Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2014-06-09
FILE: 8370/LLA
CASE NAME: 8370 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
2340054 Ontario Inc. o/a The Marquis of Granby Pub Appellant
-and-
Registrar of Alcohol and Gaming Respondent
-and-
Mohammad Khan, Richard Kubowicz and Metropolitan Toronto Condominium Corporation 565 Added Parties
DECISION AND ORDER
ADJUDICATORS: Mary Ann Spencer, Presiding Member and Gary Yee, Associate Chair
APPEARANCES:
For the Appellant: Richard Kulis, Counsel
For the Respondent: Tamara Brooks, Counsel
For the Added Parties: Mohammad Khan: self-represented Richard Kubowicz: self-represented MTCC 655: Sidonia Loiacono, Counsel
Heard in Toronto: March 5, May 7 & 9, 2014
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, number 20066, dated September 25, 2013, to review an application for a licence by 2340054 Ontario Inc. operating or intending to operate as The Marquis of Granby Pub (the “Appellant” or the “Marquis”). The Alcohol and Gaming Commission (“AGCO”), having received one or more written objections to the application, proposes to review the application in relation to the public interest.
The Appellant has applied to the AGCO for a liquor sales licence for an outdoor area with a capacity of 55 people at the premises located at 414-418 Church Street, Toronto. The premises are located at the southwest corner of Church and Granby Streets. The proposed patio would be on the north side of the building fronting Granby Street.
Following the publication of notice of the application for the licence, the AGCO received 27 letters of objection signed by residents of Granby Street and of 45 Carlton Street, the apartment tower of the condominium M.T.C.C. 565, units of which overlook Granby Street to the south. As a preliminary matter, the AGCO Counsel advised that the Registrar was not taking a position in this matter other than with respect to the enforceability of any conditions that might be proposed by the parties. A copy of the letters of objection received by the AGCO was filed as Exhibit 3.
As a further preliminary matter, the Tribunal noted that in its Order dated March 7, 2014, it named Neil Kitagawa, a member of the Board of Directors of M.T.C.C. 565, as an Added Party to this matter. M.T.C.C. 565 is in fact the Added Party.
The Tribunal started this hearing on March 5, 2014, but adjourned it, with the agreement of the parties, to arrange accommodation for the disability of one of the Objectors. The Tribunal heard from 14 witnesses in two full days of hearing on May 7 and 9, 2014.
ISSUE
The issue to be addressed in this hearing is whether or not, and in light of section 6(2)(h) of the Act, granting of a licence to the Appellant with respect to the proposed patio space on Granby Street is in the public interest.
DECISION
After considering all the evidence and submissions, the Tribunal approves the application for additional licensed capacity subject to the conditions set out in this Order. Reasons follow.
OBJECTORS’ EVIDENCE
Mr. Khan, Mr. Kubowicz and seven witnesses gave affirmed testimony in support of the objections to the application set out in the letters of objection received by the AGCO. Their testimony is summarized below.
Mohammad Khan resides in a townhouse on Granby Street. He testified that the Granby/McGill Street neighbourhood is a special residential area and noted that neither street runs through to Yonge Street. Rather, they form a U shape with westbound one-way traffic on Granby and eastbound one-way traffic on McGill. He provided a copy of the City of Toronto By-Law No. 283-83 dated April 8, 1983 (Exhibit 6) which amended the Official Plan and designated the “McGill/Granby Area of Special Identity”. Mr. Khan also stated that the Marquis occupies a designated historical building. Further, he testified that the Ontario Municipal Board (OMB) had ordered The Barn/Stables, the previous occupant of this building, to limit use of the building’s Granby Street double doors to emergency exits only. He submitted a document (Exhibit 7) which he described as an OMB order but was determined in cross-examination to be a settlement agreement with respect to an OMB matter.
Mr. Khan had no issues with the Marquis until parties started and noise from patrons leaving began. With his windows closed he can hear people from inside his home as they exit the Marquis to smoke or when they leave the premises, even though he does not live directly across from the Marquis. Mr. Khan submitted a picture of his vehicle and testified that he had been told by his neighbour S.T. that she had seen someone jumping on it during the night. He spoke to the Marquis’ manager about the incident but was told that the Marquis could not control people outside of their premises. Mr. Khan also stated that there have been issues with people sleeping on residence lawns. Asked if he had complained to police or taken any photographs, he indicated that he would take these types of concerns to the residents’ association.
Because of its potential for noise, Mr Khan does not support a patio at any time of day, noting that seniors and children live on Granby Street. He does not want more strangers on the street. Asked about potential conditions on a liquor licence, he addressed the proposal for a staff member to be on the patio and stated that this would not limit noise because people speak more loudly when they drink alcohol.
Objector Richard Kubowicz is the vice president of the McGill Granby Residents’ Association, which has approximately 50 members. He testified on behalf of the Association and provided a package of letters of objection and representation authorizations (Exhibit 8).
Mr. Kubowicz stated that the building occupied by the Marquis has had a “somewhat sordid past” and noted that it had been a rowdy venue. Adding a patio that could operate until two or three a.m. would exacerbate the noise issues the residents have experienced. He noted that Granby and McGill streets comprise a quiet residential area where measures have been taken to limit traffic and resultant noise; for example, limiting access to the condominium buildings and to Covenant House. Mr. Kubowicz also provided a copy of a City of Toronto staff report dated February 2, 2004 (Exhibit 11) which references the McGill Granby area as one of “Special Identity” in the city’s Official Plan.
The McGill Granby Residents’ Association is opposed to the patio licence. The overwhelming preference of the members is that there be no patio. However, were a licence to be approved, it should be with restrictions. Mr. Kubowicz stated that the Marquis has created the impression that the patio will be noisy given it promotes events such as UFC broadcasts, offers cheap beer and appears to cater to students. Asked by Mr. Kulis if the residents’ association has recommended that its members call police if there are neighbourhood problems, Mr. Kubowicz agreed it does and had done so in the case of a “student house” on McGill Street which had created noise issues (Exhibit 13). He then testified that the association had not intervened in this manner with respect to the Marquis.
Mr. Kubowicz had not contemplated what conditions on a licence might be acceptable nor had he had sufficient time to speak to the individuals he was representing at the hearing with respect to the specific conditions proposed by the Marquis. He himself would be willing to consider options, but he reiterated that the overwhelming preference of his members was that no patio be allowed. He agreed that no music should be allowed on the patio, that doors and windows should not be propped open, and that it would be advantageous to have a staff person on the patio as well as signage reminding patrons to be respectful of neighbours.
Speaking on his own behalf, Mr. Kubowicz testified that he lives on Granby Street, on the same side as the Marquis, a few doors down the street. He works from home and passes by the Marquis four to six times a day. He sees and hears people congregating outside the Marquis and around cars, sometimes smoking or playing music, particularly when it sponsors events such as UFC broadcasts. When The Barn/Stables was operating, he could hear people on its second floor patio. The weekend before this hearing, he could hear bass music coming from the Marquis because there was a special event on the second floor. Patrons leaving the facility sometimes use planters on his property to sit; this is annoying to him, but he has not called police, remarking that even when police are called they do not always attend. He noted that the Appellant’s proposal for a complaint line would not be useful given that calls would be made after a disturbance had already taken place. He was also concerned about music and noise escaping from the side double doors if a patio were in use, and that there would be an increase in activity, noise and inebriated people.
Mr. Kubowicz testified that he holds Masters degrees in mathematics and engineering. After reviewing the HGC noise impact study commissioned by the Appellant, he performed sound level calculations using additional hypothetical scenarios. He explained that his calculations (Exhibit 12) demonstrate that noise levels on the proposed patio could reach 90 dB in a scenario with 40 people speaking at once and 4 people cheering. Mr. Kulis questioned Mr. Kubowicz on the validity of a scenario where all 40 people were talking at the same time. Mr. Kubowicz then stated that he wished to highlight the “impact of four people drowning out others”. He added that despite the HGC results, he himself could hear people talking from across the street.
Objector T.J. resides in a townhouse opposite the proposed patio location, with living room and bedroom windows overlooking the site. He noted that he chose to move to the area, paying a substantial sum for his home, because Granby is a quiet residential street. If the patio is approved, he will not be able to open his windows because of noise. He understands that the proposed patio may be open until 4 a.m. He noted that the Marquis caters to students, and stated that its patrons are often noisy when they leave the establishment and walk down Granby Street in the early morning hours. A patio operating during the day would also be problematic. Although he filed no complaints, he experienced noise issues in the past when the establishment was operating as The Barn/Stables even though they had no sidewalk patio. He has also had issues with bottles thrown into his garden and with individuals urinating behind his home.
Asked by Mr Kulis if conditions such as a prohibition on music on the patio, reduced hours, a staff person on the patio to monitor noise and a telephone complaint line would help to alleviate his concerns, T. J. agreed that they would, but repeated that he wants “no patio whatsoever”.
Objector H.L. resides with T.J. Objector H.L. testified that he occasionally hears noise at the end of the evening when people leave the Marquis. He stated that it is “hard to know” how loud patio patrons would be and noted that the patio may attract an undesirable element. He has no opinion on a patio operating during the day, but does object to one being open at night. Late night music and the potential for outdoor speakers on what he described as a quiet residential street are his biggest concerns. His experience with the way in which The Barn/Stables operated has contributed to his concerns and agreed that an earlier closing, a prohibition on music, a staff member on the patio and a complaint telephone line would help to alleviate them.
Objector P.N. resides in the 45 Carlton St. condominium tower. Even though he is onthe 10^th^ floor, he hears noise from patrons leaving the Marquis, although he has made no complaints about it. He stated that it would be extremely disruptive to hear this type of noise all night. He believes that the Marquis is a student-oriented bar. When The Barn/Stables was operating, he heard noise when its doors were open and when patrons left, but he noted that this noise was transient, unlike that from a patio. It would be distracting to hear conversations and other noise coming from a patio and he noted that the sounds carry straight up the condominium building’s wall. Because the proposed patio area is very narrow, he expressed some concern that the sidewalk area would be compromised. Asked whether licence conditions would help address his concerns, he stated that a prohibition on music and a 10 p.m. closing would be helpful. He doubted the good faith of the Appellant’s offer to keep the windows closed. He would be “shocked and amazed” if a staff member on the patio could control the noise and having a complaint telephone number is not helpful since calls would be made after a disturbance has occurred.
Objector G.L. resides in a townhouse on Granby Street but he has also lived in both a 45 Carlton St. apartment and condominium townhouse. He testified that he hears noise when events occur at the Marquis. He also heard noise when he resided in the apartment and events took place at The Barn/Stables. He noted that there are no balconies in the estimated 375 apartments at 45 Carlton St. which face south overlooking Granby Street. Residents often leave their windows open due to deficiencies in the HVAC system. Noise travels up the building wall, and 700 to 1,000 residents would be affected. He would have no objection to a non-licensed patio, but noted that people raise their voices when they drink alcohol. Both his children and guests have complained about the noise created by “obviously inebriated” patrons leaving the Marquis. He also fears that traffic will increase if the patio is approved, noting that there is already a problem on the street and the neighbourhood is trying to organize the installation of speed bumps. No licence conditions would satisfy his concerns about the proposed patio.
Objector M.S. lives in a townhouse on Granby Street with windows overlooking the site of the proposed patio. She testified that when The Barn/Stables was in operation, she found patrons passed out on her lawn. She acknowledged that the Marquis was more vigilant but she is still worried problems may occur with increased activity at the Marquis, and she did not accept that the Marquis’ clientele or operations were much different from The Barn/Stables’. She is also concerned that noise and traffic congestion on the street will increase. No conditions on a patio liquor licence would satisfy her concerns.
Objector S.T. lives in a townhouse on Granby Street opposite the Marquis. She testified about an incident at night, when she saw two people outside, one of whom she witnessed jumping on the hood of Mr. Khan’s vehicle. She then saw a third person leave the Marquis and talk to them. She did not report the incident to the Marquis but fears this type of behaviour will persist. S.T. was generally concerned that more people would mean more of everything; drinking, noise, traffic, illegal parking. S.T. is most concerned with the operation of a patio at night. She noted that while it would “not be good”, a patio closure at 10 p.m. would help address her issues.
Objector M.T. lives with Objector P.N. in the condominium tower at 45 Carlton St. She testified that when The Barn/Stables was in operation, she heard noise from patrons when they used its second floor patio and when they exited the building. Since the Marquis has been in operation, she sees groups of students walking west along Granby to Yonge Street, and testified that it was noisy because while the boys talk, the girls scream. She agreed that 11 p.m. would be a decent time for a patio to shut down, but she believes there is insufficient space for a patio in the proposed area. She is also concerned that the pedestrian sidewalk will be compromised by people standing to talk to those seated on the patio. She agreed that conditions limiting patio hours of service or requiring the presence of a staff person to monitor noise levels would be helpful, but she had concerns about the Appellant not being able to guarantee this. She reiterated that there should not be a bar on that corner.
APPELLANT’S EVIDENCE
Spiro Papathanasakis is the principal of the Marquis. He is also the director of the Cabbagetown Youth Centre and has a number of other interests, including companies involved in cancer drug research. He has direct experience in the hospitality industry, having run a food pavilion with a bar in the United States for three years. Mr. Papathanasakis lives in the neighbourhood and purchased the Marquis building both because of its location and because he believed the business would provide an opportunity for his family to work together. Four of his five children are now employed at the Marquis.
The Marquis, with a licensed capacity of 550, opened June 1, 2013. The first of the building’s three floors is operated as a pub. The second floor, where there is an open area which can be used as a dance floor, is used for events such as birthday parties, charitable fundraisers and student parties. Mr. Papathanasakis estimated that such events take place once every two to three months. To accommodate neighbours who advised that the second floor patio had been a past problem, the Marquis is not using it and has no intention of ever doing so.
Mr. Papathanasakis said that the Marquis’ clientele is totally mixed, with regulars and, during the school year, students from Ryerson University. The majority are from the surrounding area unless there is a special event or fundraiser. Mr. Papathanasakis described his business as “pretty dead” in the summer and stated that “business will be a little tough for us” if a patio is not approved. He has applied for a licence for the patio both because some of his patrons have asked for one and because it would not be fair if the Marquis did not have one when so many other establishments in the Church Street area do.
Using photographs of the Marquis (Exhibit 14) and drawings of the proposed patio (Exhibit 15), Mr. Papathanasakis explained that the proposed patio would run the length of the building and, taking into account municipal set back requirements, would be approximately eight feet wide. Seating would comprise tables for two and four persons. The existing double doors from the establishment would provide access to the patio from the interior. Approval of his application to the City of Toronto for a permit to operate a boulevard café is pending and he stated that the patio would adhere to all municipal requirements. During his testimony, Mr. Papathanasakis confirmed that the Marquis was amending the capacity requested on its application for a liquor licence to 40 from 55.
To address the concerns of local residents, Mr. Papathanasakis retained an acoustical expert to undertake a study to ensure the patio would not be a nuisance to the community. He also noted that the City of Toronto bylaw sets out requirements for cafes located on a residential flankage (Exhibit 16), which include 11 p.m. closure, a prohibition on outdoor music and that doors and windows be closed if there is interior music.
Mr. Papathanasakis confirmed that he would be prepared to agree to the City’s required 11 p.m. closing time as a condition on a patio licence. The Marquis has also proposed licence conditions requiring the provision of a complaint telephone number and the posting of signage asking patrons to respect the neighbours. It is also prepared to institute a “house policy” requiring a staff member be on the patio to monitor noise levels (Exhibit 17). Asked how he would train this staff member, he responded that all of his staff have training dealing with people, and that he and the manager would ensure patrons abide by the rules. People who were loud and uncooperative would be removed. Asked if he was always on site, he stated that he is currently building an office at the Marquis and, when he is not present, he relies on his experienced manager.
Mr. Papathanasakis testified that there have been no charges against the Marquis by either the AGCO or the City of Toronto. He added that he has had no charges in any of endeavours in which he is involved. He noted that not all noise on Granby Street is coming from the Marquis, stating that it is not a rowdy place and he is trying to be a good neighbour. He has instructed his staff to be vigilant and to intervene if they see disturbances even if they do not involve patrons of the Marquis. His staff tell their patrons to leave if they are hanging around outside.
Mr. Papathanasakis stated that he is aware of his obligations as a licensee under the Act, including section 46 of Regulation 719, which states that a licence holder shall not permit noise from outdoor premises to disturb persons who reside near those premises. He indicated that his proposed policy to have a staff person on the patio will ensure compliance with this requirement.
Brian Howe is an acoustical engineer and the president of HGC Engineering. He is a member of both the Acoustical Society of America and the Canadian Acoustical Society. HGC Engineering provides consulting in the areas of noise, vibration and acoustics. Services provided include assessing the impact of environmental noise in industrial and residential applications by measuring and predicting sound. He has significant experience in analyzing the impact of noise in residential settings and has served as an expert witness at the Environmental Assessment Board and the Ontario Municipal Board. He estimated he has performed 100 studies on the impact of licensed premises on residential areas, including approximately a dozen patios, in order to determine if they would meet the City of Toronto’s noise bylaw requirements. The Tribunal qualified Mr. Howe as an expert witness.
HGC Engineering was retained by the Appellant to conduct an assessment of the impact of noise from the proposed patio on Granby Street (Exhibit 19). Mr. Howe explained that the City of Toronto noise bylaw does not specifically regulate speech but is based on the premise of noise being “likely to disturb” which, from an acoustic perspective, means that it exceeds the levels of the ambient environment. The sources of ambient noise could include cars or people walking down the street. Mr. Howe also noted that sound from Church Street infiltrates Granby Street. HGC measured the outdoor ambient sound levels for a period of seven days. The result was an average of approximately 60 dBA. Mr. Howe noted that while the level varied by time of day, it was fairly consistent other than a significant drop off at approximately 4 a.m.
HGC then predicted the sound levels which a patio may create at 81 and 80 Granby Street, respectively the residential units adjacent to and directly opposite the site of the proposed patio. Mr. Howe described the assumptions used to determine the sound level likely to be produced at the patio as conservative. Forty people, half male and half female, were assumed to be on the patio with 20 of those speaking at once. He noted that the modeling used an elevated voice level of 65 dBA which he described as “fairly loud,” but stated that to be a disturbance it would have to heard over the ambient noise. The sound level diminishes as the distance from the patio increases. For example, at 80 Granby Street, the calculated level of sound from the patio was 58 dBA.
Mr. Howe explained that the predicted sound level produced by people talking on the patio would be like a “din” that would not be heard significantly over the ambient noise. He noted that the HGC study was conducted in the winter and that ambient noise is likely to increase in better weather, when the patio would be used, because more people are likely to be on the street. The fact that the proposed patio would have no music would mean that people would not have to raise their voices to speak to each other. The patio is not in a reverberant environment; sound would reflect only off the north wall of the Marquis. Further, the site of the proposed patio is long and narrow and its proposed configuration is with tables for two and four. In this layout, which Mr. Howe suggested would be difficult to reconfigure within the space, it would not be necessary for people to shout in order to be heard by the other members of their party. However, he noted that HGC did not model based on people yelling; yelling would be heard above the ambient levels. If a large group congregated on the patio or if individuals were very loud, the sound level results would change.
Mr. Howe summarized his conclusions by stating that based on the HGC predicted sound levels and its measurements of ambient noise, the proposed Marquis patio should operate in compliance with the City of Toronto’s noise bylaw.
On cross-examination, Mr. Howe explained that the measurements contained in the HGC report are averages and that some noise or conversations might be heard above the ambient noise at some times. However, he stated that the more people present, the less intelligible individual speech becomes, and noted there is a difference between “intelligible” and “audible”. He reiterated that the patio should not be a disturbance if its sound level is within the ambient sound level. Even if the level of the patio sound fluctuates, a listener should not be able to recognize individual voices and the “din” should not disturb people.
Chris Karachalios is the general manager of the Marquis and has held management positions in the hospitality industry for over 20 years. He has experience managing locations with patios, having been the general manager at both the Winchester Pub and at O’Grady’s in the City of Toronto.
Mr. Karachalios testified that the Marquis has held two meetings with local residents, the first of which he attended. The primary concern of those opposed to the patio was noise, and many people indicated The Barn/Stables had been a problem in this regard. The Marquis agreed not to use the existing second floor patio because its neighbours in the adjacent house had told him about the noise issues they had in the past. They advised him their windows would shake because of the sound system used by The Barn/Stables. The Marquis now posts a security guard at the second floor patio door to ensure no one accesses it during special events held there. There are no plans to use the patio in the future.
The Marquis currently employs 12 people and would add two if the patio is approved. Mr. Karachalios stated that in the summer, people want to be outside and, in his experience, over 90% of business in the summer is from patios. Without a patio, the Marquis would lose customers to its competitors. Asked how he would control patio patrons, he indicated that he would ask them to calm down. If that did not work, he would ask them to go inside. If they refused, he would have them leave. He has had no problems with this approach in the past and anticipates no problems in the future. The Marquis’ client base is drawn from the student population at Ryerson University, the local community and the immediate neighbours. He predicts that the patio clientele will be the neighbours because students have left for the summer.
Mr. Karachalios testified that the Marquis has had no liquor licence infractions although they have had a number of AGCO inspections. He added that he has had no infractions at any of the bars he has managed since 1998. Asked by Ms. Brooks if he was familiar with his obligations under the Act and its regulations, in particular section 46 of Regulation 719, Mr. Karachalios confirmed that he was.
Mr. Karachalios also responded to the Objectors’ concern about a missing street light beside the proposed patio area, stating that during the winter someone had driven into the street light and knocked it down. He reported this to Toronto Hydro and asked for a replacement. Toronto Hydro has removed the broken light but it has yet to be replaced.
Two supporters testified in favour of the proposed patio and a package of letters of support was entered into evidence as Exhibit 20.
Witness S.S. lives in a townhouse on Granby Street. When The Barn/Stables was operating, he only heard noise when the second floor patio was being used or the windows were open in the summer. With the Marquis, he has not had any problems. He is aware of the licence conditions proposed by the Marquis and has no objection to the patio.
Witness K.T. lives in a 45 Carlton Street condominium overlooking the Marquis. He indicated he was speaking on his own behalf and on behalf of two neighbours, both of whom also wrote letters of objection to the AGCO. He explained that he originally objected because he wanted to see the types of conditions that might be proposed. He now supports the proposed patio which he believes would be a benefit to the neighbourhood. When The Barn/Stables was in operation he was occasionally disturbed by noise in isolated incidents. He does hear noise occasionally now, but it may be from the townhouses as well as from the street.
ANALYSIS
The issue to be addressed in this hearing is whether or not granting of a licence to the Appellant with respect to the proposed patio space on Granby Street is in the public interest.
The Act recognizes the impact that the establishment of licensed premises may have on a 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”. An applicant (the Appellant before the Tribunal) has a qualified right to a licence; 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.
The Tribunal notes that the needs and wishes of the residents cannot be decided solely on the basis of a count of how many people oppose or support the liquor licence. However, it is relevant that a significant number of residents objected to the application for a patio liquor licence.
Twenty-seven letters of objection signed by 33 residents of Granby Street and of the condominium at 45 Carlton Street were submitted to the AGCO following publication of its notice of the application for this additional licensed capacity by the Marquis (Exhibit 3). At this hearing, Witness K.T. testified that he and two other individuals whose letters are included in the above numbers now support the application. In addition to the letters submitted to the AGCO, which are the basis for this hearing, Mr. Kubowicz submitted a package of objection letters signed by a further 43 individuals residing at 35 addresses at 45 Carlton Street and on Granby, McGill, and Mutual Streets (Exhibit 8). Six letters signed by 15 individuals, including two residing in the townhouse adjacent to the Marquis, were submitted by the Appellant in support of the application (Exhibit 20). And, in her closing submission, Ms Loiacono stated that M.T.C.C. 565 has residents who both support and oppose the patio.
The Tribunal must balance the interests of all of the community residents. In determining whether the needs and wishes of the objecting residents are bona fide, the Tribunal must consider the totality of the evidence to determine if their concerns are supported on a valid and objective basis. In this case, the Tribunal notes that the Objectors reside in close proximity to the proposed patio. Their needs and wishes therefore merit close consideration.
The letters of objection and the nine Objectors who testified at this hearing spoke to three main issues: the potential for increases in noise, disruptive behaviour and traffic or parking problems. Mr. Kulis submitted that the evidence before the Tribunal is that Mr. Papathanasakis and his manager are prudent and experienced operators and that the Marquis is very different from the previous problematic operation. Further, he submitted, there have been no complaints, and concerns about noise are unfounded and based on speculation and conjecture. Any noise concerns can be sufficiently addressed by proposed conditions.
The Tribunal heard evidence from the Objectors that they had significant problems with loud and disruptive patrons of The Barn/Stables and appreciates that their past negative experiences with The Barn/Stables have contributed to their current concerns. The existence of a patio liquor licence is not in itself the cause of issues. Rather, it is the way in which an establishment is operated which raises the potential for issues. However, there was little evidence before the Tribunal to suggest that the Marquis operation is similar to The Barn/Stables. The Tribunal cannot draw a negative conclusion about how this Appellant will operate a patio based on what occurred with this previous licence holder. The Tribunal must therefore determine if the Objectors’ concerns about the current operation are supported on an objective basis.
With respect to the potential for an increase in disruptive behaviour in the McGill/Granby neighbourhood from the addition of a licensed patio to the Marquis, the Tribunal finds the Objectors’ concerns to be speculative and unsupported by the evidence. Most of the concerns appeared to be based upon a general fear that any increased business at the Marquis would mean increased drunken or rowdy behaviour by its patrons, either near the patio or down the street when they are going to or leaving the Marquis.
The Tribunal heard about one incident involving Mr. Khan’s vehicle. However, the testimony of Mr. Khan and S.T. did not support a finding that the perpetrators were patrons of the Marquis. Mr. Kubowicz spoke about people sitting on his property. Objector T.J. testified that he had problems with individuals throwing bottles and urinating on his property, but it was not entirely clear whether these incidents took place while The Barn/Stables or the Marquis was operating. There was also testimony about one residence in this neighbourhood that might be a source of noisy parties. In addition, the Tribunal heard that Granby and McGill Streets are sometimes used by people going to the College subway station from Church Street. Based on the evidence before it, the Tribunal is unable to find that any of these incidents were perpetrated by patrons of the Marquis.
The Appellant has an ongoing obligation under the Act to deter disorderly conduct. Section 45.1 of Regulation 719 states:
The licence holder shall ensure that reasonable measures are in place and reasonable efforts are made to deter disorderly conduct on property adjacent to and in the vicinity of the premises and to minimize damage, nuisance or other harm to such property arising out of disorderly conduct engaged in by patrons of the licence holder or persons attempting or waiting to enter the premises or leaving the premises.
There was some suggestion from Objectors that the management of the Marquis is not responsible, and by inference, that it would not be responsible in operating a patio. In his closing remarks, Mr. Kubowicz suggested that the Marquis is not policing its patrons as they leave the establishment. In his closing submission, Mr. Khan submitted that the Marquis management had not “taken seriously” the replacement of a missing street light outside its premises and this was an indicator of its lack of responsibility. He also alleged that the owner had started some renovations without a building permit. Further, he characterized the management as “misrepresenting” the capacity of the patio after it was confirmed the revised requested capacity was 40. The Tribunal finds no merit in any of these allegations. The responsibility to replace street lights is Toronto Hydro’s, and the ultimate capacity of the patio will be determined by the City of Toronto in accordance with municipal bylaws.
The Tribunal accepts the testimony of Mr. Papathanasakis and Mr. Karachalios, and finds no reason to doubt the sincerity of management of the Marquis with respect to the lawful operation of the patio. The evidence indicates that the Marquis has had no liquor licence or municipal infractions since it began operation in June, 2013.
The Tribunal also finds the Objectors’ concerns with respect to a potential increase in traffic congestion and parking problems on Granby Street to be speculative and unsupported by the evidence. Granby is a one-way street with no vehicular access from Church Street to Yonge Street. While there was testimony about speeding and illegal parking on the street, there was no evidence to connect these problems to patrons of the Marquis.
The Objectors’ primary concern was with the potential for noise from the proposed patio to interfere with the quiet enjoyment of their homes. They testified that their neighbourhood is a quiet residential area, an argument reinforced by all three of the Added Parties in their closing submissions. They noted that noise could be created both while patrons were on the patio and when those patrons were leaving the establishment.
The Appellant provided expert evidence in the form of a February 3, 2014 report from HGC Engineering Ltd. with respect to the expected impact of noise from the patio on local residences (Exhibit 19). Mr. Howe explained that the City of Toronto bylaw is based on the concept of noise being “likely to disturb.” Chapter 591-2 of the Toronto Municipal Code states:
No person shall make, cause or permit noise or vibration, at any time, which is likely to disturb the quiet, peace, rest, enjoyment, comfort or convenience of the inhabitants of the City.
The HGC Engineering report notes:
...elevated speech levels originating within a patio could be disturbing to neighbouring residential inhabitants if at a sufficiently audible level. This tends to occur when patron speech becomes intelligible, resulting from voice levels being consistently elevated above background sound levels.
As a result of the measured ambient noise levels being above the modelled sound levels of patrons in conversation on the proposed patio, the report concludes:
...it is reasonable to expect that the activities of the patio will not be bothersome, that the overall noise impact will be acceptable, and that a reasonable person will not be disturbed by the activities on the patio.
Mr. Kubowicz rejected the report’s conclusion, submitting that it was based on averages and did not reflect the residents’ real-life experiences. Mr. Howe acknowledged that it was possible that the sound level on the patio could exceed his projections if individuals were shouting or trying to be heard in a large group. However, he suggested that the proposed patio layout with tables for two and four would ameliorate the potential for these problems, noting that the configuration could not easily be rearranged given that the patio was long and narrow.
The Tribunal accepts the conclusions of the HGC report, although it acknowledges there is potential that the occasional person talking loudly or shouting could cause residents living very close to the patio to be disturbed at times. However, the Tribunal notes that the Appellant has a statutory obligation to prevent noise disturbances. Section 46 of Regulation 719 under the Act states:
The holder of a licence that applies to outdoor premises shall not permit noise that arises directly or indirectly from entertainment on the premises or from the sale and service of liquor to disturb persons who reside near the premises.
There are additional specific obligations for sidewalk patios in residential areas that are imposed by the municipality. Chapter 313 of the Toronto Municipal Code (Exhibit 16) sets out the requirements that apply to all boulevard cafés, whether licensed or unlicensed, including those that apply to cafés located on residential flankage. These include being closed and cleared by 11 p.m., a prohibition on outdoor music or amplified sound, and a requirement that doors and windows on the residential flankage not be left open when there is music or amplified sound in the interior.
The HGC report addresses only noise emanating from the patio itself. The Objectors expressed concerns that patrons leaving a patio at the Marquis may create noise that disturbs the local residents. While the Tribunal does not wish to diminish their concerns, the Tribunal heard no evidence to support a finding that the persons that residents heard on the street were patrons of the Marquis.
Therefore, the Tribunal finds that the Objectors have not, on a balance of probabilities, established that the issuance of a liquor licence is not in the public interest. However, given the proximity of the proposed patio to residential units, some conditions on the Appellant’s licence are warranted. Mr. Papathanasakis indicated that he was prepared to accept the 11 p.m. closing, the prohibitions on music and the requirement to keep windows closed set out in the Municipal Code as conditions on his liquor licence. He also indicated that he was prepared to accept conditions requiring the provision of a complaint telephone number and the posting of signage reminding patrons to be considerate of the community. Finally, he would institute a house policy requiring a staff person to work on the patio and monitor noise.
In her closing remarks, Ms Brooks submitted that it was not in the public interest to impose conditions on a licence that the AGCO could not enforce. She stated that the AGCO’s focus is on safety and security and a “risk-based licensing” approach. The legislation already imposes obligations on the licensee regarding noise or disorderly conduct. She noted that it was not necessary to duplicate municipal requirements on a liquor licence. Accordingly, she opposed liquor licence conditions relating to prohibiting music or requiring windows to be closed. However, she stated that including the 11 p.m. closing was an acceptable licence condition because it was enforceable. The Tribunal fails to see how a closing time is any more or less enforceable than a condition for no music on the patio or for no open windows when there is music in the interior. Compliance with these conditions would not be difficult for an AGCO inspector to assess in the course of a routine inspection.
Ms Brooks noted that provisions of Regulation 719 set out a licensee’s obligations to control noise. However, enforcement would require a degree of subjective judgment to be exercised by an inspector in order to determine what was likely to disturb. That would not be as necessary if the specific prohibitions relating to music on the patio are conditions on the licence.
Ms Brooks also noted that the Appellant’s proposal to have a staff person work on the patio was a compliance mechanism. The Tribunal agrees that this does not need to be a condition and encourages the Appellant to implement a house policy in this regard.
ORDER
The Tribunal therefore directs the Registrar to approve the application for a liquor licence made by 2340054 Ontario Inc. o/a The Marquis of Granby Pub for an outdoor area with a capacity of 40 persons at the premises at 414-418 Church Street, 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:
- The patio shall be closed and cleared by 11 p.m.
- There shall be no outdoor music or amplified sound on the patio.
- The doors and windows located on the north side of 414-418 Church Street shall not be left open or propped open while there is music or amplified sound in the interior.
- The licensee shall provide a telephone number with a functioning message service for residents to register concerns or complaints. The licensee shall respond to all concerns or complaints within 24 hours.
- The licensee shall post a prominent sign at each exit that reminds and/or encourages departing patrons to be considerate of the surrounding community.
LICENCE APPEAL TRIBUNAL
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Mary Ann Spencer, Member
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Gary Yee, Associate Chair
Released: June 9, 2014