Rock The Byward Market Corporation v. Registrar of Alcohol and Gaming, 2015 CanLII 89166

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-12-02

FILE:

9594/LLA

CASE NAME:

9594 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 to Review an Application for Licence for Additional Licensed Area

Rock The Byward Market Corporation

o/a Lowertown Brew Pub (The)/Sens House

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

-and-

Lowertown Community Association

Objector

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Marc D’Amours,Vice-Chair

APPEARANCES:

For the Appellant:

Janet E. Bradley, Counsel

For the Respondent:

For the Objector:

Joyce Taylor, Counsel

Sylvie Grenier,Agent

Heard in Ottawa:

September 30, 2015

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 20874 dated May 27, 2015, to review an application for a liquor licence for additional licensed area, of 141 persons, by Rock The Byward Market Corporation (General Partner) for an outdoor area at Lowertown Brew Pub (The)/Sens House situated at 73 York Street, Ottawa (the “Appellant”), on the basis that the Registrar has received one or more written objections to the application.

As of May 21, 2014, the application commenced by the Appellant for additional licensed capacity was assumed by the new owner, 2342008 Ontario Inc.

The Registrar took no position on the application at this hearing. The sole objector, the Lowertown Community Association (LCA), does not object to the issuance of a liquor licence for additional capacity. They, however, request that the Licence be subject to the certain conditions.

FACTS

The Tribunal heard evidence from two witnesses: one of the principals of the Appellant corporation, and one of the Board members of the Objector association.

The Lowertown Community Association (“LCA”, or the “Association”) is a non-profit association whose objectives are to advance the interests of 12,000 residents in this community. Ottawa’s Lowertown is an area between the Rideau Canal and the Rideau River, and from Rideau Street to the Ottawa River. The Appellant’s premises are situated at 73 York Street in the Byward Market, Ottawa’s largest tourist attraction.

Sylvie Grenier is on the Board of Directors of the LCA, and she is co-chair of its Planning Committee. She indicated that the community has a concern about the number of licensed seats in the Byward Market. It generates night-time crowds, crime and disturbances. The police presence at night is therefore increased. To address this issue, the City of Ottawa established a Safety and Security Committee.

Ms Grenier indicated that according to a 2013-14 Ottawa Police Service survey, only 40% of the Rideau-Vanier Ward residents feel safe at night compared to 60% for the rest of Ottawa. When Byward Market residents are polled, that number drops to 21%. She stated that this sentiment may appear to be justified because the Lowertown’s crime rate is five times higher than the rest of Ottawa and three times higher than the Canadian average.

While the Canadian crime rate has diminished over the past five years, it has increased in the Lowertown by 8%. There is also a sharp increase in crimes against the person. The LCA also noted that the 7% of the impaired charges occur in this area, but it only represents 1% of the population.

The Association submits that the Lowertown’s high crime rate can be attributed, among other things, to the increased licensed capacity in the area. They believe that the concentration and the increase in a very small area may be an important element. Since 2008, the licensed capacity in the Byward Market has increased by 24%, and interestingly, the crime against the persons has increased by roughly the same percentage.

According to the LCA, one of the most important responsibilities of the government is to ensure the safety and security of its citizens. This social responsibility should be exercised while maintaining a balance between economic interests and the welfare of society.

The LCA also expressed their displeasure that the onus rests on them to demonstrate that this application should not be granted. They submit that this favors the business owners to the detriment of the community interest. They advocate that “the public interest requires that this application be rejected until a study can demonstrate that the actions of the Alcohol and Gaming Commission of Ontario in approving so many licensed seats in such a small area is not contributing to the high and increasing crime levels in Lowertown.” They submit that the Tribunal should take notice that the increase in licensed capacity has contributed to the increase in crime in the area. Accordingly, the number of licensed seat should be curtailed.

In conclusion, the LCA proposed that the Appellant could be granted the additional capacity it seeks, subject to the following conditions:

1. That the patio be limited to fifty (50) licensed seats;

2. That alcohol service close at 11:00 p.m. and that the patio close after 11:45 p.m.;

3. That no amplified sound system or recorded or live music be permitted;

4. That if the Licensee applies to extend the licensed hours, either permanently, temporarily, or for a special occasion, the Licensee shall notify the local Councillor and the Lowertown Community Association in writing at the time of the application.

The LCA submits that these proposed conditions are in the interests of the residents who are in proximity of the premises.

Steve Monuk was the only witness for the Appellant. He is one of the principals of the corporation, 2342008 Ontario Inc., which operates the Lowertown Brew Pub. The establishment has an historic component as it brews its own beer, and most of its menu items are made from scratch. It is situated in the Byward Market, Ottawa’s major tourist attraction. Mr. Monuk has been operating licensed premises for over 30 years, and for 25 years in the Byward Market. His ownership group owns 16 establishments in this area.

In 1988, he implemented the Safety and Security Committee for the Byward Market. He founded BARS – Byward Association for Responsible Service. This Association was merged with the Byward Market’s Business Improvement Area (BIA).With its different interest group members, this Committee addresses safety and security issues in this area. He is also a Board member for SmartServe and other community interest groups.

His establishments have implemented employee training programs directed at alcohol services. He indicates that outdoor facilities have been encouraged to attract patrons, and they reduce nuisance issues because of their presence. He believes that the public safety has improved in the Byward Market even though the Lowertown area has seen an increase in the crime rate. He explained that an increased police presence has resulted in a higher detection rate.

THE LAW

The law with respect to the issuance of a licence to sell liquor is set out in s. 6 of the Act:

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.

Notice of proposal

21. (1) If the Registrar issues a proposal with respect to any of the following matters, the Registrar shall serve notice of the proposal together with written reasons on the applicant or licensee:

22. Review an application for a licence to sell liquor.

Notice requiring hearing

(4) A notice of a proposal shall inform the applicant, licensee, permit holder or owner that the person is entitled to a hearing by the Tribunal if the person mails or delivers to the Tribunal and the Registrar, within 15 days after the notice is served on the person, notice in writing requiring a hearing by the Tribunal, and the person may so require such a hearing.

Hearing

Notice

23. (5) The Tribunal shall fix a time and place for the hearing of the matter and shall at least ten days before the day fixed cause notice of the hearing to be served upon the person who has required the hearing.

Powers

(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.

Conditions

(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 first issue for the Tribunal to determine is whether issuance of a licence for additional area is in the public interest having regard to the needs and wishes of the area residents. LCA filed an objection to the application; however, as confirmed by Ms Grenier, the Objector no longer opposed the application provided that conditions attach to the licence.

The issue for the Tribunal therefore becomes whether it is in the public interest that conditions attach to the licence, and if so, what those conditions should be.

APPLICATION OF LAW TO FACTS

The jurisprudence is well settled: the Objector in a public interest hearing under the Act has the onus of establishing, on a balance of probabilities, that the proposed application is not in the public interest, having regard to the needs and wishes of the residents. LCA’s opposition was based on Lowertown’s higher crime rate compared to other Ottawa areas. They link this crime rate to the increase in licensed capacity in their neighbourhood. The Objector indicated that their proposed conditions would address and satisfy the public interest.

The Objector has raised valid concerns in regards to higher crime rate in Ottawa’s Lowertown. However, the Tribunal cannot come to the conclusion that these higher rates are attributable to the recent increase in licensed capacity. It would be speculative to draw this conclusion without sufficient evidence. The statistical data presented compares crime rates of three different areas – Canada as a whole, Ottawa and Lowertown – without establishing any correlation between an increase in alcohol consumption or the number of licensed seats in a designated area such as Lowertown and an increase in crime. In certain circumstances, empirical evidence of this nature could directly link increased crime to the liquor licence application. As stated in 2148855 Ontario Inc. (Margaret) (Re), 2009 CanLII 70937 (ON AGC), the Tribunal “cannot make a decision based on conjecture and speculation about the negative impact of a licensed patio.”

Given the evidence before the Tribunal, whether conditions on the licence are warranted. Though the Registrar did not take a position regarding the application, Ms Taylor did make submissions regarding conditions that might attach to the licence. In regards to the first of the four conditions proposed by the Objector – the number of licensed seats – the Registrar indicated that the capacity or number of seats is determined by the municipal and zoning by-laws, in particular, the municipal fire department. Ms Taylor submitted that the issue of the appropriate licensed capacity provincial building regulations, health and fire concerns. This is addressed by section 12 of Regulation 719/90, and should not be a condition.

The Tribunal generally agrees that where a regulatory provision deals with a concern that is specifically addressed through zoning, building, fire, and health bylaws and regulations issues, the Tribunal is less likely to find that a condition responsive to that very issue is needed. The particular entities, like the fire department are charged with assessing the public safety and risk concerns in light of the applicable bylaws and determine the appropriate capacity. The Tribunal may attach conditions where more restrictive conditions are required in the public interest. In this matter, the Objector did not explain how it came to the conclusion that restricting the number of patrons on the patio would be in the public interest.

For the same reason, the Registrar is also opposed to the fourth condition. The extension of hours for the sale of liquor is a regulated discretionary power exercised when there is an event of ‘municipal, provincial, national or international significance. There is no evidence to support a requirement for the condition, especially in light of the prescribed circumstances in which the Registrar can grant such an extension.

The Tribunal must then decide if the second and third conditions are appropriate in the public interest to alleviate the concerns expressed by LCA at the hearing. The Appellant submits that the Objector has not demonstrated that the increase of licensed seats is contrary to the public interest, and therefore, no conditions would be needed to give effect to the purposes of the Act. Specifically, there was no evidence from residents to show that curtailing the patio’s service hours or prohibiting amplified live or recorded music are necessary.

Any conditions that the Tribunal would impose should be reflective of the concerns expressed through the evidence. Does a specific condition, that is enforceable by the Registrar, serve to respond to and alleviate those expressed concerns. The evidence from the LCA focussed on the impact of additional licensed capacity on crime rates. The Tribunal does not doubt that this concern is genuine; however, there was insufficient evidence regarding the impact on area residents of noise, or what impact hours of service has upon them. The Tribunal notes that noise issues, whether by way of music, or persons on the patio, can be addressed through the applicable municipal bylaws. The Tribunal accepts the Registrar position that the facilities will be subject to zoning and municipal by-laws, provincial regulations that can address noise issues.

Therefore, the Tribunal concludes that the evidence adduced does not provide a basis to impose any conditions on the Appellant’s licence.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to approve the Appellant’s application for additional licensed area, subject to the filing of all usual and required municipal and application requirements.

LICENCE APPEAL TRIBUNAL

Marc D’Amours, Vice-Chair

Released: December 2, 2015