Licence Appeal Tribunal
FILE: 8564/LLA
CASE NAME: 8564/LLA 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
2269928 Ontario Inc. o/a Victory Café Appellant
-and-
Registrar of Alcohol and Gaming Respondent
-and-
City of Toronto and Palmerston Area Residents Association (PARA) Added Parties
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Alex McCauley, Member
APPEARANCES:
For the Appellant: Pradeep Chand, Counsel
For the Respondent: Aviva Harari, Counsel
For the Added Party City of Toronto: Jessica Braun, Counsel
For the Added Party/Objectors: Ian Scott, Agent
Heard in Toronto: May 8, 2014
REASONS FOR DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the "Registrar") under the Liquor Licence Act, (the "Act") issued a Notice of Proposal, number 20176 dated December 19, 2013 to review an application for additional licenced area by 2269928 Ontario Ltd. o/a Victory Café, on the basis that the Registrar has received one or more written objections to the application.
BACKGROUND
The Appellant has applied to the Registrar for an additional capacity to the outdoor area of 42 persons, for a total outside capacity of 112 persons. Pursuant to O. Reg. 719/90, notice of the Application was run in several media outlets and was posted on the licenced premises.
The Registrar has received one or more written objections to the Application from area residents. In addition, the City of Toronto passed a resolution opposing the granting of the Appellant's request for additional capacity in that it was not in the public interest to do so.
Sec. 7.1 of O. Reg. 719/90 states, in short, that in the absence of evidence to the contrary such a resolution from the council of the municipality in which the premises are located, as proof of the needs and wishes of the residents of the municipality for the purposes of clause 6(2) (h) of the Act.
The Registrar took no position in regards to this Application.
The Objectors introduced a package of 12 letters of objection from area residents (Ex. #3) and a log of complaints, authored in part by KB who is a resident and was a witness at the hearing (Ex. # 7).
The City of Toronto filed the notice of motion from City Council's meeting of April 3 and 4, 2013. (Ex. # 4).
The Objectors, with the exception of one, chose to proceed with this matter through Mr. Scott as agent.
THE LAW
"............An Appellant is entitled to be issued a licence to sell liquor except if,
(h) The licence is not in the public interest having regards to the needs and wishes of the residents of the municipality in which the premises are located.
In addition Sec. 7.1 of O. Reg. 719/90 as amended states:
In the absence of evidence to the contrary, the Registrar shall consider a resolution of the council of the municipality, in which are located the premises for which a person makes an application to sell liquor holds a licence to sell liquor, as proof of the needs and wishes of the residents of the municipality for the purposes of clause 6 (2) (h) of the Act
OBJECTORS' EVIDENCE
The objectors through their letters and their representative have been objecting to the noise emanating from the patio of the Appellant's licenced premise for several years, even before the current licensee took possession.
Ian Scott, Chair of the Palmerston Area Residents Association, (PARA)
Mr. Scott gave his evidence based on his own direct experience and on behalf of the area residents. Mr. Scott stated that noise from the outside patio of the Victory Café has been a source of problems for area residents since 2003. The problem has not diminished since the new owner took possession in 2010.
He stated that signage posted by the Licensee on the premises and the exterior by the patio has had no effect in reducing the noise. The patio which faces on to Markham St. has a flank that curves along the south side of the premises on Lennox Street. There is a Boulevard Cafe Agreement between the Licensee and the City of Toronto which is applicable to the "Flank" portion of the patio.
Mr. Scott stated that it was his understanding that the licensee's agreement with the City of Toronto was that the "Flank" patio was to be closed by 10:00 p.m. every night, yet often the patio is open until 11:00 p.m. or later, on occasion.
Mr. Scott stated his house is approximately a 100m. south of the licenced premise. He states he is bothered by noise from the patio and often can hear the noise from the patio in his home, even with all of his doors and windows closed.
The complaints from residents in and around the Appellant's licensed premise were virtually all noise related. There is no music on the patio, just sound from the patrons carrying on, on the patio. Residents are frustrated by the lack of action regarding their concerns from the officials charged with oversight regarding noise enforcement.
In cross examination, Mr. Scott stated that often the Victory Café came up in discussions at PARA Board meetings. Mr. Scott stated that he was aware that there was a business association active within the neighbourhood, but they had no meetings with them or any agreements with them on any issues.
In cross examination, Mr. Scott admitted he has seen the Victory Café close the patio early but conversely he has observed the patio in operation after the prescribed hours. Nothing has been done regarding the complaints he has filed. Mr. Scott stated that PARA did not accept terms of a deal from the Appellant regarding these issues.
Based on his records, there have been 11 formal complaints filed with the City of Toronto and at least that many filed with the Alcohol and Gaming Commission of Ontario (AGCO). This was in 2013, in the course of the patio season which is primarily summer.
Mr. Scott stated that no formal charges were ever forthcoming from the complaints filed.
Often by-law enforcement persons never arrived on scene until the next day or later when the offensive noise was no longer an issue.
Mike Layton, Ward 19 Councillor, Trinity- Spadina
Mr. Layton is the elected representative for the area in which Victory Café is located. He sponsored the motion of Toronto City Council on April 3, 2013, opposing the Licensee's application for additional outside seating, because, in his opinion, it was not in the public interest to grant the application.
Mr. Layton is familiar with the Victory Café having been a patron there on occasion as have members of his family. He acknowledged a number of e-mails which had been sent to his office from residents complaining of the noise from the patio at the Victory Café. In his opinion, the disruptions to area residents are a frequent and a constant problem. The Victory Café is virtually in the front yards of area residents. Other area bars are not located in this type of residential area.
Mr. Layton stated he was aware that the additional capacity would be for the "Flank" portion of the patio which closes at 11:00 pm.. Even so, his concern is that the extra noise coming from increased capacity would negatively impact on the residents ability to enjoy their property. It is his opinion that there is a significant negative impact to the residents of the neighbourhood now from the Victory Café, allowing more patrons on the patio would only exacerbate the problem.
Mr. Layton was also of the opinion that additional conditions on the licence for the Victory Café would not assist significantly. The Boulevard Agreement for the "Flank" patio is due to expire in 2015. Mr. Layton advised that the agreement will be fully reviewed then. In the meantime, all efforts will be put in place to ensure that the current agreement is enforced.
In cross examination, Mr. Layton admitted he never reviewed all the complaints individually. He knew the area and was familiar with the problem. Mr. Layton advised that often staff dealt directly with the complaints and or complainants. He would be briefed. He attended a residents meeting about the problems of the Victory Café on May 16, 2013.
Mr. Layton stated that there is always an attempt to balance the needs of the community between business concerns and their impact on the residents. Mr. Layton stated that the management of the Victory Café were aware of the restrictions in effect on the licence when they purchased the property.
Mr. Layton advised he was not aware of proposals sent to his office from the owners of Victory Café. He did not advise the residents of PARA not to communicate with the owners of the Victory Café.
There seems to be a conflict between the Boulevard agreement in effect since 2012, which calls for the "Flank" portion of the patio to close at 11:00 p.m. and a City of Toronto motion to amend the agreement in 2002, which indicates that the "Flank" patio is to close at 10:00 p.m. (EX. # 5).
KB, Resident Objector
KB is a resident on Markham St. close to the Victory Café. He has complained consistently since 2002 about noise emanating from the Victory Café. He kept a log of some of the incidents of noise from 2003 until 2012. Appellant's counsel pointed out that his client had only taken over the business in 2010.
Prior to the existence of the patio at the Victory Café. KB suffered from no sleep issues. KB is an emergency room physician who states that the noise from the Victory Café disrupts his sleep and affects his job.
When asked how the noise disruption compares to the noise in the past, his response was that if anything it is worse. Attempts by the Appellant to mitigate the situation by posting signs and a telephone number for residents to call do not seem to work.
APPELLANT'S EVIDENCE
Christopher Simon Assistant Manager Victory Café
Christopher Simon has been the assistant manager for 2 months. He started at the Victory Café as a bus boy. In general, his duties include scheduling staff, bartending when required, and supervising approximately 10 staff at the busy time. He acts as a floater on weekends, ensuring that the premises are being properly operated. He supervises patrons on the patios as well.
He does not feel that additional people on the patio will cause increase noise. This in part because of procedures already in place which limit parties on the patio to groups no larger than 8. He emphasized that the signage and the phone number help to make a difference.
The clientele on the patio is generally in the thirty age group. There is no amplified music of any type permitted on the patio. He stated that the "Flank" patio closes at 10 p.m. every night, the other front patio closes at midnight Sunday-Thursday and 2 a.m. Friday and Saturday.
He personally has never received a noise complaint from the residents. He went on to say that if he did receive a complaint he would investigate it and take whatever action was appropriate. In cross examination, he admitted he has not experienced a summer as manager on the patio.
Jarvis Taylor, General Manager Victory Café
Jarvis Taylor's duties entail staff management, general accounts. In addition, he is the site manager and is responsible for customer and neighbour relations. He has been the general manager at the Victory Café for 4 years.
He has a number of years' experience at other establishments. Some patio issues he has dealt with are noise complaints from residents late at night. On these occasions, if warranted, he will close the patio earlier or perhaps move the offending group inside.
He described the establishment as a hybrid between a bar and restaurant with a good deal of emphasis on food service. They support "craft" breweries. The clientele is mostly young professionals from the neighbourhood.
He recalled 5 or 6 occasions when he had to quiet patrons. The "Flank" patio closed at 11 p.m.. Noise control is through supervision, signage and a posted "hot line" telephone number.
CC, a Supporter,
CC is a neighbourhood business woman ,operating a pottery business off Lennox Ave. behind the Victory Café. Her hours are varied depending if she is developing pottery or not. It is not unusual for her to be in her place of business until after midnight.
She has attended the Victory Café often, at least 12 or 15 times. She describes the Victory Café as more of a cafe than a bar. She supports the Victory Café's application and sees no issues about noise. In cross examination, she admitted she was not a resident of the neighbourhood.
SUBMISSIONS
Counsel for the City of Toronto
The City of Toronto opposes any attempt to increase capacity on the patio. There is continual noise interruption for the area residents now. The Appellant's business is surrounded on three sides by residents. Councillor Layton represented his constituents as is his duty.
To deny this application now will not prejudice the current operation of the Victory Café.
The Boulevard agreement still stands. The City of Toronto concedes that the weak point in their case is the lack of charges and convictions against the Victory Café. The onus on the residents to show the application is not in the public interest is understood. That obligation has been met.
Ms. Braun stated that it should be noted that the principal of the Appellant Licensee did not give evidence. The evidence of the managers called was inconsistent. There was differing evidence of matters such as closing times on the patio.
Ian Scott, on behalf of the Resident Objectors
Concerns are not with the establishment, but with the noise from the patios. There currently is a problem with enforcement in a timely manner. He submits that this will only get worse with increased capacity on the patios.
Counsel for the Respondent
The AGCO does not want to see conditions downloaded to them for enforcement. This, Counsel submits, is clearly a City of Toronto issue. The AGCO is no way a party to the Boulevard agreement in effect between the Appellant and the City of Toronto.
Counsel for the Appellant
There have been no charges or convictions for any violations against the Victory Café. The application, if granted, would see additional patrons on the "Flank portion of the patio"
Mr Chand submits that the Appellant has a right to a licence.
Councillor Layton appeared to consider only the concerns of the residents and not all of the citizens i.e. the Appellant. PARA and the area residents have not shown a desire to resolve the issues. The efforts of the Appellant, if successful, will lead to more employment in the area and strong support for local industry such as the "craft" brewers. The Appellant has taken certain steps to deal with the problems of the residents., in part, with signage, supervision and the installation, of a telephone hotline.
APPLICATION OF LAW TO FACTS
There is clearly an onus on the residents to demonstrate that to grant this application would not be in the public interest. In considering matters of public interest, the Tribunal must balance the concerns and needs of the residents with the competing interest of the Appellant who is developing a business in the community. Primary in all of this is the overriding principle of the rights of all the parties to the lawful and peaceful enjoyment of their property. The public interest hearing goes beyond simply determining whether the intended use, or increased use, is acceptable; it extends to a determination of the needs and wishes of local residents.
There has clearly been an issue of noise impacting on the residents since the establishment of the patios at the Victory Café. Appellant's Counsel points out that prior to 2010 those issues were not the responsibility of his client. That's fair, but clearly the noise has been affecting this neighborhood since 2003. There was no evidence tendered that the operation of the Victory Café changed dramatically from then until the present.
In fact, in the words of one witness who was compiling a history of problems since 2003, in his opinion things were worse now. So, in the view of the Tribunal it is relevant to consider the ongoing problems emanating from the patio at the Victory Café.
The residents' complaints are compelling. There has clearly been a disruption to the peaceable enjoyment of their property because of noise from the patio of the Victory Café. The fact that no formal charges were laid against the Victory Café in and of itself does not negate the fact that residents have been affected by noise. Evidence suggests that often by-law staff from the municipality did not arrive contemporaneously with the breach allegedly taking place. It would be days later, if at all.
The overall perception of the Victory Café is that it is an upstanding enterprise. The problem is the location of the establishment if a patio is to be utilized. Surrounded by residents, the patio, as has been demonstrated, will be in conflict with the residents and their right to the peaceable enjoyment of their property. The current situation, as it exists, has caused a great deal of disruption to the residents. An increase of capacity in any amount, let alone 42 persons would not be in the public interest.
The fact that the increased capacity would be in the patio area with the earlier closing time makes little difference. The evidence has established that the residents use and enjoyment of their property has been diminished because of the operation of victory café, and in particular its patios.
The Tribunal finds, having considered all of the evidence, that the objectors have indeed met the onus of establishing that granting the additional licensed capacity "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."
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal does not approve the application by 2269928 Ontario Ltd. o/a Victory Café for additional licensed capacity.
LICENCE APPEAL TRIBUNAL
Alex McCauley, Member
Released: June 9, 2014