Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2014-11-28

FILE: 9009/LLA

CASE NAME: 9009 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 Licence for Additional Licenced Area

1883617 Ontario Ltd. o/a Templeton Cafe Appellant

-and-

Registrar of Alcohol and Gaming Respondent

-and-

S.L. Added Party/Objector

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Simon Dann, Member

APPEARANCES:

For the Appellant: Kirk Cooper, Counsel

For the Respondent: Tamara Brooks, Counsel

For the Added Party/Objector: Self- represented

Heard in Toronto: November 3, 2014

REASONS FOR DECISION AND ORDER

BACKGROUND

The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued Notice of Proposal, number 20442 dated July 9, 2014, to review an application for additional licensed area by 1883617 Ontario Ltd. o/a Templeton Cafe (“Templeton Cafe" or the “Cafe" or the “Appellant”) on the basis that the Registrar has received one or more written objections to the application.

The issue in this hearing is whether licensing that additional area is in the public interest. The Registrar took no position regarding the application.

EVIDENCE

ADDED PARTY/OBJECTOR’S EVIDENCE

In her evidence, the Added Party/Objector S.L. pointed out that the total capacity for the number of licensed establishments in the Kensington Market neighbourhood, with late night hours, is at 1,855 people. She expressed her concern about this number of people "spilling out" on to the streets and disturbing the residents. S.L. stated that there were 50 other residents who had signed a petition against an additional licensed area at the Templeton Cafe.

S.L. stated that 1,855 people is a tipping point for the residents and this number is changing the nature of the residential environment. She believes there are about 3,000 residents in the area and while there is a mix of residents and commercial establishments on a number of the neighbourhood streets, the larger area around the Templeton Cafe location is entirely residential.

The witness acknowledged there is no crime in the area and that she also does not call the police on the occasions of noisy or unruly conduct by patrons of the licensed establishments in her neighbourhood.

On cross-examination, S.L. testified she has been a resident of the area for about 9-years and while she has no objection to the Appellant's establishment specifically, she objects to the increasing number of people on the local streets late at night. She acknowledged that some people may just be walking through the neighbourhood and that she cannot attribute the conduct of any individuals or groups to any specific bar. Rather it is the aggregate of people at all the bars that is of concern.

S.L. said the City of Toronto ("City") had initiated a study to consider a limit on any additional bars for the neighbourhood but she is unaware of its current status.

Objector S.A. testified that she is the chairperson of a neighbourhood association and had been working with the City's former councillor with the goal of establishing a moratorium on any additional liquor licenses in the area but nothing was concluded as that city councillor had resigned.

She stated that when she moved into the neighbourhood about 16-years ago, there were perhaps 5 bars, but there are now 20 licensed establishments with late night hours. She described the neighbourhood as being comprised of about 271 businesses and 3,000 residents. There are also two police officers patrolling the area every night.

In cross-examination, S.A. acknowledged she is not against the Appellant specifically, but just against the increasing number of people and licensed establishments with late night hours.

APPELLANT’S EVIDENCE

Andrew Pham is the owner of Templeton Cafe, which has been open for about 1½ years. The Cafe is a restaurant offering what Mr. Pham described as “cheap eats”, meaning food and meals under $10.

The Cafe is open until midnight on weekdays and to 1:00 a.m. on weekends. During the winter season, the Cafe generally closes early, but stays open until 2:00 a.m. on weekends in the summer. The application is for an additional licensed area and thereby an increase in the indoor capacity of an additional 119 persons.

Mr. Pham said he has had no police visits, no noise or AGCO complaints. There are also 2nd and 3rd floors with residential units above the Cafe. He currently has 6 to 7 employees and might hire another 2 to 4 people if he is successful with the application.

The establishment offers all patrons seating and there is no live music. The licensed patio is closed during the winter season and there are no conditions on the licence. He has recently noticed an increased police presence but received no complaints from any of the residents in the building and no residents of the building signed the objectors' petition.

Mr. Pham said he has noticed that most people leaving the establishment head north to the major east-west street, about 20-metres from the Cafe, rather than south into the residential neighbourhood.

In cross-examination, Mr. Pham said he has also met with the owner of the hostel directly across the street from the Cafe and is not aware of any complaints against the Cafe.

The Tribunal asked Mr. Pham about where he planned to situate the additional patrons if the application were approved. Mr. Pham said that he currently uses about a third of the space available to him and the additional capacity of 119 persons was approved by the fire department which considered the number to be in line with the space available to the Cafe.

CLOSING SUBMISSIONS

The Added Party/Objector, S.L., submitted that the neighborhood had reached a saturation point in terms of persons attending late night licensed establishments. She said that on a hot summer night 1,855 people can spill out at 2:00 a.m. The street has also become a taxi ‘highway’ with cars arriving to pick up patrons.

The neighbourhood is made up of working and retired people as well as students. She said there is a social point at which a cap has to be placed on the number of people attending late night licensed bars and restaurants.

The Appellant's Counsel, Mr. Cooper, submitted that it can be shown on a balance of probabilities that the Appellant has operated responsibly and that even the residents upstairs of his establishment have no complaints. The Appellant cannot be responsible for other issues or illegal drinking establishments.

Mr. Cooper submitted that the zoning by-law is the real issue between the residents and the City, as it is the City which can change the zoning to end the increase of establishments in the neighbourhood.

Mr. Cooper argued there are no issues to show that on a balance of probabilities, it is not in the public interest to allow the Appellant the liquor licence for an additional area.

Ms. Brooks, Counsel for the Registrar, submitted that the issues which fall into the areas of zoning and by-laws need to be managed by the appropriate authority. She also noted the objectors had acknowledged they were unable to identify individual patrons, who may have been conducting themselves inappropriately, as coming from any specific establishment.

Ms. Brooks submitted that when conditions are attached to a licence they are to encourage compliance and, where appropriate, to address risks to the public.

ANALYSIS and REASONS

The Act recognizes the very real impact that a licensed premises (and in this instance, the impact of an additional licensed area) may have on the surrounding community. By virtue of the Act, the local residents are provided with a forum in which their concerns can be voiced.

The jurisprudence for public interest hearings under the Act is well established. The difficult issues raised in such hearings require a delicate balancing of the interests of those who live in a community with those who would earn their living there. Under the Act, there is a qualified right to a liquor licence, subject to the considerations of the “public interest”.

The onus is on the objectors, however, to prove on a balance of probabilities that the issuance of the licence for the additional area (and increase in total capacity) of an appellant's premises is not in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises are situated (s. 6(2)(h) of the Act).

In determining whether the needs and wishes are bona fide, the Tribunal must look to the totality of the evidence, to determine if the subjective concerns and fears are supported by an objective basis.

The principal position of the objectors is expressed in their concern with the aggregate number of individuals coming out of all the late night bars and restaurants, not simply the Appellant's establishment.

There is no evidence to suggest there are any issues with the Appellant's operation or that an increase the seating capacity of the establishment would give rise to public safety concerns. In this regard, the Tribunal notes the Appellant's uncontested testimony that the fire department approved the number of the increase.

It was also acknowledged that where, or if, there were any individuals seen to be conducting themselves inappropriately, the persons could not be identified as having come out of the Appellant's establishment - in fact, there was likely no idea where they may have come from.

Also of note to the Tribunal is the fact the residents on the 2nd and 3rd floors of the Templeton Cafe building have not objected to the application and were not signatories to the Objector's petition.

In summary, the Tribunal received no evidence which could provide a basis for considering that the additional licensed area of the Appellant’s establishment would not be in the public interest or, that the additional licensed capacity, in the Templeton Cafe, would lead to any problems for the local community.

The evidence provided by the Objectors was focused on capping the number of people who could potentially 'spill out' on the neighborhood streets from all the licensed establishments in the area. Therefore, it seems the issue is more one that is more appropriately addressed to the City of Toronto.

In fact, the Tribunal notes that the Objectors were actually familiar with efforts by their past City Councillor to obtain a moratorium on any additional late night restaurants and/ or bars as a way of capping the aggregate number of people at all licensed establishments in their neigbourhood.

Therefore, the Tribunal finds that the Objectors have not met the onus upon them to present evidence on which to base a refusal of the application.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, and for the reasons stated above, the Tribunal approves the application by 1883617 Ontario Ltd. o/a Templeton Cafe, and directs the Registrar to issue the licence for the additional licensed area at 319 Augusta Avenue, Toronto, subject to all usual application and municipal requirements.

LICENCE APPEAL TRIBUNAL

Simon Dann, Member

Released: November 28, 2014