Pastizza Corporation o/a Pastizza v. Registrar of Alcohol and Gaming, 2013 CanLII 69339

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-10-28

8124/LLA

8124 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

Pastizza Corporation o/a Pastizza

Applicant

-and-

Registrar of Alcohol and Gaming

Respondent

-and-

Virginia Kells

The Added Party

Mary Ann Spencer, Member

For the Applicant:

Adam Vassos, Counsel and Dan Goldberg, Counsel

For the Respondent:

Kate Varva, Paralegal

For the Added Party:

Self-represented

Heard in Toronto:

October 21, 2013

BACKGROUND

The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, number 19813, dated May 21, 2013, to review an application for a licence by Pastizza Corporation operating or intending to operate as Pastizza (the “Applicant”), on the basis that the Registrar has received one or more written objections to the application.

The Applicant has applied to the Alcohol and Gaming Commission (“AGCO”) for a liquor sales licence for both indoor and outdoor areas with respective capacities of 126 and 116 persons at the premises located at 118 The Esplanade, Toronto. The premises are located at the northwest corner of The Esplanade and Market Street. The proposed patio would be located in two areas which the Applicant indicated would be of approximately equal size: one would be located on the south side of the building fronting The Esplanade, the other on the east side of the building fronting Market Street.

Following publication of notice of the application for the licence, the AGCO received a brief letter of objection signed by 18 residents of 110 The Esplanade. As a preliminary matter, Ms Varva advised that the Registrar was not taking a position with respect to the Notice of Proposal and submitted a copy of the letter of objection which was filed as Exhibit 3.

As a further preliminary matter, Ms Kells, who indicated she was appearing on her own behalf as an objector and as a representative of others who signed the objection letter, clarified that there was no objection to the licence application with respect to either the indoor area or to the patio area proposed for Market Street. The only issue before the Tribunal therefore is whether or not granting a liquor licence for the proposed patio area on The Esplanade is in the public interest.

OBJECTORS’ EVIDENCE

Viriginia Kells testified that she was the former chair of the residents’ association at 110 Esplanade but was not representing that organization at this hearing. Rather, she was speaking on her own behalf and on behalf of other objectors who signed the letter of objection sent to the AGCO.

Ms Kells testified that she was in support of the Applicant’s plans for his establishment with respect to the proposed indoor restaurant and the Market Street patio. However, she noted that a number of the residential units at 110 The Esplanade overlook The Esplanade and stated that noise from the proposed patio on The Esplanade would interfere with those residents’ quiet enjoyment of their homes, indicating the patio would be “right below” their windows. She also noted that almost all of the residents at 110 The Esplanade, the Performing Arts Lodge, are seniors as are those located at 115 The Esplanade, the Older Women’s Network housing co-op. Ms Kells provided two pictures of the proposed area of the patio which were entered into evidence as Exhibit 4.

Ms Kells indicated that a further concern of the objectors was that the Applicant’s proposed patio might attract panhandlers whom she stated already presented a problem on the north side of 110 The Esplanade, an area into which residents are reluctant to venture.

Ms Kells testified that she herself lived on the eighth floor of 110 The Esplanade and could hear noise from pubs in the Church Street/Esplanade area. She indicated that she feared that the addition of a patio to the Applicant’s premises would make the area both noisy and crowded with increased pedestrian and vehicular traffic. She expressed concern that if the Applicant’s application was approved, other establishments on the Esplanade might also apply for outdoor areas stating that if this happened it was “going to be a nightmare”. Ms Kells agreed with Counsel for the Applicant that the area in which she lives is a vibrant part of the city with a good selection of restaurants nearby. However, she repeated that her primary objection was to a patio below bedroom windows at 110 The Esplanade.

Asked if she had concerns about existing noise, Ms Kells stated that she did, that she could hear individuals shouting as they were leaving the nearby pubs and could hear car horns but she also stated that she herself had not personally filed any complaints with respect to the noise although she later noted that other residents had done so.

Ms Kells noted that she could not prove that the Applicant’s premises would be a problem as the establishment was not yet open but repeated that she believed street traffic and noise would be increased to the detriment of the residents.

APPLICANT’S EVIDENCE

Ramin Behboudi is an acoustical engineer with 15 years experience in the field of noise and vibration measurement. In a consulting role, Mr. Behboudi conducts studies to identify sources of noise, assess the impact on neighbouring buildings and provide alternative designs to mitigate noise to an acceptable level.

Mr. Behboudi’s firm, Swallow Acoustic Consultants Ltd., was retained by the Market Street development design firm Den Bosch + Finchley to conduct an assessment of the impact of noise from patios located on Market Street on the buildings at 110 The Esplanade and 81 Front St. East (Exhibit 5). Mr. Behboudi testified that the primary focus of his study was on building amenity areas, for example balconies, in the courtyard area between the two buildings where residents are most likely to be affected by noise. He noted that a tunnel from Market St. leads to this area and has the potential to both funnel and amplify sound.

Because music is not proposed on the Market St. patios, Mr. Behboudi only considered the impact of speaking voices in his study. Conservative assumptions were used; for example, that the patios would be 100% occupied, that 50% of the occupants would be speaking at one time and that the building surfaces opposite the patios would be reflective. Based on the Ministry of Environment noise guideline NPC-205, and assessing noise against the maximum nighttime value of 45 dBA, his study indicated that the highest expected noise level would be 44.7 dBA and concluded that the amenity areas are not expected to be affected by patio noise from human voices.

Asked by the Tribunal if he had assessed the impact of the proposed patio on The Esplanade on the southern facing units of 110 The Esplanade, Mr. Behboudi indicated that he had not. However, he stated that, in his opinion, the noise from speaking voices on a patio would be unlikely to exceed existing traffic noise.

Witness S.P. is a resident of 110 The Esplanade. She testified that she knows the Applicant from other restaurants which he has owned or operated and has never found them to be noisy. She fully supports the application for the patio and has no concerns with respect to noise or her ability to sleep. On cross-examination, S.P. testified that her unit faces the inner courtyard of 110 The Esplanade.

Paolo Paolini is the principal of the proposed licensee. Mr. Paolini testified that he has and currently does own and operate a number of restaurants. He described his plans for the operation of Pastizza using a number of architectural renderings which were entered into evidence as Exhibit 7. At the Tribunal’s request he also, using Exhibit 6, a photograph of the façade of 118 The Esplanade, explained where the proposed patio would be located. The Tribunal asked him if the proposed patio design which shows a fixed canopy-type covering had been approved by the City. Mr. Paolini responded that the patio design might change given that he understands the City intends to plant trees on the sidewalk and that the canopy covering has not yet been approved by the landlord, who has some concerns regarding consistency among the patios in the Market St. redevelopment project.

Mr. Paolini testified that in operating his previous restaurant Splendido or his current restaurants, Mistura and Sopra he has never had any charges laid against him for either noise or liquor licence violations. He further testified that he has no intention of having music on the patio and would be prepared to accept a prohibition in this respect as a condition on his liquor licence.

Eve Lewis is a real estate broker and developer who is the 50% owner of the Market St. redevelopment project. Ms Lewis explained that the project has been constructed with City approval following a series of meetings held with local residents in 2010 and 2011. She indicated that there are commitments for 5 restaurants and one store to move into the development. Initially, there were neighbourhood concerns about bars moving in and a commitment was made that there would be no music on outdoor patios.

Ms Lewis testified that the residents of 110 the Esplanade were concerned about potential noise from the HVAC systems in the new and redeveloped buildings and that the design was subsequently altered to mitigate noise. Further, ‘ecologizers’ were installed in each restaurant space to prevent outside odours.

ANALYSIS

The issue to be addressed in this hearing is whether or not the granting of a licence to the Applicant with respect to the proposed patio space on The Esplanade is in the public interest. The Act recognizes the impact that the establishment of licensed premises may have on its community: section 6(2)(h) states that an applicant is entitled to be issued a licence to sell liquor except if “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 onus is on the objectors to establish, on a balance of probabilities, that the issuance of a 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 must balance the interests of the community residents with those who would earn their living there. In determining whether the needs and wishes of the residents are bona fide, the Tribunal must consider the totality of the evidence to determine if the subjective concerns of the residents are supported on a valid and objective basis.

In making its decision, the Tribunal has considered the evidence of the parties as well as the submissions of the Applicant and the Added Party and the cases submitted by the Applicant for the Tribunal’s consideration.

In this case, all of the objectors who signed the letter of objection are residents of 110 The Esplanade. The 18 objectors represent slightly less than 10% of the approximate 210 building residents. Ms Kells indicated that she and some of the others who signed the letter reside in units which front The Esplanade. Because these objectors represent those in closest proximity to the proposed patio and therefore those who will be most affected, their wishes and needs merit close consideration.

The letter submitted by the objectors to the AGCO (Exhibit 3) reveals a number of concerns:

..noise, air pollution from smokers and kitchen vents, as well as street traffic noise and parking congestion which would deprive 210 residents of our right to the quiet enjoyment of our homes.

In her testimony, Ms Kells spoke to three issues: concerns with respect to the potential for panhandlers to loiter on the Esplanade; the potential that should one patio be permitted, others might follow causing a significant increase in street noise and traffic congestion; and the potential for noise from the proposed Esplanade patio to disturb residents of 110 The Esplanade.

Because the Applicant is not yet operating, the objectors find themselves in the difficult position of demonstrating to the Tribunal that their concerns are supported on an objective basis. Ms Kells herself noted that she could not know the impact of the patio given Pastizza was not yet open.

With respect to the potential for an increase in panhandling and loitering, the Tribunal finds Ms Kells’ concern to be speculative and notes that it is somewhat inconsistent with the lack of objection to the patio on Market Street which would run north from the entryway of the premises. While the Tribunal notes that an increase in panhandling or loitering near a patio on The Esplanade would be closer to the entrance to the objectors’ building, the photographs of the proposed site show that The Esplanade patio is separated from the objectors’ building by some meters width of driveway.

With respect to the potential for the approval of one patio to lead to the approval of more on The Esplanade, the Tribunal also finds that this concern is speculative. While Ms Kells specifically noted a concern with respect to the potential for a specific establishment on the street to also open a patio, the Tribunal notes that each application for a liquor licence or for additional licenced premises is subject to the approval processes of the municipality and the AGCO. The existence of licenced premises in the area is not necessarily an indication that further licenced premises will be approved. More importantly, the Tribunal must assess the application before it on its own merits and not on its potential to result in further applications.

Ms Kells’ primary concern was with the potential for noise from the proposed patio to interfere with the quiet enjoyment of the objectors’ homes. The evidence indicates that the proposed patio on the south side of 118 The Esplanade will not be directly under the windows of the units of 110 The Esplanade. Rather, it will be separated from the building by some meters, including the width of a service driveway.

The Applicant was unable to specify how many of the 116 outdoor seats would be located on The Esplanade patio but estimated these to total 60. The Tribunal notes that there appears to be some inconsistency between the photograph of the building and the architect’s rendering of the proposed patio which appears to extend beyond the available space. There is therefore some doubt that The Esplanade patio would in fact accommodate as many as 60 seats. Fewer seats would result in less potential for noise.

The Applicant provided expert evidence in the form of a September 16, 2013 report from Swallow Acoustics Consultants Ltd. with respect to the expected impact of noise from Market St. patios on the amenity area between the buildings at 110 The Esplanade and 87 Front St. While the fact the study was undertaken indicates that residents’ concerns have been considered, the Tribunal finds this evidence not to be relevant to the specific issue before it. It is unfortunate that the study did not address the impact of noise from the proposed Esplanade patio on the residential units facing The Esplanade. However, the Tribunal does find Mr. Behboudi’s expressed opinion that the level of noise from patrons speaking on the patios is unlikely to be heard over street noise to be relevant.

The Tribunal also finds the evidence of Ms Lewis to be of limited value. While her testimony with respect to efforts made by the developer to address the noise concerns of residents that arose during planning and construction of the Market St. redevelopment project speaks to the developer’s willingness to work with the community, those efforts are not relevant to the issue before the Tribunal, that is, the noise potential of a specific patio proposed by one of the project’s tenants. Similarly, the evidence that resident S.P. does not object to the patio has to be weighed by the Tribunal in the context of the fact that S.P. was speaking only on her own behalf and resides in an interior facing unit rather than one in the area adjacent to the proposed Esplanade patio.

The existence of a liquor licence is not in itself the cause of noise. The Tribunal notes that subject to municipal approval, the Applicant is free to have an unlicensed patio. In this respect, to respond to residents’ concerns, the landlord’s agreement to prohibit music on patio areas was made independently of any liquor licence applications.

Ms Kells expressed some concern that the community already experiences noise from local pubs. In response to a question from the Tribunal, Mr. Paolini confirmed that his intention is to operate the premises as a restaurant, not a bar. Further, Mr. Paolini testified that he has had no noise or liquor violations in the establishments he has operated.

While the Tribunal does not wish to diminish the fears of Ms Kells and the objectors she represents, it finds the concerns with respect to noise to be speculative. There is no evidence before the Tribunal that the approval of a liquor licence for the outdoor area on The Esplanade will result in noise which will disturb the residents living in units facing The Esplanade.

The Tribunal therefore finds that the objectors have not, on balance of probabilities, established that the issuance of a liquor licence is not in the public interest. However, given the relative proximity of the proposed patio to residential units, some conditions on the Applicant’s licence are warranted. Mr. Paolini indicated he intended to operate as a restaurant and that he was prepared to accept a condition forbidding music on the patio. In addition, the Tribunal is adding a condition requiring the establishment of a mechanism whereby the residents may reach the restaurant should noise concerns arise.

ORDER

The Tribunal directs the Registrar to approve the application for a liquor licence made by Pastizza Corporation o/a Pastizza for both indoor and outdoor areas, with respective capacities of 126 and 116 persons, at the premises at 118 The Esplanade, Toronto, 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 on the outdoor patios, at all times the outdoor patios are open for business.
There shall be no live or recorded music on the outdoor patios.
The licensee shall provide a telephone number with a functioning message service and/or an e-mail address for local residents to register concerns or complaints. The licensee shall respond to all concerns or complaints within 24 hours.

LICENCE APPEAL TRIBUNAL

Mary Ann Spencer

Member

Released: October 28, 2013