6095623 Canada Inc. o/a HillTop Bar and Lounge v. Registrar of Alcohol and Gaming, 2015 CanLII 9428

DATE:

2015-02-13

FILE:

8818/LLA

CASE NAME:

8818 v. Registrar of Alcohol and Gaming

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

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 on a Licence

6095623 Canada Inc. o/a HillTop Bar and Lounge

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

-and-

Michael Bloom

Objector

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Marc D’Amours, Vice-Chair

APPEARANCES:

For the Appellant:

Ainslie Stuart Dunstone, Paralegal

For the Respondent:

Joyce Taylor, Counsel

For the Added Party:

Michael Bloom, on his own behalf and on behalf of the other Resident Objectors

Heard in Ottawa:

December 1 and 2, 2014

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 April 24, 2014 to refuse an application by 6095623 Canada Inc. operating as HillTop Bar and Lounge (the “Appellant”), to remove conditions on its licence on the basis that the Registrar has received one or more written objections to the application.

.The Notice of Proposal states that (a) there has been no change of circumstances to justify the removal of the conditions and (b) it is not in the public interest to remove the conditions.

The Appellant has applied to the Registrar to remove the following conditions on the licence:

1. There shall be no patio;

2. The licensee shall keep the doors and windows of the establishment closed; and,

3. There shall be no further application to remove the conditions relating to the windows, door and patio for a period of 2 years after the Board decision dated November 29, 2006

These conditions were placed on the licence when the premises, converted from a pharmacy, was first opened. A hearing was held in 2003 to remove the conditions; the Board of the Alcohol and Gaming Commission (the “Board”), decided that the conditions should remain.

In the matter of Re Urban Well Lounge and Bistro [2006] O.A.G.C.D No. 536, an Application to remove the same conditions, in regards to same premises, was again denied.

Ms. Taylor advised the Tribunal that the Registrar was taking no position at the hearing.

FACTS

Appellant’s Evidence

Neil Gowe is a new partner of the Appellant. He replaced one of three partners, the two other owners being, Majd El-Samrout and Ali Marati. His involvement generated a new concept for the licensed premises. The Appellant has also filed an application to change the name of the licensed premises to Laurier Social House.

In August 2014, they closed the establishment for major renovations. The menu changed to affordable food, targeting families, students and local residents. He states that a patio would be an asset for the warmer months. It would attract patrons seeking this feature also being offered by nearby competitors.

Majd El-Samrout has been in the hospitality industry for 14 years. In May 2013, he purchased the Urban Well Lounge and Bistro. He was involved in its transformation to HillTop Bar and Lounge, and now, wants to orient it towards a sit-down family restaurant. He wants to create a homey atmosphere not only directed at students. The proposed patio would beautify the premises and would add to the neighborhood. In his opinion, patrons like to sit outside to enjoy their meals. This added feature would increase their business and render their business more viable year round. If they are permitted to open windows and have a patio, he is prepared to concede to conditions regarding their utilization.

Prior to Mr El-Samrout’s ownership, he worked at the Urban Well, but left because he did not see eye to eye with the management. He admits that Urban Well was quite disruptive because, in his opinion, they had to attract as many patrons as possible knowing that the summer months would not be profitable. According to him, the summer months can only be feasible with a patio as all the neighboring licensed premises, except one, have patios with no restrictions.

Since he has been owner, there has not been any licence infraction. In the fall 2013, an inspector warned them that the doors to premises were opened contrary to their restrictions. No other compliance issues were brought to their attention.

There have been four or five by-law complaints; all of them are in regards to noise. He attributes this to the fact that they had employed DJs which have since been cancelled because of the noise complaints. The establishment has have been fined once for this kind of infraction.

He is prepared to be bound by conditions for the patio, including no music, no DJ, limiting the number of customers, adding additional privacy signage, and restricted hours for the patio. He would also offer a direct phone line to residents for noise complaints.

He intends to cooperate with the community and the City. Since he has been owner, he offered to meet with the Objectors through the community organization Action Sandy Hill, but they refused. He does not intend to be disruptive.

So far, the owners have spent over two hundred thousand dollars on renovations. If they get approval for a patio, they would work with the neighbors to minimize its impact, and would erect a sound barrier.

In cross-examination, Mr. El-Samrout admitted being aware of the restrictions prior to his renovations. He also had knowledge of the previous hearings and that the conditions had been imposed since 1996.

Ali Marati is the partner that supervises the night-time operation of the licensed premises. He is not aware of any recent complaints. He was also aware of the conditions prior to his purchase. He hoped that the conditions would be removed.

Objectors’ Evidence

All of the objectors are neighbors of the licensed premises. Exhibit 11 includes eight letters of objections to the application, representing 17 individuals. Seven of the objectors testified at the hearing.

JC purchased his property in June 1987. It is adjacent to the licenced premises. Six years later, he purchased an adjoining property as an investment. At that time, the licensed establishment was a pharmacy. In 1996, a liquor licence was issued on conditions. These conditions are the same today.

At that time, the residents expressed their concern about having a licensed establishment in their neighborhood. They had requested 12 conditions. The Board, at that time, imposed two.

Over the years, he indicated that the noise, even with the condition of having the doors and windows closed, is unbearable. They are subject to constant vibration from the music from inside the building. He has opposed the removal of the condition at two previous hearings, citing, as he does now, the untenable noise pollution. For the last 18 years, he has opposed the removal of the conditions because of his right to the peaceful enjoyment of his home. He is appalled, and tired of having to confront successive owners at these hearings. In his opinion, the removal of the conditions would only enhance the noise, and would be of a greater nuisance to the neighborhood.

JJ purchased his nearby property in May 2011. He has made three complaints to the by-law authorities by phoning the 311 municipal services. The complaints are always noise related from either booming music vibrations or of patrons outside the licensed premises. At the time of his purchase, he was not aware of the makeup of the neighborhood. He has considered selling his property. He fears that if a patio and open windows are allowed, then the noise would be constant.

CG lives across the street from the licensed premises. She has been disturbed by the music, especially the bass sounds, and the noisy patrons coming out of the premises. Even with the municipal signage indicating quiet, there is no control over the clientele. She indicated that she had predicted this at the 1996 hearing. At this point, in order to alleviate the music from the bar, she uses two fans in her bedroom to neutralize the noise. She stated that the bar comes alive after 11 p.m.; in her opinion, this is not a family oriented premises.

PG, husband of CG, has complained twice. The last time was in September 2014 when the new owners were renovating the premises. They used saws to cut wood outside after 11 o’clock at night. He fears that the removal of conditions would subject him to constant noise either from open windows or the patio.

AH and JH have been living at a nearby home since 1987. They love their home and neighborhood. They are acquainted with their neighbors, and sometimes they help each other out. They have, like most of the other objectors, testified at the previous hearings. When they purchased their property, the licensed establishment was a pharmacy. They had also proposed, as a group, 12 conditions, but only two were retained by the Board. Since the premises were converted, the noise has been a constant in their lives. It is distressing; they have come to cope with it and to suppress it. They have tried to make complaints but have been left in queue for long periods of time on the 311 phone line. In order to bear the noise, they sometimes have to listen to their own music or to generate neutralizing noise from electric fans.

Michael Bloom has resided in the neighborhood since 1992. He has seen a succession of owners of the licensed premises request the removal of the conditions. He has opposed all of these requests.

From inside his residence, he feels the vibration from the music. The noise has not abated. To permit a patio and open doors and windows would only increase the noise and vibrations. He has come to deal with the noise by producing neutralizing sound from his humidifier. The present situation produces considerable strain, and, at times, is disruptive and disturbing. He is also worried that allowing a patio would hinder the present fire hydrant’s functionality. For him, this is a great security issue for the neighborhood.

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.

Removal of conditions

14(2) The Tribunal may, on the application of a licensee, remove a condition of a licence, other than a prescribed condition or a condition attached pursuant to section 8.1, subsection 10 (4), 11 (5), 11.1 (4) or clause (1) (a), if there is a change in circumstances.

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. Refuse to remove a condition of a licence.

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.

APPLICATION OF LAW TO FACTS

The Tribunal must determine whether there has been a change in circumstances which warrants the removal of conditions and whether their removal is in the public interest. Conditions on liquor licences are often imposed to protect the public interest. The public interest may be, in certain circumstances, expressed by neighboring residents of the premises.

In this matter, all of the Objectors were residents living in close proximity to the licensed premises. They oppose the removal of conditions.

The evidence in support of the removal of the conditions was adduced by the owners of the licensed premises. The onus is on the Appellant to demonstrate to the Tribunal that there has been a change in circumstances that supports the removal of the conditions.

The Appellant relies on the change of ownership as being this change of circumstances. A new professional team, with a new vision, a new menu and a different atmosphere in the premises should be sufficient, it submits, to establish a change in circumstances. These changes are all directed at the internal management of the premises. The new ownership has offered, if the old conditions are removed, to be subject to the following new conditions:

(a) the windows could only be opened from 11:00 a.m. to 10:00 p.m.;

(b) that all of the personnel would be informed of the new conditions;

(c) there would be no speakers on the patio;

(d) there would be no DJ, woofers or sub-woofers on the premises;

(e) they would install a two-metre high wall as a sound buffer to the adjoining residence; and

(f) the patio would not accommodate more than 40 patrons.

The Appellant also submits that they should not be punished for the previous owners’ indiscretions and should not be subject to competitive disadvantage of not offering a patio area.

At the time that the conditions were imposed, the property had previously been a pharmacy. The conditions were imposed as a means to regulate the potential noise coming from the licensed establishment. The conditions were not established to regulate the nature of activities but to limit the resulting effect on nearby residents, responding to public interest considerations. The evidence adduced by the Objectors confirms that the conditions have not curtailed the noise. The Tribunal accepts that the removal of the conditions would only exacerbate the incidence of noise. To permit the establishment to serve patrons on a patio would further reduce the sound buffer afforded by closing the windows and doors. The residents in the proximity of the licensed premises should not bear an undue burden from the noise generated by it. The Tribunal concludes that the Appellant has not established that there has been a change of circumstances

The Objectors have also requested that no further application be filed for a period of five years. Prior to this application to remove conditions from the licence, the Licensee was subject to a condition that an application to remove the conditions could not be commenced for a period of two years after the date of the last such hearing (November 29, 2006). Having found that the Appellant has not established a change of circumstances, and public interests concerns still exist, it is appropriate that a condition similarly worded remain on the licence. Section 15(8) grants the power to the Tribunal to limit applications up to a period of two years in matters of revocation, suspension and refusal to renew where it is in the public interest to do so. There is no authority to impose an additional time limitation.

The Tribunal finds that a two year limitation will not only give the residents a respite from a further application but will also give the Appellant the opportunity to address the public interest concerns.

ORDER

Pursuant to the authority vested in it under the Act, the Tribunal directs the Registrar to carry out its proposal to refuse to remove the following conditions:

1. There shall be no patio; and,

2. The Appellant shall keep the doors and windows of the establishment closed.

Furthermore, the Tribunal ORDERS that the third condition shall be removed and replaced with the following condition to be added to the licence:

3. There shall be no further application to remove the conditions relating to the windows, door and patio for a period of 2 years after the Tribunal decision dated February 13, 2015.

LICENCE APPEAL TRIBUNAL

Marc D’Amours, Vice-Chair

Released: February 13, 2015```