Application by a Licensee under s. 14 of the Liquor Licence Act to Remove Conditions
Between:
General Wolfe Inn (The)
Applicant
and
Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996
Respondent
DECISION and CONSENT ORDER
ADJUDICATOR: Jacqueline Castel, Member
APPEARANCES:
For the Applicant: Laurence Gray, Agent
For the Respondent: Jordan Stewart, Counsel Valreen Sealie, Articling Student
Heard by Teleconference on: May 10, 2019
INTRODUCTION
1The applicant, The General Wolfe Inn, located on Wolfe Island at the eastern end of Lake Ontario, requests the removal of four conditions on liquor licence # 10328. The request is made pursuant to section 14 (2) of the Liquor Licence Act (the “Act”), on the ground that there has been a change in circumstances that led to the imposition of the conditions.
2The four conditions the applicant is seeking to have removed are:
Sale and service of liquor on the outdoor licensed area shall cease at 8 p.m. on Mondays, Tuesdays, Wednesdays and Thursdays.
Sale and service of liquor on the outdoor licensed area shall cease at 10 p.m. on Fridays, Saturdays and Sundays.
The outdoor licensed area shall only be open for the sale and service of liquor between May 15 and September 15 of each year.
There shall be background music only on the outdoor licensed area and no more than 2 live performances at any time.
3The applicant is also seeking to extend the hours of service on the patio until 10 p.m. nightly and to extend the patio season from May 1 to October 31. In addition, the applicant wants to be able to have up to 6 live performers on the patio, so that they can have band events, and to offer live music on the patio every Saturday from 3 p.m. to 8 p.m. during patio season.
4The conditions outlined in paragraph 2 above were added to the licence in 2012, following a public meeting conference call where two people (husband and wife) objected.
5The current licensee, and the applicant in this matter, has owned the business since 2017.
ISSUE
6The issue I am deciding is whether there has been a change in circumstances such that the conditions on the applicant’s liquor licence are no longer proper and necessary to give effect to the purpose of the Act.
LAW
7Subsection 14(2) of the Act permits the Tribunal to remove conditions if, on an application to remove a condition from a licence, the Tribunal finds there is a change in circumstances.
ANALYSIS
8On May 10, 2019 a case conference took place at which time I heard from both the applicant and the respondent.
9The applicant filed, as evidence of a change in circumstances: (1) a letter from the original two objectors indicating they support the application; (2) a petition, signed by 47 neighbours and patrons of the establishment, supporting the application, and (3) a letter signed by the mayor of the Township of Frontenac Islands, on behalf of Council of the Corporation of the Township of Frontenac Islands, stating that the municipality has no objection to the application and that the proposal complies with the township’s noise by-law.
10The respondent filed an email, dated May 8, 2019, from Ms. Tamara Brooks, counsel for the respondent, indicating that the respondent is satisfied that there has been a change of circumstances, based on the evidence of support for the application filed by the applicant.
11Ms. Brooks also stated in this email that condition 4 requires the respondent to count “performers”, and the concept of “background music” is not something the respondent can enforce. As such, she indicated that the respondent is proposing to remove condition 4 entirely, on the ground that it is unenforceable. If there are complaints about noise on the patio, the respondent would have the authority to regulate patio noise under section 46 of Ontario Regulation 719/90 under the Act.
12At the case conference, Ms. Sealie, articling student for the respondent, informed that the respondent proposes two conditions be added to the licence in accordance with the application:
The sale and service of alcohol on the patio shall end at 10 p.m. daily.
The patio shall only be open for sale and service of alcohol between May 1 and October 31.
13The applicant consented to these conditions being added to the licence.
14Based on the submissions of the applicant and the respondent, I conclude there has been a change of circumstances.
15Accordingly, under s. 14(2) of the Act, I order:
The following conditions currently attached to the applicant’s liquor licence be removed:
Sale and service of liquor on the outdoor licensed area shall cease at 8 p.m. on Mondays, Tuesdays, Wednesdays and Thursdays.
Sale and service of liquor on the outdoor licensed area shall cease at 10 p.m. on Fridays, Saturdays and Sundays.
The outdoor licensed area shall only be open for the sale and service of liquor between May 15 and September 15 of each year.
There shall be background music only on the outdoor licensed area and no more than 2 live performances at any time.
The following conditions shall be added to the applicant’s liquor licence:
The sale and service of alcohol on the patio shall end at 10 p.m. daily.
The patio shall only be open for sale and service of alcohol between May 1 and October 31.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
Released: May 10, 2019