Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-04-11
FILE:
8590/LLA
CASE NAME:
8590 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
2369418 Ontario Inc. o/a Sagra
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
-and-
Objector S.G.
Added Party
DECISION AND ORDER
ADJUDICATOR:
D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicant:
Biagio Di Clemente, Agent
For the Respondent:
Aviva Harari, Counsel
For the Added Party:
Self-represented
Heard in Toronto:
March 28, 2014
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 2369418 Ontario Inc. operating as Sagra (the “Applicant”), on the basis that the Registrar has received one or more written objections to the application.
Ms. Harari advised the Tribunal that the Registrar was taking no position at the hearing and her involvement was limited to submitting letters received by the Registrar, objecting to the issuance of the licence. All exhibits to the proceeding were entered on the consent of the parties at the outset of the hearing.
Five objections to the application were received, four from the same address, three of whom had the same surname, and one from another close neighbour (Ex. 3). The objector who attended the hearing belongs to the group at the same address and to the group with the same surname so it is reasonable to assume that her objections were based on the common concerns of the group. With the consent of the parties, the Tribunal granted party status to Objector S.G.
FACTS
Biagio Di Clemente, an owner of the Applicant, and Objector S.G. both gave evidence.
The Applicant’s premises are located on Annette Street in what had once been the City of West Toronto. The sale of alcohol was not permitted in the area until a local referendum in 2000. Since then, liquor licences have been granted to a number of establishments. According to both the Applicant and Objector S.G., the nearest licensed premises are at Annette Street and Runnymede Road, some distance west of the Applicant’s premises. The Applicant’s premises are located in a row of three stores on the corner of Quebec Avenue and Annette Street. Objector S.G. is a close neighbour. A coffee shop occupies the corner, then the Applicant’s premises and then a convenience store. The Applicant currently operates an Italian restaurant on the premises, a feature of which is a wood fired pizza oven. There is some dispute between the Applicant and Objector S.G. about the source of the Applicant’s clientele. The Applicant is of the view that the majority of its clientele come from the local area and walk in and Objector S.G. believes that a fair portion of the clientele drive in. She bases this belief on the fact that, since the restaurant opened, cars have blocked her driveway. She has had them towed on several occasions.
In addition to parking concerns, Objector S.G. points to the fact that there are a number of day care centres and schools in the area. The immediate neighbourhood is almost entirely residential with close residents who are seniors and residents with young children.
She recites events when the restaurant had special occasion permits. Walking home she felt threatened by patrons standing outside smoking, with beer in their hands. She complains about current noise levels and has concerns that smoke from the oven may be harmful. She also cited noise concerns from garbage pick-up late at night but candidly admitted that she is not sure if the source was the restaurant or one of the other businesses.
Objector S.G. is also concerned that service of alcohol in this particular restaurant may create drinking and driving issues. As she explained it, the wood fired oven makes a pizza very quickly. If a patron orders a glass of wine with the pizza, the patron will be back behind the wheel of a car before the alcohol has had time to clear their system, thereby creating a safety issue for other road users. Other than her opinion on this, she pointed to no toxicology studies to support her view that this level of alcohol consumption created a danger.
The Applicant’s premises permit a 44 seat restaurant. The Applicant will focus on food service and will be putting place settings along the bar to emphasize that it is a restaurant not a bar. Mr. Di Clemente conceded that a pizza takes about 90 seconds to cook in the wood burning oven but stated that pizza is one menu item. It will serve a range of Italian food and expects patrons to linger over their meals. Currently, the kitchen closes at 10:00 p.m. Other than Sunday brunch when it opens at 10:00 a.m., the restaurant will open at 5:00 p.m. Business tends to decrease later in the evenings but Mr. Di Clemente feels that people will linger a little longer if they have a drink. He feels he can accommodate his business model and address community concerns by limiting licensing hours. He proposes limiting the period during which he can sell alcohol to 11:00 p.m. from Sunday until Wednesday and midnight on Thursday through Saturday.
The Applicant states that licensing of the restaurant has a great deal of support in the community. In addition to letters in support of the application sent to the Registrar (Ex. 4), the Applicant entered a petition of some 200 signatures (Ex. 5) supporting the application. The Applicant seeks to be a good neighbour and will post a sign in the premises asking patrons to respect the neighbourhood and will also provide a telephone number to local residents to call and register concerns during business hours.
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.
APPLICATION OF LAW TO FACTS
The Tribunal must determine whether it is in the public interest to issue the Applicant a licence to sell liquor and, if so, should terms attach to the licence. The Act directs the Tribunal to look at the needs and wishes of the residents of the community in determining the public interest and it is well established in the jurisprudence that the onus lies on those who assert that a licence is not in the public interest. If the public interest were determined simply by counting those in favour and those against this establishment, the Applicant would be successful without further debate. Ex. 5 contains 200 signatures in favour of the Applicant, the majority of whom have provided addresses within the Municipality and, in fact, close to the premises. Support letters (Ex. 4) outweigh objection letters. The City of Toronto has raised no objection to the issue of a licence. Determination of the public interest is not simply based on the comparison of numbers. The concerns of those who will bear the burden of living in close proximity to licensed premises are given more weight than those who live further away.
In the current case, Objector S.G. is a close neighbour. Giving weight to her concerns, the Tribunal must balance them against the statutory presumption of entitlement to a licence.
The difficulty for the Tribunal in weighing Objector S.G.’s concerns is twofold. Firstly, the main focus of her concerns deals with the existence of a restaurant at this location, licensed or not. Those concerns, parking, noise, late night garbage pick-up and possible noxious gas from the wood burning stove do not fall within the purview of this licensing hearing. They are more properly addressed in zoning by-laws and City enforcement by-laws. According to Mr. Di Clemente, the Committee of Adjustment voted unanimously in favour of permitting the Applicant to operate a restaurant at this location. Objector S.G. also expressed concern about the proximity of schools, day cares and residents who are either seniors or have young families. She purports to speak for them but, in each case, they chose not to file an objection despite the proper statutory notice being given. It can be taken from their silence that they are not concerned.
Licensed establishments are governed by a detailed regulatory scheme. Objector S.G.’s observation of smokers with beer in their hands outside the Applicant’s premises is a cause of concern to the Tribunal. However, it is not of sufficient concern to deny a licence to sell liquor. It is best addressed by the enforcement aspects of the Act. The Registrar employs inspectors, and local police may inspect licensed premises at any time. Should Objector S.G. observe such behaviour in the future, a call to the local police may bring about dire consequences for the Applicant. The Applicant, for its part, has undertaken both as a requirement of being a licensee and to this Tribunal that it will operate in accordance with its statutory obligations. The Tribunal concludes that the best way to serve the public interest is by putting terms on the Applicant’s licence.
ORDER
Pursuant to the authority vested in it under the provisions of s. 23 (10) and (12) of the Act, the Tribunal directs the Registrar to issue a licence to sell liquor to the Applicant subject to the following terms:
Service of alcoholic beverages shall cease each night from Sunday to Wednesday at 11:00 p.m. and on Thursday through Saturday at midnight.
The Licensee shall provide a telephone number for Objector S.G. to register concerns or complaints. This line will normally be answered by a staff member during the Licensee's published hours of operation. The Licensee will also provide a cell phone number to Objector S.G. for use outside of the Applicant’s published hours of operation or when there is no answer from restaurant staff.
The Applicant shall post a sign by each exit from the premises advising departing patrons to respect the neighbours by keeping noise to a minimum and by not lingering or loitering.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
Released: April 11, 2014