Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2012-09-20
FILE:
7365/LLA
CASE NAME:
7365 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 a Condition on a Licence
2103274 Ontario Inc., o/a Tailgators
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
-and-
PG and PP
Objectors
DECISION AND ORDER
ADJUDICATOR:
Keith Penner
APPEARANCES:
For the Applicant:
Ainslie Stuart Dunstone, Agent
For the Respondent:
Kate Varva, Paralegal
For the Objectors:
Self-represented
Heard in Ottawa:
September 5, 2012
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the "Registrar") under the Liquor Licence Act, (the "Act") issued a Notice of Proposal, number 19169 dated April 11, 2012, to Refuse to Remove a Condition on the liquor licence of 2103274 Ontario Inc., o/a Tailgators, on the basis that the Registrar has received one or more written objections to the application.
PRELIMINARY MATTER
As a preliminary matter, Objectors PG and PP were granted party status, on consent.
FACTS
The Applicant operates Tailgators under licence number 806003.
The Applicant filed a Notice of Appeal with the Registrar seeking a modification of licence conditions numbers 8 and 9 and removal of conditions numbered 1 to 7 and 10 to 11. Regarding conditions 8 and 9, the Applicant seeks a modification to the effect that "the patio will close at 12 a.m. on Sunday to Thursday nights and at 2 a.m. on Friday and Saturday nights".
The Registrar received letters of objection and these were filed as Exhibit # 3.
THE LAW
Pursuant to the Act, a licensee may apply to the Licence Appeal Tribunal ("LAT") to have a condition removed if that Condition was imposed by the Board of the AGCO or a panel of LAT following a hearing:
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.
ISSUES
The issue in this matter is whether there has been any change in circumstances since the conditions were imposed following the hearing and the decision issued on February 20, 2007.
APPLICANT'S EVIDENCE
Mr. Morgan Bristow, general manager and co-owner of Tailgators, stated that he had made best efforts to comply with all the conditions attached to the licence. In addition, he had met with some of the neighbours who, in the past, had made complaints. Regarding these noise complaints, he noted that By-Law Officers had investigated and in each case, no charges were laid and no demands made for any further action. Some of the concerns voiced by neighbours, he explained, came from parking lot users who were not necessarily patrons of the bar. Some of the other complaints were related to the previous owners and operators of the bar.
Mr. Bristow said that he made changes to reduce any noise emanating from the premises. Among these, Tailgators had ceased hosting regular bands and DJs during weekdays, had removed and sold almost all PA and band equipment as well as almost all professional DJ equipment and had ceased teen events with DJs on Sundays of long weekends.
Asked by the Agent for the Applicant if any of the conditions of the licence fail to serve the purpose of reducing the noise about which the neighbours had complained, Mr, Bristow testified that, while he had incurred expenses to erect the glass walls around the patio, the 10:45 closing condition for the patio, meant that patrons now gathered on the stairs leading to the parking lot. They were now outside the glass enclosure so that the very purpose of having a sound barrier was frustrated by the early closing condition.
Mr Bristow went on to describe a plan he has to apply to de-licence the south/east wing of the patio and turn it into a lounge area to encourage patrons, including smokers, to stay within the glass enclosed area. When asked by the Tribunal if such an application had yet been made, he replied in the negative. When further asked by the Chair if his plan met all the smoking laws and by-Laws, he replied that the matter was still pending.
With respect to conditions numbered 8 and 9, Mr. Bristow clarified that he no longer wished to modify Condition 8, which states that the sale of alcohol on the patio shall cease at 10:00 p.m. He sought now only to have the patio remain open longer in an effort to keep patrons within the enclosed glass barriers so that they would not linger on the steps, communicating with others in the parking lot, thereby causing noise. For the Applicant, it seemed to be a contradiction to create an effective sound barrier and then not be able to use it after 10:45.
In concluding, Mr. Bristow emphasized that, apart from condition 9, the other conditions attached to the licence were not an issue or concern for him. These conditions, in the main, he believed, were encompassed in other comprehensive Liquor Licence Regulations, under which he was bound and with which he was fully compliant.
The second witness for the Applicant was By-Law Officer Marcel Robert, of the City of Ottawa. Officer Robert testified that he had 25 years of by-law enforcement experience. He provided statistics regarding the number of noise complaints related to the bar that he had investigated. He stated that some of these complaints were more related to parking lot noise with no evidence that it was caused by patrons of the bar. Specific complaints against Tailgators were unfounded and in each case the matter had been closed.
OBJECTORS' EVIDENCE
The Objectors live in the residential area that lies behind and to the west of Tailgators and the mall parking area. Each Objector had been in opposition to the granting of the liquor licence. Many of the complaints they voiced were in connection with the previous owner of the bar. Collectively, they admitted that the situation had improved when Tailgators assumed management. The Objectors were unanimous in their conclusion that the Conditions to the licence were essential and had proven to be effective, now more than ever. They spoke more of parking lot noise, at present, rather than noise coming directly from Tailgators.
APPLICANT'S SUBMISSION
In the Applicant's submission, Mr. Dunstone referred again to Tailgator's plan to divide the patio and make the south/east side into a de-licenced area, whereby the closing condition would no longer apply.
Respecting all of the conditions attached to the licence, Mr. Dunstone argued that they had now been superseded by Regulation 719 of the Liquor Licence Act requiring that the licence holder "shall ensure that reasonable measures are in place and reasonable efforts are made to deter disorderly conduct on property adjacent to and in the vicinity of the premises...." This comprehensive regulation, he concluded, governs the licensee more so than do the Conditions attached to licence. The conditions have, he noted, in effect, become redundant.
APPLICATION OF LAW TO FACTS
The only matter to be decided by the Tribunal in this case is whether any or all of the conditions attached to the licence should be removed or modified because there has been a change in the circumstances since the conditions were imposed on February 20. 2007.
As for the plans advanced by Mr. Bristow to alter the patio, whatever merit they may have, these are not before the Tribunal as part of this application and are, at this stage, steps yet to be implemented by the Applicant.
Mr. Bristow, for his part, gave evidence that Conditions 1 to 7 and 10 -11, were quite compatible with other more general regulations under the Liquor Licence Act. He said that these conditions posed no difficulty for him and that he was fully compliant with them. As well, Mr. Bristow stated in his evidence that he was no longer seeking to have Condition 8: "Sale of alcohol on the patio shall cease at 10:00 p.m.", modified.
Specifically then, the decision to be made by the Tribunal relates only to the request to remove or modify condition 9: "Signs of service of alcohol shall be cleared from the patio and the patio is to be closed, by 10:45 p.m."
The Tribunal was convinced by the evidence, given by Mr, Bristow, that having gone to the expense of erecting the glass sound barrier around the patio and then closing the patio at 10:45, leaving the patrons to congregate on the stairs leading to the parking lot, defeats the very purpose of the glass walls, which are the subject of condition 5. The change in circumstances, since the conditions were imposed on the licence, is that the noise, about which the objectors complain, is not now from the licensed area, but rather from the parking lot. Furthermore, the bylaw officer testified that based on his investigations, the licensee appears to be acting responsibly.
In these circumstances, measures to encourage the patrons to remain longer in the patio area rather than have them congregate on the stairs seems to be a reasonable mitigation of the issue that has arisen as a consequence of the establishment's current operations and its compliance with the existing licence conditions. When considering such measures, the Tribunal is cognizant of the residents' continuing concerns regarding noise and gives weight to these in determining a change which balances the parties' respective interests.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to remove condition 9 and replace it with the following:
(9) Signs of service of alcohol shall be cleared from the patio by 10:45 p.m., but the patio may remain open until 12:00 a.m.
LICENCE APPEAL TRIBUNAL
Keith Penner, Presiding Member
Released: September 20, 2012