Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 7600/LLA
CASE NAME: 7600 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
Jitani Enterprise Inc. o/a Burgess Refreshments Applicant
-and-
Registrar of Alcohol and Gaming Respondent
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Added Party Objector
DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Applicant: Jeffrey Nanson, Counsel
For the Respondent: Kate Varva, Paralegal
For the Objector: Kimberley Wolfe
Heard in Windsor: December 4, 2012
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued Notice of Proposal number 19409, dated August 10, 2012 to review an application for a liquor licence by Jitani Enterprise Inc., operating or intending to operate as Burgess Refreshments (“Jitani”), on the basis that the Registrar has received one or more written objections to the application.
OPENING STATEMENTS
Mr. Nanson, Counsel for the Applicant, advised he would be calling two witnesses to present the Applicant’s position. He intended to show the Town of Leamington put out a public tender for the concession with the condition that the Applicant obtain a liquor licence. The Applicant submitted the winning bid.
Ms. Wolfe, Counsel for the Objector, stated that Seacliff Park is a family site and the Objector is a mother in the community with concerns about the application.
The location of the refreshment stand does not have a 10 ft. fence and it is the only area where the public can come for food and drinks. There is a splash pad and a volleyball court in the area.
Ms. Wolfe stated the Objector initiated the petition against the license application because her largest concern is about what happens when people who have consumed alcohol leave the patio and roam the park. There is also no police monitoring.
Ms. Varva confirmed the Registrar took no position on the matter.
OBJECTORS’ EVIDENCE
“JR” described herself as a long-time resident and a representative “for moms in our community”. She is concerned that alcohol consumption sends the wrong signals to children and should be consumed in private, not where it can be seen by children.
In cross-examination, she confirmed she was aware of the Council meetings regarding the issue, but did not attend any of the meetings. She said she only expressed her objection through the letter sent to Council.
“JS” is a stay-at-home mother with two children. She learned of the liquor licence application through a television news report and decided to become involved as an objector. She was concerned about people whose only interest in going to the park would be to drink alcohol.
JS wrote to Council, objecting to the sale of alcohol at Seacliff Park, stating that her reasons were …”to prevent children from being exposed to inappropriate behaviour … attracting the wrong crowds [and] the safety of unsupervised young teens” (Exhibit 4, Tab 3). She also launched a petition, with a flyer to obtain public support and signatures for the petition (Exhibit 4, Tabs 2 and 1 respectively).
JS said a number of people helped her collect signatures and that she also spoke with the Mayor and the Applicant. She considered she would not have any other park options if alcohol service was allowed and if she stopped going to Seacliff Park.
JS expressed her fear that people going to the park would act improperly. She also felt there is a difference between restaurant service, where people “go to dine” and a patio site as being one where there is already a “party atmosphere”.
In cross-examination, JS confirmed she did not attend any of the Council meetings at which the issue was discussed but only became aware of Council’s decision after the approvals had occurred. Her principal concerns centred around “the sight and sound of patrons under the influence” as well as children seeing people consuming alcohol.
JS acknowledged that a number of letter writers, objecting to the sale of alcohol in the park, were family and friends. She said that two of the letter writers were unknown to her. The petition was signed by over 600 people. JS said she personally only knew “maybe 80”. The Leamington population is about 30,000.
“FC” is a student who goes to the park’s beach with friends and is concerned that she and her friends would be “tempted” by alcohol. She acknowledged she has 19 to 22 year old friends who give her and her friends alcohol.
She is concerned that when she and her friends are at the volleyball court, they would be where alcohol was being served. FC is also worried about people with alcohol in their system who would go swimming.
FC believes alcohol drinks could easily be passed over the patio fence when security is busy and not looking. She said they all know a red cup likely contains alcohol and is worried about how the number of drinks would be controlled.
In cross-examination, FC confirmed she did not attend Council meetings. She has also had alcohol on her own and worries that the licensee won’t follow the rules.
During re-direct, FC acknowledged she is more worried about temptation if “you are not strong enough to resist temptation”.
“PP” is a retired police officer who worked in the Leamington area between 1988 and 2009. He said he has worked every beer tent in Seacliff Park.
PP believes the concession stand is too close to the beach and does not believe the beach is a place for alcohol where everyone has to walk by the concession stand. He said there is no lifeguard and he has, in the past, investigated three drownings.
During special events, there may be 8-10 police officers working the beer tents which are operating during the hours of 8 pm to 12 midnight and Sundays 12 pm to 5 pm. Attendance was said to be between 1200 to 1500 people. He asked whether there would a capacity limitation on the patio.
PP said he has concerns about break-ins to the concession by people looking for alcoholic drinks. He also does not believe a waist high fence is high enough to keep people handing over drinks.
“LW” said she was a waitress in a licensed in establishment and has seen the effects of alcohol first-hand. She is concerned about the future of youth and feels that alcohol is a threat. LW does not believe there is any way of monitoring or controlling the number of drinks served. She does not allow her children to go to downtown Leamington because that is where all the bars are located.
In cross-examination, LW confirmed she only became aware of the alcohol licence application when she spoke with the Objector JS.
“CB” wrote a letter of objection because she has five children and is upset about the possibility of alcohol being served in Seacliff Park. She said she helped with the petition and was concerned about the lack of public awareness.
CB said they approached people with small children. They did not encounter much opposition to gathering signatures because they approached people who looked like they would support it.
Her concerns are about people when they leave the patio and while she does not see alcohol as the issue, she is concerned about drinkers when they leave the patio and then walk through the Park.
In cross-examination, CB confirmed she only became aware of the liquor application from a news report in the local media. She did not attend any of the Council meetings dealing with the issue.
APPLICANT’S EVIDENCE
Angela Jitani is the manager of the refreshment stand which opened on June 1, 2012. It is owned by her husband, Pierre Jitani.
On April 2, 2012, Leamington’s Municipal Council passed a resolution to solicit requests for proposals (“RFPs”) for a refreshment stand in Seacliff Park in Leamington (Exhibit 3, Tab 3).
The report, which formed the basis of the resolution, noted that historically only the food service component had been tendered for operation.
The facility in which the food service component was situated was destroyed by the 2010 tornado which struck Leamington. The last year of the food service operation had been 1992.
The report also noted that reduced usage of the park and unseasonable weather had produced financial losses for various past operators.
One of the requirements of the RFP was that the successful bidder would be able to obtain a liquor licence for the service of beer, coolers, and wine.
The Ontario Provincial Police had been asked to review the proposal and they reportedly stated that any of the concerns they might have would be covered by the liquor licence requirements.
Ms. Jitani and her husband submitted a successful bid for the concession and entered into an agreement with the Municipality of Leamington on May 30, 2012. The Agreement, in paragraph 8, stated the tenant of the concession stand “shall obtain a Provincial Licence to sell alcohol”.
The Agreement states the conditions for the fenced patio area where alcohol beverages are to be served is the only area where the public can come for food and alcoholic beverages. The alcohol beverages would be served in plastic cups. The patio has 10 tables and a 40 person seating capacity.
The Jitani’s have experience in the area as they own and operate a refreshment-snack bar approximately 1500 ft. from the Municipality’s concession. Their existing concession does not sell alcohol.
The Seacliff concession operation would be seasonal, June 1 to August 31 with Monday to Saturday hours of 11:00am to 9:00pm. Sunday hours would be 11:00am to 7:00pm.
Two college students were recruited to provide security and to make sure no one left the patio with a drink. Ms. Jitani would supervise the operation and all employees handling alcohol would be SmartServe certified.
The operators decided that service would be limited to a maximum of 2 drinks per customer. They reasoned it was a family environment and wanted to ensure the safety of customers and employees.
The concession was open during the 2012 season, without alcohol service. There was a petition on the counter which was signed by people who came to the stand (Exhibit 3, Tab 6).
The last page of the petition contains a list of people who originally signed the objector’s petition but changed their support to the Jitanis when the terms of operation for alcohol service were explained to them.
Ms. Jitani said they intend to operate with conditions beyond those required by the Municipality and they hope to have the liquor licence for the 2013 season. They have already lost the first year of a 3 year contract.
In cross-examination, Ms. Jitani confirmed that children and youth of all ages go to the concession. She said non-alcoholic beverages would be served in their own containers so alcoholic beverages could be distinguished in red cups. The Seacliff concession will have 3 employees at all times, which includes two security staff, one at the entry gate and one at the BBQ. The back gate is shut because the BBQ is located there.
She acknowledged the patio could be seen from outside of it, particularly from the nearby hill (photo on page 3 of Exhibit 4, Tab 18) but the splash pad could not be seen from the patio.
Ms. Jitani has never served alcohol before, but her husband submitted the initial tender application and he has served alcohol in the past.
Pierre Jitani is the sole shareholder of the company. He prepared the tender bid with his wife Angela and has taken steps to comply with the requirements written in the concession stand agreement with Leamington. He has prior experience in the alcohol service industry and said he has trained more than 130 people.
Mr. Jitani said he decided to have security and limit drinks to 2 per customer. He has proceeded with training, rules and regulations for the concession stand operation.
Mr. Jitani said he has been continually certified on alcohol intervention since 1994 and got his SmartServe certificate in May 2012. He previously owned a pizza restaurant with alcohol service and has never had problems.
The security staff at the concession stand will be focused on control of the red cups. All staff would check identification and if in doubt about the age of any one ordering alcohol, they may also ask for a second piece of identification.
He intends to be on-site fulltime for the first three weeks of alcohol sales to manage and ensure all staff are working in accordance with their training. He also plans to install cameras to monitor daily activities and ensure staff are following proper procedures and protocols.
Cameron McKay is employed by the Municipality of Leamington as the Manager of Operations and was the project manager for the reconstruction of Seacliff Park, which included the concession stand. He also wrote the report which went to Council (Exhibit 3, Tab 3).
Mr. McKay confirmed he submitted the RFP to the OPP for their review before putting it out to tender and they had no concerns about the sale of alcohol in the Park’s concession stand.
He was not aware of any particular reason for Council including alcohol sales at the concession. He thought it was considered to be just another amenity which would attract people to relax and have a good time. He noted that Council wanted to contain consumption to a limited area and not allow people to wander around with alcoholic beverages.
Mr. McKay said he recommended the approval of the Jitani Enterprises bid because “they had a good business plan” plus they offered to pay the most.
The concession stand would not be the first time alcohol would be sold in Seacliff Park. There are annual events which are granted temporary licences but these must first be approved by Council. The Tomato Festival typically has a special event liquor licence but that was not the case in 2012 as it was anticipated the concession stand would have obtained its liquor licence by the time of the festival event.
Mr. McKay said the Lease Agreement does not call for a limit of 2 drinks per person but he (Mr Jitani) decided to do that and is going above the requirements.
The Municipality of Leamington is in support of the liquor licence application and has no concerns about the sale of alcohol in Seacliff Park. It is not considered by it to be against the public interest. Mr. McKay also said out that alcohol is served down the beach at the nearby marina.
When asked about the Municipal Alcohol Risk Management Policy (Exhibit 3, Tab 2) (“the Policy”), during cross-examination, it was pointed out that “Leamington Municipal Council may change the designation of any park/facility/street to allow alcohol at its discretion”.
While cross-examination questions focused on the Policy’s statements regarding the list of problems which can arise from alcohol consumption, it was also clear that much of the Policy referred to a “Special Occasion Permit” and that Leamington “may change the designation of any park/facility/street to allow alcohol at its discretion”.
When asked about what credentials the bidders provided, Mr. McKay said that Jitani provided background information while “the other proposals didn’t supply anything”.
The RFP included “Special Conditions” calling for approved security personnel and screening of those personnel to confirm they have passed “the requisite background check” and are acceptable for the setting.
Mr. McKay confirmed the Council meetings, at which the proposals and resolution were reviewed and approved, were open to the public.
CLOSING SUBMISSIONS
Mr. Nanson submitted that a function of the Leamington Municipal Council is to look after the public interest. In the instance of the Seacliff Park concession stand, Council put out a public tender with the condition that the winning bidder would need to obtain a liquor licence for the sale and service of beer and coolers with food. The decision to tender was based on Council’s decision and resolution to include the liquor licence requirement.
It is the Municipality which is driving the process and which expects the Applicant to deliver on the requirements. Mr. Nanson submitted the Applicant is appealing the Notice of Proposal in accordance with the wishes of the Municipality.
Mr. Nanson pointed out the Applicant had stated he would also institute a limit on the number of drinks any one customer could order. The concession is a seasonal business operating from June to August.
In closing, Mr. Nanson submitted there is sufficient evidence to grant the application.
Ms. Wolfe submitted that Leamington Council should have given weight to the by-law, which has been in place since 1988. This by-law has prohibited alcohol in parks and has also been the foundation of the Municipality’s Alcohol Risk Management Policy.
She argued that Council wanted an applicant to have alcohol experience but then omitted that qualification in their final decision.
A decision to grant the liquor licence would subject families and their children to being exposed to alcohol consumption in the park.
Ms. Wolfe also submitted that there is no lifeguard at the beach, there is no one to police the area once patrons leave the patio. According to the testimony of PP, there could also be an attraction for more crime once it became known that there was alcohol stored in the concession stand.
In closing, Ms. Wolfe pointed out that Council provided themselves an ‘out’ of the contract with a termination clause and it would be unfortunate for change to happen only when a catastrophe occurred and she did not want that to happen.
ANALYSIS and REASONS
The issue in this matter is whether the service of alcoholic beverages, at a concession stand owned by the Municipality of Leamington, and located in Seacliff Park, is not in the public interest.
The jurisprudence for public interest hearings under the Act is well established. The difficult issues raised in such hearings require a delicate balancing of the interests of those who live in a community with those who would earn their living there. Under the Liquor Licence Act, there is a qualified right to a liquor licence, subject to the considerations of the “public interest”. The Act recognizes the very real impact that a licensed premises (and in this instance, the impact of an outdoor licensed area) may have on the surrounding community. By virtue of the Act, the local residents are provided with a forum in which their concerns can be voiced.
The onus is on the objectors, however, to prove on a balance of probabilities that the issuance of the licence for the additional area is not in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises are situated (s. 6(2)(h) of the Act). It is also well settled that the bona fide concerns of residents in the immediate area who are most affected by the establishment are given greater consideration than those of other residents in the municipality who are less directly affected. However, in determining whether the needs and wishes are bona fide, the Tribunal must look to the totality of the evidence, to determine if the subjective concerns and fears are supported by an objective basis.
The essential facts regarding the rebuilt Seacliff Park concession stand, which was destroyed by a tornado in 2010, are found to be:
that it had last been operated in 1992 and did not previously have a liquor licence;
that the Town goal for the rebuilt stand was to have it back in operation on a profitable basis and be a revenue contributor to the Town’s Parks operating budget;
that a staff report to the Mayor and Council recommended the service of alcoholic beverages to be part of the concession service offerings;
that the OPP had no objections to the proposed liquor licensing of the concession stand and believed the licensing requirements would be sufficient;
that Leamington Council fully supported the Applicant’s liquor licence application;
that the concession stand operator does have previous experience with the service of alcoholic beverages;
that the patio proposed to be licensed is fenced in as required by the Municipality;
that the licensed patio will have designated security to monitor consumption;
that all concession staff are SmartServe trained;
that the concession operator will serve alcoholic beverages in red plastic cups and limit each customer to a maximum of two drinks;
that alcoholic beverages are already available at the nearby marina and therefore not unknown to the area.
The principal position of the Objectors is found to be expressed in the view that they did not want their children to be exposed to people consuming alcohol in public. It is their view alcoholic beverages should be consumed in private. When asked about alcohol consumption in restaurants versus the concession stand patio, one objector commented that a restaurant is for dining while the patio already has a party atmosphere.
The Objectors view the availability of alcoholic beverages in the park as potentially leading to an increase in some kinds of crime (suggesting there could be break and enter of the concession facility at night to steal stored alcohol products) and inappropriate behaviour. The objectors do not want to see people wandering around the park after they have been drinking at the concession stand.
While another objector stated that as an under-age person she is worried about the temptation to consume alcohol if it is allowed in the park, the concept of one’s inner temptations are a private matter over which only the individual can exercise their own control. This is not something which can be incorporated into the matter of the public interest within the context of this liquor licence application.
The objectors’ concerns about controlling the number of drinks a person could have and that they might pass the drink over the fence to someone else is found to be addressed by the Applicant’s positioning of security staff to monitor customer conduct and to also limit drinks to a maximum of two per person.
Regarding the Objectors’ concern that the Municipality’s Alcohol Risk Management Policy has been ignored, the stated concerns are found to overlook the statements contained within the Policy Goal, Objectives and Conditions for Special Occasion Permits.
Specifically, the Policy can be summarized as wanting to ensure there are effective management practices and compliance with the Provincial Liquor Licence Act.
In addition, the Policy states the Municipality will stipulate the conditions under which alcohol may be served; that it may refuse an application for a liquor licensed event as well as introduce conditions it may deem appropriate (“at its discretion”). This includes the ability to direct termination of a special occasion event in the interest of public safety.
The latter condition (or option at the Municipality’s discretion) is seen to address the matter of public interest since the Municipality must be regarded as having a special role, and responsibility, in being a safeguard of the public interest.
While all the evidence of the objectors has been carefully considered, including the petitions of both the Objectors and Applicant, the Tribunal gives considerable weight to the Municipality’s endorsement of the liquor licence application for the concession facility whereby they (the Municipality) have determined the Goal and Objectives of their Alcohol Risk Management Policy have been met.
The fact the OPP did not have any issue with the liquor licensing of the concession stand and felt the requirements of the liquor license would resolve any possible concerns on their part is also found to be influential in this matter.
In summary, the Objectors have been clear regarding their concerns about the service of alcoholic beverages in the Park’s concession stand, but the Tribunal finds no evidence that, on balance of probabilities, their concerns or fears for an increase in inappropriate behavior, crime, would occur in the park.
The only evidence of possible problems came from the objector PP whose experience is found to be drawn from special occasion events which are seen to be of a distinctly different scale to the patio environment of the concession facility.
In summary, the Tribunal finds that the Objectors have not met the onus upon them as there is insufficient evidence on which to base a refusal of the application.
However, the Tribunal notes the Applicant appears to have appreciation for the Objectors’ concerns and has volunteered to limit the number of drinks to be served to any one customer and to also only serve alcoholic beverages in red plastic cups.
As the Tribunal, at a public interest hearing, has broad powers to order conditions to attach to a licence and, upon hearing all the evidence, does not discount that there may be an impact upon the park users, as claimed by the Objectors, it nonetheless finds they have failed to prove, on a balance of probabilities, that the issuance of a licence will realize their concerns and that it would be against the public interest.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, and for the reasons stated above, the Tribunal approves the application by Jitani Enterprise Inc. operating or intending to operate as Burgess Refreshments, 24 Seacliff Drive West, Leamington, and directs the Registrar to issue the licence with the following conditions and subject to all statutory and municipal requirements.
All alcoholic beverages will be served in red plastic cups only;
There will be a maximum of 2 alcoholic beverages served per customer
The patio shall be enclosed by a 5 foot high fence or to the maximum height permitted under the municipal bylaw if lower than 5 feet.
LICENCE APPEAL TRIBUNAL
Simon Dann, Presiding Member
Released: February 6, 2013