Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 10427/LLA
CASE NAME: 10427 v. Registrar of Alcohol, Gaming and Racing
Appeal from the Notice of Proposal of the Registrar of Alcohol, Gaming and Racing under the Liquor Licence Act to Review an Application for a Licence
1541047 Ontario Inc. o/a The Coop Chicken and Tap House Hess St. Appellant
-and-
Registrar of Alcohol, Gaming and Racing Respondent
-and-
Melissa Chan Added Party
DECISION AND ORDER
ADJUDICATOR: Luisa Ritacca, Member
APPEARANCES:
For the Appellant: Ronald Allan
For the Respondent: Faye Kidman
For the Added Party: Melissa Chan
Heard in Hamilton: November 15, 2016
DECISION AND ORDER
OVERVIEW
The Registrar of Alcohol, Gaming and Racing (the “Registrar”) issued a Notice of Proposal, number 21374, dated July 22, 2016 to review an application for a liquor licence by 1541047 Ontario Inc. o/a The Coop Chicken and Tap House Hess St. (the “Appellant” or the “Coop”) on the basis that the Registrar has received one or more written objections to the application.
The Appellant appealed the Notice of Proposal. The hearing of this matter took place on November 15, 2016.
BACKGROUND
The Appellant is a newly established quick service restaurant located at 272-274 King Street West in Hamilton. It applied for a liquor sales licence for the indoor and outdoor areas at its premises. It has indoor capacity for 66 people and plans for an outdoor patio with capacity for 48 people.
The Appellant was granted an indoor licence on August 2, 2016, subject to certain conditions regarding operating hours. As such, the only issue before the Tribunal was whether the Appellant’s outdoor liquor licence ought to be granted.
Ms. Chan lives in the building next door to the Coop. She is the only resident who objected to the issuance of a liquor licence. She was made a party to these proceedings by the Tribunal’s Order dated October 11, 2016.
As is set out in more detail below, Ms. Chan argued that given her proximity to the Appellant’s establishment, she is the resident most affected by the granting of a liquor licence in the circumstances. She is clearly very concerned about the potential increase of noise and unruly behaviour in and around her home should the outdoor licence be granted.
The Registrar takes no position with respect to this application.
DECISION
Having considered all of the evidence, including the testimony of the Appellant’s witnesses and Ms. Chan, and the numerous documents filed, the Tribunal approves the application for a liquor licence, subject to the conditions set out in this Order.
PRELIMINARY MATTER
At the commencement of the hearing, Ms. Chan brought a motion for the following relief:
An adjournment in order to obtain the plans to prove that there was intent to deceive the AGCO as it relates to the Appellant’s business for the indoor and outdoor liquor licence application;
An order that her Freedom of Information (“FOI”) requests for various municipal and building documents related to the Appellant’s premises be released to her prior to the continuation of this hearing; and
An order that the indoor liquor licence (granted August 2, 2016) be “put back on the table” due to the Appellant’s alleged intent to deceive the AGCO.
Ms. Chan’s motion was brought without notice to the Appellant or the Registrar. Despite the lack of notice, the Tribunal agreed to hear Ms. Chan’s submissions and provide an opportunity for the other parties to respond.
Following argument on the motion, the Tribunal advised the parties orally that Ms. Chan’s request for relief was denied.
Ms. Chan’s adjournment request was the third such request she had made since the matter was originally scheduled on September 27, 2016. Ms. Chan first sought an adjournment for the same reasons stated in her request before this Tribunal in a letter dated October 24, 2016. That first request was denied on November 1, 2016. Ms. Chan filed a second adjournment request on November 4, 2016, which was also denied by a Tribunal Vice-Chair, on November 10, 2016.
In the circumstances, this Tribunal was not prepared to grant Ms. Chan the adjournment as requested. The matter has been ongoing for some time. The request was simply a repeat of her earlier requests for adjournment which had previously been denied.
Further, with respect to Ms. Chan’s other request for relief, the Tribunal concluded that it had no jurisdiction to compel municipalities or any other government agencies to comply with Ms. Chan’s FOI requests, and that she was required to follow the processes available to her under the relevant legislation. Similarly, this Tribunal has no jurisdiction to require the Registrar or the Appellant to “put back on the table” the issue of the Appellant’s indoor licence, which was granted on August 2, 2016.
In light of the Tribunal’s decision with respect to these preliminary matters, the hearing on the merits proceeded.
MS. CHAN’S EVIDENCE
Ms. Chan and her brother, F.C., are the owners of the building located at 276–278 King Street West, which is directly adjacent to the Appellant’s premises. Ms. Chan testified that she and her brother have owned and lived at that location for over ten years.
Ms. Chan testified that in her view, the Appellant ought not to be granted the licence as requested because it has failed to comply with applicable zoning by-laws respecting the use of the premises; the Building Code Act, 1992; the Fire Protection Prevention Act, 1997; and the Health Protection and Promotion Act.
In support of this position, Ms. Chan provided the Tribunal with a number of documents she believed confirmed the Appellant’s non-compliance. These documents included a deed from 1980 purporting to grant the occupants of 276-278 King Street West a right of way from behind 272-274 King Street West to the street. Ms. Chan also provided the Tribunal with photographs of what she believed showed electrical wiring and other piping on the back outside wall of 272-274 King Street West. Ms. Chan explained that in her view, this wiring and piping were not up to the relevant Building Code standards.
In addition to Ms. Chan’s concerns about the premises not meeting all building and municipal standards, Ms. Chan explained that she has serious concerns that a licensed outdoor patio would create noise and have the potential of attracting “unruly” and mischievous patrons. In support of her position, Ms. Chan explained that on some evenings, after the restaurant closes, if she presses her head against her wall she can hear music from the Appellant’s premises.
THE APPELLANT’S EVIDENCE
The Appellant called four witnesses in support of its request for the issuance of an outdoor liquor licence.
Clark Lishman has been the Chief Operating Officer of Tortoise Restaurant Group Inc. since September 2015 and acting Vice President since 2004. Mr. Lishman testified that the Tortoise Restaurant Group Inc. is the franchisor of the Turtle Jack Muskoka chain of restaurants. The Coop Chicken and Tap House, and Fraticelli’s Italian Grill and Bar are owned and operated by the principals of the Tortoise Restaurant Group Inc. Mr. Lishman explained that in his almost 25 years with the Tortoise Restaurant Group Inc., there have been no alcohol related issues resulting in sanctions being imposed or otherwise by the Registrar or the Licence Appeal Tribunal.
Mr. Lishman described the Appellant’s premises as what his company hopes will be the first of many locations for the Coop. Mr. Lishman explained that the Coop is a family friendly quick service restaurant, where customers order their food at the counter and then are served their food at tableside by wait staff. Mr. Lishman explained that there are no plans to build a bar inside the Coop restaurant and while alcohol is served, it is limited to a short cocktail list, wine and beer.
Finally, Mr. Lishman confirmed that the Appellant has been the subject of a number of by-law enforcement and municipal inspections. The Appellant passed all such inspections and was able to open earlier this year. Mr. Lishman testified that the Appellant would not have received approval to open or received its indoor liquor licence if it had not passed all by-law enforcement and municipal inspections.
Elizabeth Smith has worked in the restaurant hospitality industry for over 15 years. Earlier this year, she was hired by Tortoise Restaurant Group Inc. as a district manager. She has been involved in the development and opening of the Coop in Hamilton. In her role as district manager, she ensures that the Coop’s management team acts in accordance with municipal by-law and government policies. She also confirmed that all of the staff who serve alcohol at the Coop have received the Smart Serve designation. Ms. Smith confirmed that the Coop’s hours of operation are Sunday to Wednesday, 11 a.m. to 11 p.m., and Thursday to Saturday, 11 a.m. to 12 a.m., which she confirmed would apply equally to the restaurant’s patio.
On cross-examination, Ms. Smith explained that patrons have an additional 45 minutes after closing time to finish their meals before they are asked to leave. However, Ms. Smith made clear that no food or beverages are served after the designated closing time. Ms. Smith described the family friendly nature of the Coop. The restaurant plays 80’s and 90’s nostalgia television shows and music throughout the space, and that there are children’s menus, stickers and colouring books available.
Ms. Smith also confirmed that since the Coop opened, she has noted that patrons spend an average of 45 minutes in the restaurant and that alcohol represents approximately 15% of the total daily sales.
The Appellant also called Vincent Formosi to testify in support of its position. Mr. Formosi is the principal of the corporate owner of 272-274 King Street West. Mr. Formosi explained that he has had a number of ongoing issues with Ms. Chan and her brother F.C., which pre-date the Coop’s opening and the granting of its indoor liquor licence in August 2016.
Mr. Formosi explained that his difficulties with Ms. Chan and her brother began at the time he purchased the property in 2014. In his view, the issues with Ms. Chan began when he asked her to remove a downspout that was draining into the backyard of Mr. Formosi’s other property, which is located just behind 272-274 King Street West. The issue with respect to the downspout has not been resolved. Mr. Formosi testified that Ms. Chan is presently appealing a decision of the Property Standards Committee, requiring her to relocate the downspout.
Mr. Formosi testified that in response to his complaint about Ms. Chan’s downspout, he has been inundated with complaints by Ms. Chan and her brother, which have resulted in multiple visits by by-law enforcement officers and fire safety inspectors. Mr. Formosi confirmed that none of these visits resulted in any findings of by-law or fire safety violations. He further confirmed that he applied for and received permits for all of the renovations he has undertaken at 272-274 King Street West, including those renovations relevant to the Coop.
Mr. Formosi testified that as a result of Ms. Chan and her brother’s behaviour, he has had to call the police a number of times. He has been concerned that Ms. Chan and her brother have made his tenants feel uncomfortable and he is worried about the Coop’s customers.
Finally, Mr. Formosi explained that in his view, Ms. Chan’s objection to granting the Appellant an outdoor liquor licence is entirely as a result of her ongoing dispute with him with respect to the downspout, access to the alleyway, and other construction related complaints.
The Appellant also called its neighbour B.G. to testify in support of its request for an outdoor liquor licence. Ms. B.G. confirmed that she is a tenant of Mr. Formosi, living directly behind the Coop premises. She testified that the Coop is an integral part of revitalizing the neighbourhood and that she has had no difficulty with the presence of the restaurant. She further confirmed that she has no concerns with the plans for a licensed patio.
THE LAW
Pursuant to section 6(2) of the Liquor Licence Act, an applicant is entitled to be issued a licence to sell liquor subject to certain exceptions. Subsection 6(2)(h) provides, in part, that a licence should not be granted if it 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 onus is on the objector to show that the granting of the licence is not in the public interest. As was the case here, the Tribunal will look to letters and petitions of objection and support, as well as the testimony of those present at the hearing. However, the case law under subsection 6(2)(h) is clear that 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 good faith concerns of the residents in the immediate area of the premises at issue who are the most affected by the proposed licence will be given greatest consideration as compared to those who are less directly affected.
In determining whether the needs and wishes of the residents are presented on a good faith basis, 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.
ANALYSIS
The Coop is located on the corner of King Street West and Hess Street in Hamilton. While the neighbourhood is of mixed residential and commercial use, the parties before this Tribunal generally agreed that it is a busy downtown corner with a number of restaurants and other late night establishments.
While Ms. Chan raised several concerns relating to the Coop’s compliance with by-laws and other regulatory requirements, there was no evidence before the Tribunal from the Registrar or any other municipal body to confirm that the Coop or its landlord were in violation of by-laws, building or fire safety requirements.
The only evidence available to the Tribunal confirmed that at least insofar as the Registrar is concerned, the Coop and its landlord have met all of the relevant building and permit requirements. It would not have received its indoor liquor licence otherwise.
Ms. Chan relied heavily on section 50 of the Liquor Licence Act which requires a holder of a liquor licence to ensure the premises complies with various other provincial statutes. Section 50 of the Liquor Licence Act was repealed in 1996. As such, the Tribunal cannot consider section 50 in the present circumstances.
In any event, the issues raised by Ms. Chan with respect to the alleged non-compliance with municipal and building code requirements by the Appellant and its landlord are not public interest issues that are properly before this Tribunal on review of a liquor licence application.
The two issues that Ms. Chan raised about noise and an increase in “unruly” patrons are legitimate public interest issues for the Tribunal to consider. The Coop has been open as a restaurant for several months and has been operating with an indoor liquor licence since August 2016. There was no evidence before this Tribunal that there has been a notable increase in “unruly” or nuisance-type behaviour by patrons of the restaurant. While the Tribunal understands that Ms. Chan has concerns about the possibility of such behaviour if an outdoor liquor license is granted, the concerns are speculative.
Similarly, while there may be an increase in the noise from a licensed outdoor patio, there is no evidence to support Ms. Chan’s position that the noise from the patio will be contrary to the public interest or non-compliant with municipal noise by-laws. Ms. Chan lives in a busy and vibrant area of downtown Hamilton. The Tribunal is not satisfied that the addition of a licensed outdoor patio to the Coop will demonstrably increase the inevitable downtown noise already present.
The Tribunal has considered the subjective concerns of Ms. Chan. It is clear that Ms. Chan has spent a considerable amount of time and energy pursuing this matter. That said, based on the evidence before it, the Tribunal finds that Ms. Chan’s concerns are not supported by valid objective evidence.
COSTS
In the event that it was successful, the Appellant argued that it was entitled to its costs of the proceeding. The Appellant relied on rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version 1 (April 1, 2016), which provides that a request for costs may be made where a party believes that another party in the proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Counsel for the Appellant argued that Ms. Chan acted unreasonably and in bad faith. He said that Ms. Chan failed to provide the Appellant with any documents or witness statements in advance of the hearing. This was in direct violation of the Order of the Tribunal. In the circumstances, Counsel argued that the Appellant was entitled to its costs of $2,300.00 to prepare for the hearing, plus an additional $2,400.00 for costs of the hearing day itself. The Appellant provided no evidence to support the quantum of costs requested.
While Ms. Chan was unsuccessful, the Tribunal finds that this is not an appropriate case in which to award costs. Despite Ms. Chan’s failure to disclose her documents in accordance with the Tribunal’s Order, the Appellant was clearly ready and able to respond at the hearing to all of the issues raised. Similarly, while there was certainly some evidence that Ms. Chan’s real dispute is with her landlord and not with the Coop, the Tribunal is not satisfied that she acted in bad faith in raising her objection to the liquor licence.
Ms. Chan was entitled to object to the Coop’s application. In the circumstances, the Tribunal is not prepared to grant costs as requested.
ORDER
Upon hearing the appeal from the Registrar’s proposal to review the Coop’s application for an outdoor liquor licence, the Tribunal hereby directs the Registrar to issue the outdoor liquor licence to the Coop, subject to all statutory and municipal regulations, and subject to the same conditions imposed on the Appellant’s indoor licence:
- The Licensee shall ensure that sale and service of liquor on the patio will end by 11:00 p.m. Monday through Thursday and 12:00.a.m. Friday through Sunday
LICENCE APPEAL TRIBUNAL
Luisa Ritacca, Member
Released: December 9, 2016