Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-12-05

FILE:

8910/LLA

CASE NAME:

8910 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

Niagara Gorge Jet Boating Limited o/a Niagara Belle

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

-and-

Queenston Residents’ Association, Niagara-on-the-Lake Conservancy, King's Point Condominium Association and River Beach Town Houses

Added Parties

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Alex McCauley, Member

APPEARANCES:

For the Appellant:

Sara Premi, Counsel

Robert J. Plouffe, Paralegal

For the Respondent:

Tamara Brooks, Counsel

For the Added Parties:

Lisa Triano, Counsel for Queenston Residents’ Association

Gracia Janes, Agent for Niagara-on-the-Lake Conservancy

Sandra O'Connor, Agent for King's Point Condominium Association and River Beach Town Houses

Heard in Niagara Falls:

October 16 and 17, 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 (the “Proposal”), number 20403, dated June 20, 2014, to review an application for a liquor licence by Niagara Gorge Jet Boating Limited o/a Niagara Belle (“Niagara Belle” or the “Appellant”), on the basis that the Registrar had received one or more written objections to the application. The hearing was held on October 16 and 17, 2014, and closing submissions, in writing, were completed on November 13, 2014.

The Appellant has requested a liquor licence to sell liquor for indoor and outdoor areas of the premises with capacities of 126 and 116 persons, respectively.

The premises, in this case, is a three deck river boat named the Niagara Belle.

There were 15 letters of objection to the granting of the licence, received from area residents.

The Appellant plans to use two docking facilities that affect the residents - the Queenston dock and the Navy Hall dock. The Appellant has no intention of using the Melville Street dock located in Niagara-on-the-Lake.

The Counsel for the Queenston Residents’ Association sought to enter into evidence, decisions of the Niagara Escarpment Planning and Development Committee. The obvious difficulty with this is that matters of zoning or planning are not relevant to the issue as to whether the Appellant is not entitled to a liquor licence because of the public interest issues as set out in the Act. Zoning issues are within the purview of the local municipality in which the premises are situated; if the Appellant does not conform to the zoning requirements, then the licence will not be issued by the Registrar. In addition, the Tribunal notes that this application is for a liquor licence for a vessel with certain docking privileges but where land use is not the main consideration.

It is noted as well that no one from the Niagara Escarpment Commission (“NEC”), the Niagara Parks Commission or the local municipality attended the hearing nor did they seek standing, or file letters of objection.

The Registrar chose to take no position on the granting of the licence but reserved the right to make submissions regarding possible conditions that may be imposed on the licence by the Tribunal.

Although clearly ruled upon at the hearing, in written closing submissions, Counsel for the Queenston Residents’ Association again attempted to resurrect the matter of the restriction on the use of land around the docking facility as directed by the NEC; this is a zoning matter and is not relevant to this hearing.

The Counsel for the Queenston Residents’ Association also sought to reconstitute the hearing by making section 6(2)(d) of the Act a direct focus of this hearing. The Registrar’s Counsel objected strenuously as did Counsel for the Appellant. The Registrar’s position was that the hearing was commenced pursuant to section 6(2)(h) of the Act, and that any matters directly related to issues of misconduct under section 6(2)(d) of the Act had already been vetted by the Alcohol and Gaming Commission of Ontario. The Appellant’s Counsel was concerned about the undue prejudice to her client caused by a different focus of the hearing not stated in the Proposal.

The Tribunal ruled that the ground for the Proposal was section 6(2)(h) of the Act and a hearing was being held on that basis. It further ruled that if matters of conduct of the Appellant came up in the course of the hearing, and if the conduct was relevant to matters of public interest, it would be considered by the Tribunal.

The letters of objection from area residents were primarily concerns about noise from the patrons on the vessel and amplified music. Additionally, residents were concerned about increased traffic in the village and the possibility of an increase in persons driving under the influence of alcohol.

THE LAW

Section 6 of the Act states:

Licence to sell

6. (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.

EVIDENCE

Evidence of the Added Parties

The Tribunal heard from seven witnesses. This included Ms. Janes and Ms. O’Connor, Agents for Niagara-on-the-Lake Conservancy, and King’s Point Condominium Association and River Beach Town Houses, respectively.

Ms. Janes and Ms. O’Connor shared concerns about the potential for noise disruption in their respective neighbourhoods from patrons aboard the Niagara Belle, and traffic and parking issues. In addition, Ms. Janes had concerns about where the initial notices had been placed, advising of this application for a liquor licence. The posting issue was resolved.

Ms. Janes was concerned about the difficulties in enforcing the Act on a vessel on the water.

J.A. gave evidence on behalf of the Queenston Residents’ Association which represents 115 members, and 112 residences. He testified about complaints of residents who complained of noise from persons disembarking from vessels at 11:00 and 11:30 p.m. at night, causing excessive noise.

J.A. referred to Exhibit 4, the Queenston Residents’ Association’s Book of Documents. He referred to various areas of the document which showed the area purported to be used by the Niagara Belle for docking (Tab 2).

J.A. was disturbed by a fence and gate that had been put up around the Appellant’s property, primarily for security purposes. His position was that the fence prevented residents from enjoying this area as they had in the past. It was his view that the Appellant’s position, that this security fence was required, is incorrect.

Exhibit 4, Tab 4, has photos of the Dumfries Street area which would be the major thoroughfare for persons accessing the Niagara Belle. The photos illustrate the street and the lack of sidewalks or curbs, which he stated is a potential hazard to residents and pedestrians with the increased traffic flow.

J.A. stated that tents had been erected at the Queenston dock. The matter had been referred to the Ministry of Natural Resources (“MNR”) because tents or trailers can only be left for 30 days. J.A.’s complaint is that the Appellant ignores this time restriction.

The broad concern of the residents is that the Niagara Belle would be a floating hotel. Patrons who are under the influence of alcohol could potentially cause traffic problems. In addition, residents are concerned about excessive noise from the vessel while on the river or when patrons are disembarking at the dock.

J.A. is also concerned about the safety history of the Appellant and mentioned two instances of accidents involving the Appellant’s vessel while on the river. These alleged incidents were years back and very little specifics could be brought forward to the Tribunal.

In cross-examination, J.A. stated that he did not make any attempt, either on his own behalf or on behalf of his Association, to meet with the Appellant to discuss their concerns. He also stated in cross-examination that to his knowledge, the Appellant has never been charged by the NEC for any violations on the river.

A.T., a Queenston resident, was concerned about an incident in 2008 when the Appellant was alleged to be dumping rocks into the Niagara River. Tabs 9, 10 and 11 of Exhibit 4 contain photos and documentation about the alleged incident. It was her recollection that the Appellant did not have permission to dump the rocks.

In cross-examination, A.T. admitted that she had no first-hand knowledge of the incident or the circumstances surrounding it.

D.B. gave evidence that she resides closest to the Queenston dock on an access road connecting to Dumfries Street. Her concern is noise and increased traffic in the area. She has heard and seen emergency vehicles at the dock, on occasion, but gave no evidence on what the incidents were about.

Evidence of the Appellant

The Appellant’s Counsel introduced three letters of support for the granting of a licence to the Appellant. The letters were entered as Exhibit 8(a), (b) and (c).

N.R. introduced a letter signed by herself and her husband in support of the application (Exhibit 5). The letter outlined their complete support. It also spoke to the enjoyable experience that she and her husband had on two occasions while guests on the Niagara Belle.

N.R. stated that she and her husband reside on Ricardo Street. This street is adjacent to the Navy Hall, where the Niagara Belle will dock. She and her husband have resided there for 16 years. They have never been disturbed by events taking place at the Navy Hall.

N.R. met the Appellant about three months ago. She and her husband continue to be strong supporters of the efforts made by the Appellant to obtain a liquor licence for the Niagara Belle.

In cross-examination, N.R. stated that the crew aboard the vessel seemed to be a very cohesive group who appeared to be very attuned to matters of safety.

The Tribunal also heard testimony from R.J., a naval architect. He is familiar with the vessel, and, in his opinion, there would be no reason not to issue a liquor licence to the Appellant.

John Kinney is a principal of the Appellant. Mr. Kinney’s company has two other partners in addition to himself. The company provides access to water services in Ottawa, Montreal and on the Niagara River. They are the largest such organization in Canada and have been providing access to water service and entertainment for 40 years.

The docks on the Niagara River are leased from Parks Canada, the Navy Hall and a private company which owns the Queenston dock.

In 1998, the Appellant started the jet boat operation and it has been operating since that time. The Appellant will employ 125 persons seasonally, and 24 persons on a year-round basis.

Mr. Kinney, through his company, markets his business globally and it attracts tourists from around the world to the Niagara area. The Appellant has a positive working relationship with the business community and has an ongoing collaborative relationship with others in the hospitality industry.

He has positive relationships with the community. His company is very supportive of charitable efforts in the community and supports the general well-being of the community. The Appellant often assists law enforcement and other emergency service providers by making its boats and crew available to assist in the treacherous Niagara Gorge.

Exhibit 3 contains photos of the Niagara Belle. It is a three deck vessel, with two decks enclosed and one open deck. All decks have wrap-around railings.

The clientele will primarily be tourists and visitors to the area. In addition, the Appellant hopes to market special event tours such as from wineries, etc.

The Niagara Belle will also dock in Lewiston, New York on the American side of the river. A liquor licence for that area has already been obtained.

Complimentary cruises on the Niagara Belle were offered to local residents who live near the docking areas. Several residents took part and the reaction from participants was very positive.

Mr. Kinney advised that the NEC is very aware of his proposal. He will be meeting with that group in November. The reason for more than one docking location is to facilitate smooth operations without impeding the activities of the Navy Hall or the Niagara Parks Commission.

Mr. Kinney’s company held a liquor licence for the King George Inn in Niagara-on-the-Lake but let it lapse in 2008. There were never any issues when his company held that liquor licence.

The Appellant’s position is that parking is not an issue. On occasion, the Navy Hall has events that have up to 150 people attending.

In order to obtain and maintain his certification for the vessel, the Appellant has to ensure that all items from mechanical to environmental issues are in place and operational. Mr. Kinney has, and must maintain, an 8 person certified crew for the vessel.

His clientele will not be rowdy university student types. His company networks with hotels and tourist organizations to attract a visitor type clientele.

With regard to the allegation of stone dumping, his response was that stones were not dumped in the river but along the embankment as a vehicle buffer. The stone was obtained from the Niagara Parks Commission. He explained that he would have no logical reason to dump stone in the river.

The fence in question around the property was built in response to concerns from Transport Canada and U.S. Customs and related to security concerns around the river.

Mr. Kinney stated that the safety record of the jet boat operation is stellar. There have been minor incidents but only one or two since operations began and none with serious consequences or requiring investigation.

The Appellant has not been cited for any violations on the water.

The sound system on the vessel is a requirement of Transport Canada for safety reasons, in order to ensure messages of importance are heard throughout the vessel.

In cross-examination, Mr. Kinney stated that Niagara Belle will not operate out of the Melville dock. He also stated that he had not been ordered to take the tents down at the dock location and had conversations with an MNR official, Mr. Williams. Mr. Kinney stated that he has attempted to be proactive with residents.

APPLICATION OF LAW TO FACTS

The Tribunal received written submissions from all parties. The evidence and submissions have been carefully considered by the Tribunal.

The Objectors are primarily concerned that their neighbourhood, which is steeped in tradition and history, will be compromised by the licensing of the Appellant’s vessel, the Niagara Belle. They are concerned that increased traffic in the area will impinge upon the peacefulness of their village.

The Objectors are also concerned about increased noise, which they assert will be disruptive.

It is well-recognized in the jurisprudence that in matters of this nature, the Tribunal must balance the needs and wishes of the residents, with that of the Appellant and his desire to develop his business. The onus is on the objectors to show that the granting of the licence is not in the best interest of the municipality considering the needs and wishes of the residents.

The residents in these types of cases have a huge hill to climb. It is not sufficient to imply potential problems such as noise or traffic disruptions. These cannot be speculative, but must be shown in clear and cogent evidence. In this case, that has not been proven. There is continuing activity around the community docks during the prime months from a myriad of sources, including private boaters who often consume alcohol legally on their boats while moored at the various sites. The increase anticipated by activity with the boarding and disembarking of the Niagara Belle will be a minimal addition to the ongoing regular activity on the river.

Suggestions by Objectors that the Appellant should not be granted a liquor licence, because it may have been out of step with a regulation such as leaving tents up beyond the stated time period, with respect, is not a sufficient basis on which to deny the Appellant a licence to sell liquor on board the Niagara Belle. All of the complaints filed by the Objectors in their evidence are historical and of a minor nature. More importantly, none of the alleged breaches of an ordinance or regulation were, on the evidence before the Tribunal, clearly established to have actually occurred.

Mr. Kinney presents as a solid citizen of the community, anxious to work in concert with the community. He has 40 years of business experience with no recorded violations of any regulation including safety regulations.

The hours of operation of the Niagara Belle are such that disruption to the community, for the most part, will be minimal.

It cannot be overstated that none of the regulatory agencies such as the relevant municipalities where the vessel will dock, the Niagara Parks Commission or the NEC chose to attend the pre-hearing to seek standing, or the hearing itself. These agencies were referred to often by the Objectors, both in their evidence and submissions, as agencies with concerns around the licensing of the Appellant’s vessel. Further, as stated previously, matters of zoning or land allocation by other regulatory bodies are not relevant to the matter before this Tribunal.

The Tribunal is satisfied that the Objectors in this matter have not met the threshold required for the Tribunal to refuse to issue the liquor licence to the Appellant because to do so would not be in the public interest.

Further, in light of the evidence before it, the Tribunal sees no need to impose any conditions on the licence.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal hereby directs the Registrar to approve the application for a liquor licence made by Niagara Gorge Jet Boating Limited o/a Niagara Belle, subject to the filing of all application and regulatory requirements.

LICENCE APPEAL TRIBUNAL

Alex McCauley, Member

Released: December 5, 2014