Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-02-12

7737/LLA

7737 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

Café on Main (The)

Applicant

-and-

Registrar of Alcohol and Gaming

Respondent

-and-

Added Party

Objector

Simon Dann, Member

For the Applicant:

Self-Represented

For the Respondent:

Kate Varva, Paralegal

For the Objector:

Self-Represented

Heard in Thorold:

January 24, 2013

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 19533 dated October 7, 2012 to review an application for a liquor licence by Café on Main (The) on the basis that the Registrar has received one or more written objections to the application.

The Applicant’s Agent is the owner of Café on Main and will present witnesses from the Municipality which is in support of the application. The issue in this hearing is about licensing the outdoor patio as an extension of the indoor licence and if licensing the outdoor patio is not in the public interest.

The Objector to the licensing of the patio is concerned about safe sidewalk accessibility for the elderly and handicapped.

Ms. Varva confirmed the Registrar took no position on the matter.

OBJECTOR’S EVIDENCE

Objector “WH” has been a Fonthill resident for over 30 years and is a regular visitor in the downtown area. When he first saw the patio in 2012, he became concerned for safety reasons about the patio and liquor licence.

The area taken up by the patio is on limited space sidewalk and he believes the interlocking stone sidewalk can be hazardous for the blind, handicapped and for people with strollers. The patio has also eliminated one parking space.

The Objector said he has been inside the restaurant during the daytime and has never seen it full. The noise level on the patio is also considered to be “excessive”. He does not believe there is a need to serve alcohol on the patio and also believes the current patio site is in need of change due limited parking and the nearby traffic intersection.

On cross-examination, WH acknowledged the noise comes from outside of the patio and the traffic intersection is not directly immediate to the patio site.

APPLICANT’S EVIDENCE

Patti Lynn Lukacsy-Fagan (“PLF”) has lived in Pelham since 1986. She has two locations. The first was opened in 2006 and the second (The Café on Main) opened in Fonthill in 2010.

The Café on Main (“The Café”) is already licensed for liquor sales and service in the interior area. The application now is for the purpose of extending service to its outdoor patio area. The patio area is already in use and has previously been granted a special occasion permit for liquor sales and service.

The patio area, which encroaches the sidewalk and an immediate area parking space, has met all government regulation requirements and was approved for operation by the Town of Pelham. PLF is also aware of all the requirements involved in obtaining the liquor licence extended to the patio.

The Applicant said she has received support from the town business community, private individuals and a business neighbour. She has complied with all municipal, regional, provincial, and federal requirements. She is also committed to complying with any changes a new Town policy may require.

Darren Ottaway is the Chief Administrative Officer (“CAO”) of the Town of Pelham (“the Town”). He was appointed to the position in 2012 and one of the first items he dealt with was the Applicant’s request to operate an outdoor café.

Mr. Ottaway said the Town did not have any particular policy but decided to proceed with the application. The Town supported the idea of the liquor licence application as part of a plan to encourage downtown Fonthill development and have a more vibrant environment.

The outdoor patio application required an encroachment agreement which was developed and approved by all parties involved, including the property owner. Mr. Ottaway said the Town is also in the process of developing a permanent policy to deal with these types of applications.

In cross-examination, Mr. Ottaway confirmed the Applicant had met all the Town requirements and that it was in support of the liquor licence application.

Gary Accursi is a 40 year resident of the Town of Pelham and an elected member of Town Council. He is also Vice-Chair of the Town’s Planning and Development Services Committee as well as Chair of the Downtown Beautification Committee. An additional role is his position as Chair of the Town’s Summerfest Committee.

Mr. Accursi said the Applicant had a special occasion permit for liquor sales and service during the 2012 Summerfest event. He said the patio was well-run and there were no incidents.

Mr. Accursi said the Town wants businesses of the Applicant’s type to help build the vibrancy of the downtown. He confirmed the Applicant has “been a great asset to the community” and the Town is in full support of the application.

In cross-examination, Mr. Accursi said the 2012 patio approval was a “trial balloon” direction to Town staff to make best efforts to allow the patio and ensure the safety of residents and visitors. The experience would help the Town develop its own policy and consideration for sidewalk use and parking space areas. The Town staff is now working on a policy to establish guidelines and a draft policy will be presented to Town Council in February 2013.

For the 2012 patio, the Town agreed to have the sidewalk blocked by the patio and pedestrian traffic would be rerouted. The draft policy to be presented to Council may have changes to the guidelines by which the patio application was approved in 2012. It will provide final policy recommendations for how to deal with patios which may block sidewalks.

DAVE AUGUSTYN is Mayor of the Town of Pelham. He has held that position since 2006 and confirmed that it is the Town goal to have a vibrant downtown, including licensed establishments.

When the Town was approached with the Applicant’s patio proposal, the Town recognized while there was no specific policy for a licensed patio it decided to move ahead with approval and find guidance for a decision on the application by looking at polices of other municipalities, such as Hamilton, Halifax and others.

Mr. Augustyn believes the place for the discussion about whether there should or should not be a patio is a discussion for the municipal council. There are licensed patios in other parts of the community and he sees no reason why the Café’s license should not be extended to the patio.

The Town’s focus is on ensuring accessibility and Mr. Augustyn does not see the patio as blocking pedestrians or creating any problems in redirecting them. He confirmed that only one parking spot was used up for the patio encroachment.

Mr. Augustyn said the Town is pleased to see people downtown again in the evenings when there was no one in the past and “there has been only a ground swell of support for the changes”.

In cross-examination, Mr. Augustyn said the “whole focus of [the Town’s] redevelopment work has been to make the downtown more accessible and pedestrian friendly”.

He acknowledged he knew of only one person saying that it was difficult to get around the Café patio but the plan layout meets accessibility standards.

Despite thousands of people having gone through the area, only one person has made a deputation to Council to say they had some difficulty.

CLOSING SUBMISSIONS

The Objector WH stated that his objection to the licence is based on ensuring safe access through the sidewalk patio.

Ms. Lukacsy-Fagan submitted that the existing patio has already complied with requirements for special events and general use. All the required agreements between the business and the municipality are in place and there is no viable reason for the liquor licence application not to be approved.

While the patio has previously been licensed on a special occasion permit basis, it has also been in general operation beyond the special occasion permit event.

ANALYSIS and REASONS

The issue in this matter is whether the extension of an existing liquor licence, for indoor premises, to an outdoor (sidewalk) patio 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 objector(s), 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).

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 principal position of the Objector is expressed in his concern with accessibility by the public through the area encroached by the Café.

The Objector mentioned that passage for the blind or handicapped and people with strollers would be difficult. He made no comment regarding the consumption of alcohol on the patio and thereby is understood to have no substantial objection to the sale and service of alcoholic beverages on the patio. In his letter of objection, he had written of the noise from the patio but in testimony, he acknowledged the noise was from the outside of the patio.

The evidence of the Applicant’s witnesses, being the Town officials, including the Mayor, is that all the public safety issues have been considered by the Town and the decision of the Municipality was to support and approve the liquor licence application.

The Tribunal notes that the same witnesses said Town staff were in the process of completing a draft policy to establish standard terms and conditions for outdoor patios. A draft policy would be presented to the Town Council in February.

Ms. Lukacsy-Fagan’s testimony was clear in that she would comply with any additional or new requirements if the policy contained such. The Mayor’s position was also clear about the Town’s support for the Applicant and the belief the Applicant would comply with the new policy - including any new and or other conditions for the patio area.

In summary, the Tribunal received no evidence which could provide a basis for considering the extension of the Applicant’s liquor licence to the patio area would not be in the public interest.

The issue in this matter is a simple one and, in fact, it is found to be one that would more appropriately be addressed to the Municipality.

As noted above, the Objector provided no argument or evidence to indicate that liquor sales and service on the patio would or could lead to any problems for the local community and visiting public. The Tribunal also gives considerable weight to the Municipality’s endorsement of the liquor licence application and the testimony of the Town officials.

Therefore, the Tribunal finds that the Objector has not met the onus upon him to present any evidence on which to base a refusal of the application.

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 1692765 Ontario Ltd., and directs the Registrar to issue the licence for additional facilities at Café on Main (The), at 1455 Pelham Street, Fonthill,.

LICENCE APPEAL TRIBUNAL

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