Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 7674/LLA
CASE NAME: 7674 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 Review an Application for a Licence
Vipei Investments Inc. operating as Vipei Bistro Applicant
-and-
Registrar of Alcohol and Gaming Respondent
- and –
John Bostanci Objector
DECISION AND ORDER
ADJUDICATOR: E. Alan Garbe, Vice-Chair
APPEARANCES:
For the Applicants: Vishnukaran Rasiah, Agent
For the Respondent: Kate Varva, Paralegal
For the Added Party/Objector: John Bostanci, on his own behalf
Heard in Toronto January 8, 2013
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 19495, dated September 24, 2012, to review an application for a liquor licence by Vipei Investments Inc. operating as Vipei Bistro (the “Applicant”) on the basis that the Registrar has received one or more written objections to the application of the Applicant to licence an additional outdoor area for 18 persons.
Ms. Varva advised the Tribunal that the Registrar was taking no position at the hearing and her involvement was limited to submitting correspondence received from the Objector objecting to the issuance of the licence. The Notice of Proposal was entered as Exhibit 1, the Notice of Appeal was entered as Exhibit 2 and the email correspondence from the Objector was entered as Exhibit 3.
FACTS
The Tribunal heard evidence from two witnesses, one on behalf of the Applicant and the Objector. There is no dispute as to the basic facts surrounding this application.
The Applicant operates a licensed restaurant from premises at 2258 Kingston Road, Toronto, in what is generally described as a “strip plaza”. The Applicant’s restaurant will accommodate 24 customers. The Objector operates an aquarium store from premises immediately adjacent to the Applicant’s premises, being 2260 to 2266 Kingston Road, Toronto. There are residential apartments above the stores in the strip plaza. The Objector, who suffers asthma, and his family live in the apartment above the store at 2260-2266 Kingston Road. At some point in time, the Applicant built a patio in front of its premises, which effectively removed the two parking spaced in front of its premises. Each of the stores in the strip plaza has two parking spaces in front and there is parking behind the stores for the occupants of the apartments.
It is the Objector’s position that the creation of the patio causes patrons of the Applicant to park in front of other stores in the strip plaza and the parking spaces in front of his store are often occupied by customers of the Applicant’s restaurant. Due to the nature of the Applicant’s business, its customers park for extended periods of time. Due to the nature of the Objector’s business, his customers need, on occasion, to park close to his store as they may be carrying heavy aquariums and related products.
The Applicant now has applied to obtain a licence to serve alcohol on the patio for 18 persons. It is the Objector’s position that if this licence is granted it will greatly increase the parking problems which he and other store owners in the plaza currently experience.
In addition, the Objector states that if the Applicant’s application is approved it will increase the problem presently confronted by the Objector with respect to second hand smoke from persons smoking on the patio when the Objector and his family have the windows of their apartment open.
The agent for the Applicant testified that the patio had been constructed with the necessary approvals from the City of Toronto. The patio had been constructed on the front of the premises to increase the visibility of the Applicant’s business. The witness stated that he advises his customers to park on Kingston Road rather than in front of the Objector’s premises. The witness also stated that the Applicant has agreed that one of the conditions to the issuance of the licence would be that there would be no smoking on the patio.
In his testimony, the Objector suggested that the patio could be placed at the rear of the Applicant’s premises thereby increasing the number of parking spaces in front of the Applicant’s business and, because of the existence of a fence, would reduce the impact of persons smoking outside the Applicant’s premises. The witness for the Applicant stated that relocating the patio to the back of the premises would be unsatisfactory due to its close proximity to the kitchen and the additional expense given that the patio was already constructed in front of the premises.
At the conclusion of the oral evidence, there was a brief disagreement with respect to the matter of the posting of “no parking” signs by the Applicant.
THE LAW
The law applicable to this matter is set forth in the following provisions of the Act:
Licence to sell
- (1) A person may apply to the Registrar for a licence to sell liquor.
Requirements
(2) Subject to subsection (4) or (4.1), an applicant is entitled to be issued a licence to sell liquor except if,
(h) the licence is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located.
Registrar to consider application
- (1) The Registrar shall consider an application for a licence to sell liquor.
Objections
(4) If, after giving notice of an application under subsection 7 (1), the Registrar receives one or more written objections to the application from the residents of the municipality within the time for making submissions, the Registrar shall consider the objections and may,
1`(b) issue a proposal to review the application
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:
Review an application for a licence to sell liquor.
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.
Hearing
Notice
(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
(10) Following a hearing to consider a proposal to review an application for a licence to sell liquor, the Tribunal may direct the Registrar to issue the licence or to refuse to issue the licence.
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.
ANAYLSIS
The difficultly which arises in a public interest hearing such as the one before the Tribunal is to balance the interest of those who are endeavouring to earn a living in the community with those who may be affected by such efforts.
The right of the Applicant to obtain a liquor licence is subject to considerations of “public interests”. The Act recognized the impact that an outdoor licensed premises may have upon the neighbours of such premises and the local residents are provided with a forum in which concerns may be voiced.
It is accepted law that the onus is on the Objector to prove, on a balance of probabilities, that the issuance of a licence for the additional area is not in the public interest.
With respect to the parking concerns raised by the Objector, it is obvious that the construction of a patio in front of the Applicant’s premises, thereby removing two parking spaces from a busy plaza, would create parking problems for the other business operators in the plaza. As the evidence before the Tribunal is that this patio was constructed with the approvals of the City of Toronto, it must be accepted that the City considered the parking and traffic considerations and approved the construction of the patio.
The Tribunal recognizes that if there are an additional 18 patrons attending at the Applicant’s business, the parking problem will only be exacerbated. However, the Tribunal notes that as there were only two parking spaces available to patrons of the Applicant’s restaurant, the parking issue would have existed prior to the construction of the patio. The granting of the licence to the Applicant does not create a new problem, but has the potential to make an existing problem greater.
With respect to the Objector’s concerns about second hand smoke, a similar set of circumstances exist. Patrons of the Applicant’s establishment currently may go outside the Applicant’s place of business and stand on the patio or just off the patio and smoke with the resulting irritation to the Objector. The Applicant has indicated that it would make the patio a no smoking area. It is recognized by the Tribunal that if there are 18 more patrons at the Applicant’s establishment, the number of smokers may increase. This again is a situation where the granting of a licence will not create a problem but may exacerbate an existing problem.
The Tribunal notes that although there are other businesses and apartments in the plaza, only the Objector has objected to the granting of the licence.
The Tribunal finds that the Objector has not met the onus placed upon him to show that the granting of the licence is not in the public interest.
ORDER
The Tribunal hereby orders that the application made by the Applicant is approved subject to all statutory and municipal regulations and subject to the condition which shall attach to the licence that no smoking shall be permitted on the patio.
LICENCE APPEAL TRIBUNAL
_________________________
E. Alan Garbe, Vice-Chair
Released: January 18, 2013