Licence Appeal Tribunal
Appeal from the Notice of Proposal of the Registrar under the Liquor Licence Act to Review an Application for a Licence for Additional Licensed Area
Between:
Monarch Tavern Inc. o/a Monarch Tavern Appellant
-and-
Registrar of Alcohol, Gaming and Racing Respondent
-and-
A.B. Added Party
DECISION and ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: Evan Georgiades, Owner For the Respondent: Faye Kidman, Counsel For the Added Party: F.T., Agent
Heard in Toronto: July 24, 2018
OVERVIEW
1The appellant, Monarch Tavern Inc. (“Monarch”), is a licenced establishment that has operated in a predominantly residential area of central Toronto since the 1920s.
2In March 2017 Monarch applied to the Registrar of Alcohol Gaming and Racing (“Registrar”) to add an additional outdoor area to its existing liquor licence.
3The Registrar gave public notice of the application and received written objections from residents. Pursuant to the Liquor Licence Act (“Act”), the Registrar issued a proposal to review the application and Monarch requested a hearing before this Tribunal.
4A hearing was held on July 24, 2018 to determine whether Monarch’s application is in the public interest. Monarch’s application was opposed by the Added Party. The Registrar took no position on whether the application should be granted but made submissions with respect to the suitability of potential licence conditions.
5After considering the evidence and submissions presented at the hearing, I have decided to direct the Registrar to add an additional outdoor area to Monarch’s licence without conditions.
THE LAW
6Section 6(2) of the Act provides that an applicant is entitled to be issued a licence to sell liquor except in specified circumstances.
7The Act describes several exceptions that disentitle an applicant to a licence. However, the only one relevant to this case is contained in s. 6(2)(h) of the Act which provides that an otherwise qualified applicant is not entitled to a licence if;
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.
8The Act requires the Registrar to give notice of an application to sell liquor to the residents of the municipality in which the premises are located. The notice shall request written submissions from the residents as to whether issuing the licence is in the public interest having regard to the needs and wishes of the residents (s. 7(1), 7(3)).
9If the Registrar receives one or more written objections, the Registrar may issue a proposal to review the application (s. 8(4)).
10The Registrar shall give notice of the proposal to the applicant who may request a hearing before this Tribunal (s. 21(1)).
11The Tribunal shall hold a hearing if one is requested. Following the hearing the Tribunal may direct the Registrar to issue the licence, with or without conditions, or direct the Registrar to refuse to issue the licence (s. 23(10), 23(12)).
12In this case, Monarch applied for an additional licenced area that would allow it to sell liquor in an outdoor patio. Notice of the application was provided to the residents. The Registrar received written objections and issued a notice of proposal to review the application. Monarch requested a hearing.
13At a hearing the onus is on the objectors to establish on a balance of probabilities that the applicant is disentitled to a licence. In this case, the Added Party’s objection to Monarch’s application is that it is not in the public interest.
THE ISSUES
14Based on the above, there are two issues to be decided:
(a) Has the Added Party established, on a balance of probabilities, that Monarch’s application should not be granted because it is not in the public interest having regard to the needs and wishes of the residents of the municipality?
(b) If a licence is granted should conditions be attached?
DECISION
15For the reasons set out below I have concluded that the Added Party did not establish on a balance of probabilities that the issuance of a licence is not in the public interest and therefore the appellant’s application should be granted. I have also decided that it is not necessary to attach conditions to the appellant’s licence.
ISSUE 1 – Is Granting the Application in the Public Interest?
(i) The Monarch Tavern
16The Monarch is a licenced establishment located on the south-west corner of Clinton Street and Henderson Street in Toronto’s Little Italy neighbourhood.
17The Monarch is unusual in that it is situated squarely within a residential neighbourhood. Although College Street, a busy commercial thoroughfare, is two blocks north, the area immediately surrounding the Clinton/Henderson intersection is almost exclusively residential and consists of single-family homes.
18The Monarch has operated as a neighborhood tavern at that location since at least the 1920s when zoning by-laws were presumably less restrictive. The co-existence of the tavern with the surrounding residential neighborhood has given rise to the frictions at the heart of this hearing.
19It is relevant to note that there are two other small businesses located at the Clinton/Henderson intersection. A sandwich shop is located on Clinton Street next door to the Monarch to the south, and a pizzeria is located on the south east corner of the intersection directly across Clinton Street from the Monarch.
20According to one of the Monarch’s current owners, Evan Georgiades, he and his partner acquired the Monarch 7 years ago when it was in a state of disrepair. They have made improvements in both the management and appearance of the establishment, including the installation of new heritage-style wood-framed windows, renovated exterior walls and installation of soundproofing features, all in an effort to make the business more appealing and attract more sophisticated customers than had previously patronised the business.
(ii) Objections to Outdoor Licenced Patio
21Monarch’s application for additional licenced outdoor space was opposed by the Added Party, A.B. I was informed that A.B. could not attend the hearing and she was represented instead by her agent, F.T.
22F.T. is a long-time resident of the neighbourhood. He testified that the Added Party and many like-minded residents oppose a licensed outdoor patio based on the following concerns:
A licensed patio conflicts with the wishes of nearby residents. F.T. submitted a copy of a petition signed by 43 residents of Henderson and Clinton Streets who opposed Monarch’s proposal for an outdoor patio.
The Monarch and the two additional businesses at the Henderson/Clinton intersection create traffic congestion. Available parking is scarce and patrons of the businesses routinely park illegally, sometimes partially blocking the sidewalk. The Monarch has no parking spaces and delivery vehicles often block the street, forcing cyclists onto the sidewalk and creating a potentially dangerous situation if emergency vehicles are obstructed or delayed. In F.T.’s opinion, the addition of an outdoor patio will increase congestion.
Patrons of the Monarch stand around outside the tavern loitering or smoking. They contribute to litter in the area and have occasionally used nearby laneways as urinals. While that may be tolerable in a commercial area it is intolerable in a residential area full of families and children. In F.T.’s view, the proposed outdoor patio will only contribute to that objectionable behaviour.
(iii) Petition Opposed to the Patio
23In order to operate an outdoor licenced patio, Monarch requires, in addition to a liquor licence, a boulevard cafe permit issued by the City of Toronto (“City”), and approved by the Toronto and East York Community Council.
24Many residents of Clinton and Henderson streets signed a petition opposing the outdoor patio about 17 months ago when Monarch was proposing a patio with a maximum of 20 patrons. That is the same petition that F.T. submitted in the present hearing
25Since that petition was signed, the City issued a boulevard café permit which reduces the maximum number of patio patrons to 12 and imposes many conditions designed to eliminate or reduce the impact of the patio on neighbourhood residents. I am unable to conclude that the petition still reflects the current wishes of the nearby residents now that circumstances have changed.
26According to Monarch, it started the permit application process in 2016 and satisfied all of the City’s requirements. However, the local municipal councillor suggested that a public meeting be held to give local residents an opportunity to express their wishes and concerns.
27That public meeting was held in March 2017. At that point the Monarch proposed that the patio be licensed for a maximum of 20 patrons. The residents brought with them a petition signed by 43 residents of Clinton and Henderson streets who opposed the patio - the same petition submitted by F.T. as an exhibit in the present hearing as proof of the residents’ current opposition to licensing an outdoor patio.
28After the public meeting in March 2017, Monarch’s application for a boulevard café permit came up for consideration before the Toronto and East York Community Council. On September 6, 2017, the Council approved the permit subject to several conditions including:
- The patio shall have a maximum capacity of 12 patrons
- The patio must be cleared of patrons, tables and chairs by 9:00 p.m.
- There shall be no live or amplified music in the outdoor area
- Monarch shall ensure that any sound resulting from the operation of the business shall not be audible at any residential point of reception.
- Monarch shall use its best efforts to ensure that areas adjacent to the establishment are kept free of litter.
- Monarch shall post signage at the main exits to encourage patrons to be considerate of residents and provide a telephone number for residents to register concerns or complaints.
29According to Mr. Georgiades, the council’s strict conditions satisfied many of the objecting residents and some of them have now signed a petition in support of Monarch’s proposed patio.
30Most significantly, the permit allows for a maximum of 12 patrons on the outdoor patio. At the time the residents signed the petition Monarch’s proposal was for a maximum of 20 patrons. I was informed by the Registrar’s counsel that if a liquor licence is issued for the outdoor patio the liquor licence will be restricted to the maximum number of patrons allowed under the boulevard café permit.
31In these circumstances, I am unable to conclude that those who signed the petition opposing the outdoor patio 17 months ago still oppose it now that the maximum number of patrons has been significantly reduced and its operation is subject to several conditions meant to reduce or eliminate the impact of the patio on nearby residents.
32The Registrar’s Notice of Proposal refers to a letter from the City of Toronto that apparently states that City Council directed the City Clerk to advise the Registrar that Monarch’s application is not in the public interest. The letter was not placed into evidence or referred by any of the parties at the hearing and I am unable to take it into consideration.
(iv) Traffic Congestion
33According to F.T., legal parking in the vicinity of the Clinton/Henderson intersection is scarce. Drivers routinely park illegally, sometimes blocking the sidewalk. Vehicles making deliveries to the Monarch often block the street forcing cyclists onto the sidewalk and creating a potentially dangerous situation in the event that emergency vehicles are obstructed. According to F.T., the additional licensed area will exacerbate the existing traffic congestion on Henderson and Clinton streets
34Based on the evidence presented I am unable to conclude that an additional licensed area allowing for a maximum of 12 patrons will significantly increase existing congestion.
35According to Mr. Georgiades, much of the congestion caused by illegal parking is due to the pick-up nature the sandwich and pizzeria businesses at the intersection. He points out that both the sandwich shop and the pizzeria have limited or no seating and their business is focused on take-out customers. Mr. Georgiades states that their patrons of those businesses routinely park their cars illegally for a few minutes to pick up a sandwich or pizza.
36The Monarch has seating for its customers and its business is focused on patrons who sit down and stay longer. According to Mr. Georgiades, Monarch patrons are less likely to illegally park their cars or partially block nearby sidewalks because if they remain for any extended period of time they are likely to get ticketed.
37I conclude it is more likely than not that most of the illegally parked cars that obstruct the streets and sidewalks are caused by patrons of the sandwich and pizza businesses. Based on the evidence presented, I am unable to conclude that licensing an additional area for 12 people will make that problem worse.
38I do not doubt F.T.’s assertion that vehicles making deliveries to the Monarch occasionally block or partially block the street. The Monarch is located at the intersection of two residential streets where parking is scarce and it seems inevitable that larger delivery vehicles such as beer trucks will sometimes obstruct traffic.
39However, again, I cannot conclude that the licensing of additional outdoor space for a maximum of 12 patrons will make that problem worse. Delivery vehicles will continue to make deliveries to the Monarch regardless of whether an outdoor patio is in operation.
(v) Loitering, Littering and Smoking
40F.T. states that Monarch patrons often stand outside the premises smoking, loitering, and leaving cigarette butts and litter on the nearby sidewalks and streets. In his opinion, an outdoor patio will make that problem worse.
41Based on the evidence presented, I am unable to agree that the proposed patio will exacerbate that problem and there is a possibility that the conditions imposed by the city may result in an improvement.
42According to Mr. Georgiades, most of the litter originates from the sandwich shop and pizzeria. They have little or no indoor seating. They sell food to go which is often consumed right outside their premises, and food wrapping does not always find its way into litter receptacles.
43Mr. Georgiades points out that food sold by the Monarch is consumed on the premises and does not result in food wrapping being left on the street. He also pointed out that the Monarch may contribute to a reduction in litter because it allows patrons to bring in sandwiches from next door and consume them on the premises with a drink. Any food wrapping is then disposed of by Monarch and does not end up on the street.
44The City of Toronto has attached conditions to its boulevard cafe permit that may assist in reducing that problem. The conditions require Monarch to post prominent signage reminding patrons to be considerate of the surrounding residents and to use its best efforts to ensure that all areas immediately adjacent to the establishment are clean and free of litter, refuse and other debris. The conditions require Monarch to clean the areas adjacent to its premises and the continued operation of the outdoor patio will depend on Monarchs’ compliance with that and the other conditions.
45Based on the evidence, I conclude that although people smoking outside the Monarch and leaving cigarette butts and litter on the street is no doubt annoying for nearby residents, the proposed licence allowing an additional outdoor space for 12 people will not make that problem significantly worse.
ISSUE 1 – Conclusion
46The Act provides that an applicant is entitled to a licence except in the circumstances that are specified in the Act. One of those circumstances is that the licence is not in the public interest having regard to the needs and wishes of the residents and that is the basis of the Added Party’s objection in this case.
47The onus is on the Added Party to prove, on clear and compelling evidence, that the licensing of an additional outdoor area is not in the public interest.
48In my view, the Added Party has not met that onus. The Added Party’s concerns are understandable but mainly relate to pre-existing frictions that are bound to occur when a licensed establishment is located in a predominantly residential area. In my opinion, licensing of an additional outdoor area for 12 patrons will not significantly exacerbate those frictions.
49In addition, the City has imposed detailed conditions on its boulevard café permit that are designed to address the concerns of nearby residents. If licensed, Monarch will be required to operate the patio in accordance with those conditions.
50Given these circumstances, I unable to conclude that granting the application is not in the public interest and have therefore decided to direct the Registrar to grant the application.
ISSUE 2 – Conditions
51I have concluded that there is no need to attach any conditions to the licence.
52The Added Party did not suggest any additional conditions that should be attached to the liquor licence, if granted.
53However, I also note that in order to operate a licensed outdoor patio, Monarch requires a boulevard café permit from the City of Toronto as well as a liquor licence.
54After consultation with the residents, the City issued a boulevard permit subject to 10 specific conditions meant to address their concerns - they restrict the number of patrons to 12, require that the patio be closed by 9:00 p.m., prohibit live or amplified music, require Monarch to ensure that any sound resulting from its operation is not audible at any residential point of reception, and require Monarch to keep the area adjacent to its premises free of litter and debris.
55I was informed by the Registrar’s counsel that that any liquor licence granted for the patio depends on the existence of the boulevard café permit. if the boulevard café permit is withdrawn or terminated the liquor licence for the outdoor patio will no longer exist.
56I was also informed by Registrar’s counsel that the maximum capacity allowed under a liquor licence granted for the patio will be restricted to the maximum number of patrons allowed under the boulevard permit. It is therefore not necessary to impose a condition setting the maximum capacity of patrons allowed on the patio.
57It appears that the concerns of the residents have been addressed by the conditions imposed by the City. A failure to adhere to those conditions could lead to the termination of the boulevard café permit which will result in the termination of the patio liquor licence.
58In these circumstances, I conclude that the concerns of the residents have been addressed by the conditions attached to the boulevard café permit and there is no need to impose further conditions on the liquor licence.
ORDER
59Pursuant to s. 23(10) of the Liquor Licence Act, I direct the Registrar to approve the application made by Monarch Tavern Inc. to licence an additional outdoor area for a capacity of 12 persons.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Released: August 14, 2018