Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-06-24

FILE:

10084/LLA

CASE NAME:

10084 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

Intrawest ULC and Blue Mountain Resorts GP, operating or intending to operate as

Blue Mountain Beach

Appellants

-and-

Registrar of Alcohol and Gaming

Respondent

-and-

Peter Doering

Added Party

DECISION AND ORDER

ADJUDICATOR:

Patricia Cassidy, Vice-Chair

APPEARANCES:

For the Appellants:

Michael D. Stahr, Counsel

For the Respondent:

Faye Alipour, Student at Law

For the Added Party:

Ross H. Thomson, Counsel

Heard in Collingwood:

June 1, 2016

DECISION AND ORDER

BACKGROUND

The Registrar of Alcohol, Gaming and Racing (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, number 21201 dated February 25, 2016, to review an application for a liquor licence by Intrawest ULC and Blue Mountain Resorts GP, operating or intending to operate as Blue Mountain Beach, on the basis that the Registrar has received one or more written objections to the application.

The Appellants applied to the Alcohol and Gaming Commission of Ontario for a liquor sales licence, with a capacity of 252 persons, for the outdoor areas of the premises known as Blue Mountain Beach.

The Registrar received four written objections to the application and one of the objectors, Peter Doering, was added as a party to this appeal.

The Registrar considered the application and the written objections and held a public meeting pursuant to the Act. The Registrar directed that a proposal to review the application be issued to determine whether the Appellant corporation should be disentitled to a licence because the issuance 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 Registrar took no position with regard to the application.

At the outset of the hearing, the Appellants advised that in recognition of the concerns of the residents neighbouring the subject premises, they were prepared to agree to the licence being limited to a capacity of 150 patrons in the outside areas as well as limiting the hours of service from 11:00 a.m. to 7:00 p.m.

At the conclusion of the hearing, the Tribunal, along with counsel for the parties, attended the B.M.R. beach property to view it. It was observed that the property is fenced, with an entrance gate, along Hwy. 26 as well as along the eastern side and western side to the point where the beach sand begins. The entire beach area of the B.M.R. beach as well as the beach in front of the properties of the objectors’ properties is clear and unobstructed. All visible fencing ends before the beach sand begins.

THE LAW

Section 6(2) of the Act provides that an Appellant 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 section 6(2)(h), 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.

In addition, section. 7.1 of O. Reg. 719/90 states:

In the absence of evidence to the contrary, the Registrar shall consider a resolution of the council of the municipality, in which are located the premises for which a person makes an application to sell liquor holds a licence to sell liquor, as proof of the needs and wishes of the residents of the municipality for the purposes of clause 6 (2) (h) of the Act

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 Appellants 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 to be determined by this Tribunal is whether granting the Appellant’s application for a liquor 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 must also consider whether, in the circumstances of this case, conditions should be attached to the licence, if one is granted.

THE EVIDENCE

The Appellants’ Evidence

Greg Miller is the Manager of building and by-law services and is also the chief building official with the Municipality of the Town of Blue Mountain. He was appointed to both positions by the Town Council in 2009. He has been employed by the Town for slightly more than 10 years.

He testified that, as Chief Building Officer, his job is to enforce the Building Code and the Building Code Act and administer the day to day operations of the department. As the Manager of By-law Services, he oversees the administration of the department which enforces the municipality’s by-laws.

The witness testified that the Town has no objections to the issuance of the subject licence, and identified the document at Exhibit 3, tab 9, page 44, as the Agency Letter of Approval, signed by him, indicating the town had no objections to the application. Mr. Miller stated he is not aware of any concerns with the building located on the subject property, which has been used since the mid 1980’s and not had any by-law complaints.

The witness stated he is aware that there were four objectors to the application but that he did not believe that any of them had ever lodged a complaint regarding the property or its use. He elaborated that when a complaint is received, the Town follows up by investigating on-site. If the complaint is received after business hours, the Ontario Provincial Police (O.P.P.) responds. He stated that, after hours, calls are forwarded to an on-call by-law enforcement officer who would advise the complainant to call the O.P.P. or complainants might call the O.P.P. directly. Mr. Miller testified that there was one complaint about noise, received via e-mail, last summer. That complaint was forwarded to the O.P.P. but no charges were laid.

Lindsay Ayers is the Director of Planning and Environment at Blue Mountain Resorts (B.M.R.). She serves as the primary liaison between the resort and various government agencies, including the Town of Blue Mountain. She has been employed with Blue Mountain Resorts for approximately 11.5 years.

Ms. Ayers testified that B.M.R. purchased the beach property in 1980 and have operated since then to provide guests and owners of B.M.R. with a beach and certain beachfront amenities. They generally operate the beach between June and September.

They are seeking a liquor licence in response to requests from their guests and owners. If granted the licence, B.M.R. plans to build a small staircase to the existing deck and erect a fence around the perimeter of the licensed area.

Ms. Ayers identified the document at Exhibit 3, tab 9, page 41, as the site plan for the existing beach hut which also illustrates the area they intend to fence. She also identified Exhibit 3, tab 17, page 75, as an aerial image of the property on which the area they propose to have licensed is indicated with a red dotted line. The homes of the four objectors appear to the west of the subject property in the aerial photograph.

Ms. Ayers stated that all of the required agency approvals have been obtained. She stated that presently there are no neighbours to the east of the subject property except one who is several hundred metres to the east. However, there is a development plan for that area. Neither the developer, nor the neighbour to the east nor any neighbours to the south of the property, have filed any objections to the application.

The witness stated the property is zoned recreational/commercial, which permits a number of uses, pursuant to the Town of Blue Mountains official plan. There are exceptions however, and exception 24 of the Town’s Official Plan applies to the subject property. Exhibit 5 is an excerpt from the Official Plan and it indicates that exception 24 provides:

These lands may only be used for a private recreational beach club and

associated uses that may include small scale eating facilities... gift shop,

service and maintenance facilities.

Ms. Ayer’s evidence is that the zoning has been in place since the early 1980’s and the Official Plan is dated 2007. She does not know specifically when the four objectors purchased their properties but they all purchased subsequent to the zoning having been determined in the early 1980’s. The current zoning had been in place for a number of years prior to any of the objectors’ purchase of the neighbouring properties. She stated the B.M.R. has attempted to negotiate a resolution with the objectors but has not been successful in doing so.

The witness stated B.M.R. has obtained special events licences to host various events over the years. She identified Exhibit 3, tab 4, which shows temporary extensions to B.M.R.’s liquor licence. Exhibit 3, tab 3, shows the date in 2015 when B.M.R. had special occasion permits for the beach hut and it indicates that it was licensed for all but 19 days from June 29, 2015 to September 7, 2016. A number of special occasion permits were also obtained in 2013 and 2014, as evidenced by the documents contained at Exhibit 3, tab 5.

Ms. Ayers stated that most of the noise at Blue Mountain Beach comes from families and children having fun at the beach. B.M.R. offers passive beach activities such as kayaking and paddle boarding. At times, the staff might turn on the speakers on the deck, but it is not loud. She acknowledged that some special occasion permits have permitted activity beyond what is being proposed in the application. According to the existing by-law, noise is permitted between the hours of 7:00 a.m. and 7:00 p.m., and permission was obtained, for some past events, for relief from the by-law. That process is a public one whereby all residents within 60 metres of the property are notified of the application for relief, the Town Council reviews the application as well as any objections received, and renders a decision.

The witness testified that no by-law officers have ever attended at the property over any noise complaints, but on one occasion, in June 2015, the O.P.P. attended. She stated B.M.R. had a conference group using the property and had obtained permission to go to 11:00 p.m. but the police responded at approximately 11:20 p.m., at which time the noise was stopped immediately. Her evidence is that no charges have ever been laid by the police or the Town, that they have never had a licence suspended or revoked and that no events have been scheduled for 2016 which would require permission to be exempted from the strict application of the by-laws.

Ms. Ayers’ evidence is that washroom facilities are provided to the guests by way of a trailer which has three stalls in the women’s section, and four urinals and two stalls in the men’s section. Each side has a sink and a hand washing station. She stated that when the trailer is not being used at the beach in the summer, it is used at the bottom of the ski hill in the winter.

Graeme Dugale is the Director of Recreation and Programming at B.M.R. He oversees the recreational departments, including the beach property. He is responsible for overseeing the finances, operations and personnel of the recreational departments for B.M.R.

The witness stated that guests and owners can use their personal vehicle to drive to the beach property or they may use the resort shuttle. In 2016, they plan to open on June 24 and close on Labour Day. He stated the beach property has physical constraints with regard to capacity and, if granted the licence, B.M.R. is prepared to limit patrons to 150 in the licensed area. They are seeking to be open from 11:00 a.m. to 7:00 p.m. seven days a week.

Mr. Dugale testified that B.M.R. has four other licensed areas at the resort proper which have been licensed for a number of years. He stated the most recent licence was obtained more than 10 years ago and he is not aware of there ever being any charges related to any of the existing licenses.

The witness stated that staff oversees the activities on the beach; there is no security patrolling the beach. He stated, however, that beach staff has access to B.M.R. security. They simply make a phone call and security would be dispatched to the beach. He stated that has never had to be done.

Mr. Dugale stated B.M.R. does not plan to increase the size or number of speakers. He stated they are prepared to try to limit the sound to within 50 feet of the lot line. He stated the patio is 240 feet from the western lot line beyond which the objectors’ homes are situated.

The witness stated the entrance to the beach property is a gated entrance off Hwy. 26 and there is a staff member at the gate. To gain entry, guests must show a lodge card or pay to gain access for a carload. Essentially, anyone can gain entrance for the fee of $16.00 per car load. His evidence is that approximately 100 people per day use the beach during the week and that goes up to approximately 300 people per day on the weekends.

Joseph Barron is the rentals manager for ski and snowboards at B.M.R. in the winter and, in summer he is the manager for the beach and the mill pond at the centre of the village where they rent boats. Mr. Barron has been employed at B.M.R. for 14 years and has worked at the beach for the past two summers. At the beach, he manages about 10 people. They serve food and beverages and also rent passive water equipment; no motorized crafts are available. In addition, they maintain the grounds and ensure guests enjoy the beach property.

The witness stated he is not aware of there ever having been any drunk or disorderly behavior on the beach property but, if it were to occur, the staff there can call security at the resort, or dial 911 or call the police phone number.

Mr. Barron testified the property has a trailer which contains washrooms for the guests and there are also change rooms on the property. After hours, the snack or beach hut is “alarmed” and the property is gated and locked with signage on the gate.

The witness stated there are two outdoor speakers on the deck of the beach hut and only staff can control the speakers. He stated the nearest neighbour is 234 feet from the western boundary of the proposed licensed area. Trees growing between the properties are the only buffers.

The witness testified he received a telephone call in early June, last year, from Mr. Molyneux, one of the neighbours objecting to the application. This was during a salsa weekend where dance lessons were being offered to the guests. Mr. Barron advised that the salsa weekend is not being offered this year; the music disturbed the neighbours and B.M.R. does want that to happen again.

Mr. Barron stated that during the telephone conversation with Mr. Molyneux, the latter was very upset and the witness advised him that if he couldn’t be respectful, the conversation would end, at which point the caller calmed down and they discussed the noise concern. Mr. Barron stated he gave Mr. Molyneux the contact information for his immediate supervisor in the event he wanted to contact him.

The Added Party and Objectors’ Evidence

Peter Doering testified his wife owns the second property to the west of the Appellants’ beach property and that he owns the third property located to the west of the B.M.R. beach property. The first of their properties is 65 feet away from the western limit of the B.M.R. property line and 300 feet from the western edge of the proposed licensed area. He filed an objection to the application and testified he is concerned about noise, safety, sewage capacity and future plans of the Appellants.

With regard to noise, the witness stated he thinks the Appellants will increase the number of speakers and that any amplified noise would be a concern.

With regard to sewage capacity, the witness testified the trailer with washrooms does not seem sufficient and he assumes the guests will be urinating on the beach or in the water.

With regard to safety, Mr. Doering testified that with increased alcohol consumption there are noise and safety concerns; with more people there is more cause for concern. He stated that the beach property has only one entrance/exit which, he says, is already unsafe and will become more so with increased usage. When asked by the Tribunal if he had any evidence that the one entrance is unsafe or if it was his opinion that it was unsafe, the witness replied it is his opinion that it is unsafe. He elaborated that his road off of Hwy. 26 serves as access for four residential properties and is insufficient in his view.

In cross-examination, the witness confirmed he purchased the third property to the west of the B.M.R. property, and the second property to the west was purchased in his wife’s name. He stated the properties were purchased in 2015 and that he was aware of the zoning of the B.M.R. beach property when he purchased his property. He stated he had met with the municipality, and that the municipality’s interpretation of the zoning of the B.M.R. beach property is incorrect and that he would probably commence litigation since the municipality is not likely to go after the Town’s largest employer.

Andreas Wrede is an objector to the application. He owns the fourth property to the west of the B.M.R. beach property, about 430 feet from the western edge of the proposed licensed area. He bought his property in 2006 and knew there was a private beach where the B.M.R. beach is situated.

Mr. Wrede stated the application for a liquor licence implies expansion and facilities are minimal. It is a beach hut. He stated that people plus alcohol plus a beach equals problems, and that the introduction of alcohol changes the property from a private beach for families.

The witness stated that noise is a big concern for him. He stated he had no problem with families using the beach and the occasional event was okay as an exception, but it would not be acceptable on an on-going basis. He does not want artificially produced noise from speakers.

Mr. Wrede stated he is also concerned about sanitation. He stated there are no permanent toilets on the property. There is a trailer with bathrooms but he does not know that it is sufficient, and the fact the sewage will be pumped out and transported away from the property is a concern for him although he did not elaborate what the concern is. In cross-examination Mr. Wrede acknowledged he has never been in the trailer housing washrooms for the beach property and does not know how many stalls it contains.

Robert Molyneux owns the property furthest west of the beach property, and has concerns about noise, trespass, washroom facilities and safety at the B.M.R. beach property. He stated he has experienced noise and amplified sound coming from the property and is concerned about it. He elaborated that one day last summer he heard a blast of music while he was working on his dock. He stated he called B.M.R. and got no relief. He then called the beach shack and was told the noise was permitted. He stated he called B.M.R. for a 5th time, by which time the music had been blasting for 45 minutes, and managed to speak with someone although he did not know who. He stated he advised the person he spoke with that his next call would be to the police. He stated that in future, he will call the police to have them force B.M.R. to adhere to the time stated on their permit. In cross-examination, Mr. Molyneux could not confirm that the loud music he heard last year was in conjunction with the salsa weekend, nor could he recall whom he spoke with, but he did concede the music was eventually turned off.

With regard to the issue of trespass, the witness stated people come from the west of his property and walk along the beach, in front of his property, to get to the B.M.R. beach property. Mr. Molyneux does not have any signs on his property prohibiting trespass.

The witness stated the number of people attending the beach property cannot be accommodated by “porta-potties”. He acknowledged he has never been in the washroom trailer on the beach property and does not know how many toilets it houses. He stated he has never experienced any sewage smells from the property.

On the issue of safety, the witness stated it is difficult to get in and out of the property and he believes that someone will be very seriously injured one day. He elaborated that on one occasion he saw somebody drive past the driveway, then back-up on the shoulder of the road to the entrance. He stated the signage is not clear and the entrance is small, and there have been accidents at other driveways along that stretch of Hwy. 26. He gave no evidence about accidents near or in front of the subject property.

Mr. Molyneux’s property is about 635 feet from the western edge of the proposed licensed area. There are four properties between the B.M.R. beach and Mr. Molyneux’s property.

A fourth objector, Daniel Russell, who is the most immediate neighbour to the beach property, did not testify. Therefore, there was no opportunity to question him about his concerns.

APPLICATION OF LAW TO FACTS

In reviewing the evidence of the Added Party, Mr. Doering, and the other objectors who testified, Mr. Wrede and Mr. Molyneux, it is clear that their concerns are borne out of their fears of what might transpire if the Appellants are granted the licence. But the witnesses offered nothing specific to support their fears. Their concerns are, basically, speculative. All three of them expressed concern about an increase in amplified or artificially produced noise from speakers although B.M.R. has stated they have no plans to increase the number of speakers and will agree to limit the sound to a distance within the boundaries of their beach lot.

All three of the objectors who testified expressed concern about sewage and inadequate washroom facilities although they did not know what the facilities actually are. The evidence of Lindsay Ayers is that the washroom facilities at the beach lot are contained in a trailer housing both men’s and women’s washrooms. There are multiple urinals and stalls as well as hand washing stations and sinks. The trailer is pumped out a couple of times a week and there was no evidence of odours emanating from the trailer, of long lines waiting to get into the trailers, or any evidence that the facilities provided are inadequate of inappropriate.

All three of the objectors also expressed concern about the safety of the single driveway into and out of the property, but again, there was no evidence of it being insufficient. There was no evidence regarding how many vehicles enter and remain at the beach property on an average day or that there have ever been any accidents or incidents related to the entrance to or exit from the property. It is noted that many of the guests access the beach by use of the shuttle from the hotel which drops them off and returns to pick them up.

Mr. Molyneux, who resides at the fifth property to the west of the B.M.R. beach property, was the only witness to express concern about people trespassing over his property to get to the B.M.R. beach property. His evidence is that he does not have any signs posted to warn people against trespassing on his property and he did not indicate how or if the granting of a liquor licence would affect the situation, if it would at all.

Counsel for the Appellants referred the Tribunal to the Sandcastle case reported as 9507 v. Registrar of Alcohol and Gaming, 2015 Can LII 50486 (ON LAT), which dealt with an application for a liquor licence for a restaurant in a small community. In that case, as in the present case, the objectors’ concerns were basically conjecture. In that case, as in the present case, the Appellants had made concessions in an attempt to appease their neighbours and respond to the voiced concerns. In the present case, B.M.R. has agreed to limit the capacity for the licensed area to 150 people, down from the 250 they were initially seeking. In addition, they are prepared to limit the hours of service to between 11:00 a.m. to 7:00 p.m. The Appellants are an experienced hospitality company which deals with risks and responsibilities on a daily basis, all year long. They have policies and procedures in place to ensure the safety of their guests and patrons, and the municipality has approved their request. There is no history of any breaches of zoning by-laws or any charges for any violations of any kind. In the present case, as in the Sandcastle case,

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.

The witnesses for the Appellants gave their evidence in a straightforward and candid manner. As stated, they are willing to co-operate with their neighbours and try to assuage their concerns. While there was a minor dispute between Mr. Barron, the beach manager, and the objector Robert Molyneux last summer, Mr. Barron recalled that it was Mr. Molyneux who he received a call from, that it occurred on a Saturday when B.M.R. was hosting their salsa weekend and that they will not hold this event again given the noise complaint received. While Mr. Molyneux did not recall who he had spoken with or when the call had taken place, Mr. Barron had those specifics. It was one incident, in the middle of the day, which adversely affected a neighbour, and B.M.R. has determined they will not hold the event again.

On another occasion where noise continued after the 11:00 p.m. deadline imposed by the special occasion permit issued, the O.P.P. attended at 11:20 p.m. and the music was turned off. There were no other incidents.

Counsel for the objectors submitted that the concern is mainly about amplified sound, and the objectors would like a condition that sound not be heard beyond 50 feet of the licensed area. They would also like a condition that B.M.R. makes available a telephone number to contact someone if there are concerns or complaints, as well as a condition that there be signage on the B.M.R. beach property to deter patrons from wandering beyond the western property boundary, and that there be a regular security check or protocol.

With regard to the conditions the objectors, through their counsel, have requested, the Tribunal supports the AGCO’s position that any conditions must be enforceable by the AGCO. Noise is not something the Registrar can monitor, restrict or enforce. That is an issue for the municipality’s enforcement. As far as signage, to deter patrons from wandering outside the property boundaries of the B.M.R. beach, there is no evidence that there has been an issue in that regard. Rather, Mr. Molyneux complained that people had trespassed by walking along his beach, five properties away, to go to the B.M.R. beach property. It is noted that there is nothing to prevent concerned homeowners from posting their own signs regarding trespass if it is an issue for them but, since there was no evidence of patrons leaving the B.M.R. beach area and wandering along the beaches of neighbouring properties, it does not seem reasonable to impose a condition on the Appellants to post signs advising their guests not to leave their beach.

While it seems reasonable, at first blush, to have security from B.M.R. monitor by the beach on a regular basis, there is nothing in the evidence which would justify such a condition. The evidence is that there that there is a protocol if and when a security issue arises. Staff at the beach may call security or the O.P.P. or 911. The evidence also is that there have not been any incidents which have required the attendance of security personnel.

Cases such as this one turn on specific legislative provisions. Section 6.2 (h) of the Act provides that an Appellant is entitled to a licence to sell liquor unless it is not in the public interest. The Grey County Health Unit, the Fire Department and the Municipality have all advised they have no concerns about this application. The onus, in the present case, is on the objectors to prove their case on a balance of probabilities but they have not done so. They have not established that the issuance of a liquor licence is not in the public interest. There is no evidence the Appellants will not act responsibly and in compliance with the Act and its regulations.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to approve the application for a liquor licence to the Appellants subject to the following conditions:

1. The licensed area shall have a maximum capacity of 150 persons;

2. The sale and service of alcohol shall be limited to the hours of 11:00 a.m. to 7:00 p.m.;

3. The licensee shall post a sign at the exit that encourages departing patrons to be considerate of the surrounding community as well as a sign on the premises which provides a telephone number at which the manager or any person in charge of the premises can be reached by anyone wanting to register a concern or complaint.

LICENCE APPEAL TRIBUNAL

_________________________

Patricia L. Cassidy, Vice-Chair

Released: June 24, 2016