Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9507/LLA
CASE NAME: 9507 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 a Licence
Barbara Elaine Scrivens operating or intending to operate as Sandcastle Restaurant (The) Appellant
-and-
Registrar of Alcohol and Gaming Respondent
-and-
William Funston Added Party/ Objector
DECISION AND ORDER
ADJUDICATOR: Kenneth W. Koprowski, Vice-Chair
APPEARANCES:
For the Appellant: Gary Scrivens, Agent
For the Respondent: Tamara Brooks, Counsel
For the Added Party/Objector: William Funston, on his own behalf and as agent for the Objectors
Heard in London July 17, 2015
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 20796 dated April 8, 2015, to review an application for a liquor licence by Barbara Elaine Scrivens operating or intending to operate as The Sandcastle Restaurant, on the basis that the Registrar has received one or more written objections to the application.
Counsel for the Registrar informed the Tribunal that the Registrar was not taking a position on this matter. The Registrar did reserve the right to object to conditions that the Tribunal may attach to the licence but which the Registrar cannot enforce.
On the date of the hearing, 24 objectors attended. Mr. William Funston, acting as agent on behalf of several of the objectors, presented evidence on their behalf. He called two other objectors as witnesses. At the conclusion of their testimony, the Tribunal extended an invitation to any other objector who was present and who had filed a letter of objection to testify and provide further evidence. In response, only one other objector, S.D., provided additional testimony.
At the commencement of the hearing, Mr. Scrivens, agent for the Appellant, informed the Tribunal that the building inspector for the Township of Malahide, in which the Appellant’s business is located, approved an indoor seating capacity in the premises of 41 occupants and an outdoor seating capacity of 55 occupants. The Appellant had originally sought seating capacities of 42 and 57, respectively.
FACTS
Evidence on behalf of the Objectors
Mr. Funston carefully explained the character and the relevant physical attributes of Port Bruce, the community in which the premises are located.
He explained that it is a small residential community of about 160 homes. There are two roads that lead into the community. They meet at a two-way stop. One of the roads, Imperial Road, goes south from that intersection, past the Sandcastle restaurant, through a small Provincial Park and ends at Lake Erie, at a dock where a pavilion is located.
The Provincial Park is very small. He estimated that it extends about 300 meters measured east and west along the lakeshore and about 200 metres from the north shore of the lake. Imperial Road runs through the middle of the park.
On the north side of Imperial Road is found a large gravel parking lot. The Sandcastle restaurant is also on the north side of the road, at the west end of the gravel lot. The restaurant is surrounded by the Provincial Park on the premises’ east, west and south sides. The north side of the premises is against a hill. The rest of the area on the north side is made up of a grassy area, a few trees and the park’s washrooms.
On the south side of Imperial Road, there is a sand beach area about 20 metres wide along the north shore of Lake Erie. The beach area is also made up of weeds, scrub bushes and dead branches and trees. The consumption of alcohol is not permitted in the park, although subsequent testimony revealed that drinking of alcohol does, in fact, take place on or near the beach. There are no park personnel stationed at the park. Any park employees who tend the park come from another nearby Provincial Park.
As for the village of Port Bruce itself, the full-time residents are mostly over 60 years of age. The reasons that many residents moved to the village were that it is quiet, off the beaten path and has no commercial businesses to speak of, except for three fast-food places, of which the Sandcastle restaurant is one. Neither of the other two is licensed. Mr. Funston stated that the community has been a “dry” community “for decades,” to quote his testimony. The residents were, therefore, surprised that an application for a liquor licence had been made. He has owned property in the community since 1969, while he lived in London, Ontario, but spent his summers in Port Bruce. He has actually lived in Port Bruce for the last two years after he built his permanent residence there, his retirement home.
He further explained that the objectors had several issues about the application for licence, over and above any emotional feelings that they had. Those issues involved safety, lighting, increased costs, noise, diminished property values, general disruption to the way of life and issues relating to the Provincial Park boundary as it affected the property occupied by the Appellant’s premises.
He understood that the property on which the premises were located was owned by one Jerry Lee, who testified later during this hearing, and that the Appellant leased the property from Mr. Lee.
SAFETY
Mr. Funston explained that Imperial Road has few side roads. There are already issues with people speeding in both directions in the area of the Appellant’s premises. He is a member of the local Community Policing Committee and meets regularly with the Ontario Provincial Police about the speeding issue. They have discussed placing radar signs and declaring the area to be a community safety zone which would reduce the speed limit and double any speeding fines.
There was no evidence that any of these measures had been implemented as at the date of this hearing. These concerns already exist, notwithstanding that the Appellant is not licensed to serve alcohol.
In addition, Mr. Funston stated that, along that portion of Imperial Road that passes by the Sandcastle restaurant, there are no sidewalks. There are some portions of the road where the shoulder is only 2 or 3 feet wide, alongside a ditch. There is a danger, he stated, if pedestrians have to move over in a hurry to avoid vehicles. This is particularly acute for the children who live in the trailer park immediately west of the Sandcastle restaurant. Vehicular traffic, therefore, could endanger pedestrians in that area. This is made more dangerous because cars park on the other side of Imperial Road, parallel to the roadway, in the beach area. He acknowledged, however, in cross-examination, that the ditch area ends at the trailer park which is immediately west of the restaurant and does not exist in front of the Appellant’s premises.
LIGHTING
There are no street lights in Port Bruce along the roadways. The gravel shoulder is rough so that walkers and cyclists stay on the edge of the paved roadway because it is smoother. Without lighting, they are not easily seen. He urged upon the Tribunal to accept that people have already been drinking when they come to the community and, while there, drink too much and then drive away. Since there are already issues about these concerns, he stated that granting a licence to the Appellant would only add to an existing problem. Drinkers may speed. He stated that it is a miracle that there have been no accidents.
He acknowledged that the Appellant had proposed that the business would close by 9:00 p.m. but he was concerned that, in September, it gets dark even by then.
INCREASED COSTS
A possible increase in taxes is a concern to the objectors.
In talking to the Ontario Provincial Police, since he is a member of the Community Policing Committee, he stated that he was told that there would be an increased police presence needed in areas where there is a drinking establishment. Each incident where the police are called adds to the cost, so that, in turn, Malahide Township would have to pay more for policing, thereby increasing taxes.
The Tribunal notes that there was nothing in writing from, nor any evidence presented on behalf of, the Ontario Provincial Police or Malahide Township to corroborate this testimony. By the same measure, there was no letter or other communication from the Township council that indicated that it was in favour of the Appellant’s application.
He believed that there was no benefit to the community if, by granting the licence, money flowed only to the licensee and not to the municipality.
NOISE
Mr. Funston stated that there were eight homes, including his, that were within 200 metres of the Sandcastle restaurant. Some were on the edge of the hill above the restaurant.
He stated that, when the wind is calm, he can hear people on the beach 100 metres away. Even quiet music can be disturbing. He acknowledged that the Sandcastle owners played music through a PA system and that the music was played in this way even at the time he built his house. He made no specific complaint that singled out music from the Appellant’s premises.
DIMINISHED PROPERTY VALUES
Mr. Funston testified that there was a potential for the value of properties to be reduced if the licence were granted. One of the objectors in attendance was a real estate agent who Mr. Funston said could speak to that issue. Unfortunately for the objectors, the agent had to leave the hearing before he testified, so that the Tribunal did not have the advantage of his testimony.
Mr. Funston added that he has just built a $500,000 retirement home in Port Bruce and did not want to lessen the enjoyment of this property, so that the licence should not be granted.
GENERAL DISRUPTION
Mr. Funston chose to retire to Port Bruce because, as he stated, it is “not a Grand Bend or Port Stanley.” These are two other summer resort communities that have licensed establishments. The former is located on the shores of Lake Huron. The latter is approximately a 15 or 20 minute drive west of Port Bruce on the north shore of Lake Erie.
PROVINCIAL PARK ISSUES
Calling this a “complex issue,” Mr. Funston stated that the Sandcastle restaurant is land-locked on the east, south and west sides by the Provincial Park lands and is against a hill at the rear. Any excavation of the hill behind the restaurant might compromise the stability of the houses at the top of the hill.
The Tribunal notes that there was no evidence that would show the need for such excavation or whether any excavation is being planned or how much excavation would have to be done that would cause the instability.
The east, south and west sides around the restaurant are to remain natural, being property of the Provincial Park. He stated that the shorebird, sand plover, is endangered, and that Port Bruce is one of the remaining areas that provides the necessary beach area, according to an article that he read in a local newspaper. However, this point was not confirmed in either the newspaper article or any information from the Provincial Park authorities.
Mr. Funston keeps part of his own property in a natural state but has not seen a killdeer, another kind of bird, nesting on his property. He did not relate such absence to any activity on the part of the Appellant.
The possible interference with natural habitat brought up the issue of whether the Appellant’s staff could sufficiently police its customers and prevent them from carrying their drinks from the deck area of the premises to the beach, where no alcohol is allowed within the boundaries of the Provincial Park. He admitted that there was no maximum placed on the number of people who could be on the beach at any one time but was concerned with customers possibly carrying their drinks to the beach. He also admitted that he knew that, despite the prohibition on drinking in the park, alcohol was consumed on the beach more than once a week and usually on weekends.
As well, the outside patio area of the premises was on Provincial Park land so that, if alcohol were carried from the licensed interior of the restaurant to the licensed deck area, across the patio, the drinks would be carried over park land (the outside patio) that did not allow alcohol. He admitted, though, that the licence was for the deck area and the inside of the restaurant, neither of which is located on Provincial Park lands. The Tribunal allowed a copy of the Plan of Survey that shows the relative positions of the Provincial Park and the Appellant’s premises to be filed as Exhibit #3, over the objections of counsel for the Registrar. The Tribunal notes that the copy was presented by the witness, I.J., who was not a surveyor, did not prepare the Plan of Survey, did not disclose it to the other parties before the date of this hearing and did not provide a certified copy of it. He could not provide personal knowledge and an authoritative explanation of the distances and locations of objects shown on the survey. The date of the survey is June 8, 1999, making it 16 years old at the time of this hearing. In the end, although the Tribunal considers the survey helpful in understanding the boundary problems that the objectors raised, the Tribunal places little weight on the survey.
Mr. Funston’s final complaint was that the Appellant did not bother to examine the nature of the community or to speak to the local ratepayers association before he applied for the licence. When he did meet with them, afterwards, he (Mr. Scrivens) told the association that it was his intention to hold a concert at the end of August 2015, in order to raise funds to install mats on one of the trails in the park to enable those in wheelchairs to use the trail. Mr. Funston’s concern was that, if this concert took place, what would the future look like if more concerts were held? There would be more people going through the community on the one main road, more drinking and, therefore, there would be a greater safety issue.
Notwithstanding his concerns about future concerts, he acknowledged that it was the Ministry of Natural Resources that suggested that the mats be obtained, at a cost of $15,000 each. The Ministry, Malahide Township and the community would each contribute the sum of $5,000.
But, in expressing that concern about the concerts, the Tribunal considers that Mr. Funston is ignoring the fact that, by that activity, the Appellant would, indeed, be benefiting the community by raising funds to provide the mats. It will be recalled that it was Mr. Funston’s testimony that he was opposed to having a licence granted if money did not flow into the community.
A further objection was raised by the witness, Tessa Kuipers.
Since the year 2000, Ms. Kuipers has been the owner and manager of Port Bruce Manor, a 36-bed residential care facility. Licensed by the Ministry of Health, it is a home for special care clients and for seriously mentally ill adults. All clients suffer from some mental health issues. Many are on drugs that do not interact with alcohol that might be available were the Sandcastle restaurant to be licensed. Many are subject to Court-ordered community treatment orders that contain prohibitions against consuming alcohol or taking drugs. Notwithstanding that concern, she stated that the Sandcastle restaurant has been kind to her clients in the past.
Many of the clients are placed there because Port Bruce is alcohol-free. All the clients are there voluntarily. They are not locked up. They can wander around and talk to whomever they want. They are warned not to mix alcohol with their medications; otherwise, there are problems towards staff and other clients. Not drinking alcohol helps to keep the clients under better control. Ms. Kuipers stated that, in the past, incidents where clients have mixed alcohol with their medications “have not been pretty,” to quote her testimony.
Her concern with having the Appellant licensed is the close availability of alcohol for her clients.
In response to questioning from the Tribunal, Ms. Kuipers stated that all her clients choose to stay at the manor to receive their care. They might obtain their alcohol elsewhere, such as in the neighbouring town of Aylmer. Although they do not have vehicles they can always get transportation to Aylmer in order to buy their alcohol.
Mr. Funston called no further witnesses. On the invitation of the Tribunal to any objector who was still present to testify who had already filed a letter of objection, only one, objector, S.D., came forward.
S.D. related an accident that took place at another park location entirely and where alcohol was involved and where a person was injured by an impaired driver. Her testimony did not reflect on the conduct of the Appellant and did not relate to any involvement that the Appellant had in that accident. Although the Tribunal recognizes the heartfelt concern expressed by S.D. about the dangers of drinking and driving, her testimony did not relate to this Appellant’s application or circumstances.
Evidence on behalf of the Appellant
On behalf of the Appellant, Mr. Gary Scrivens and Mr. Jerry Lee testified.
For the last three years, Mr. Scrivens has resided in Port Bruce in a mobile home for 5½ months of the year, while his business is open. The rest of the year, he resides in Yuma, in the state of Arizona.
Mr. Scrivens and his wife had been operating the Sandcastle restaurant for the summers of 2014 and 2015. It is a seasonal restaurant, open from May to early October. In addition to offering restaurant services, the business provides other services to the community, as well, such as a grocery store, an ATM machine, ice and bottled water. It is the only propane and variety store in Port Bruce. Those services would be provided only during the 5½ months that he is open for business. He lamented that it was not easy making a living there and wanted to expand his services to the community by obtaining a licence under the Act.
He emphasized that he wanted the licence only in conjunction with his restaurant. He would offer alcohol only with his sit-down meals. His request was for a licence to offer beer, wine and cooler sales and not mixed drinks and liquor. He did not want to become a bar or to take away from the demographics of the community by discouraging people from using the other services in the community. The licence would apply only to the inside of his restaurant and the deck outside. It would not apply to any of the three outside order windows located in another part of his building. The window areas are not part of the proposed licensed area. All beverages would be served in plastic containers, thereby eliminating the residents’ concerns about broken bottles in the park area. The alcoholic beverages would be poured from the bottles into the plastic containers at the table by servers who had taken the “Smart Serve” training. He had no intention to serve alcohol in the area of his business that is Provincial Park land.
To try to demonstrate co-operation with the residents, he proposed to serve alcohol only until 9:00 p.m. He would open at 11:00 a.m., except on Sundays, when he would open for breakfast at 8:00 a.m.
He has complied with the requirements of the local liquor inspector by setting up a gate and double chain to barricade some areas so that there is only one way into and one way out of the licensed areas. The railing that surrounds the deck area has been made to comply with the requirements of the Alcohol and Gaming Commission of Ontario.
He emphasized that, without a liquor licence, he must now comply only with a municipal noise by-law. On the other hand, if licensed, he would be subject to many more restrictions under the Act and its regulations, and yet he is still willing to abide by those additional restrictions.
His intentions are not to try to attract a great many new people to the community but, rather, to offer to his existing customers something that they have been asking for. It would be a legal alternative to the current continuous illegal drinking on the beach, marina and neighbouring trailer park. He recognizes that the onus is on him and his staff to police their customers and themselves. He stated to Mr. Funston, in cross-examination, that his customers will not be able to leave the Appellant’s property while in possession of alcoholic beverages. He will employ only servers who have “Smart Serve” training and will not over-serve customers and be guilty of violating the Act and its regulations.
Mr. Scrivens also emphasized to the Tribunal that he has had experience in operating another licensed establishment in another community, Port Stanley, which is about a 20-minute drive west of Port Bruce. The establishment is a 300-seat restaurant. He holds many wedding receptions there, with an open bar in many cases. Despite the number of guests and the length of time he has been operating there, he has not been guilty of any violations or incidents under the Liquor Licence Act.
On cross-examination, he stated that he does not intend to have evening music. Currently, he has an acoustic guitar player performing on Saturdays from 2:00 p.m. to 5:00 p.m. Other than that music, he has two small speakers on his patio, which he used last summer and is using this summer. A PA system is also used to call customers when their order is ready, if they ordered from one of the three outside windows.
Jerry Lee is the owner of the Sandcastle restaurant and the neighbouring trailer park. He leases the restaurant to the Appellant. He stated that the outside patio is on the land of the Provincial Park, but the outside deck and concrete sidewalk is on Mr. Lee’s property.
He has installed security cameras both on the inside and outside of the premises. They can be monitored off site.
He has been living in Port Bruce for 31 years. He has never been aware of any accidents in front of the Sandcastle restaurant or of calls to the police to respond to any accident there. He acknowledged that, in that period of time, there was never an establishment licensed to sell alcohol in Port Bruce, but there was a lot of alcohol illegally consumed on the beach.
For 31 years, he has been cleaning up the Provincial Park on the north side of Imperial Road and still picks up beer cans, bottles and garbage on the beach area. There are all kinds of parties on the beach area, even in those parts that are not within the Provincial Park.
He is in favour of the Appellant’s application for a licence, stating that he did not believe that society “will break down and go crazy” if the licence were granted, to use his terminology. He believed that half the people in the community can simply walk to the Sandcastle restaurant and not need a vehicle. Most of the residents of the neighbouring trailer park walk, and do not drive, to the beach.
In answer to Mr. Funston’s further questioning, Mr. Lee stated that he has a land-use permit with the Ministry of Natural Resources that has to be renewed every year. It permits parking at the restaurant and the patio stone area, but no structure can be built on that portion of the land. Although the permit has to be renewed every year, the Ministry had never cut off access to the property. Even if it did, Mr. Lee has access to the Appellant’s premises from the trailer park property.
THE LAW
Section 6(2) of the Act provides that an applicant for a licence is entitled to be issued a licence to sell liquor unless certain exceptions apply. The relevant exception applicable to this appeal, the public interest provision, is found in paragraph (h) of sub-section (2) which provides 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.
After providing notice of the application under section 7(1) of the Act and if the Registrar receives objections, then, pursuant to section 8(4) of the Act, the Registrar can issue a proposal to review the application. Such a proposal was issued in this case. By section 21(1), the proposal is to be served on the applicant who, by section 21(4), can file an appeal of the proposal. That is what the Appellant did in this case.
The powers of the Tribunal in such an appeal are limited and are set out in section 23(10) as follows:
(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.
In addition to the power granted by section 23(10), the Tribunal can also impose conditions on the licence, pursuant to section 23(12), which states:
(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 that has to be considered by this Tribunal in this appeal, therefore, is whether it is not in the public interest to grant the Appellant’s application for a liquor licence having regard to the needs and wishes of the residents of the municipality in which the premises are located.
Furthermore, the Tribunal must consider whether, in the circumstances of this case, conditions should be attached to the licence, if granted.
APPLICATION OF LAW TO FACTS
It is well established in law that, in an appeal such as this, the objectors have the onus to prove, on a balance of probabilities, that it is not in the public interest to grant a licence to the Appellant.
The objectors, through Mr. Funston, argued that there are no sidewalks and no lighting, so that there is the potential that something could happen. Nothing has happened yet, after all these years, but the potential is there. The danger arises especially when drinking continues until 11:00 p.m. or midnight, yet this ignores the Appellant’s intentions to serve alcohol only until 9:00 p.m.
The Tribunal notes that the evidence is that the problem of lack of lighting and sidewalks has existed even without the Appellant having a liquor licence.
The objectors also argued that the granting of a licence would change their lifestyle and that the long-timers would not recognize the place.
The objectors also were offended that Mr. Scrivens did not approach the citizens and discuss his intentions to obtain a liquor licence before he actually applied. The Tribunal notes that there are no provisions either under the Act or its regulations that require an applicant to do that. While the Tribunal acknowledges that this conduct seems offensive to the objectors, this does not appear to be something that reflects on the public interest. It is more of a private concern, as is the objection of Mr. Funston to the granting of a licence because he has just built his retirement home in Port Bruce.
In his submissions, Mr. Funston submitted that the police have, in fact, organized more drive-bys because of the problem of drinking on the beach.
Surely, however, it is in the public interest to have the consumption of alcohol take place in a regulated establishment that must comply with strict provisions of the Act and its regulations than in an unregulated area such as the beach. There was no evidence that current police drive-bys and their attendant costs would increase if the licence were to be granted. There were no representations before this Tribunal from the police, Malahide Township council or from the Ministry of Natural Resources that expressed opposition to or concerns about the Appellant’s application for a licence.
Indeed, the Township building inspector approved the Appellant’s premises for seating of 41 and 55 occupants, inside and outside, respectively. There is, thus, by his approval and by the absence of opposition from the Township council, an inference that the municipality tacitly approves the granting of a licence, or at least is not opposed to it.
Mr. Scrivens argued that he has shown his credibility in complying with the Act through his operation of his much larger establishment in Port Stanley without violations or incidents. He does not intend to open what he termed a “biker’s bar.” On the contrary, he will operate the business as a restaurant, not a bar. Of his own accord, he has proposed restrictions on the operation of his business, such as using plastic containers, ending the service of alcohol at 9:00 p.m. and not having music other than what he has, now. No portion of the Provincial Park land will be licensed.
Any noise can be heard, as Mr. Funston indicated, when the wind is calm and even then, there was no evidence of excessive noise or any infractions by the Appellant of any noise by-law of the municipality. Any fear of greater noise levels was merely conjecture, as are the potential safety issues.
The evidence is that the lack of lighting, traffic flow and congestion and people having to walk on the roadway have all existed for years, yet no accidents have occurred. It is only conjecture that accidents are more likely to happen if the Appellant were granted a licence.
The Tribunal cannot base its decision on conjecture.
In addition, Mr. Scrivens argued that he started the application process in response to requests from his customers, although there was no admissible evidence of such requests that had been disclosed to the parties prior to this hearing.
Counsel for the Registrar submitted that many of the concerns that the objectors expressed were matters more properly dealt with through the municipality’s by-laws and not within the purview of this Tribunal.
She referred the Tribunal to a decision of this Tribunal in 2369418 Ontario Inc, operating as Sagra v Registrar of Alcohol and Gaming, [2014] O.L.A.T.D. No. 63 (“Sagra”). The Appellant in that case applied for a liquor licence for an establishment that would seat 44 occupants. The Appellant intended to cease serving alcohol by 11:00 p.m. from Sunday to Wednesday and midnight from Thursday to Saturday.
The representative of five objectors in that case complained about parking concerns, the residential character of the neighbourhood, the number of seniors, noise from garbage pick-up and possible safety issues from drinking and driving customers. These complaints were not unlike those proffered by the objectors in the appeal now before the Tribunal. Some of those complaints were held to be outside the considerations of the Tribunal. The Vice-Chair states, at paragraph 14 of the decision:
14 The difficulty for the Tribunal in weighing Objector S.G.'s concerns is twofold. Firstly, the main focus of her concerns deals with the existence of a restaurant at this location, licensed or not. Those concerns, parking, noise, late night garbage pick-up and possible noxious gas from the wood burning stove do not fall within the purview of this licensing hearing. They are more properly addressed in zoning by-laws and City enforcement by-laws. …
(Emphasis is added)
The Tribunal adopts the above reasoning as applicable to the facts of the case now before it. Lack of lighting, for example, is a problem of the local Township council, and is a problem that exists whether or not the Appellant is licensed.
In the above case, the Tribunal directed the Registrar to issue a licence to the Appellant, with conditions attached. Two of those conditions were as follows:
Service of alcoholic beverages shall cease each night from Sunday to Wednesday at 11:00 p.m. and on Thursday through Saturday at midnight.
The Licensee shall provide a telephone number for Objector S.G. to register concerns or complaints. This line will normally be answered by a staff member during the Licensee's published hours of operation. The Licensee will also provide a cell phone number to Objector S.G. for use outside of the Applicant's published hours of operation or when there is no answer from restaurant staff.
A further consideration in the appeal now before the Tribunal is that the Appellant will be open only 5 ½ months of the year, during the warmer spring, summer and fall months and when daylight hours are longer than in the winter months. He will not be open the entire year. That is at least a partial answer to the concerns about the lack of lighting along Imperial Road. There was no evidence provided to this Tribunal that would persuade it to conclude that the volume of traffic and visitors would be any greater than it is now, during that same 5 ½ month period.
The Appellant has demonstrated, by his self-imposed restrictions, that he wishes to co-operate with the residents of the municipality and not to alienate them. He has also demonstrated that he can obey the provisions of the Act. His uncontradicted evidence is that he has operated another, larger licensed establishment in a nearby community without any violations of the Act or its regulations.
CONCLUSION
The Tribunal understands the concerns of the objectors to this application. Those concerns, however, are either private issues or matters of offence between the objectors, or some of them, and the Appellant. Many are also merely conjecture, with insufficient evidence presented to the Tribunal of the likelihood of those concerns actually coming to fruition. While the objectors understandably wish to retain their current lifestyle in a small community that is intended to be alcohol-free, the evidence suggests that it is better to have controls over the provision of alcohol than not to have any. The public interest cannot be demonstrated by speculation or concerns that cannot be substantiated by evidence before this Tribunal.
Having regard to all the above factors, the Tribunal concludes that it would not be contrary to the public interest to grant the Appellant’s licence. Notwithstanding that conclusion, and partly because of the Appellant’s proposed self-imposed restrictions, there is room to conclude that there should be conditions attached to the licence that would at least reflect the Appellant’s desire to work with, and not against, the community at large. Having regard to the nature of the current complaints and to the Appellant’s stated intentions, two reasonable conditions would be to restrict the hours during which alcohol is to be served and to display the Appellant’s contact information in case there are complaints.
ORDER
Pursuant to the authority vested in it under the provisions of section 23(10) and 23(12) of the Act, the Tribunal directs the Registrar to issue a licence to the Appellant to sell liquor subject to the following terms:
Sale and service of alcohol to cease each day at 9:00 p.m.
The Licensee shall make readily available to residents and clearly visible on the premises a telephone number at which the owner, manager or any other person in charge of the premises from time to time can be reached by persons who wish to register concerns or complaints.
LICENCE APPEAL TRIBUNAL
_________________________
Kenneth W. Koprowski, Vice-Chair
Released: August 04, 2015