Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Tribunal File Number: 12017/LLA
Appeal from a Notice of Proposal of the Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 under sections 8(2)(c) and 21(1) of the Liquor Licence Act to Review an Application for a Licence
2641477 Ontario Inc. o/a Lakeside Lodge Appellant
-and-
Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 Respondent
-and-
MW and JE Added Parties
DECISION AND ORDER
ADJUDICATOR: Jeanie Theoharis, Vice-Chair
APPEARANCES:
For the Appellant: Jerry Levitan, Counsel Renda Abdo, Representative
For the Respondent: Jordan Stewart, Counsel
For the Added Parties: Scott McMahon, Counsel
Heard at Belleville, Ontario: July 31; August 1, 2019
INTRODUCTION
12641477 Ontario Inc. o/a Lakeside Lodge (Appellant or Lakeside Lodge) applied to the Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 (Registrar) for a liquor licence.
2The Liquor Licence Act, R.S.O. 1990 c. L. 19 (Act) provides an opportunity for the public to submit objections to a liquor licence application.
3The Registrar received objection letters from residents of the municipality in which Lakeside Lodge is located.
4Following receipt of the objections, the Registrar issued a Notice of Proposal to Review Lakeside Lodge’s application for a licence to sell liquor (NOP) on March 27, 2019.
5The Appellant appealed the NOP and requested a hearing.
6The added parties are two of the objectors who raised concerns about the issuance of the licence. No other objectors requested to be made an added party. The added parties raised concerns of municipal planning and by-laws, noise, increased traffic, parking issues, behaviour of intoxicated persons in their neighbourhood, and the ability to control the additional people in the neighbourhood.
ISSUE
7The issues to be decided are:
a. Is the Appellant disentitled to a liquor 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 is located?
b. If the licence is granted, should conditions be attached?
8At the hearing, Respondent’s counsel took no position on the first issue but made submissions as to the enforceability of possible licence conditions.
RESULT
9I direct the Registrar to issue the Appellant’s application for a liquor licence.
10I find that conditions should not be attached.
LAW
11The Appellant has a presumptive right to a liquor licence.
12The Act requires the Registrar to give notice of a liquor licence application to the residents of the municipality in which the premises are located. The notice shall request written submissions from the residents of the municipality in which the premises are located as to whether issuing the licence is in the public interest having regards to their needs and wishes.
13The added parties, as objectors, have the burden of establishing on a balance of probabilities that it is not in the public interest to grant the Appellant’s application for a licence to sell liquor, having regard to the needs and wishes of the residents of the municipality in which the premises are located.
14The Tribunal must assess whether the added parties’ concerns are supported on an objective basis. Solely speculative concerns of what may or may not happen if a licence is granted will not be determinative of the public interest. I must determine whether the objectors have met their burden to establish that the licence is not in the public interest having regard to the needs and wishes of the residents.
15If a licence is granted, I may attach conditions where such conditions are proper to give effect to the purpose of the Act.
ANALYSIS
ISSUE #1 – Is the Appellant’s application for a licence to sell liquor in the public interest?
16At the hearing, the parties did not contest the Appellant’s right to a liquor licence and agreed that a liquor licence be issued to the Appellant. The added parties indicated that they do not want to prohibit the Appellant’s commercial aspirations or business plan but assert that the Appellant’s liquor licence ought to contain conditions. Given that the added parties have not raised any objections to the issuance of the liquor licence and have not argued that granting the licence is not in the public interest, I am satisfied that the issuance of the liquor licence is in the public interest having regards to the needs and wishes of the residents of the municipality.
17I find the Appellant is entitled to a liquor licence.
ISSUE #2 – Should conditions be attached?
18After carefully considering the evidence presented at the hearing, I find that no conditions should attach to the liquor licence. The added parties’ concern about negative impacts of the Appellant’s proposed liquor licence do not, on a balance of probabilities, warrant the imposition of conditions on the liquor licence.
Position of the Parties
19The added parties indicate that conditions ought to attach to the liquor licence. They indicated that such conditions would address their concerns related to municipal planning and bylaws, noise, garbage, unruly behaviour, traffic, parking, increased people in the neighbourhood, potential behavioural issues, and potential detrimental impact on the real estate value of neighbouring properties.
20Although various conditions were suggested to attach to the liquor licence, the added parties, in their final submissions, asserted that the following two conditions be attached, and that these two conditions give effect to the purposes of the Act.
a. Stop the sale and service of alcohol at 7 p.m.
b. Stop all amplified music at 7:00 p.m.
21The Registrar submitted that conditions ought to be within the mandate of the Registrar to be enforceable by the Alcohol and Gaming Commission of Ontario (AGCO). To add conditions that cannot be monitored or enforced by the AGCO would not properly give effect to the purposes of the Act. Counsel submitted that matters related to land-use, parking, garbage and indoor noise are valid concerns which are governed by the municipality, and not enforceable by the AGCO. Also, counsel clarified, that although indoor noise is not something that is enforceable by its compliance officers, outdoor noise is. Under s. 46 of the Liquor Licence Act, R.R.O. 1990, Regulation 719, “[t]he holder of a licence that applies to outdoor premises shall not permit noise that arises directly or indirectly from entertainment on the premises or from the sale and service of liquor to disturb persons who reside near the premises.”
22Lakeside Lodge is owned by Renda Abdo. She purchased the property with the vision to create an outdoor licenced area to cater to the occupants of the Lodge, and family and social events, such as weddings, winery tastings and corporate retreats. The Appellant submitted that no conditions ought to attach to the liquor licence. In respect of the limit of the sale and service of alcohol to 7:00 p.m., she indicates that it would impact her ability to address the needs of the Lodge’s customers, impact her ability to cater weddings and other social events, as no one would want to have liquor service stop at such an early time. Concerns related to issues such as garbage, traffic and parking are municipal matters which she understands she must abide by. Moreover, she submits that a condition as to outdoor noise is not needed because she is regulated by the Act and its Regulations which already imposes a positive obligation on a licensee to not permit noise disturbances to persons who reside near the premises.
Overview of Area
23Lakeside Lodge located in the municipality of Prince Edward County, in the ward of Wellington, Ontario. It is located on the shores of Lake Ontario at 349 Main Street, which is just outside of Wellington’s downtown urban center, in an area called the Village Corridor. It is zoned highway/commercial and in the past had a liquor licence. Prince Edward County is comprised of many wards, Wellington Ward being one of them.
24In recent years, the area has been going through a transformation. There has been a significant growth in winery operations in the area as well as tourism growth. It is a hub for travellers to visit and is referred to as “the Hamptons of the North”. This influx of visitors to the area has also resulted in the need for more rental accommodations. Neighbouring Lakeside Lodge are properties which are used as primary owner-occupied residential homes or as commercial short-term rental accommodations, such as bed and breakfasts and Airbnb rentals.
Proximity of Residents
25In deciding whether to impose conditions on the liquor licence, I took into consideration the totality of the evidence. The legislature limited the public interest concerns to “residents of the municipality in which the premises is located.”
26When deciding the needs and wishes of the residents it was not a matter of who presented more evidence either against or in favour of the liquor licence application. I did however consider the proximate distance of the residents of the municipality from Lakeside Lodge. As stated in The Scoop & Cup Inc. v. Registrar of Alcohol and Gaming, 2015 CanLII 72224 (ON LAT):
The bona fide concerns of the residents in the immediate area who are most affected by the proposed establishment are given greater consideration than those who are less directly affected. In determining whether the needs and wishes of the residents are bona fide, the Tribunal will look at the totality of the evidence to determine if the subjective concerns, and fears, of the residents are supported on a valid objective basis.
27As such, not all the concerns raised by residents are to be given equal consideration. Both the added parties and the Appellant presented evidence related to the public interest concerns. A review of the letters submitted into evidence, both against and in favour of the issuance of the liquor licence, indicated that some individuals resided close in proximity to the premises, others were a further distance away, and some did not reside in the municipality at all and were merely visitors/vacationers to the area for various periods of time or held commercial interests in the municipality.
28MW, as a resident of Prince Edward County, testified on behalf of the added parties. He wants conditions as noted above added to the liquor licence. He does not reside in Wellington, Ontario. He indicated that he primarily resides in Bloomfield, Ontario, a neighbouring ward, which is approximately 11 km from Lakeside Lodge. However, he also owns commercial properties in Wellington, Ontario, including a property close to Lakeside Lodge at Main Street. The property is generally used as a short-term rental accommodation, although he indicates that he has plans to retire there someday.
29As he is a resident of the municipality of Prince Edward County, his evidence was considered thoroughly to determine the public interest concern in the issuance of the licence and whether to impose conditions. He provided testimony regarding conversations he had with concerned residents and their letters opposing the issuance of the licence, all of which was considered.
30In terms of his own personal concerns, albeit noted as a resident of the municipality, I did factor that he primarily resides outside of Wellington, Ontario, in the neighbouring area of Bloomfield, Ontario. The proximate distance of his residential home from Lakeside Lodge is a factor I considered when weighing his personal evidence. His property next door to Lakeside Lodge is primarily operated as a commercial interest and at times, during the off seasons, he has stayed at this property. I acknowledge his commercial interests may be impacted by the issuance of a liquor licence.
31I considered all evidence from the residents of Prince Edward County. However, as noted above, some resided close to Lakeside Lodge and other lived in neighbouring areas outside of Wellington, Ontario. More particularly, in weighing the evidence of all the residents in the municipality, I find that the evidence from residents who reside closer in proximity to Lakeside Lodge ought to be given more consideration.
32The evidence of the proximate residents are residents who would be most impacted by the Appellant’s licence. The witnesses who resided in close proximity to Lakeside Lodge, for instance between xx-xx Main Street, were given more consideration than those who lived further out. These residents testified on behalf of the Appellant and indicated that they support the issuance of the liquor licence without conditions and were confident that Ms. Abdo would operate Lakeside Lodge in a respectful manner. Of the Appellant’s witnesses that testified, the residents who live to the immediate west of Lakeside Lodge and three doors west of the Lodge had no objections to the issuance of a liquor licence without any conditions.
33Although the Appellant’s witnesses’ testimony indicated they supported the issuance of a liquor licence without conditions, they did raise concerns about how the influx of people to the area may create potential noise, parking, and traffic issues. The issues raised were valid public interest concerns. However, they understood that the Appellant would have to comply with all municipal bylaws and the Regulations. For instance, if there was noise or parking problems, the residents could contact the local bylaw/county office to complain and someone from the county would attend to address their concern.
34They also indicated that they met with Ms. Abdo at an open house meet and greet she held for the community. The witnesses in support of this liquor licence testified as to their confidence in Ms. Abdo’s ability to operate Lakeside Lodge in a respectful manner that considers the needs of the community. They testified that after speaking with Ms. Abdo, they were satisfied that the Appellant and staff would adequately address issues that are brought to their attention.
35Of most compelling is the evidence from a resident who lives directly across the street from Lakeside Lodge. He initially was an objector to the issuance of the liquor licence. However, once he met with Ms. Abdo and understood her business plan and her respectful business acumen, he withdrew his objection and became a supporter of the licence without conditions. Since the operation of Lakeside Lodge, albeit without a liquor licence, he has not witnessed rowdiness or poor behaviour. He also testified that the Legion is 6 doors west from him. It too is licenced for both indoor and outdoor areas. They have service of alcohol available till 2:00 a.m. and has not experienced issues with them operating with a liquor licence.
36Ms. Abdo testified that she holds 3 other liquor licences for other businesses and has not had any liquor licence violations. She understands the privilege of having a liquor licence, that she will not abuse this privilege and knows that her licence may be revoked if she does not act responsibly. Moreover, she understands how her actions in one licensed property may impact her licences in other properties that she operates. She is also aware that she must abide with the municipal bylaws, local regulations, and the Act and its Regulations.
37To work with the residents and address their concerns, Ms. Abdo, as noted above, held an open house. Many residents attended. During the open house, the resident witnesses testified that Ms. Abdo shared her business plan with them and they left with confidence that their concerns related to the operation of Lakeside Lodge and potential issues, such as noise, parking, would be addressed in a satisfactory manner. Ms. Abdo testified that she made modifications to her business plans to accommodate the needs and wishes of the residents she has spoken to, including modifying the size of a wall and moving a licensed area away from the vicinity of some neighbouring properties. The residents described Ms. Abdo as someone they feel is a good operator who they could approach if they have a concern, noting that they were provided with contact information for Ms. Abdo should a concern arise.
Village Corridor vs. Village Core
38MW submits that businesses of the scale proposed by the Appellant ought to be in the Village Core; whereas businesses in the Village Corridor, which is where Lakeside Lodge is located, is more akin to a neighbourhood style business. MW submitted that the location of Lakeside Lodge requires a more neighbourhood scale operation, and not the proposed occupancy load of 400 with the opportunity to sell and serve alcohol till 2:00 a.m. He submitted an excerpt (5 pages) from the Corporation of the Municipality of Prince Edward, Wellington Urban Centre Secondary Plan (Plan) to support his assertion that it ought to be ‘neighbourhood-scale.’
39He argues that since Lakeside Lodge is in the Village Corridor, and not the Village Core, the scale of development ought to be “neighbourhood-scale business”. As such, he proposes that the music ought to be limited in time; and that service of alcohol ought to stop well before 2:00 a.m. I find that his interpretation of the excerpt does not establish that Lakeside Lodge’s liquor licence ought to contain conditions. More particularly, I do not find the excerpt indicates that the public interest would be best served by a restriction in occupancy, to limit when music is played or limit the time alcohol service ought to end. Moreover, I make no finding as to whether the municipality is acting in accordance with this Plan.
40I find the excerpt of the Plan is not helpful because pages 2-13 and 2-14 reference the Village Corridor Area of Wellington County, which is the area that Lakeside Lodge is located, and a significant portion of the Plan is not available to understand the full context for an adequate interpretation. The policy permits a range of commercial uses in the Village Corridor Area. The plan states, “Intensification in the Village Corridor Area is encouraged provided such development is consistent with the village design policies of Section 4.1 of this Plan and establishes Main Street as a gateway to Wellington.” Section 4.1 of the Plan was not provided, so it is difficult to rely on only the excerpt to address the added parties’ concern.
41However, the Act does require letters of approval from the county building, fire and health authority. The Appellant provided signed Agency Letters of Approval from both the Prince Edward County Fire Department and Building Department. Both agencies indicate that they have no objections to the use of this facility as a licensed premise under the Act for an outdoor occupancy load of 400 people. The Agency Letters indicate the total outdoor area is 31,000 square feet, existing washroom have a capacity for a maximum of 280 people, and any total occupant load greater than 280 people, will require one portable washroom for every 50 persons up to 400 people total. The Appellant also indicates that the local city counsellor is also supportive of her liquor licence application.
42Lastly, I note that Lakeside Lodge is zoned in a highway commercial area, and albeit with a different owner, the premises had a liquor licence in the past.
43Also, there are other establishments in close vicinity to Lakeside Lodge that are licenced to sell liquor. The Royal Canadian Legion Branch is located further west from Lakeside Lodge, which is further out from the Village Core, and it has a liquor licence for both an indoor and outdoor capacity without any restrictions. Moreover, the Drake Devonshire, located less than 1 km away from Lakeside Lodge, has an unconditional liquor licence for a combined indoor/outdoor occupancy load of 463. The indoor areas are licenced for 168 capacity, and outdoor areas are licenced for 295 capacity.
Conclusion
44On a totality of the evidence presented, I find that the added parties have not established on a balance of probabilities that it is not in the public interest to grant the Appellant’s application for a licence to sell liquor, having regards to the needs and wishes of the residents of the municipality in which the premises are located.
45I find, based on the totality of the evidence, particularly the evidence of the proximate residential residents who testified in support the licence without conditions, that conditions are not needed to give effect to the purposes of the Act.
ORDER
46I direct the Registrar to issue the Appellant a licence to sell liquor without conditions.
LICENCE APPEAL TRIBUNAL
______________________________
Jeanie Theoharis, Vice Chair
Released: September 23, 2019