Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2013-10-25

FILE: 8274/LLA

CASE NAME: 8274 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

1857353 Ontario Ltd operating or intending to operate as Harvest Room (The) Applicant

-and-

Registrar of Alcohol and Gaming Respondent

-and-

Jim Magwood Added Party/Objector

DECISION AND ORDER

ADJUDICATOR: Simon Dann, Member

APPEARANCES:

For the Applicant: David Donnelly, Counsel

For the Respondent: Kate Varva, Paralegal

For the Added Party/Objector: Paula Lombardi, Counsel

Heard in Guelph: October 16, 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 19990 dated July 26, 2013 to review an application for a liquor licence by 1857353 Ontario Ltd., Harvest Room (The) ("Harvest Room/Applicant") on the basis that the Registrar has received one or more written objections to the application.

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

PRELIMINARY MATTERS

The Tribunal received notice, by letter dated October 15, 2013, from the Added Party's counsel, Ms. Lombardi, that Mr. Magwood, had withdrawn his objection as he had concluded that issues and concerns were related to land use and zoning and were not within the jurisdiction of the Tribunal or the AGCO. Therefore, he would not be pursuing the matter any further. The other parties confirmed they had each received copies of the letter of withdrawal.

In his opening statement, David Donnelly, Counsel for the Applicant, described the Harvest Room as a special event facility for banquets, meetings, weddings, birthday parties, office parties. It is not a day-to-day restaurant.

The Applicant opened the facility in the early part of 2013 and it is situated on its own property. The property was described as being situated in a kind of remote and rural location near the Town of Hanover. The Applicant also owns and operates a landscaping business from the same location.

Mr. Donnelly said that special event licences have been obtained in the past, but the business needs a liquor licence in order grow. The Applicant has been involved with the community and is supported by the municipality. It is in conformance with all municipal requirements.

OBJECTOR’S EVIDENCE

Objector “ED” said he does not object to the special occasion licence but does object to the total property being licenced.

On a question from the Tribunal, about ED's reference to "total property", it became apparent the Objector understood the application for a liquor licence to apply to the entire property owned by the Applicant.

Ms. Varva was asked to clarify that the application, if allowed, would be specific to the area of the Harvest Room only. She then defined 'the licenced area' as the only area in which liquor could be served and consumed. The service and consumption of alcohol outside of the licenced area would be a breach of the licence.

ED spoke of his concerns about amplified music, noise and trespassers. He also acknowledged there are only a few neighbours and they may not object to special events.

On cross-examination, ED said he lives about 400 yards from the Harvest Room and on the other side of the road. The adjacent properties include an environmentally protected site and to the east is a depleted gravel pit or shooting range. He acknowledged that any impact from the Harvest Room being licenced would only be on him.

ED referred to one occasion when fireworks were set off during an event at the Harvest Room and that the noise spooked his horses. He confirmed his concerns were specific to the control of liquor service, noise, and trespassers.

ED agreed he has never made a noise complaint and that by trespassers he meant snowmobiles, ATVs, which cross the properties, but acknowledged that has been an issue for years.

Objector JK gave evidence regarding noise he heard and which spooked the livestock but admitted that incident had nothing to do with the Harvest Room.

APPLICANT’S EVIDENCE

Tim Kraemer said the Harvest Room is built on a portion of an abandoned gravel pit and the total property is about 58 acres.

The design of the Harvest Room is intended to mimic the house and stable look of a structure from 100 years ago. There is also a courtyard which is contained by a dry stone fence. The closest neighbour is approximately 200 yards away and that neighbour has been very supportive due to the property enhancements which have occurred.

Mr. Kraemer said he has involved the police, fire officials and municipal authorities in developing the site. He wanted to be in compliance with all municipal requirements.

The Harvest Room hosted its first real event in the Spring of 2013 and has held about 12 to 15 events so far. The event schedule, looking ahead, is filled to Christmas and several weddings have already been booked for next summer. He has had no complaints from neighbours.

Mr. Kraemer said he has worked to ensure compliance with liquor service and license requirements. He believes there have been spin-off benefits to the local community from past events and knows of attendees who have used local amenities and accommodations.

CLOSING SUBMISSIONS

The Objector ED stated that his objection to the licence is based on the impact on his property and his belief that allowing the Harvest Room to have a liquor licence was not good for the community.

Mr. Donnelly submitted that the licence is needed for the Harvest Room's success and that it would be positive for the municipality's goal to improve tourism in the area. He referred to the letter of support received from the Municipality of West Grey's Director of Building Services (Exhibit 5, letter of September 12, 2013).

Mr. Donnelly submitted that ED has never made a noise complaint and that while he expressed concerns about noise, trespassers and controlling alcohol consumption, the Harvest Room's track record shows a positive management of crowds and service. There is no evidence to show that allowing the Harvest Room to have a liquor licence is not in the interest of the community or public.

ANALYSIS and REASONS

The issue in this matter is whether the issuance of a liquor licence to the Harvest Room is contrary to 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 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 evidence is that there are few neighbours and the only other Objector to appear at the hearing, JK, acknowledged he does not live in the neighborhood and that he has no personal knowledge of any problems. He also acknowledged the incident he referred to, with the livestock, had nothing to do with the Harvest Room and therefore, his testimony does not add any weight to the matter.

The only other objector, Mr. Magwood, has withdrawn his objection on the basis that his issues are with the municipality.

The principal position of ED is expressed in his personal concerns about noise, trespassers and control of alcohol service and consumption. However, he provided no supporting evidence to show the impact on him or the community, from any of these concerns, which could be attributed to the Harvest Room's operations.

The Tribunal notes the rural description of the area in which the Harvest Room is located and that ED lives 400 yards away, on the other side of the road. It also notes the letter of support from the Municipality of West Grey, which may be seen as speaking to the question of whether this is or is not in the public interest.

In summary, the matter is straightforward as the Tribunal must consider that the onus is on the objectors to prove on a balance of probabilities that the issuance of the licence is not in the public interest and, further, 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 Tribunal finds it has not been provided with any evidence, even on the balance of probabilities, to show that any of the concerns mentioned by the Objector ED, which were presented as personal concerns, are either realized or attributable to events held at the Harvest Room.

Therefore, the Tribunal finds that the Objectors have not met the onus upon him to present 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 1857353 Ontario Ltd. operating or intending to operate as Harvest Room (The), subject to all usual and required municipal clearance letters and application requirements.

LICENCE APPEAL TRIBUNAL

Simon Dann, Member

Released: October 25, 2013