8Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2012-09-05
FILE:
7409/LLA
CASE NAME:
7409 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 Review an Application for a Licence
1775155 Ontario Inc. o/a The Hound Lounge Cafe
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
-and-
John Meek
Objector
DECISION AND ORDER
ADJUDICATOR:
Simon Dann, Member
APPEARANCES:
For the Applicant:
Nicholas Macos, Counsel
For the Respondent:
Kate Varva, Paralegal
For the Objector:
Self-Represented
Heard in Bracebridge:
August 10, 2012
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued the Notice of Proposal, number 19200 dated May 7, 2011 to review an application for a liquor licence by 1775155 Ontario Inc. operating or intending to operate as Hound Lounge Café (The) (“Café”/“the Café”), on the basis that the Registrar has received one or more written objections to the application.
PRELIMINARY MATTER
Counsel for the Applicant, advised the Tribunal there had been some discussion leading to agreement among the parties regarding the following issues:
parking signage
low-level speakers on the patio
dark sky friendly lighting on the patio
noise level on the patio would not exceed 75 decibels (“db”).
It was also confirmed that the focus of the hearing was narrowed to the issue of closing hours. The Added Party and Objectors believed the patio should be cleared of service by 10:00pm and that the inside should be cleared of service by 11:00pm, seven days a week. The Applicant, on the other hand, believed the Café should be allowed to be open until 2:00am, every day of the week, all year around.
Ms. Varva confirmed the Registrar took no position on the matter.
APPLICANT’S EVIDENCE
John Gallagher is a professional planning consultant who has been practicing planning in the Muskoka region for 25 years. He has appeared at Ontario Municipal Board hearings and in court on zoning compliance issue. The Applicant’s Counsel asked to have Mr Gallagher recognized as an expert and as there were no objections, he was qualified as such.
For background purposes, Mr. Gallagher was retained by the Applicant in summer 2007 and submitted the original application for rezoning of lands to allow for mixed use residential and commercial. The objective was to permit a restaurant or retail use on the ground floor with a maximum space of 4,515 square feet (“sf”) (Exhibit 3, Tab 3).
The rezoning application which was eventually approved permitted a broad range of uses including residential, commercial, light industrial, institutional, open recreational and multiple family units.
The planned restaurant was intended to meet a perceived local need as there is currently no other restaurant of the proposed type in the area. There have been others in the past but they have all closed.
It was noted that there are other establishments currently operating and they are about 25 km distant. Restaurants in Muskoka have traditionally had a “hard go” of it.
Municipal staff recommendations were in general support of the application. A patio and restaurant were always shown on plans which were sent out to each person named on the municipal and public distribution list.
In 2010, when a change in zoning occurred to provide for attainable housing, the restaurant and patio component of the total building were reduced from 4,515sf to approximately 1700sf.
Mr Gallagher stated the application was properly circulated and the municipal meeting, during which the application was reviewed and discussed by council and public members, seemed to be more focused on subsidized housing than the commercial establishment (Exhibit 3, Tab 10). It was also Mr Gallagher’s opinion that all concerns were addressed during that meeting.
JB is a member of the community and spoke on behalf of the Applicant.
JB said she has lived there since the 1960s and acknowledged that she lives just outside of the community. She stated that her purpose in speaking at the hearing was to confirm that the area needs a good restaurant.
Mike Diasio is the principal of the Applicant.
Mr Diasio said he will operate the restaurant and intends to provide service for breakfast, lunch and dinner. He expects to open at 6:00am until closing and can see that in the off-season the restaurant could close early. The restaurant has not yet opened.
Mr Diasio said he needs the late closing because the extended hours could make the difference for sustaining the business. He agreed that most of the revenues are generated during the summer months.
Previously, he managed the Pavilion at the other end of town, in 2006, and eventually leased it out. However, the tenant did not pay the utility bills and he had to lock him out. The property is currently empty and has been placed for sale.
Mr Diasio said he operated a licensed establishment in Toronto for about 3 years and never received any violations of liquor regulations during his management of these operations. He also said that he and his family live in the area and this project has involved a significant investment on his part.
When asked, in cross-examination, if the money is made in food, why would he not already be open for meals, Mr Diasio said “it’s a package deal “ and opening without a liquor licence for the required hours would create an improper impression for the restaurant.
OBJECTORS’ EVIDENCE
John Meek lives within 150 to 200 feet of the establishment. He testified that the principal concerns he represents are those of safety, traffic, disruption to the neighbourhood and the kinds of patrons that might come to the establishment when other area bars close.
The objectors are concerned about whether the establishment will be a restaurant or a bar. There is currently no traffic on the surrounding streets after dusk, but he is worried about the increased traffic due to the restaurant and bar operation.
The park adjacent to the Café is used by the public, both children and adults, as it is considered to be the best public swimming site in the area. There is also concern that there would be increased street and boat traffic (coming to the marina by boaters going to the Café) and this would create a distraction from the public use of the park.
Mr Meek confirmed the objectors have no objection to the restaurant’s liquor application, if the patio is cleared of service by 10:00pm and the inside cleared of service by 11:00pm. He said that most restaurants and bars close between 10pm and 11pm due to lack of business.
In cross-examination, Mr Meek said he lives adjacent to Hwy 117, which has “a lot of traffic on weekends” but there is a buffer between the highway and his home. He said the park beach swimming area is used from as early as 6:30am to late at night though the majority of activity occurs during daylight hours.
Objector ‘EB’ lives on the waterside between the marina and docks. She has been living there since the 1940s. She stated that a benefit of the swimming area is that it has a shallow area for teaching swimming.
Objector ‘LD’ lives on the water in the local community and works as a real estate broker in the area. It takes her about 5 to 7 minutes to drive to the park, where she takes her children 3 or 4 times a week. She said she uses the park as a “social hub” for her children.
LD said the people they meet at the park are both year around residents and cottagers. She spoke of her concern about safety with more boat traffic and the proximity of the increased boat traffic to people swimming towards the marina docks. She is also concerned about drinking and driving as well as noise travelling on water.
LD said that as a real estate agent she knows the park is an important feature for prospective buyers.
During cross-examination, it was learned that Centennial Park is another access point to water but there are concerns about water flow near the dam and the diving board there is thought to not be especially safe.
Objector JW lives immediately north of the Café and has been there 1999. She said she is adjacent to the swimming area and knows there are people who swim there after dark, including herself.
The Objector said she has seen increased use of the swimming area over the last 5 years. She said that from her view, the marina generates little traffic and only becomes busy once a year when there is a fishing tournament. However, on a “hot day” there could be more traffic.
Objector TB said he visited a number of other licensed establishments to learn about their operating hours. Specifically, he found the following:
- There are 2 restaurants in Dorset and one has a patio; the hours are 11am to 9pm;
- One establishment in Bracebridge opens at 11:30am, Sunday to Thursday and closes at 9pm; Saturday hours are 11am to 9pm;
- A Bala establishment opens at 11:30am and has an 8pm close for the kitchen - all patrons are gone by 9:30pm;
- An establishment on Lake Rosseau opens at 11:30am and has a kitchen closing at 9pm; snacks are available to 10pm when liquor service ends and while the patio is open until everyone leaves, the establishment closes by 11pm.
The Objector said that operators at these establishments told him they close at these hours because they are not a bar. He also noted that there is an establishment in Dwight (which is 18-19 miles by boat and 25 miles by car) which closes at 2:30am.
In cross-examination, the Objector confirmed he visited the establishments he mentioned but he did not look at their individual liquor licences.
Objector PS, who lives on the other side of town, said she has 25 years of experience in the food and beverage industry, specifically with a pub in Toronto which focused on alcohol sales as a bar. She has also worked at a local area resort.
PS said the best comparable restaurant in the area is a family restaurant and their liquor sales are minimal. She was told that food sales comprise 95% of the restaurant’s business.
John Gallagher, on being recalled, said there were alternate swimming areas and referenced Dwight Beach and other “little pockets” around the lake. Mr Gallagher said there will generally always be a conflict between boating and swimming, especially when there is a narrow channel, which is the case where the Café is proposed. He added that as the municipality is encouraging tourism, it is likely that traffic can only increase.
At the conclusion of the evidence,the Parties confirmed the wording for the issues on which they were in agreement and which would be agreed conditions on a liquor licence. The agreed wording is as follows:
Re Parking:
The licensee will ensure adequate and prominently displayed signage at the front of the premises to direct patrons to parking at the rear of the premises.
Re Sound/Noise on the Patio
Amplified sound on the patio will be restricted to a maximum sound level of 75 decibels.
Re lighting
Patio lighting and signage lights must be ‘dark-sky’ friendly to protect and preserve the natural nocturnal environment.
As a separate item of agreement between the Parties, the Applicant undertook to cooperate with and support the residents in addressing local municipal council regarding signage for boat docking location and on street parking.
CLOSING SUBMISSIONS
In closing, John Meek submitted that the area of the Café is a quiet and unique residential neighbourhood. The hours of operation applied for by the Applicant have the potential to change the neighbourhood and the objectors want to avoid seeing the Café “morphing into a bar with late nights”.
Mr Meek concluded by submitting that there is a recognition for the Applicant’s right to establish a viable business, but at the same time, there should be recognition of the residents’ rights.
The Applicant’s Counsel, Nicholas Macos, closed by submitting that the Applicant needs to have the ability to be flexible in the hours of operation in order to ensure his viability. He said there is no evidence to suggest that the Café could be rowdy or that it would have the kinds of problems about which people have speculated.
Mr Macos noted that there will be residents living above the Café and the Applicant will be attentive to that fact. He stated that the facts are that the Applicant has operated well in the past and that he has invested in the community.
The evidence is that the Applicant has been responsive to all demands and will be a good operator. He is aware there are restaurants which close earlier, but there is no evidence there are any limitations and earlier closing hours may just be a business decision.
Case law references submitted by Mr. Macos, regarding the onus on objectors to prove on a balance of probabilities that the issuance of a licence is against public interest having regard to the needs and wishes of the residents, as well as consent conditions agreed to between objectors and a liquor licence applicant, were noted to be:
- Proposed Restaurant (Re) [2000] O.A.G.C.D. No. 317 (“Proposed Restaurant”)
- Arena Entertainment Inc. (c.o.b. Circa) [2008] O.J. No. 1167 (“Arena”)
- BM King Inc. (Re) [2008] O.A.G.C.D. No. 180 (“King”)
ANALYSIS and REASONS
As a preliminary matter, the parties noted that they had agreed on a number of conditions regarding parking signage, patio speakers and lighting, as well as the noise limit for the patio.
The Objectors advised the Tribunal that they were not opposed to the granting of a liquor licence for the Café and stated their position on the hours of operation for the patio and inside, i.e., that the Café should be cleared of service by 10pm on the patio and 11pm on the inside, seven days a week.
The Applicant opposed this limitation on the grounds that he needed the longer hours, to 2:00am, in order to ensure the financial sustainability of the Café.
Therefore, the issue in this matter, after all the evidence is weighed, is, in essence a matter of the difference between closing the patio and inside of the Café at 10pm and 11:00pm respectively versus 2:00am for both areas.
The Tribunal has carefully reviewed the evidence and submissions on this point with sensitivity to a balancing of the interests of those who live in the community, with those who would earn their living there. At the same time, the onus is on the objectors to prove, on a balance of probabilities, that the issuance of a licence for liquor service to 2:00am is against the public interest. This must be supported on a valid objective basis.
The principal facts found and which were not disputed, are as follows:
the municipality had approved the zoning application and municipal staff were in general support of it;
the application for the patio and restaurant elements of the mixed use building were properly included in the circulated application but the municipal council meeting held to review the application was said to focus on the housing component of the application without public comment regarding the restaurant and patio;
there is no other restaurant of the proposed type in the area and the closest ones are about 25 km distant;
the Applicant has previous experience with managing a liquor licenced restaurant in compliance with the Act and Regulations;
there is public concern of the potential for late night disruption of the area which could be caused by people gathering at what might become the only late hours bar in the area;
there is public concern for increased boat and vehicle traffic around a favoured community swimming area but there was no evidence as to what extent the traffic would or could increase;
the objectors are agreeable to the licensing of the restaurant and are simply in disagreement on the closing hour;
there is no evidence to establish whether or not other establishments identified by an objector have closing hour conditions on their liquor licence or have closing hours set for business reasons.
With regard to case law references, in Proposed Restaurant, the objectors were in opposition due to their “bad experience” with the former licensee which is not the case here. The Board’s decision noted “there is no evidence before the Board that the proposed restaurant would engender such problems”.
In Arena, the Court reiterated that “the onus is on those objecting to prove, on a balance of probabilities that it is not in the public interest to issue a licence” and on that basis, the objections were not found persuasive but instead were based on “a blanket prohibition of any new nightclubs in the area”. Again, in this instance, the only generalization which can be drawn from the experience of past or other area establishments is that (as was said) ‘it is a hard go’ for an establishment to thrive in this region.
In King, the parties found grounds for agreement which enabled the objectors to support the Applicant’s liquor licence application. To a large extent, the parties in this instance have found points on which to agree and simply remain apart on the matter of closing hours.
In summary, the Objectors have established while there is a local public concern for the potential increase of marine and vehicle traffic and the disruption that this could cause to residents and visitors using the swimming area adjacent to the Café,. However, this is somewhat speculative. There is no evidence before the Tribunal that this will be the case or what increase there might be.
The Applicant has testified that his interests are in the community and that he intends to operate responsibly, in accordance with the Act and Regulations, as well as in respect of the public’s use of the swimming area. He stated he has made an appreciable effort to agree to conditions to resolve objector concerns but needs the flexibility of later hours to ensure the financial sustainability of the Café.
On the basis of the evidence heard and reviewed, the Tribunal finds that the Objectors have not fully met the onus to prove, on a balance of probabilities, that the issuance of a licence for late hours operation will realize their concerns and that it would be against the public interest. Conditions will attach to the licence as agreed between the parties,
In addition, having regard to the needs and wishes of both the residents and the Applicant, the Tribunal considers it appropriate, after weighing all of the evidence, to attach conditions in respect of those concerns expressed after weighing all of the evidence.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal approves the application by 1775155 Ontario Inc. operating as Hound Lounge Cafe (The), 4 North Road, Baysville, and orders that the following conditions attach to the licence:
The sale and service of alcohol shall cease at 11:00 p.m. on Sundays, with signs of service to be removed at 11:45 p.m. at which time the patio will also be cleared of patrons.
The sale and service of alcohol shall cease at 12:00 a.m. for the patio, Monday through Saturday inclusive, with signs of service to be removed at 12:45 a.m. at which time the patio will also be cleared of patrons.
The sale and service of alcohol inside shall cease at 1:00 a.m. each day with signs of service to be removed at 1:45 a.m.
The licensee shall provide a telephone number for residents to call to register concerns or complaints. This number will be answered by a staff member during the published hours of operation and an answering service during all other times.
The licensee will designate an employee to monitor exiting patrons to ensure there is no disturbance that may affect nearby residents or public.
The licensee will ensure that amplified sound on the patio is restricted to a maximum sound level of 75 decibels.
The licensee will ensure there is adequate and prominently displayed signage at the front of the premises to direct patrons to parking at the rear of the premises.
The licensee will ensure that patio lighting and signage lights are ‘dark-sky’ friendly to protect and preserve the natural nocturnal environment.
Though not forming part of the Tribunal’s order, as a separate item of agreement between the Parties, the Applicant undertakes to cooperate with and support the residents in addressing local municipal council regarding signage for boat docking location and on street parking.
LICENCE APPEAL TRIBUNAL
Simon Dann, Member
Released: September 5, 2012