Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2017-03-16
FILE:
10408/LLA
CASE NAME:
10408 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 Licence
2325933 Ontario Inc. o/a Burl’s Creek
Appellant
-and-
Registrar of Alcohol, Gaming and Racing
Respondent
-and-
Alistair Sinclair
Added Party
REASONS FOR DECISION AND ORDER
ADJUDICATORS:
Avril A. Farlam, Vice-Chair
Barbara Hicks, Member
APPEARANCES:
For the Appellant:
Nicholas T. Macos, Counsel
For the Respondent:
Tamara Brooks, Counsel
For the Added Party:
Alistair Sinclair, Agent for Save Oro
Heard in Barrie:
February 21, 2017
REASONS FOR DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol, Gaming and Racing (the “Registrar”), under the Liquor Licence Act (the “Act”), issued Notice of Proposal number 21375, dated July 27, 2016, to review an application for a liquor licence by 2325933 Ontario operating or intending to operate as Burl’s Creek (the “application” and the “Appellant,” respectively), on the basis that the Registrar received written objections to the application. The Appellant requested a hearing by the Licence Appeal Tribunal (the “Tribunal”) to determine whether the Appellant 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 Appellant applied to the Alcohol and Gaming Commission of Ontario for a liquor sales licence with a capacity of 537 for indoor premises on two floors, including a mezzanine, in a building known as the “barn”. The barn is located at 240 Line 8 South in the Township of Oro-Medonte on ninety-two acres which has in the past been used for outdoor music festivals, outdoor children’s soccer and a seasonal farmers market.
The letters of objection raised concerns about planning, zoning, compliance with municipal bylaws and the anticipated behaviour of intoxicated patrons, based on outdoor music festivals held in the past. Some of the letters referenced section 6 (2)(d) of the Act, which concerns the past or present conduct of those persons seeking a licence.
One of the objectors, a group known as Save Oro, as represented by Alistair Sinclair, was added as a party to this appeal (the “Added Party”).
Twenty-one interested persons attended the hearing in addition to counsel and the representative of the Added Party. Cheryl Browne, a reporter for the Barrie Examiner, attended the hearing, took notes and made an audio recording of the hearing. Following concerns raised by counsel for the Registrar as to the audio recording, the Tribunal made an order that Ms. Browne was permitted to record the hearing for the purposes of her own notes and could not disseminate or publish the audio recording.
At the hearing, counsel for the Registrar informed the Tribunal that the Registrar was not taking a position on this matter. However, the Registrar did reserve the right to object to conditions that the Tribunal may attach to the licence. Registrar’s counsel also advised that the hearing was conducted pursuant to section 6(2)(h) of the Act, and that any issues of misconduct or honesty and integrity of the Appellant had already been reviewed by the Registrar.
Counsel for the Appellant informed the Tribunal that the fire safety authority had approved an indoor seating capacity of 150 persons on each of two floors for a total capacity of 300 persons, including the mezzanine. Therefore, the liquor licence, if approved, would be limited to a capacity of no more than 300 persons.
THE EVIDENCE
Added Party’s Evidence
Paul Sanderson, Dr. Klaus Kuch and Wayne Lintack gave evidence on behalf of the Added Party.
Paul Sanderson testified that he supports the concerns of the Added Party but is not a member of Save Oro. He stated that he knows Mr. Dunford, one of the owners of the Appellant, and is familiar with his “illegal activity”. He stated that there have been convictions and fines for violations of environmental, zoning and other laws. Mr. Sanderson stated that the Appellant should come to the liquor licence process with “clean hands”. Liquor is a poisonous and highly regulated substance capable of creating a myriad of social issues. Mr. Sanderson stated that there are other licenced facilities nearby in Barrie and at Casino Rama. He said that no public interest would be served by this liquor licence and that only the Appellant would be served by profiting from selling alcohol. He stated that there is no reason to have liquor at the farmers market. He said that Mr. Dunford is on the board of a liquor company so this puts him in conflict of interest. Mr. Sanderson also believes that the outdoor area and the barn are inextricably linked. At outdoor music festivals in the past, there were 90 incident reports and issues at the medical tent. He stated the Appellant has shown a pattern of disregard for statutes which makes it highly unlikely that the Appellant will comply with the law. He stated that he lives fourteen kilometres away from the barn. He did not write a letter of objection to the Alcohol and Gaming Commission of Ontario about the liquor licence application for the barn. Mr. Sanderson acknowledged that he understands the application is for a liquor licence within the four walls of the barn. He believes that unless the Ontario Provincial Police are on site at all times, there will be problems. People will get in their vehicles and drive away. He has not attended the farmers market. He is not aware of any issues arising from the farmers market.
Dr. Kuch testified that he is a full time resident of Oro-Medonte who lives five kilometres from the barn. He believes that this liquor licence application is a “Trojan horse” in that there is a risk of the licence being used to cater special events other than the farmers market and there may be a link between the application and the outdoor spaces. He has not seen the application and did not write a letter of objection. Dr. Kuch stated that he has worked as a physician in the community and stated that farmers don’t drink in the morning. To licence a 300 seat facility for people not likely to drink in the morning has low credibility. He testified that there could be a spill over to mega concerts which have been conducted in the past without proper zoning. Dr. Kuch has attended two of the mega concerts. There was a paddy wagon there. He is concerned about the linkage between alcohol and crime. He did not write a letter of objection to the Alcohol and Gaming Commission of Ontario about the liquor licence application for the barn. He has not attended the farmers market.
Wayne Lintack testified that he lives one kilometre south of the venue. He is not a member of Save Oro. He testified that he is concerned about general public safety. Alcohol dispensed in the past has resulted in a number of sexual assaults, people had to be treated medically on site and there have been a number of requests to the Ontario Provincial Police for assistance. He stated that past incidents need to be looked at. He also stated there is a history of noise coming from the property. He has heard music in his yard and heard music in every room of his house, even with the doors and windows closed. The music can be heard over the TV. There is no escaping this noise. Mr. Lintack would like a limitation on the noise that can emanate from the premises. He also believes that this is “high risk licencing”. He is concerned about drunk driving, that there will not be proper police enforcement and vehicle checks, based on his observations of lack of police checking vehicles leaving the campground. He believes that there should not be a licence issued until the Alcohol and Gaming Commission of Ontario has done a thorough background check on criminal matters which occurred last year on the site. Mr. Lintack testified that his concerns about noise relate to special events and that he has no evidence about noise coming from the barn. He did not write a letter of objection to the Alcohol and Gaming Commission of Ontario about the liquor licence application for the barn. He has not attended the farmers market.
Registrar’s Evidence
Jeff Longhurst, Director of Licencing and Registration for the Alcohol and Gaming Commission of Ontario, testified that there is a process for investigating each applicant for a liquor licence. This process includes a series of background checks and checking past history. He testified that if there are concerns about an applicant after performing due diligence, the Registrar can put conditions on a licence to eliminate areas of risk. If the application involved a new applicant, the Registrar may issue a Notice of Proposal involving the honesty and integrity of the applicant. This is not what happened here. This hearing is about a review of the application on public interest grounds. There were no significant issues with this application that would cause the Registrar to issue a Notice of Proposal focussing on the honesty and integrity of the applicant. Interior noise is taken into account by the Registrar, but the municipality deals with interior noise. Matters of bylaw enforcement no longer form conditions of a licence. The Registrar can take enforcement proceedings if the licence is directed to be issued and violations of regulations occur. Mr. Longhurst testified that the Registrar relies on the municipality to make sure the building has appropriate facilities in terms of fire and health compliance. He confirmed that this application does not include the grounds on which the building is located. Mr. Longhurst stated that the licence, if issued, would entitle the Appellant to sell liquor 365 days a year, seven days a week, from 11:00 a.m. to 2:00 a.m.
Appellant’s Evidence
Andrew Roth, one of the principals and shareholders of the Appellant testified that the liquor licence application is for a building which is a beautifully renovated barn. The fire department inspected the building and looked at the exits and said the capacity should be no more than 300 persons. For the past two years, there has been alcohol served at the farmers market under a catering endorsement from another premise that he owns. The current operational intention is to serve alcohol at the farmers market which operates from 3:00p.m. to 8:00 p.m. on Fridays starting May 19 to sometime in October, depending on weather. Last year, the farmers market operated twenty-five days in the summer season. There is also an intention to hold private and special events in the bar such as, for example, the Kiwanis Club event in June and weddings. For these events, washroom facilities and speciality caterers will be brought in. Mr. Roth testified that he does not know exactly how the licence will be used in the future.
Greg Groen is a resident who lives about seven kilometres away from the barn. He is also Vice President of the Oro-Medonte Chamber of Commerce which has close to 200 members. Mr. Groen testified that he is familiar with the facility. He takes his son there to play soccer on the grounds and he goes to the farmers market. He said there is nothing like this facility in Oro-Medonte. The Township has about 21,000 people spread out over 600 square kilometres. The farmers market is where families gather. Many people go there for soccer. He stated that a number of new businesses have been started because of the Appellant including, for example, a new brewery operation. This has been a great benefit to local businesses and has generated millions of dollars in business for the community. Mr. Groen testified that a liquor licence would help support the farmers market. Part of the character of the farmers market is that parents can relax with a glass of wine while their children play. He said the farmers market is a family oriented event. There are no public safety issues. Having a liquor licence would not work against public interest. There is no other place like this in the community where people can go and hang out with friends and have a drink. Losing the ability to have liquor at the farmers market would fundamentally change the character of the community.
Josephine Martensson-Hemsted is a resident whose property shares the boundary of the Appellant’s property. She has been a vendor at the farmers market for the last two years. The operating hours of 3:00 p.m. to 8:00 p.m. are convenient for her. She said there were about forty vendors last year selling produce, arts and crafts, prepared food and local beer and wines. The farmers market is a market under Farmers Market Ontario. She testified that most weeks, about one thousand people attend the market. Attendees are largely families. People bring their dogs, enjoy prepared food and the beautiful grassy area where there is live music. She said that it has a summer picnic atmosphere. Children enjoy it. The farmers market has become a community meeting place. Ms. Martensson-Hemsted stated that people love to have liquor at the farmers market. They come after work on a Friday, buy dinner there and listen to the live music. Most people that drink seem to have one drink with food. She testified that there are no problems with liquor there. She lives right next to the site, which is next to the demolished Barrie Racetrack. She said that when the racetrack was operating, it was poorly controlled and went on late into the night. Ms. Martensson-Hemsted believes there is no problem now. There is responsible service of liquor at the farmers market. She said that she has never seen anything of concern. Everything is done well. It is a nice social atmosphere. People have a drink and go home. She does not know the future plans for the barn.
ISSUE
The Tribunal must decide whether or not it is in not in the public interest to grant the Appellant’s application for a liquor licence, 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 granted.
THE LAW
The entitlement to a liquor licence is set out in section 6 (2) of the Act. Section 6 (2) of the Act provides that an applicant 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 paragraph (h) of subsection (2) 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.
Also, section 7.1(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 or holds a licence to sell liquor, as proof of the needs and wishes of the residents of the municipality for 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 Notice of Proposal to review the application for liquor licence. Under section 21 (1), the proposal is to be served on the applicant, who can file an appeal of the proposal under section 21 (4) of the Act.
The onus is on the Added Party in this type of appeal to prove, on a balance of probabilities, that it is not in the public interest to grant a licence to the Appellant.
The powers of the Tribunal in such an appeal are limited by statute 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.
ANALYSIS
In a hearing held pursuant to section 6 (2) (h) of the Act, the Tribunal must balance the needs and wishes of the residents with the Appellant’s desire to operate its business, bearing in mind that the Appellant has a presumptive right to a licence unless 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 Tribunal has heard and carefully considered the concerns of the Added Party. The Added Party, as evidenced by the testimony of their three witnesses, is primarily concerned that their neighbourhood will be changed by the barn becoming a licenced establishment. The Added Party has also expressed concerns about what might transpire if the Appellants are granted the licence because of a general distrust of the Appellant. However, the witnesses offered nothing specific to support these concerns. Therefore, the concerns are speculative in nature. All three witnesses spoke about the conduct of music festival goers in the past. This is not helpful to the issue the Tribunal must decide. The licence applied for here is an indoor venue limited to a maximum of 300 persons on two floors including a mezzanine. The number of patrons has been determined by the fire safety authority.
All three witnesses spoke of past misconduct by the Appellant and breaches of planning and zoning, a lack of compliance with municipal bylaws and the anticipated behaviour of intoxicated patrons, based on music festivals held outdoors in the past. There was no evidence that the local municipal government shared any of these concerns with respect to the proposed indoor licence for the barn.
None of the three witnesses who testified in support of the Added Party had ever been to the farmer’s market and none of them sent a letter of objection to the Alcohol and Gaming Commission of Ontario about the application for the indoor licence for the barn. None of the witnesses testified about any problems arising from alcohol service in the barn to date. Mr. Lintack testified that his concerns about noise relate to special events and that he has no evidence about noise coming from the barn.
On the other hand, the evidence of Mr. Groen, a resident and Vice President of the Chamber of Commerce, established that there would be a benefit to the local municipality. His evidence and that of one of the vendors, Ms. Martensson-Hemsted, was that the farmer’s market has become a pleasant, family-oriented activity enjoyed by many local vendors and residents. There are vendors at the farmers market who sell prepared food and some alcohol has been for sale to date. The liquor licence, according to the residents who participate in the farmers market, would enhance and support the farmers market. The evidence of Mr. Groen and Ms. Martensson-Hemsted established that there have been no problems to date when alcohol has been served in the barn.
The speculation, fears and concerns of the Added Party were not substantiated by evidence sufficient to prove on a balance of probabilities that the issuance of a liquor licence for the barn is not in the public interest, having regard to the needs and wishes of the residents of the Township of Oro-Medonte. The Appellant has been able to serve alcohol in the barn to date without any problems arising.
The Tribunal finds that the Added Party has not proven, on a balance of probabilities, that it is not in the public interest to grant a licence to the Appellant.
Also, given the evidence before it indicating that there have been no alcohol-related problems to date with the barn, the Tribunal finds that there is no need to impose any conditions on the licence.
ORDER
Pursuant to the authority vested in it under the provisions of Section 23 (10) and 23 (12) of the Act, the Tribunal directs the Registrar to approve the application for a liquor licence made by 2325933 Ontario Inc. o/a Burl’s Creek, subject to the filing of all applications and regulatory requirements.
LICENCE APPEAL TRIBUNAL
Avril A. Farlam, Vice-Chair
Barbara Hicks, Member
Released: March 16, 2017