Licence Appeal Tribunal
Appeal from the Notice of Proposal of the Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 under sections 8(2)(b) and 21(1) of the Liquor Licence Act to Review an Application for a Licence
Between:
10605751 Canada Inc. o/a Fat Albert’s and Ralph’s
Appellant
-and-
Registrar, Alcohol, Cannabis and
Gaming Regulation and Public Protection Act, 1996
Respondent
-and-
A.A., M.E., P.C.
Added Parties
DECISION AND ORDER
ADJUDICATOR: Marisa Victor, Member
For the Appellant: Phillip Morris, Counsel
For the Respondent: Jordan Stewart, Counsel
Valreen Sealie, Student-at-law
For the Added Parties: Self-represented
A. INTRODUCTION
1The appellant, operating as Fat Albert’s and Ralph’s, applied to the Alcohol and Gaming Commission of Ontario (AGCO) for a licence for its outdoor patio attached to its establishment in the west end of Ottawa. Several residents of the neighbourhood, who live near the establishment, objected to the application. The AGCO issued a Notice of Proposal to Review the application (the Proposal), and the appellant appealed to this Tribunal. The neighbourhood objectors were made added parties to this appeal.
2The hearing took place over one day. The hearing was not recorded.
3The appellant sought a licence without conditions for its outdoor patio. The respondent took no position. The added parties sought various noise reductions conditions on the patio.
B. The Issue
4The issue to be decided at the hearing is whether it is in the public interest for the appellant to be granted a licence for the patio, having regard to the needs and wishes of the residents of municipality.
C. RESULT
5I find that it is in the public interest to allow the liquor licence on the patio. I direct the respondent to approve the application for a liquor licence. Conditions will attach to the liquor licence.
D. PRELIMINARY CONFIDENTIALITY ORDER
6During the hearing, one of the neighbourhood witnesses, called by the added parties, introduced a recently received one-page medical diagnosis report for her child as evidence in support of her testimony (the Document).
7On May 31, 2019 a confidentiality order was released ordering:
a. That the Document shall be sealed and shall not be provided to anyone other than the Tribunal and the parties;
b. That the Tribunal shall refer to the witness and child by initials only;
c. That the Tribunal shall keep the medical condition of the child confidential; and
1. That anyone who makes an enquiry about this case shall be informed that the Document is subject to a sealing order.
E. The LAW
8The 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 patio liquor licence, having regard to the needs and wishes of the residents of the municipality in which the premises are located.
9Section 23(12) of the Liquor Licence Act, R.S.O. 1990, c. L. 19 (the Act) permits the Tribunal to attach any conditions that would further the purposes of the Act.
F. EVIDENCE AND ANALYSIS
a. Background Facts
10The appellant’s establishment is located in a commercial plaza south of Baseline Road and east of Sandcastle Road in an area of Ottawa called Valley Stream. The existing patio runs along the west side of the plaza, facing Sandcastle Rd.
11The appellant’s establishment, as it is now known, has been open since August 2018. Previously, there was a Quickie convenience store with a Fat Albert take-out counter inside. The Quickie closed in 2017 and the appellant negotiated to take over the lease and add a Ralph’s neighbourhood sports bar at the rear. On August 28, 2018, the appellant was granted an indoor liquor licence with no conditions for a capacity of 30.
12The appellant’s establishment has an 18 feet by 8 feet patio that seats up to 20 people. There are no municipal or bylaw restrictions on the patio operating hours, therefore it could be open 24 hours a day if the restaurant chose to operate during those hours.
b. Added Parties’ Evidence
13The added parties are three neighbourhood residents each living on Brookhaven Crescent, which is located on the west side of Sandcastle Rd. The closest resident lives 60 metres from the restaurant, the furthest 95 metres from the restaurant.
14A.A., one of the added parties, testified that the he and his neighbours are residents who are concerned about a sports bar operating so close to their homes. Their greatest concern is noise and amplified music outdoors. He stated that the neighbours understand that the appellant is entitled to operate its business but that they hope to minimize the impact of the outdoor patio on their lives. A.A. testified that their residential location is a quiet area, particularly after rush hour. He is concerned that the patio noise will affect their ability to have their windows open in the summer months. He stated you can hear crickets in the evening. He submitted three videos to support his testimony. Each video was taken at night around 9 pm to show the quietness of the neighbourhood.
15In cross-examination, A.A. agreed that he understood that the plaza was zoned a commercial area. He strongly opposed the suggestion that there was anything but white noise from vehicles on Baseline Road, particularly after rush hour in the evening.
16A.A. testified that ideally there would be a divider on the edge of the commercial plaza property that would block the sound. Further he requested that the service of alcohol stop at 8 pm on weekdays and 10 pm on Fridays and Saturdays. He also wanted restrictions on amplified sound at night.
17K.A. was called as a witness by the added parties. He is also a resident living on Brookhaven Crescent. He believes his residence is approximately 87 metres from the patio. He stated that from his house he can see the patio. He and his wife have two young children. As they do not have air conditioning, he is accustomed to leaving his windows open and is concerned the patio noise will be disruptive. He testified that he would like to see a barrier or trees to block the sound and sight of the patio. He requested that the service hours on the patio end at 8 pm, 7 days a week.
18Ms. T. was called as a witness by the added parties.1 She is also a neighbourhood resident. She testified that her children’s bedrooms face the front of the house and therefore aim directly at the patio. She is concerned that they will not be able to open their windows in the summer due to the noise. She described the other commercial establishments in the plaza as “noise-free”.
19Ms. T. introduced the Document showing medical evidence that her youngest child suffers from a medical condition that makes the child particularly sensitive to loud noises. She stated that she already struggles to control the impact of sound on her child, particularly at night.
20Ms. T. also testified regarding an incident where a there was a man at the commercial plaza who was behaving loudly and acting drunk at 10 pm at night. His actions woke up one of her children who felt insecure and disturbed by the noise. Ms. T. assumed it was a patron of the establishment. She stated that she felt the situation was unsafe. She agreed under cross-examination that she did not know if the person had come from the establishment and did not advise the appellant of the incident at the time.
21M.E. testified regarding the context of their objection. The added parties had also objected to the previous application for the indoor liquor licence, but had withdrawn their objection in the spirit of compromise. They did not understand or contemplate that there would be an outdoor licence as well. M.E.’s main concern is noise and amplified sound on the patio. He also submitted a video taken outside to establish the current noise level at night. He also resisted the suggestion that Baseline Road produces significant car noise. He requested a border or wall to isolate sound. He also requested that the patio cease service of alcohol at 8 pm on weekdays and 9 pm on Fridays and Saturdays.
c. Appellant’s Evidence
22The appellant called Mr. Ralph Tannis to testify. He is the franchise owner and represents the company franchisor. By way of agreement he is also the operator of the establishment and oversees the management of the store.
23Mr. Tannis testified that the Fat Albert’s concept is that of a sub shop that serves both sit down customers and take-out food. There is an “exhaustive” menu of 80-100 items aimed at customers from young kids to those who have eaten there for 50 years. The Ralph’s concept was to attach a neighbourhood sports bar to the Fat Albert’s food services so that the kitchen could serve both. There are TVs for sporting events and indoor music that is used as background music so that patrons can have conversations.
24Mr. Tannis testified regarding the 20-year history of Fat Albert’s at that location, and the recent addition of Ralph’s neighbourhood sports bar. He noted there are no restrictions on take-out food hours.
25He also testified to the 50-year history of the Fat Albert’s franchise and the 40 year history of Ralph’s. There have been between 20 and 25 licensed establishments under those names. In that time there have been no suspensions or monetary fines by the respondent. There have been no police charges. He also stated there have been no by-law problems.
26Mr. Tannis testified regarding their other eight patio locations. There are two that share similarities to this location. The Ralph’s at Russel Road in Ottawa has two patios together seating approximately 40 people. That patio is about 88 metres to the nearest residential home. There are no restrictions on hours or amplified music. It has operated for 35 years without complaints from neighbours.
27Mr. Tannis testified that the Bank Street location, also in Ottawa, has a patio that seats 50 people. The nearest residential unit is 29 metres away. There are no restrictions on hours or amplified music. It has operated for 39 years without complaints from neighbours.
28Mr. Tannis testified that there was demand for a location in the Valley Stream area. He introduced a letter from the local City Councillor, Mr. Rick Chiarelli, offering his full support for a community pub with a patio in the area.
29Mr. Tannis described how he went to the establishment the day before the hearing and had a friend speak loudly on the patio to see how far the sound would travel. He stated he could not hear the gentleman once he was standing on the opposite side of Sandcastle Rd.
30Mr. Tannis stated that he is prepared to post a telephone line for neighbours to call if there is a noise problem. If the establishment is closed, the line will be serviced by an answering machine.
31Mr. Tannis testified that the appellant plans to serve alcohol from 11 am to 2 am, the current hours allowed by law. They do not plan to play loud music on the patio but do wish to play ambient background music.
32Mr. Tannis entered into evidence a petition that circulated that garnered 350 customer signatures after it was posted inside the establishment asking for support for the unconditional licensing of the establishment. He stated he was “shocked” by the extensive support.
d. Respondent’s Evidence
33The respondent did not take a position on the matter. However, the respondent did make submissions regarding the nature of the licensing regime and the types of conditions that it believes can appropriately be considered. The respondent stated that it is not in the public interest to attach conditions to a liquor licence if the conditions are not within the mandate of the respondent or are practically unenforceable.
34The respondent stated that issues such as public nuisance, traffic and the character of the neighbourhood are best addressed through the municipality.
35The respondent stated that conditions relating to hours of service, noise, signs asking patrons to be considerate of neighbours and safe service of alcohol are all considered within the mandate of the respondent.
e. Analysis
36In determining the issue, there are two questions I must consider:
a. Have the added parties established on a balance of probabilities that granting the appellant’s application for a patio liquor licence is not in the public interest?
b. Are conditions on the liquor licence appropriate?
37The appellant has a presumptive right to a licence unless granting that licence is not in the public interest. When determining the public interest, the legitimate concerns of residents in the immediate area of the establishment, and therefore those most affected, are to be given greater consideration. Subjective concerns must be supported on an objective basis.
38I find that the granting of a patio liquor licence is in the public interest in this case. The added parties would clearly prefer that there be no sale of alcohol on the patio. However, A.A., speaking on behalf of the added parties, agreed that the appellant is entitled to operate its business but hoped to minimize the impact. The overall position appeared to be that the added parties would not necessarily object to the licence if the noise issue could be adequately mitigated. The added parties’ and witnesses’ testimony were almost entirely concerned with noise and amplified sound from the patio in the evening and at night.
39The appellant presented evidence that a neighbourhood pub with a licensed patio is supported by a significant number of patrons, though their proximity to the establishment is unknown. The City Councillor provided a letter of support stating that there was community support for a neighbourhood pub with a patio. Further, the appellant produced evidence that it had operated similar neighbourhood establishments in and around Ottawa for many years without complaints from neighbours, City by-law officials, police or the respondent. The totality of the evidence supports the granting of a patio liquor licence.
40I am therefore satisfied that the appellant is entitled to a patio liquor licence.
41I must now determine whether conditions on the licence are appropriate.
42The added parties testified to legitimate concerns regarding noise from the patio. They presented evidence to support that their neighbourhood is quiet in the evening. I accept that evidence given the added parties’ testimony regarding their lived experience together with the addition of the videos they submitted. That is not to say that there is no vehicle noise from Baseline, but that such noise is minimal after rush hour. I also accept the evidence that the added parties and the neighbourhood witnesses often leave their windows open in the summer months and are concerned regarding noise at night and its potential impact on their lives.
43The added parties proposed three main conditions which I will deal with in turn:
a. Restrictions on amplified sound;
b. Restrictions on hours of service;
c. Courtesy sign; and
d. A wall or trees to block sound.
Restrictions on amplified sound
44The evidence of Ms. T. regarding the medical condition of her child is relevant, however, Ms. T. was not alone in her concerns. K.A. was also concerned about the effect of patio noise on his young children. The concerns for both were particularly at night and in the summer when windows are left open.
45Considering the proximity of the added parties to the appellant’s establishment and the consistent concerns regarding evening noise, I find it is in the public interest to place reasonable restrictions on the hours of amplified sound on the patio.
46When asked by the Tribunal, the appellant stated that, as an alternative submission, it proposed turning amplified music off at 11 pm, but that shortening hours of service of alcohol on the patio would have no effect on noise since the patio could be used for eating 24 hours a day.
47I find that a restriction on amplified noise on the patio is appropriate. Therefore, there shall be no amplified sound on the patio after 8 pm on weekdays and after 11 pm on weekends.
Restrictions on hours of service
48The added parties and their witnesses proposed different times that they considered appropriate for the patio to cease service of alcohol. These ranged from 8 pm, 7 days a week, to 10 pm on weekends.
49Although the establishment is able to serve food on the patio 24 hours a day, it is common sense that patrons who attend an establishment to consume alcohol on the patio are likely to make more noise and stay longer than those who are there only to eat. Given the conditions, I am already placing on the licence with regard to amplified sound, Mr. Tannis’ excellent record at his other establishments, and the aim of the appellant’s business to promote a neighbourhood pub atmosphere (as opposed to a louder venue such as a dance hall), I do not believe it would give effect to the purposes of the Act or be in the public interest to place restrictions on the hours of service of alcohol on the patio.
Courtesy Signs
50There were a number of conditions which the appellant did not oppose which will also be placed as conditions on the licence:
Posting prominent signs at exits reminding patrons to be considerate of neighbours; and
Posting a telephone number of local residents to call if there are concerns or complaints.
51The above conditions are in addition to the City of Ottawa noise by-law (as well as other by-laws) and the ongoing obligations in the Act including the management of patrons.
A wall or trees to block sounds
52Some of the added parties and their witnesses proposed a wall or trees to block the sound. Given the conditions I am imposing above, I do not believe that building a wall or planting trees is necessary in order to make the licence consistent with the public interest. As such there will be no condition requiring the building of a wall or planting trees.
G. ORDER
53I direct the Registrar to issue the appellant a licence to sell liquor on its patio.
54The following conditions shall attach to the licence:
a. There shall be no amplified sound on the patio after 8 pm on weekdays and after 11 pm on weekends;
b. The licensee shall post a prominent sign on the patio, visible to patrons as they leave, reminding patrons to be considerate and respectful of the neighbours by keeping noise to a minimum; and
c. The licensee shall post a telephone number for local residents to call if there are concerns or complaints.
LICENCE APPEAL TRIBUNAL
________________________
Marisa Victor, Member
Released: June 14, 2019