Licence Appeal Tribunal
FILE: 8386/LLA
CASE NAME: 8386 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 Refuse to Remove Conditions from a Licence
Cluncrow Holdings Ltd. o/a Doc Malone’s Applicant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Alex McCauley, Member
APPEARANCES:
For the Applicant: Sarah Lynne Pinkney, Agent
For the Respondent: Joyce Taylor, Counsel
Heard in Barrie: January 7, 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, dated September 24, 2013, which proposed to refuse to remove conditions from a licence. Cluncrow Holdings Ltd. (the “Applicant”) appealed this Notice of Proposal to the Licence Appeal Tribunal (the “Tribunal”).
FACTS
The Applicant seeks removal of two conditions on its licence as follows:
No music nor external speakers allowed on the patio.
The doors from the interior to the patio shall not be left propped open during the hours of operation.
Condition number 1 on the liquor licence was imposed on the licence on December 4, 2001. This was prior to the current licensee’s ownership. On October 19, 2004, the Board of the Alcohol and Gaming Commission of Ontario recommended approval of the liquor licence with both conditions attached to the current licensee.
There have been 2 objections filed, objecting to the removal of the aforementioned conditions. As a result, the Registrar issued this Notice of Proposal to refuse to remove conditions in accordance with section 14(3) of the Act.
The Registrar took no position with regard to this appeal.
THE LAW
Section 14 of the Act states that a condition other than a prescribed condition can be removed if there has been a change of circumstance that makes the original condition no longer valid. In addition, as in this case, the public interest must be weighed to ensure that the removal of any conditions would not violate the public interest.
ISSUES
The Applicant has asked to have the conditions removed because, if allowed to remain in place, the conditions impact negatively on the business. In this day of advanced communication, many patrons have resorted to using their own devices for music, etc. This situation is difficult for management to control.
In addition the patio area has been upgraded and is a pleasing addition. Bradford Street, where the licensed premises exist, is being revitalised. This in and of itself is a change of circumstance, which indicates that in order to remain competitive and current an upgrade to the patio by allowing music is needed.
The objectors in this matter never attended the pre-hearing or the hearing. Their concerns relating to noise have been considered by the Tribunal.
Exhibit #5 contains letters of support for the removal of the conditions. These letters are from area residents.
APPLICATION OF LAW TO FACTS
The Tribunal is satisfied that there has been a change of circumstances. The changing development of the area is a significant change.
Technological change has impacted the Applicant and in order to properly control sound on the patio it is necessary for the Applicant to control the music thereon.
It is significant to note that the Applicant was not the original licensee when the conditions on the licence regarding outside music were initially placed on the licence. The licensee, over the past 10 years has demonstrated a responsible business practice and has never faced sanction.
The Applicant is willing to abide by all existing noise by-laws and further to ensure that there is no amplified music on the outside patio after 12:00 a.m.
After giving due consideration to the complaints of the objectors in the letters filed, the Tribunal concludes that allowing amplified music, controlled by the Applicant, until 12:00 a.m. does not violate the public interest.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to not carry out the Proposal and to remove the following conditions from the licence:
No music nor external speakers allowed on the patio.
The doors from the interior to the patio shall not be left propped open during the hours of operation.
Further, the Tribunal orders, on consent of the Applicant, the following condition will be placed on the liquor licence:
There shall be no amplified or live music on the patio after 12:00 a.m. on any night.
LICENCE APPEAL TRIBUNAL
Alex McCauley, Member
Released: January 31, 2014