Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-12-18

9014/LLA

9014 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 Additional Licensed Area

8017646 Canada Inc. o/a Sopra Ristorante

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

-and-

Centretown Citizens Ottawa Corporation and Lowertown Community Association

Added Parties/ Objectors

Geneviève Blais, Member

For the Appellant:

Ainslie Stuart Dunstone, Paralegal

For the Respondent:

Joyce Taylor, Counsel

For the Added Party/Objector Centretown Citizens Corporation:

Ray Sullivan, Agent

For the Added Party/Objector Lowertown Community Association:

Sylvie Grenier, Agent

Heard in Ottawa:

November 24 & 25, 2014

BACKGROUND

The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, number 803860 dated July 25, 2014, to review an application for additional licensed area by Sopra Ristorante, on the basis that the Registrar has received one or more written objections to the application.

The Appellant has applied to the Registrar for an additional licensed outdoor roof top patio area of 60 persons. Pursuant to O. Reg. 719/90, notice of the Application was advertised on the Alcohol and Gaming Commission of Ontario (AGCO) website and was posted at the licensed premises.

Eight objections to the application were received. Six were from the same building address owned by the Centretown Citizens Ottawa Corporation (CCOA). One was from a building address close by and included eleven signatures of concerned residents, and one was from the Lowertown Community Association (LCA) representing the neighbouring community. Five objectors were present at the hearing.

The letters of objection from area residents, a series of e-mails, correspondence and photographs of the establishment location were introduced as evidence.

Ms. Taylor advised the Tribunal that the Registrar is not taking a position on the application other than with respect to the enforceability of any conditions that might be proposed by the parties.

The Appellant’s establishment, Sopra Ristorante, is located on Dalhousie Street in the Byward Market in Ottawa. The Appellant owns a corner building which includes a bar/lounge operating under a separate company and liquor licence, two small retail stores, office space and the Italian fine dining restaurant. He has been a licensed restaurateur in the area for 20 years. Sopra Ristorante has a liquor licence for an indoor capacity of 81 persons and an outdoor capacity of 20 persons.

In March, 2014, the Appellant applied to the City of Ottawa Committee of Adjustment for a minor variance to construct a seasonal outdoor commercial patio on the roof of the restaurant. CCOA, LCA and other residents opposed the application.

After considering the findings of an environmental noise study commissioned by the Appellant, correspondence and plans, the Committee approved the application. It was satisfied that the proposed outdoor roof top patio, which would operate in conjunction with a full service “fine dining” restaurant, might generate less noise than other patios throughout the downtown area. The variances sought were minor and were considered desirable for the appropriate development or use of the land and the general intent of the zoning by-law.

On June 23, 2014, the application received final approval as no appeal had been filed against the decision. The approval was subject to four conditions:

That the patio be tied to the operation of a full service restaurant.
That the patio be limited to the hours of operation of the full service restaurant.
That there be no additional lighting or that all lighting be subdued.
That the patio be limited to sixty seated patrons.

On September 24, 2014, the Appellant was issued a building permit for the interior and exterior alterations required to construct the roof top patio.

Mr. Sullivan, agent for Objector CCOA; Ms. Grenier, agent for Objector LCA; three resident Objectors; and Anthony Morello, owner of Sopra Ristorante, all gave evidence at the hearing.

OBJECTORS’ EVIDENCE

The testimony of the Objectors had a common theme. The overall concern was on the density of licensed premises in the Market. The potential issues identified were noise in the neighbourhood, disturbances that would infringe on residents’ rights to quiet enjoyment of their homes, loud music, personal safety and the misbehaviour of customers. Particular concern was expressed about the hours of operation of the proposed roof top patio and loss of privacy for the residents of the adjacent apartment building.

Mr. Sullivan is the executive director of a private non-profit corporation, CCOA, which owns and operates the residential apartment complex, located approximately 3.5 meters to the north east of the Appellant’s restaurant and which is home to 115 residents. The complex consists of two stacked buildings. The four level lower building, closest to the restaurant premises, is partly shielded by a stairwell for a parking garage. This building has a large landscaped green roof podium on the fourth level, which is used by the tenants as recreational space. It is considered to be in the line of sight and sound to the proposed roof top patio. The nearest apartment unit is located on the third level, to the rear of the restaurant premises and approximately 12.5 meters from the proposed roof top patio.

Mr. Sullivan spoke on behalf of the tenants of the apartment complex. He highlighted concerns that a roof top patio will lead to increased noise and other disturbances which will negatively impact on the lives of the residents. He expressed disappointment with the decision of the Committee of Adjustment. In his opinion, the environmental noise study considered by the Committee was improperly conducted as the comparison used by the consultant was inaccurate. Accordingly, he believes that the findings do not reflect an accurate picture of the potential noise levels that could emanate from the proposed roof top patio. Other than his opinion on this, he pointed to no other study to support his claim.

Mr. Sullivan stated that, in the event that the Appellant is granted a licence, he requested that the seating capacity be less than 60 persons and conditions restricting music and hours of operation be considered.

Objector CC was the only resident of the adjacent apartment complex to attend the hearing. CC presented in evidence 13 names of residents who appointed her as their representative at the hearing. Although her apartment does not face the proposed roof top patio, she stated that several tenants have expressed to her their concerns about the potential for increased noise. She believes other residents did not attend the hearing as they are discouraged because their concerns are not taken seriously.

Introduced into evidence was a letter of support for the patio from one resident of the same apartment complex. Attached to the letter was a list of 26 names of persons who indicated support for the patio licence. Five of the 26 names were residents of the building. In her testimony, Objector CC doubted the reliability of the support of the five residents as two residents later provided her with a written statement indicating they had not given permission to the author of the letter to use their names.

She testified that in 2012, she made several complaints to the City against the Appellant for alleged parking, garbage bin and building by-law violations. She believes that the Appellant repeatedly tested the limits of the by-laws. She further alleges that the Appellant violated his outdoor patio licence in allowing more than 20 people on the patio. Her allegation is based on the number of available chairs on the patio which exceeded the licensed capacity. She concluded that these past events cast doubt on the Appellant's ability to abide by conditions on a patio licence, should it be granted.

In cross examination, CC candidly admitted that she has never witnessed more than 20 patrons on the patio and has no evidence to support her allegation. She is not a regular patron of the restaurant. She denies having any influence on any resident in the building and maintains the residents have acted of their own free will in this matter.

Ms. Grenier is a volunteer representative for the LCA. She gave her evidence based on her own direct experience and on behalf of the area residents of the LCA. The LCA represents 6,000 households in the market area. It is concerned about the changing character of the neighbourhood and believes there are too many licensed bars and restaurants. The LCA views the density of licensed establishments as a significant factor in the deterioration of the area, the increase in traffic, noise, vandalism, disruptive behaviour, crime and the loss of small retail spaces. The goal of the LCA is to oppose all applications for new or additional liquor licences in the market area.

Ms. Grenier acknowledged that, in the past few years, the Appellant has greatly improved the entire building facade of the restaurant location. Nevertheless, she is of the view that, as the Appellant owns the bar/lounge in the building, there will be a migration of clientele from this establishment to the roof top patio. This potential activity will exacerbate the noise and safety for the residents.

Ms. Grenier dismissed the reliability of the environmental noise study. She considered it flawed as the baseline comparison did not mirror the proposed roof top patio. Other than her opinion on this, she provided no other study to support her claim. She had limited confidence that the Appellant would respect the conditions imposed on the licence granting additional capacity. She candidly admitted that she has no evidence to support this statement other than to rely on the evidence of Objector CC.

Objector MDJ and Objector FG live in a building located 40 metres south east of the restaurant’s proposed roof top patio. Their concerns mirrored those of the previous witnesses. In addition, FG stated that the increase of licensed establishments in the market area is encroaching on open space in the residential area. The rowdiness from alcohol consumption makes residents feel less secure in their homes.

In cross examination, she admitted she has no evidence of a causal connection between alcohol being served in the Appellant’s premises and the rowdiness of persons in the area.

APPELLANT’S EVIDENCE

Anthony Morello stated that he has 20 years of experience in the restaurant business. He owns and operates several establishments in the immediate and surrounding areas. He has invested a great deal of time and money in running good businesses. He has maintained a good standing with the AGCO and has no history of complaints or violations.

In 2011, due to a change of ownership, the Appellant undertook major renovations to the building where he now operates Sopra Ristorante. He responded to the complaint issues in the testimony of Objector CC and acknowledged that for about 15 months, the location of the garbage bin and parking for construction vehicles presented problems. The renovations were extensive and the area was messy. He also had issues and confusion with the City on the seasonal permit for the outdoor ground patio. While he had assumed that the permit granted to the previous operator was valid, he learned a new permit was required and he readily complied with the City’s direction. Outside of this construction period, he is not aware of other registered complaints.

The Appellant views himself as a reputable business person who respects his liquor licence. He is disturbed with the allegation by Objector CC that he was over capacity on the outdoor patio and stated there is no truth to this allegation. He considers his relationship with most of the residents in the area as positive, and many frequent his restaurant. He personally has never received a noise complaint from any resident in the area. He is proud of the building’s facelift and the better presence in the community. A licensed roof top patio will allow him to stay competitive in difficult economic times and provide a quiet and intimate outdoor dining area for patrons. He dispelled the notion that patrons of the bar/lounge in the building will easily migrate to the roof top patio to extend their social evening.

Mr. Morello understands the concerns of the Objectors and is seeking to be a good neighbour. He does not intend to run a noisy patio. He plans to install a canopy which should assist in muffling the noise. He intends to make every effort to ensure the noise is mitigated. He is committed to adhering to the City’s conditions of the minor variance approval.

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.

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.

ISSUE

The issue to be determined by the Tribunal is whether the approval of the application for additional licensed area is not in the public interest having regard to the needs and wishes of the municipality in which the premises are located.

APPLICATION OF LAW TO FACTS

Public interest hearings often raise difficult issues which require a delicate balancing of the interests of those who live in the community, with those who would earn their living there.

The Tribunal must determine whether it is in the public interest to issue the Appellant a licence to sell liquor on a roof top patio and, if so, should terms attach to the licence. Under the Liquor Licence Act, there is a qualified right to a liquor licence, subject to the considerations of the “public interest”.

The Act directs the Tribunal to look at the needs and wishes of the residents of the community in determining the public interest. The onus is on the Objectors, however, to prove on a balance of probabilities that the issuance of a licence for additional licensed patio area is against the public interest. In determining whether these needs and wishes are bona fide, the totality of the evidence and subjective concerns and fears of those residents must be supported by a valid objective basis.

The Tribunal recognizes the very real impact that the licensed roof top patio may have on the surrounding community. The difficulty for the Tribunal in weighing the Objectors’ concerns is twofold. First, the main focus of their concerns deals with the density of licensed establishments in the market area and the ensuing problems of noise, rowdiness, misbehaviours and safety. Those problems do not fall within the purview of this licensing hearing. They are more properly addressed in zoning by-laws and City by-law enforcement..

The Objectors also focused on the lack of trust with the Appellant, alleging that he would not likely abide by conditions on the licence. The evidence supplied by the Objectors on this point is based on speculation and conjecture and not supported independently. They relied on issues occurring over two years ago while the Appellant was renovating his premises. The suggestions that the Appellant has not abided by the conditions on the main floor patio licence are entirely speculative. The Appellant appeared to be credible in his testimony and there was little evidence to suggest that he has not been completely responsible in ensuring that his establishment is being operated according to the law.

The existence of a liquor licence for a roof top patio is not in itself the cause of noise. The Tribunal notes that the City has approved the patio and the Appellant is free to have an unlicensed patio. The Tribunal acknowledges that there will be noise from the patio, but having said that, will the noise be excessively loud and disruptive to the community? There was no evidence of noise complaints from the Appellant’s current indoor or outdoor operations. While the Tribunal does not wish to diminish the fears of the objectors, it finds the concerns with respect to noise to be speculative.

Mr. Morello has expressed a willingness to attempt to minimize any potential negative effects on the residents from the roof top patio operation, and there is no evidence that he will be anything less than a good operator and comply with the Act and its regulations.

The Objectors presented themselves as persons for whom their community is important. The Tribunal, despite the heartfelt and genuine concerns of the Objectors, cannot make a decision based on conjecture and speculation about the potential negative impact of a licensed roof top patio. While the Objectors all indicated that they would prefer that there be no patio, they understood that the City approved the patio subject to certain conditions.

The Tribunal therefore finds that the Objectors have not established on a balance of probabilities that the issuance of the liquor licence for the roof top patio is not in the public interest. There is no valid and objective basis for denying this licence. However, given the proximity of the proposed patio to residential units, some conditions on the Appellant’s licence are warranted.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal approves the application for additional licensed area and directs the Registrar to issue the licence to sell liquor to the Appellant subject to the municipal conditions. Further, the following conditions shall attach to the licence:

There shall be no live or amplified music permitted after 9:30 p.m. daily.
The sale and service of alcoholic beverages shall cease each night from Sunday through Thursday at 10:00 p.m. and Friday and Saturday at 11:30 p.m. On the statutory holiday of July 1, the sale and service shall cease at 11:30 p.m.

LICENCE APPEAL TRIBUNAL

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