Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7493/LLA
CASE NAME: 7493 v. Registrar of Alcohol and Gaming
Appeal from the Notice 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 Liquor Licence
1817171 Ontario Inc. operating as The Fox and Fiddle Applicant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION AND ORDER
ADJUDICATOR: D. Gregory Flude, Vice Chair
APPEARANCES:
For the Applicant: Nathan Taus, Agent
For the Respondent: Kate Varva, Paralegal
Heard in North Bay: August 30, 2012
The Applicant appeals the Notice of Proposal to Refuse to Remove a Condition issued by the Deputy-Registrar on April 11, 2012 (the "Notice"). The conditions the Applicant seeks to be removed are:
- There will be no live or amplified music on the patio.
- The patio will be closed at 11:00 p.m.
The Notice cites two grounds for the refusal to remove the conditions:
- The Commission has received written objections to the removal of the condition from residents of the immediate area of the establishment.
- There has been no change of circumstances to justify the removal of the conditions.
The Registrar's Agent notified the Tribunal that the Registrar was not taking a position on the application. She then introduced one objection letter received by the Registrar. It was entered as Exhibit 3 in these proceedings. The Objector, an area resident, attended the hearing but, at the outset, stated that he had no objection to the removal of the conditions in question. He was concerned about other aspects of the Applicant's operations that were not before the Tribunal.
The Tribunal then proceeded to hear evidence on behalf of the Applicant concerning the second ground for refusal; the allegation that there had been no change in circumstances to support a removal of the conditions as required by section 14 of the Liquor Licence Act, R.S.O. 1990, c. L. 19 (the "Act"). At the conclusion of all of the evidence, the Tribunal determined that there had been a change of circumstances and ruled that the conditions were to be removed from the Applicant's licence. Written reasons were to follow. These are the written reasons.
THE LAW
The law with respect to the removal of conditions on a licence is set out in s. 14 of the Act as follows:
- (1) The Registrar may at any time review a licence and may,
(a) attach to the licence any further conditions consented to by the licensee; or
(b) issue a proposal to attach to the licence any further conditions that the Registrar considers proper to give effect to the purposes of this Act.
Removal of conditions
(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.
Pursuant to s. 14 (3) the Tribunal directed the Registrar to issue the Notice and the Applicant has appealed the Notice pursuant to the provisions of s. 23 of the Act:
- (5) The Tribunal shall fix a time and place for the hearing of the matter and shall at least ten days before the day fixed cause notice of the hearing to be served upon the person who has required the hearing.
Powers
(11) Following a hearing to consider any other proposal referred to in subsection 21 (1), (2) or (3), the Tribunal may direct the Registrar not to carry out the proposal or to carry out the proposal, in whole or in part, and with any changes that the Tribunal considers appropriate, and the Tribunal may direct the Registrar to approve an application to which the proposal relates.
Conditions
(12) Following a hearing, the Tribunal may attach to a licence or permit any condition that the Tribunal considers proper to give effect to the purposes of this Act.
S. 21 (1) provides for a right of appeal to the Tribunal in the event of a refusal to remove a condition.
The sole witness before the Tribunal was Nathan Taus, the owner and operator of the Applicant. Mr. Taus provided the Tribunal with a bundle of documents that was entered as Exhibit 4. He explained that he inherited the conditions on the licence when he took over the establishment. At the time the conditions were imposed, the patio faced a street with residences on it. Since taking over, Mr. Taus has moved the patio to the opposite side of the building. It now faces on a purely commercial area. Mr. Taus drew the Tribunal's attention to two photographs at pages 1 and 5 of Ex. 4. They show a parking lot with residences in the background. It was his evidence that this parking lot was, formerly, the site of the patio. The photographs at pages 2 and 3 of Ex. 4 show the current location of the patio. The background shows a parking lot, a drug store and an open commercial plaza area. Mr. Taus advised the Tribunal that, in the current location, the patio directs noise towards the commercial area and away from the residences. There was no cross-examination of Mr. Taus.
After considering all of the evidence and noting the withdrawal of the one objection filed, the Tribunal finds that there has been a change of circumstances as contemplated in s. 14 (2). The original patio faced private residences and noise was focussed in that direction. It was necessary to protect the local community by placing limits on both the noise generated from the patio and the hours during which the local community would be subject to such noise. With the removal of the old patio and the construction of a new patio on the opposite side of the building directing noise towards a commercial district, the underlying rationale for the existing conditions disappears.
ORDER
Pursuant to the authority set out in s. 23 (11) of the Act, the Tribunal orders the Registrar not to carry the proposal to refuse to remove the conditions on Applicant's licence. The Tribunal orders the removal of the following conditions on the Applicant's licence:
- There will be no live or amplified music on the patio.
- The patio will be closed at 11:00 p.m.
LICENCE APPEAL TRIBUNAL
_________________________
D. Gregory Flude, Chair
Released: September 4, 2012