Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-10-31
FILE:
8173/LLA
CASE NAME:
8173 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
Sip Wine Bar Inc. o/a Sip Wine Bar
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
-and-
CV
Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicant:
Carmine Costantino, Agent
For the Respondent:
Kate Varva, Paralegal
For the Added Party:
CV
Heard in Toronto:
October 15, 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 to review an application for a liquor licence by Sip Wine Bar Inc. operating as Sip Wine Bar (the “Applicant”), on the basis that the Registrar has received one or more written objections to the application.
Ms. Varva advised the Tribunal that the Registrar was taking no position at the hearing and her involvement was limited to submitting two letters received objecting to the issuance of the licence in a timely manner and one objection letter received beyond the objection period. All exhibits to the proceeding were entered on the consent of the parties at the outset of the proceeding.
There were two initial objectors to the proposal; both nearby neighbours of the Applicant. One of the initial objectors did not attend but sent a letter in which she reasserted the grounds laid out in her initial objection letter. The second objector, CV, attended and was granted standing as an added party. CV does not object to the issuance of a liquor licence for the Applicant’s indoor restaurant. It would be fair to say that she is supportive of the Applicant and its plans. She has concerns about the proposed operation of the patio: hours of operation and related noise and cigarette smoke wafting through her windows from patrons.
FACTS
Carmine Costantino, an owner of the Applicant, and CV both gave evidence.
The Applicant’s premises are located just off Yonge Street in the Yonge and Eglinton area of Toronto. In that area, Yonge Street has a large number of licensed premises and restaurants including a burger restaurant with a patio on the corner of Yonge and Broadway. The Applicant’s premises do not front on Yonge Street. They face Broadway. They are the first restaurant to do so, despite the area being zoned for commercial uses. Until the Applicant took over the premises, they consisted of two residential apartments. The Applicant has gutted the apartments and turned them into a restaurant with about 2,200 square feet on the main floor and 1,100 square feet on a basement level. The patio will have a retractable canopy. Mr. Costantino felt the canopy may have a noise muffling effect when deployed. He resists any condition that would require deployment of the canopy whether on a full time basis or on a schedule, say late at night on weekends.
CV does not object to the licensing of the indoor restaurant. She also stated that the second objector did not object to the issuance of the indoor licence. Her concern is with the patio. The two original objectors live directly above the patio.
The building is an older building without central air conditioning. CV has lived in her apartment for many years. In the warmer months, CV needs to keep her windows open and spends a great deal of time sitting close to the window. Her concern is that noise and smoke from patrons on the patio may impair her enjoyment of her home.
The Applicant is prepared to accept conditions on the patio licence to address CV’s concerns. It is agreeable to a condition that there be no amplified music on the patio. In response to CV’s questioning about the large windows at the front of the restaurant that will be open in the warmer months, Mr. Costantino stated that indoor music in the restaurant will simply be background music and not played at high volume. To address CV’s concerns about noisy patrons, Mr. Costantino stated that he and any on duty managers of the Applicant will be proactive to keep patio noise at a low level not to disturb apartment residents. He has given CV his cell phone number and she has the phone number for the restaurant to speak to the duty manager if necessary.
Smoke wafting from patrons is a concern to CV. Mr. Costantino stated that the patio will be designated as a no smoking area. He acknowledged CV’s concern that some patrons may step outside the restaurant and smoke in the street, in front of the building entrance and in an adjacent alleyway. He is working with the landlord to put no entry signs at the entrance to the alleyway and will put a barrier between the building entrance and the patio to “camouflage the patio.”
There was concern over the proposed hours of opening. The Applicant is seeking to keep the patio open from 11:00 a.m. to midnight from Monday to Thursday, extend the opening hours to 1:00 a.m. on Friday night and Saturday morning and Saturday night and Sunday morning and close at 11:00 p.m. on Sunday nights. The extended time on Friday and Saturday initially took CV by surprise but once she was satisfied that the Applicant will be proactive with respect to noise control on the patio and the late opening hours only apply on weekends, she did not object further.
THE LAW
The law with respect to the issuance of a licence to sell liquor is set out in s. 6 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.
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.
ISSUE
The only issue between the parties is the terms which should attach to the Applicant’s licence. In the end, those conditions were largely agreed with the exception on CV’s request that the canopy be deployed after 11:00 p.m. each night.
APPLICATION OF LAW TO FACTS
Given the general agreement between the Applicant and CV on terms for licensing the patio and the refreshingly non-confrontational attitude of CV during the hearing, the Tribunal need only address the single outstanding issue of deployment of the canopy after 11:00 p.m. There was no evidence before the Tribunal about how effective the canopy might be at suppressing noise.
It was a suggestion by the Applicant that it might have some noise suppressing effect, but in the absence of evidence of how effective it might be, the Tribunal cannot impose a condition of dubious impact, the breach of which due to oversight on a busy evening might have serious disciplinary consequences for the Applicant. The Tribunal is satisfied that CV will be able to make her noise concerns known to the management of the Applicant on those occasions when she is disturbed. The Tribunal accepts the Applicant’s undertaking to be proactive in keeping patio noise within acceptable limits. Failure of the Applicant to keep patio noise within reasonable limits is a breach of the applicable regulations. The Tribunal is satisfied that the regulations offer better noise control than strict timing rules for deployment of the canopy.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal approves the issuance of a licence to sell liquor in the indoor area of the restaurant. The Tribunal also approves the Registrar to issue a licence to sell liquor on the outdoor patio subject to the following terms:
Service of alcoholic beverages shall cease on the patio at midnight each night from Monday to Thursday, 1:00 a.m. on Friday night/Saturday morning and Saturday night/Sunday morning and at 11:00 p.m. on Sunday nights;
There shall be no live or amplified music played on the patio;
The Applicant shall not permit noise that arises directly or indirectly from the sale and service of liquor on the patio to disturb persons who reside near the premises;
The Applicant shall provide a telephone number for the Added Party to register concerns or complaints. This line will normally be answered by a staff member during the Applicant's published hours of operation. The Applicant will also provide a cell phone number to the Added Party for use outside of the Applicant’s published hours of operation or when there is no answer from restaurant staff.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
Released: October 31, 2013