring residents.
Mr. Levitan submitted that patrons of the Orchard Beach Bar consistently ask for change and whether Boston Pizza and St. Louis, who have no such restrictions in patio hours, affects the objectors is not the issue. He said what is relevant is that the difference poses a competitive disadvantage to the Applicant’s business.
Mr. Levitan referred to Objector ‘T’ who said he had no problem with the establishment and that the licensee also preferred for smokers to be allowed on the patio until closing. This would be better than having them gather out front where conversation noise could carry out across to neighbouring residences. The licensee would also like to be allowed to have a TV on the patio, just the same as Boston Pizza.
Regarding Condition #2, Mr. Levitan submitted that all windows and doors would be closed after 11:00 pm regardless of the activity inside the establishment. He argued that they were “really only talking about the 10:30 to 11:00 p.m. as change” and “what is a reasonable balance here?” He said the Applicant was only asking for a 30 minute differential and that he wants to be on a level competitive ground.
There have only been three calls to police over 3 years by one objector and that “does not ring loud about the extent of their concerns.” Mr. Levitan said there should be more than what was presented in an objector’s complaint log (Exhibit 14).
Mr. Levitan concluded by saying that after about 10 years of operation there is no record of disciplinary proceedings against the Orchard Beach Bar and the resolving of the half hour inconsistency will not impose any difficulty on the community. The Applicant should be allowed to play ambient music and TV special broadcasts on the patio but not allow rock bands or DJs.
Mr. Hill, Counsel for the Added Party, submitted that Objectors ‘E’ and ‘EM’ have made about “2 dozen” complaints over the years and that their noise complaints are bona fide because of the renovations they have made to their home. He said the onus is on the licensee to show there is a change of circumstances and what has been presented in this hearing does not show sufficient support for the changes being sought.
Mr. Hill submitted that this is an isolated business surrounded by residents who have concerns about noise if speakers and live entertainment are allowed on the patio. The view is that once speakers and live entertainment are allowed on the patio, the question becomes one of “what is the distinction between loud and too loud.” He said there has to be a line drawn about keeping entertainment off the patio.
He acknowledged that Mr. Craine is a responsible operator but submitted that it is important to keep restrictions in place because of concern about how a future operator may operate.
Mr. Hill said the conditions contained in the 2005 decision were very clear and it is unclear how the wording then changed through to the issued licence. If the ambiguity is to be resolved then there should be a reversion to the original decision as there has been very little evidence to show there has been a change in circumstances. The conditions should remain the same.
THE LAW
Pursuant to the Act, a licensee may apply to the Licence Appeal Tribunal (“LAT”) to have a Condition on his/her licence removed or changed if the Condition was imposed by the Board of the AGCO or a panel of LAT after a hearing:
Removal of Conditions
14.(2) The Tribunal may, on the application of a licensee, remove a condition of a licence, other than a prescribed condition or a condition attached pursuant to section 8.1, subsection 10 (4), 11 (5), 11.1 (4) or clause (1) (a), if there is a change in circumstances.
Same
(3) If the Tribunal, on considering an application for the removal of a condition, decides not to remove the condition, the Tribunal shall direct that a proposal be issued to refuse to remove the condition.
Notice of proposal
(1) If the Registrar issues a proposal with respect to any of the following matters, the Registrar shall serve notice of the proposal together with written reasons on the applicant or licensee:
Refuse to remove a Condition of a licence.
Same
(2) If the Registrar or an authorized person under section 19 issues a proposal with respect to any of the following matters, the Registrar shall serve notice of the proposal together with written reasons on the applicant or permit holder:
- Refusing to remove a Condition of a permit.
Notice requiring hearing
(4) A notice of a proposal shall inform the applicant, licensee, permit holder or owner that the person is entitled to a hearing by the Tribunal if the person mails or delivers to the Tribunal and the Registrar, within 15 days after the notice is served on the person, notice in writing requiring a hearing by the Tribunal, and the person may so require such a hearing.
ISSUE:
The issue in this matter is whether there has been any change in circumstances since the conditions were imposed following the hearing in 2005 and if so, whether the removal of the condition is against the public interest at this time.
APPLICATION OF LAW TO FACTS
The Tribunal heard the testimony of four individual witnesses and noted the submissions of other objectors (Exhibit 7). This included testimony about:
Two incidents of unknown individuals intruding on one Objector’s property and home, but there was no evidence linking the individuals to the Orchard Beach Bar;
A general gathering of patrons outside of the establishment and engaging in loud conversation late at night;
Noise limited to busy nights;
Calls to the establishment regarding noise issues and the acknowledgement that checks by the manager were carried out;
Three complaint calls to police but no follow-up to obtain outcome information; and,
Reference to a personal log record of noise disturbances from 2010 though none of the entries related to the patio.
While one objector said that changing the time from 10:30 p.m. to 11:00 p.m. “would damage the community,” there was no evidence to indicate how or what that damage would be or could be.
The Tribunal notes that in the main, the evidence was anecdotal and that even on the occasions when police were called to deal with noise complaints, the Objector (caller) did not follow up to learn what had happened. The Objector who referenced a personal noise log also had no supporting evidence to show actions taken to address the noise complaints.
However, the Tribunal does note the proximity of the Objectors’ homes to the establishment and that the Objectors would not wish to see any increases in noise incidents.
It is also influential that despite the concerns expressed by the Objectors, the Orchard Beach Bar has never had any charges laid against it.
Looking beyond the Objectors’ concerns, the Tribunal believes that the inconsistency of the licence conditions represents a significant factor for consideration in this matter.
While the Board decision of April 28, 2005 was clear in stating the conditions to be attached to the liquor licence,
No music on the patio and cleared of patrons by 10:30 pm each day.
All doors and windows to be kept closed to minimise any sound emanating from the establishment.
The hours inside will be 11. am until 2:00 am each day.
The patio hours will be 11. am until 10:00 pm each day.
… the actual licence delivered to the establishment was inconsistent in its writing of Condition 1 (which reflected the Board’s decision for patio hours “each day”) and with Condition 4 which in part read that “patio hours will be 11:00 a.m. until 11:00 p.m. from Monday through Saturday inclusive”.
The inconsistency was thought to be remedied by the Board’s hearing member subsequently issuing an Amending Order, of June 22, 2005, dealing with Condition 4 as follows:
“The patio hours will be 11:00 a.m. until 10:00 p.m. on Sundays. The patio hours will be 11:00 a.m. until 11:00 p.m. from Monday through Saturday inclusive.”
According to the evidence presented during this hearing, the Amending Order of 2005 was deemed to be disregarded by the Registrar’s Counsel who then advised the licensee that the issued liquor licence, with the inconsistency, was the correct.
The evidence is that the licensee then adhered, “each day,” to the hours on the patio as stated on the licence, in Condition 1.
As Mr. Hill said in his closing submission, we cannot know how the wording changed between the wording in the Board’s decision to the wording in the licence. What we do know for fact is that the same Board member issued both the original decision and the amending order. Therefore it is not unreasonable to consider that the Board member had reason to allow the patio hours to be 11:00 a.m. to 11:00 p.m., Monday through Saturday, inclusive.
It is also worth noting, and this was not disputed as the licensee’s letter of April 17, 2005 (Exhibit 4) stated…
“Upon reviewing the decision we noted a mistake concerning the outdoor patio hours. Presumably, you inadvertently wrote that the patio will close by 10pm, as opposed to 11pm as permitted by our current liquor license and municipal by-laws.
“As you are aware, the outdoor patio hours were not the subject of the proceedings, nor did any party comment on its hours, or otherwise make representations or submit evidence. Rather the hearing focused exclusively on extending the indoor serving hours, and permitting amplified music indoors.”
As a result, the Tribunal has difficulty with the sequence of events as described in the evidence, and in particular, the confusion that followed from Mr Craine’s letter subsequent to the 2005 hearing, the amending order and then its apparent interpretation by Mr. Morris. Nonetheless, the licensee accepted the direction of the Registrar’s Counsel and operated in compliance with that direction.
What is clear, however, is that clarification is needed in the conditions on the licence. A licensee should be able to look to the licence and any conditions attached for clear guidance in the operation of the establishment, in compliance with the Act. While Mr. Craine is to be commended for remaining “on side” with his conditions, the inconsistencies could well have posed difficulty in that regard. This should not, in fairness, continue.
The Tribunal has carefully considered all the evidence and finds that while the licence inconsistency must be clarified, the Objectors concerns have merit if for no other reason than the proximity of their homes to the establishment. Noise from the establishment is an issue for these residents and without conditions may well continue to be, though the Tribunal does note that complaints about noise have not resulted in disciplinary action against the Applicant. The Tribunal is required to balance these interests with that of the Applicant, whose business environment has changed in seven years. Therefore, the Tribunal grants some deference to the objectors’ continuing concerns.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal approves the application to remove conditions on the licence issued to 20009915 Ontario Inc., operating as Orchard Beach Bar and Grill, 221 Lake Drive North, Georgina, Keswick, Licence No. 90635 and orders that the following conditions attach to the licence:
The patio hours will be 11:00 a.m. until 10:00 p.m. on Sundays and the patio will be cleared of patrons by 10:30 p.m. on that day.
The patio hours will be 11:00 a.m. until 11:00 p.m. from Monday through Saturday inclusive, with the patio to be cleared of patrons by 11:30 p.m. on each of those days.
There shall be no live music, DJ or TV on the patio.
No ambient music on the patio after 9:00 p.m. each day.
All doors and windows to be kept closed after 9:00 p.m. each day to minimize any sound emanating from the establishment.
The hours inside will be 11:00 a.m. until 2:00 a.m. each day.
In addition, the Tribunal confirms its oral order regarding NOP 18820, such that the parties shall provide the Tribunal with an update on the status of the discussions by September 10, 2012. In the event that the Tribunal receives no such update within ten (10) days of that date, the Tribunal will set a date for the continuation of the hearing regarding NOP 18820.
LICENCE APPEAL TRIBUNAL
________________________
Simon Dann, Member
Released: June 12, 2012