Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-09-09

FILE:

8878/LLA

CASE NAME:

8878 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

Olde Walkerville Pizzeria Inc. o/a Olde Walkerville Vito’s Pizzeria

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

-and-

Denis Buj

Added Party

REASONF FOR DECISION AND ORDER

ADJUDICATOR:

Alex McCauley, Member

APPEARANCES:

For the Appellant:

David Sundin, Counsel

For the Respondent:

Tamara Brooks, Counsel

For the Added Party Objectors:

Angela Ventura, Paralegal

Heard in Windsor:

August 27, 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, number 20376 dated May 22, 2014, to review an application for a liquor licence by Olde Walkerville Pizzeria Inc. o/a Olde Walkerville Vito’s Pizzeria (the “Appellant”), on the basis that the Registrar has received one or more written objections to the application.

On February 27, 2014, the Appellant applied to the Alcohol and Gaming Commission (the”AGCO”) for a licence to increase capacity in an outdoor area, a rear patio, by 42 persons.

This would bring the total capacity of the Appellant’s premise to 126 Currently, it is licenced for 84 persons. The establishment has existing licenced areas on the patio at the front of the building, the dining area first floor, and the banquet/lounge area on the second floor.

Pursuant to the Act, the Registrar has received one or more written objections to the Application from residents of the municipality. The Act, in section 6, provides that a person who applies for a licence to sell liquor is entitled to be issued a licence unless certain specified prohibitions prevent the granting of the licence. The relevant provision in this matter is found in sec. 6(2)(h) which reads as follows:

(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

The Registrar received approximately eight letters of objection (Ex. 3). The letters express concerns about potential for noise in the residential areas adjacent to the proposed patio. There are traffic and potential parking concerns as well.

There has been no objection filed by the City of Windsor or any of its constituent departments, including police.

The Appellant presented a 10 page petition of support. The names were of friends and patrons, but few were from the neighbourhood.

The Registrar is taking no position with regard to this Application.

Adjournment Request

A pre-hearing was held on July 25, 2014 and the date for the hearing was scheduled. The Objectors, through their spokesperson Denis Buj, who was made a party to this proceeding filed a Request for Adjournment on or about August 21, 2014. In their request, the Objectors stated that they needed additional time in order to investigate the appeal/licencing process for food service use on a rear patio, request disclosure from the Appellant regarding that issue, seek some legal assistance from a lawyer or paralegal and to follow up on the Appellant’s request to meet to discuss a resolution. The Appellant opposed the adjournment request. The Tribunal denied the adjournment request given that the hearing date had been established a month prior, with the consent of the parties, and that the Objectors had ample time to prepare for the hearing scheduled for August 27, 2014.

The Tribunal’s decision was conveyed to the parties in the usual manner. The decision was communicated to Mr. Buj by Purolator courier on August 25, 2014, and according to Purolator tracking records, the document was delivered to Mr. Buj’s residence, on August 26, 2014. Mr. Buj stated he never received the document.

At the commencement of the hearing on August 27th, Ms Ventura renewed the adjournment request on the basis that her clients had no idea the adjournment had been denied. Further, she was recently retained and wanted more time to adequately prepare.

The Appellant’s representative, again, objected to any adjournment, referencing his letter of August 22, 2014, where he had formally opposed any adjournment. He further stressed the prejudice to his client if the matter was further delayed.

Ms Brooks advised that all matters for the issuance of the liquor licence were in place excepting the outcome of this hearing.

Ms Ventura was asked if she had additional submissions to make in support of an adjournment beyond those dealt with previously by the Tribunal. She had none, but insisted that she and her client were not expecting to proceed today and were not fully prepared to do so.

The Tribunal determined that the prejudice to the Appellant outweighs any possible prejudice to the Objectors. The Appellant’s application is for an area that is fair weather dependent. That is quickly slipping away.

Further the Tribunal noted that in fact the Objectors were in attendance and appeared ready to proceed. Their presence suggested that they were aware that the matter was proceeding as scheduled.

After hearing submissions, this Tribunal denied the adjournment. There had been ample opportunity for the objectors to prepare for the hearing set, on consent at the pre-hearing, for August 27th.

EVIDENCE

Objectors’ Evidence

Denis Buj lives adjacent to the proposed licenced area. He resides on an upper floor and his bedroom is at the rear of the building adjacent to the proposed patio.

In the past, there have been noise issues from the Appellant’s premises. He stated that the noise currently travels through the walls. If there is a patio, he will get no peace.

He stated that he has called police in the past but no action was taken. He is also concerned about garbage accumulating near his property.

In cross examination, Mr. Buj admitted there were several licenced bars in the area and some had outdoor patios, one in particular being the Gourmet Emporium (Ex. #5 tab 5). The Gourmet Emporium has a front patio that wraps in part around the side of that premise.

ML resides three doors down the alley way, from the Appellant’s premises.

Her concerns are primarily noise related. She is also concerned about traffic in the back alley but she is not sure where this traffic comes from. She stated that her neighbour had drug paraphernalia tossed into her yard, though she admitted she did not know where it came from. She objects to cigarette smoke and believes that too may be a problem.

She noted that noise seems to funnel down the alleyway. She is concerned that this addition to the Appellant’s premises will ultimately devalue her property.

In cross examination, ML conceded that on some nights, she hears noise from the Gourmet Emporium.

LS owns a nearby business. Her concerns are parking and traffic congestion. She has had to put measures in place to protect her parking area from use by unauthorized persons.

She is concerned for the safety of her customers entering and leaving her premises because of increased traffic and reduced visibility due to the construction of the Appellant’s patio which borders her property.

She is not concerned so much about noise during the normal business day, but has concerns about cigarette smoke coming into her business from the patio.

Appellant’s Evidence

Peter South is the manager of the Appellant. He described the premises as primarily an Italian restaurant that has been in operation for 5 years. It has always had an unrestricted liquor licence.

There has been no opposition to this proposal by any City departments or by the local health unit. He stated that there have never been any problems with the liquor licence at the premises. They have never had a negative encounter with any of the regulators.

They have addressed the possibility of noise by erecting a fence around the patio area to mitigate sound.

There will be seating on the patio. It is an extension of their dining establishment.

They have adequate parking at a parking lot owned by the Appellant across the street and 4 additional parking spots at a residence owned by the Appellant behind the restaurant.

In cross examination, Mr. South admitted that many of the names of persons on the petition of support did not reside in the area of the Appellant’s premises.

Submissions

Ms Ventura stated that the Objectors want to maintain their quality of life. They are concerned about the negative effects of smoking, noise and garbage accumulation if a rear patio is permitted. They are asking for condition upon the hours of operation for the rear patio, if approved.

Mr Sundin submitted that the Appellant’s application for additional licensed area does not negatively impact the public interest. The Appellant has operated the business in the area successfully. Its liquor licence has no conditions. The Appellant has a good record with the AGCO and the community.The patio licence being requested is for a rear patio which will be seasonal in its operation.

He submitted that the objectors have shown no reason why this licence, if approved, should have restrictions placed upon it.

APPLICATION OF LAW TO FACTS

The consideration of public interest requires a balancing, on the one hand, of the interests of the local residents and, on the other hand, of the interests of those who wish to earn their living there.

The Appellant in this case has shown itself to be a good corporate citizen. The establishment lives and thrives in harmony with the community. This is evidenced from the stellar record of this Appellant. There was no evidence of a disciplinary history either with the AGCO or local police or other municipal officials

It is noted as well that until this application, there was no evidence of concern by residents near or around the Appellant’s premise, on any basis.

The Objectors, for the most part, are concerned about matters that may or may not impact against their daily life. Noise has been an issue to some but not others. As well, their evidence was that noise in some situations comes from other licensed premises in the area.

The issue around an increase in garbage and refuse in the area cannot in any way be tied to this Appellant. It is sheer speculation to presume any garbage or refuse has emanated from the Appellant’s premises.

The Appellant’s establishment is primarily a restaurant. It is not a bar. The type of activity from a restaurant is far more subdued than the latter.

It is conceded that at times there may be more noise than usual, but the Tribunal is satisfied that this will be trifling in nature and not of the type as to be overly disruptive to the area residents.

This entire geographical area seems to be one that embraces, as a community, bars and restaurants existing in harmony with area residents.

The Tribunal hastens to remind the parties that it is the duty of the licensee, under the Act, to control noise emanating from the licensed premise and areas under the control of the licensee.

On the evidence presented, the Tribunal finds that the Objectors, who bear the onus in this matter, have not established, on a balance of probabilities, that it is not in the public interest to issue the licence for additional area. Furthermore, the Tribunal is satisfied that there is no evidence to support the imposition of conditions on the liquor licence.

ORDER

Therefore, after considering all the evidence and submissions, the Tribunal orders as follows.

1. The Tribunal hereby directs the Registrar to approve the application for additional licensed area made by Olde Walkerville Pizzeria Inc o/a Olde Walkerville Vito’s Pizzeria subject to the filing of all usual and required municipal clearance letters and any application requirements.

LICENCE APPEAL TRIBUNAL

Alex McCauley, Member

Released: September 9, 2014