Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8218/LLA
CASE NAME: 8218 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 Liquor Licence.
Tori’s Bakeshop Corp operating or intending to operate as Tori’s Bakeshop Applicant
-and-
Registrar of Alcohol and Gaming Respondent
-and-
Douglas Feser The Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Harinder S. Gahir, Vice-Chair
APPEARANCES:
For the Applicants: Victoria Vaccher, Representative
For the Respondent: For the the Added Party/Objector: Kate Varva, Paralegal Kristin Bisbee, Paralegal
Heard in Toronto: September 30, 2013
REASONS FOR DECISION AND ORDER
Background
The Deputy Registrar of the Alcohol and Gaming Commission of Ontario (the “Registrar”) under the Liquor Licence Act R.S.O. 1990, c. L19 (the “Act”) issued a Notice of Proposal number 19962 dated July 4, 2013, to review an application by Tori’s Bake Shop Corp. (the “Applicant”) operating or intending to operate as Tori’s Bake Shop, for a liquor license at 2188 Queen Street East, Toronto (the “establishment”). This is an appeal, by way of a request for a hearing, to the Licence Appeal Tribunal (the “Tribunal”) from the Proposal.
Decision
After considering the evidence and submission of the parties, the Tribunal approves the Application on the conditions set out below.
Preliminary Matters
At the onset of the hearing, Registrar’s Counsel advised the Tribunal that the Registrar took no position on the public interest aspects of the hearing.
The Objector’s Representative submitted that Mr. Feser does not object to the Applicant’s application in its entirety. However, he will support issuance of the licence if the conditions are attached to it. Mr. Feser’s primary concern is that he has not received Applicant’s business plan. He lives across the street from the establishment and is concerned that the license could be transferred to anyone in the future who may not operate in the manner the Applicant would operate. He is also concerned as to how the establishment will look ten years from today. His other concern is potential late night noise emitting out of the establishment. Mr. Feser did not testify and relied on the submissions of his Representative that were based on the documentary evidence he submitted. He asked for establishment to close Monday to Thursday and Sunday at 9.00 p.m., and on Friday and Saturday at 10.00 p.m.
Evidence
In addition to the documentation, the Tribunal heard the oral testimony of Applicant’s three witnesses. The summary of the testimony of the witnesses and documentary evidence is as follows:
Victoria Vaccher
Ms. Vaccher testified that she opened the Bake Shop in March 2012 and lives above the establishment. She owns the establishment which is only 400 square feet in sitting area and has a capacity of 19 seats. It has two bistro chairs outside under the awning. She does not permit smoking under the awning. The establishment provides DJ service for private parties however it uses internal speakers for music and ensures that the music is at a volume that will promote conversation. The Applicant plans to operate the establishment Wednesday to Sunday 7.00 p.m. to 12.00 a.m., Friday and Saturdays 7.00 p.m. to 1.00 a.m. As of the date of the hearing, the establishment did not receive any noise complaints.
Ms. Vaccher testified that she applied for liquor license to serve vegan wine, bottled beer and spirits in cocktails. Her vision is to make the establishment a place where people could enjoy good food and to promote conversation. She owns the property and recently spent about $250,000.00 on renovations. Apart from other improvements, she upgraded the windows to fixed double pane to reduce the noise emitting from the establishment. She installed security cameras inside and the exterior.
She stressed that due to the small size of the establishment it will be impractical to have dance floor or karaoke music. She insisted that the lights of the restaurant will light up outside and discourage vandalism in the neighbourhood.
In addition to the testimony of Ms. Vaccher, two witnesses testified in support of the establishment. AE is a lawyer and practices from a home based office which is about fifty meters away from the establishment. He has lived in the area for the last 25 years. He has been a customer since the bake shop opened. DF is a firefighter and lives in the vicinity. He is a patron of the establishment and has not ever witnessed any disorderly behaviour in the neighbourhood except teenage stuff. Both witnesses were supportive of the establishment being licenced.
Analysis
Relevant portions of Section 6 of the Liquor Licence Act set out the requirements for registration under the Act. It provides:
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,
(a) having regard to the applicant’s financial position, the applicant cannot reasonably be expected to be financially responsible in the conduct of the applicant’s business;
(d) the past or present conduct of the persons referred to in subsection (3) affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty;
(e) the applicant or an employee or agent of the applicant makes a false statement or provides false information in an application under this Act;
(f) the applicant is carrying on activities that are, or will be, if the applicant is licensed, in contravention of this Act or the regulations;
(g) the premises, accommodation, equipment and facilities in respect of which the licence is to be issued are not, or will not be, if the applicant is licensed, in compliance with this Act and the regulations;
(g.1) the applicant is not able to demonstrate to the satisfaction of the Registrar that he, she or it will exercise sufficient control, either directly or indirectly, over the business, including the premises, accommodation, equipment and facilities in respect of which the licence is to be issued; or
(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
The Tribunal has taken a consistent approach that the public interest encompasses a broader scope; compliance with and respect for the law governing the operation of a licensed establishment. As held in Re Chuck’s1 public interest hearings raise difficult issues which require a balancing of the interests of those who live in the community with those who would earn their living there. An issue in this hearing is whether the granting of a licence to the Applicant is in the public interest having regards to the needs and wishes of the residents of the municipality in which the premises is located. The onus is on the objector to establish, on a balance of probabilities that the issuance of a liquor licence is not in the public interest. In determining whether the needs and wishes of the residents are bona fide the Tribunal must consider the totality of the evidence to evaluate whether the subjective concerns and fears of the residents are supported on a valid and objective basis.
Mr. Feser’s Representative submitted that he is not asking for denial of the application but would like to have conditions attached to the license to protect the neighbourhood from unwarranted noise, smoke and garbage from the establishment.
She stressed that most businesses in the neighbourhood close around 6:00 or 7:00 p.m. and the establishment, due to its longer hours, will change the landscape dramatically. However, she did not adduce evidence to show the adverse impact the Applicant will have in case the license is granted.
Ms. Bisbee referred the Tribunal to various articles regarding liquor consumption2. The Tribunal finds that these articles do not directly relate to the issues before the Tribunal as these articles deal with the policy matters regarding liquor consumption.
The Tribunal agrees with the Applicant’s submission that the Mr. Feser lives on Queen Street which is a busy street and has 24 hour streetcar. The Tribunal finds on the balance of probabilities, the busy street, limited seating capacity and the nature of business of the establishment will not create any issues for Mr. Feser or other neighbours. Ms. Vaccher credibly addressed Mr. Feser’s concerns.
The Tribunal finds that on balance of probabilities it has insufficient evidence to conclude that the licence is not in the public interest havening regard to the needs and wishes of the residents of the municipality in which the premises are located. The Tribunal further finds that the condition of restricted business hours suggested by the Objector’s Representative will unreasonably restrict the operations of the establishment. However, the Tribunal, in weighing the public interest concerns, is of the view that some conditions on the license are appropriate.
ORDER
Therefore, for the reasons stated above and pursuant to the authority vested in it by section 23(10) of the Liquor Licence Act, the Tribunal directs the Registrar to approve the application for liquor licence made by Tori’s Bakeshop Corp. operating as Tori’s Bakeshop for an indoor licensed area, subject to the filing of all usual and required municipal clearance letters and application requirements and subject to the following conditions which shall attach to the licence:
Food service shall be available in the establishment at all times that it is open for business.
The Licensee shall use best efforts to ensure that all areas immediately adjacent to the establishment are clear of litter, refuse and other debris originating from the business.
LICENCE APPEAL TRIBUNAL
________________________
Harinder Gahir Vice-Chair
Released: October 29, 2013