Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2015-10-02
FILE:
9548/LLA
CASE NAME:
9548 v. Registrar of Alcohol and Gaming
Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act to Review an Application for a Licence
The Scoop & Cup Inc. o/a Scoop & Bean
Appellant
-and-
Registrar of Alcohol and Gaming
Respondent
-and-
Bernard Watt
Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Appellant:
Jerry Levitan, Counsel
For the Respondent: For the Added Party:
Aviva Harari, Counsel Charles Wagman, Counsel
Heard in Toronto:
August 4 and 27, 2015
REASONS FOR DECISION AND ORDER
The Scoop & Cup Inc. o/a Scoop & Bean (the “Appellant” or “Scoop & Bean”) has appealed a Notice of Proposal issued by the Registrar of Alcohol and Gaming (the “Registrar”) on May 1, 2015 to Review the Application for Licence. The hearing took place on August 4 and 27, 2015.
Background
The Appellant has applied for a liquor licence for its premises located at 3 Follis Avenue in Toronto. Scoop & Bean has been operating for approximately six years, primarily as an ice cream and coffee shop. It has a current capacity of 16 for the inside and 24 for the outside patio area. Cesar Ramirez, the principal of the Appellant, is not seeking an increase to that capacity should he be granted a liquor licence. The patio area is subject to a Boulevard Agreement with the City of Toronto. That agreement requires, among other terms, that Scoop & Bean ensure that the boulevard café is closed and cleared of patrons, food and drink at or before 11 p.m. each day. That, too, would not change if a liquor licence was granted.
Residents in the vicinity of the Appellant’s premises have objected to the issuance of a liquor licence. One of those objectors, Bernard Watt, was made a party to these proceedings, on consent of both the Appellant and the Respondent. The Registrar takes no position with respect to this application, though Ms Harari did make closing submissions regarding any proposed conditions on a licence, should one be granted.
Public interest matters such as this give rise to strongly held views as to what a community needs or wishes, and what is appropriate by way of a business in that community. This hearing was no exception. To give context to the evidence heard and the Tribunal’s decision, it is useful to have reference to the well-established jurisprudence that must be considered in cases such as this.
Under the Liquor Licence Act, an applicant is entitled to a liquor licence unless it is disqualified under certain conditions, one of which is the public interest. The onus is on the objectors to show, under s. 6(2)(h) of the Act, that the granting of “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 Tribunal will look to letters and petitions of objection and support, and the testimony of those present at the hearing. However, the needs and wishes of the residents cannot be decided solely on the basis of a count of how many people support or oppose the liquor licence. The bona fide concerns of the residents in the immediate area who are most affected by the proposed establishment are given greater consideration than those who are less directly affected. In determining whether the needs and wishes of the residents are bona fide, the Tribunal will look to the totality of the evidence to determine if the subjective concerns, and fears, of the residents are supported on a valid objective basis.
Decision
After considering all the evidence, including the comprehensive documentation filed as exhibits at the hearing, and submissions, the Tribunal approves the application for a liquor licence, subject to the conditions set out in this Order.
Objectors’ Evidence
Mr. Watt and his wife are the principals of Folenco Corporation which owns the building at 3 Follis Avenue located directly across the street from Scoop & Bean. Mr. Watt is an architect; his offices are on the main floor of the building. There are four apartments on the upper two floors. Mr. Watt, like the other objectors who gave evidence at this hearing, has been supportive of Mr. Ramirez and Scoop & Bean as it is currently operating. At this point, it closes at 5 p.m. Mr. Watt supported Scoop & Bean’s application for a patio when there were issues with the City. His biggest concern, and that of the other objectors, is noise, primarily at night. The apartment bedrooms face Follis Avenue. He acknowledged that there are not a lot of windows facing Follis Avenue and the windows are double glazed, but noise is, nevertheless, a concern.
Mr. Watt suggested a situation where a patron of Scoop & Bean might go outside, at night, to make a phone call. After 11 p.m., the noises of the City diminish, making the sounds of conversation on the street more noticeable, whether from one person on a phone or several people outside in conversation. If the establishment is permitted to be open until 2 a.m., he stated that Scoop & Bean should be required to provide a noise study to confirm that noise levels emanating from the premises comply with the City of Toronto bylaws. Given that the patio must be cleared of patrons by 11 p.m., the most significant concern seems to be the noise emanating from the interior, with its capacity of 16 persons.
Related to the noise issue is garbage; for example, the noise generated by Scoop & Bean if a staff person is dumping garbage and recyclables in the various bins on Follis Avenue, given that a licensed establishment is more likely to generate more recyclables in particular. Mr. Ramirez responded in his testimony that beer and liquor bottles would not be thrown out but would be returned to the beer store as “that is money”.
Mr. Watt also testified about his concern regarding lighting on the patio at night should there be a liquor licence. Bright lights would bother his tenants (though this was not noted by the one tenant who did testify). A solution would be, he suggested, “down” lighting and/or opaque shades on any lights.
On the petition circulated by Mr. Watt, one of the issues noted was the “misrepresentation of the location address.” In his testimony, he elaborated that Scoop & Bean made its application for licence as 2 Follis Avenue though its legal address is 968 Bathurst Street, implying that there was an intention to deceive in some way. The simple explanation given by Mr. Ramirez, and accepted by the Tribunal, is that the mailing address used by the previous occupant was 2 Follis Avenue, so he has continued to use that, though in fact, the legal address is 968 Bathurst Street. 968 Bathurst Street is also the legal address of Grapefruit Moon, the licensed establishment at the corner of Bathurst and Follis. There are also five residential units between Grapefruit Moon and Scoop & Bean – all part of the same building. None of the persons living in those apartments have objected to the licence.
Mr. Watt advised that three of his four tenants were opposed to this application. One of those tenants, E.J.C., testified at the hearing. She explained that she was a “huge fan” of Scoop & Bean, but it closes at 5 p.m. The possibility that of it being open until 2 a.m. would be a drastic change. She does hear noise from Grapefruit Moon now, though she acknowledged that it is a much larger establishment. Her concern is the potential for noise and possible loitering by persons who might frequent it and who might not be as mindful of the neighbourhood. She expressed a concern that if Mr. Ramirez sold the business, a new owner might not be as respectful of the neighbours.
The Tribunal also heard from A.P., B.D. and P.M. Both A.P. and B.D. live in houses a few doors down from Scoop & Bean. They echoed the sentiment of the others that they like Scoop & Bean as it currently operates. A.P. stated that presently noise sometimes keeps his family awake until the early morning hours. He can hear sounds from the Grapefruit Moon patio which is further away than Scoop & Bean. He perceives that there is a potential for regular noise disruption should Scoop & Bean be licensed. B.D. stated that she was concerned about being a “prisoner of noise” and that even one person drinking late at night on the patio will create noise. No one, in her view, wants a bar three doors down from their home; she is afraid of what Scoop & Bean may become.
Appellant’s Evidence
Three neighbouring residents testified in support of the application, one of whom lives two houses to the left of Scoop & Bean, on the other side of the laneway. These witnesses see the liquor licence as a way by which Scoop & Bean can add to the neighbourhood in a positive way, offering a healthy family friendly environment where people could have a drink with their meal. They were unconditional in their support and confident that Mr. Ramirez would continue to operate in a positive and respectful way towards his neighbours.
These witnesses signed a petition in support of the application. Some time was spent at the hearing on the manner by which signatures were elicited. Specifically, Mr. Wagman questioned whether Mr. Ramirez was forthright about his proposed hours of operation. The letters of support (which appeared to be a template obtained from the AGCO) made reference to a licence without conditions, but no explicit reference to hours. The Tribunal does not draw any negative inference from that omission nor find that there was a failure to disclose relevant information to the signatories. The Tribunal accepts Mr. Ramirez’s testimony that the hours of operation have not been determined; his hours will depend on what business is like, day to day.
Mr. Ramirez testified that the petition of support (Exhibit 6) was placed on the counter at Scoop & Bean. He asked people to sign it if they were OK with a liquor licence. He responded to patrons’ questions when asked. Mr. Wagman, in submissions, asked that an analysis of the petition and the letters of support (of which there were approximately 80) which was prepared by his client, be accepted by the Tribunal as an aid for its deliberations. The Tribunal ruled that it would not accept that document... The Tribunal can, and did, review the petitions and the letters. There are, indeed, duplicate signatures on the 15 page petition of support and the letters of support. Not all of the letters are signed and not all signatories are from the immediate area. However, as noted above, the Tribunal does not make a determination of the public interest based on a “head count” and in any event, little or no weight is given to those persons, whether they are supporters or objectors, who do not live in the vicinity of a proposed licensed establishment.
Mr. Ramirez is hoping to increase his revenue with a liquor licence. Being an ice cream shop is “just not worth it” from a profitability perspective. His plan is to be open for lunch and dinner and to offer brunch on the weekends. The menu would be Mexican fare. He does not want his hours, for inside, to be restricted to an 11 p.m. closing, and he noted that Grapefruit Moon, at the corner, has no restrictions on its liquor licence. He explained that when there were objections to his application, it was a bit of a shock. He has operated Scoop & Bean for about six years and felt he had a good relationship with his neighbours and feels he is embedded in the community.
Mr. Ramirez stated that he is compliant with the Boulevard Agreement and would continue to be. The patio is cleared at 11 p.m. He stacks the chairs and locks them up, because he does not want them stolen. In the same vein, he would comply with any City by-law that might apply to lighting on the patio.
Analysis
Follis Avenue is largely a residential street. There are, on the flankage with Bathurst Street, commercial businesses, both Mr. Watt’s and Scoop & Bean. The nature and extent of commercial use in a residential area such as this is a municipal planning issue. Mr. Watt made the local municipal councillor aware of this application during the placard period. The councillor stated that he was not intending to object to this application. Mr. Watt expressed the concern that it would be an “inappropriate precedent to have a licensed establishment on a residential street – a negative impact to be avoided.” No evidence was heard to support that assertion. Moreover, in the absence of any evidence that there are specific zoning or planning provisions prohibiting the Appellant’s use, the broader planning issue of where liquor licensed establishments should be located is not a matter within the purview of this Tribunal at this hearing. Such issues are more appropriately a municipal concern.
Noise was the public interest issue at the crux of this hearing, more specifically, the possibility of more noise. There is noise now, as testified to by E.J.C., B.D. and A.P. There was no evidence before the Tribunal that any of these individuals, or Mr. Watt, had complained to municipal by-law official or to the police, about noise. As B.D. stated, even one person drinking late at night (though the Scoop & Bean patio must close at 11 p.m.) creates noise. Passerby talking, as they are walking down Follis Avenue (perhaps to their parked cars, and perhaps coming from Grapefruit Moon), are causing noise now. This might be seen as an inevitable consequence of living in the downtown of a city. Absolute quiet at midnight is not a given and it is speculative to suggest that the addition of a liquor licence at Scoop & Bean, with its indoor licensed capacity of 16 will increase noise disturbance to any appreciable extent.
As noted previously in this decision, the jurisprudence states that the subjective concerns of objectors must be supported on a valid objective basis. Here they are not. Aside from the concern about passersby, or people talking on phones on the street at a time when the ambient noise levels are low – issues that arise in the City regardless of the existence of a liquor licence at Scoop & Bean – the Tribunal heard about the possibility of more delivery trucks and more garbage or recyclables being thrown in bins, generally daytime noises that would, perhaps, be only marginally increased by an establishment the size of Scoop & Bean.
The Tribunal appreciates that Mr. Watt and his wife invested considerable time and effort in putting forward their position in opposition to a liquor licence at Scoop & Bean. However, based on the evidence before it, the Tribunal finds that the objectors have not, on the balance of probabilities, established that the issuance of a liquor licence is not in the public interest.
The Tribunal did hear from the parties, in evidence and in their submissions, regarding conditions that might attach to the liquor licence. Ms Harari submitted that conditions on a liquor licence should be relevant to the sale and service of alcohol and enforceable by AGCO inspectors. She stated that issues such as garbage, lighting and deliveries are not issues which the AGCO has the jurisdiction or the capabilities to enforce. Rather, they are issues for the local municipality. The Tribunal notes that the Boulevard Agreement (Exhibit 15) addresses in clear terms some of the issues that might cause concern to the objectors. For example, paragraph 21 states that “The Licensee shall ensure that there is no outdoor music or amplified sound,” and paragraph 22 states that “The Licensee shall ensure that all doors and windows of the abutting premises are not left open, propped open, or allowed remaining open, while there is music or amplified sound in the interior of the abutting premises.” This last provision addresses Mr. Watt’s concern that Mr. Ramirez might in the future want to replace his current windows with retractable ones, though there was in fact no evidence of such an intention.
The existence of a liquor licence does not in itself create the issues that cause concern to objectors; rather, it is more often than not the manner in which an establishment is operated that raises the potential for issues. The Tribunal heard no concerns about Mr. Ramirez. He has stated his intention to be a good neighbour, as he has been, and to be responsive to neighbours’ concerns. The success of his business will depend largely on the support of the area residents.
In summary, the Tribunal finds that the objectors have not, on a balance of probabilities, established that the issuance of the liquor licence is not in the public interest. There is no evidence to suggest that Mr. Ramirez, in his operation of Scoop & Bean, will not act responsibly and in compliance with the Liquor Licence Act and its regulations.
Nevertheless, as an assurance to the objectors and noting the Appellant’s consent to the imposition of these two conditions as an expression of its bona fides, the Tribunal attaches the conditions set out below, to the licence.
ORDER
The Tribunal hereby orders that the application for a liquor licence made by Scoop & Cup Inc. o/a Scoop & Bean is approved, subject to all statutory and municipal regulations. Further, the following conditions shall attach to the licence:
The Licensee shall post a prominent sign at each exit that reminds patrons to be considerate and respectful of the neighbours.
The Licensee shall provide a telephone number with a functioning message service for residents to register concerns or complaints. The line will normally be answered by a staff person during the licensee’s hours of operation.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: October 2, 2015