Tribunal File Number: 11786/LLA
Appeal from the Notice of Proposal of the Registrar of Alcohol, Gaming and Racing under the Liquor Licence Act, R.S.O. 1990, c. L.19 - to Review an Application for a Licence
Between:
2601636 Ontario. Inc. o/a Queenston Mile Vineyard
Applicant
and
Registrar of Alcohol, Gaming and Racing
Respondent
and
Marion Hassebroek
Added Party
Adjudicator: Katherine Livingstone, Member
Appearances
For the Appellant: Steven J. O’ Melia, counsel
For the Respondent: Valreen Sealie, student at law
For the Added Party: Marion Hassebroek, for the Objectors, self-represented
Hearing Date: April 11, 2019
BACKGROUND
1The appellant, 2601636 Ontario Inc. carrying on business as Queenston Mile Vineyard, (Queenston), operates a new winery in Niagara-on-the-Lake, Ontario. The winery is on rural property of approximately fifty-two acres. Thirty-five of those acres are established vineyards. There are buildings on the property, one of which has recently been renovated and granted an occupancy permit to allow the appellant to carry on the retail and sales portion of their business. There are residential properties in close proximity to the winery.
2Queenston is a member of the Equity Wine Group which also owns Creekside Estate Winery (Creekside), a winery located in nearby Lincoln, Ontario.
3Queenston has applied to the respondent Alcohol, Cannabis and Gaming Commission, (AGCO) for a Tied House Licence for the winery, with an indoor capacity of 150 and an outdoor capacity of 100. A Tied House Licence would allow the appellant to sell alcohol products other than their own. Additionally, it allows a manufacturer to host on-site food service events. It also allows patrons to purchase a full bottle of wine for consumption on the premises. This appeal relates to public interest objections raised with respect to the granting of a Tied House Licence.
4In September 2018, Queenston was issued three licences with respect to its operations; a Manufacturers licence, a Retail licence and a By the Glass licence. These licences were applied for simultaneously with the Tied House licence.
5Pursuant to the bylaws of the Town of Niagara on the Lake (the Town), Queenston is currently designated as a Farm Winery. It has applied to the Town for a designation as an Estate Winery. The Estate Winery designation would, pursuant to the bylaws, allow for a hospitality room where wine and food could be served. Queenston’s present designation as a Farm Winery does not allow for a hospitality room. Should the Tied House licence be granted, it is the intention of the appellant to hold the licence in abeyance unless and until an Estate Winery designation is obtained.
6The Liquor Licence Act, R.S.O.1990, c. L. 19 (the Act) provides an opportunity for the public to submit objections to a liquor licence application. The respondent received four written objections from residents in the community (the objectors). The objectors, who reside in the immediate area, were concerned about a decrease in privacy and an increase in traffic and noise should the licence be granted. Additionally, they voiced concerns about perceived breaches of AGCO rules with respect to the current operations at Queenston and argued these alleged breaches foretold the future conduct of the appellant should the Tied House Licence be granted.
7On December 6, 2018, as a result of the objections, the respondent issued a Notice of Proposal to Review the Application of a Licence to Sell Liquor. The objectors were given standing as an added party.
8A hearing was conducted on April 11, 2019, at which time witnesses were called by the appellant and the objectors. Counsel for the respondent informed me they were not taking a position on the matter. Submissions were made by all parties and I reserved my decision.
9On May 6, 2019 I released a decision approving the application for a Tied House licence with reasons to follow.
THE LAW
10Section 6 (2) of the Act provides that an applicant is entitled to be issued a licence to sell liquor except in specified circumstances. The Act outlines several such circumstances, however there is only one relevant to this hearing and it is set out in s 6 (2) of the Act which provides that an otherwise qualified applicant is not entitled to a licence 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
11The Act requires the Registrar to give notice of a liquor licence application to the residents of the community in which the establishment is located. (s. 7(1)). The notice requests written submissions from the residents on whether issuing the licence would be in the public interests having regard for their needs and wishes. (s. 7 (1) and (3)).
12If one or more written objection is received the Registrar may issue a proposal to review the application (s. 8(4)).
13The Registrar must serve the applicant with the notice of proposal and the applicant may then request a hearing by this Tribunal to determine whether the licence should be granted and if so what conditions, if any, should be attached to the licence. (s 21(1)).
14In the hearing the onus is on those objecting to the application to prove on a balance of probabilities that the issuing of the liquor licence is not in the public interest.
15The powers of the Tribunal in a hearing are limited by statute, as set out in s. 23 (1) as follows:
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.
16In addition, the Tribunal can also impose conditions on the licence that it considers proper to give effect to the purposes of the Act. (s 23 (12)).
ISSUE
17The issue is whether or not it is in the public interest to grant the appellant’s application for a Tied House Licence, having regard to the needs and wishes of the residents of the municipality in which the premises are located.
18Should the licence be granted, I must also consider whether, in the circumstances of this case, conditions should be attached to the licence.
Result
19Based on the evidence heard and submitted during the course of the hearing, I cannot conclude that granting the appellant a Tied House Licence would not be in the public interest. I therefore direct the Registrar to issue the Tied House Licence to the appellant.
Evidence
20The objectors called three witnesses: Richetta Bonaffino, a resident whose property abuts the appellant’s acreage, Paul Bosc whose property also abuts the appellant’s land and Marion Hassebroek, who resides directly across the road from the winery.
21The objectors were agreed on their worries about the proposed licence; they were concerned about a loss of privacy, the increase in noise and traffic and the perceived past breaches of Town bylaws and AGCO regulations.
22Ms. Bonaffino has lived at her residence for 20 years. Her home is eighty feet from the property line. When she moved in there were no vineyards. In 2000, the vineyards were planted and the structure that was recently renovated by the appellant was built. Ms. Bonaffino understood the structure to be a storage building and did not object to it when it was built.
23However, the newly renovated building does cause her concern. She testified with the addition of a balcony on the building she will now have people looking directly onto her property and feels this will mean she will curb her outside activities. Her laundry will be displayed for viewing and she will limit her entertaining. She testified the appellant’s land in the vicinity of the property line has been allowed to go wild and she is afraid of the presence of ticks.
24She does not feel the presence of a fence or a berm, which are part of the appellant’s application to the Town of Niagara, will alleviate the problem. Nor does she feel that a new proposed road, also in the Town application, will ease concerns.
25She testified she is worried about increased outside noise should the licence be granted.
26Mr. Bosc lives beside Ms. Bonaffino and has been there for twenty-one years. As well as being a nearby resident, Mr. Bosc is also the President of Chateau Des Charmes Wines, a winery also located in the Niagara region.
27Mr. Bosc stated that he too would be “profoundly affected” by the issuance of the licence. He said he had serious concerns about the management of the property if people are allowed to wander through it unattended. His concerns seem to stem from pictures and information the appellant posted on social media which invite guests to walk through the property at their leisure. Mr. Bosc‘s father owns horses that graze on property abutting the vineyard portion of the appellant’s land and he was worried the appellant’s patrons will interfere in some manner with the horses.
28Both Mr. Bosc and Ms. Bonaffino raised the concern about a pond that is on part of the property and how it might pose a danger for people freely walking about, especially if they have been drinking. As I understood the evidence the pond is quite deep into the property, surrounded by large grasses, making it difficult to approach and not on the suggested tour route around the property.
29In cross examination Mr. Bosc also said he was concerned about the possibility of events at the winery having fireworks but agreed with appellant counsel that his concern was speculative.
30In response to questions from appellant counsel, Mr. Bosc acknowledged his winery had a Tied House licence and that with this type of licence there was no need for a special occasion permit (SOP). He agreed this was helpful to his business. He also agreed that since the appellant had received their other licences there had not been any incidents at the winery that caused him concern.
31Ms. Hassebroek has lived in her residence for over 30 years. Her home is across the street from the appellant’s driveway. Much of her evidence focussed on alleged breaches of bylaws by the appellants.
32She stated her information was that the winery had opened before they had an occupancy permit. She produced emails from the manager of building and enforcement for the Town of Niagara dated December 7, 2018. The email advised the occupancy permit was “very likely to be issued today”. Ms. Hassebroek alleges the appellant was operating as of November 10, 2018.
33She also alleged the appellants were selling wine that had not been produced at the winery and that was in contravention of their licence.
34Additionally, she alleged the appellant did not follow the AGCO guidelines with respect to the posting of the placard advising of the application made by the appellant for a Tied House licence.
35Ms. Hassebroek testified that the busyness of the road is increasing and from her property she is impacted by the number of people who miss the driveway to the winery and then pull into hers to turn around. She believes this will increase should the licence be granted.
36The appellant called three witnesses; Richard Linley, President of the Ontario Craft Wineries, Andrea Kaiser, Director of Marketing for Reif Estate Winery and Monastery Cellars (Reif) and also a board member of Ontario Craft Wineries and Alison Zalepa, General Manager of the Equity Wine Group of which Queenston is a member.
37Their cumulative evidence revolved around the reasons for the requested licence, the history of the appellant’s wine operations and the intentions of the appellant moving forward.
38Mr. Linley outlined what he described as the positive impact of Niagara wineries, such as the appellant’s, on the economic viability and sustainability of the agricultural land in the region. He referred to a 2016 study which generally outlined the economic spinoffs that result from visitors coming to the wineries.
39Referring to the appellant specifically, he stated his experience with the Queenston Mile “team” has been that they are ‘professional and responsible”. Referring to the appellant’s other winery, Creekside, Mr. Linley said they have been operating for over 20 years and in his opinion, they are “respected, responsible and active members of the industry as well as in their community”.
40Ms. Kaizer has worked in the wine industry for most of her adult life. She said she was at the hearing in a dual capacity, both as the general manager for Reif and as a representative of Ontario Craft Wineries.
41She outlined what she believed were the benefits of a Tied House licence; specifically, the licence allows the winery to sell products other than their own, hours of service can be extended, and the licence also eliminates the need for obtaining a SOP.
42SOP’s can be obtained by the winery if it is sponsoring the event. Or they are obtained by individuals who are booking events at the winery. The individual then becomes the one responsible for ensuring compliance with the terms of the conditions of the SOP.
43Ms. Kaizer described the SOP as being a cumbersome and onerous process on the winery “because the logistics are difficult “and that a Tied House Licence is preferable. Additionally, with a Tied House licence, servers would be required to have Smart Serve certification. She testified the Tied House licence is the better choice over the SOP for both the interests of the winery and its neighbours.
44In cross examination she confirmed that Reif did not have a Tied House Licence. She said despite feeling the need for one, making an application for the licence had constantly been placed on “the back burner”. She also stated the nature of Reif’s business was such that special events were not as high a priority in terms of dollars for business.
45Ms. Zalepa provided the most fulsome explanation behind the application for the Tied House licence and the steps taken and to be taken to address the concerns raised by the objectors.
46She outlined her experience in the wine industry, stating she is presently the General Manager for both Queenston and Creekside. Her responsibility is to manage the day to day operations and supervise a staff of approximately thirty people. She has been employed in the wine industry in various capacities for over twenty years and has previously taught courses on winery management. She testified that in her time in the industry she has never had an AGCO infraction in connection with any of the wineries she has been involved in.
47Ms. Zalepa said Queenston has three licences currently in place, all of which were approved in September of 2018. These licences would remain active if the Tied House licence was approved. The Tied House licence would enable a guest to come in and buy a bottle of wine and take it to another part of the property for consumption. This is in keeping with the appellant’s wish to have the guest be more involved in the land and to be able to sit down on the property and enjoy the wine while being interactive in and educated on the production of wine. The Tied House licence would also allow the service of food. However, the food service would also be contingent on the Town changing the appellant’s designation to an Estate Winery.
48Ms. Zalepa asserted the Tied House licence would allow the appellant to offer a unique experience to their guests. She described the appellant’s vision of the winery as a “bit of a passion project…we want to build a place where we would want to go” to experience the wine industry in an “interactive and down to earth way”.
49One of the features of a Tied House licence is to allow the business to sell products other than their own. Ms. Zalepa testified this would allow for blind tastings to hopefully demonstrate why their product is the one to purchase.
50Ms. Zalepa addressed the concern raised by the objectors. With respect to the allegation the appellant has breached bylaws and\or AGCO regulations, Ms. Zalepa said the appellants received verbal approval from the Town on November 9, 2018 for occupancy and were also told to go ahead with a soft opening, which they did on November 10, 2018. They received the permit in writing on December 7, 2018. Ms. Zalepa said she understood there was a miscommunication between the Town’s municipal departments which may account for Ms. Hassebroek’s concern.
51Ms. Zalepa further said they had a charity event in September and although they did not have a licence at that time they did get a permit to allow guests to sample the wine.
52With respect to the posting of the placard, Ms. Zalepa advised the sign was sent to them by the AGCO. It was a large 3’by 3’ sign and they followed the instructions on how to post it. She said at some point someone removed it and they got another sign and replaced it.
53Concerning the worries about increased noise Ms. Zalepa testified she was familiar with the Town bylaws with respect to noise and they would adhere to those bylaws. She said she was cognizant of the fact they have neighbours and have taken and would take steps to ensure they don’t interfere with their ability to enjoy their properties. She used the example of Queenston putting up a fence at the request of one of the neighbours and these neighbours are not objecting to the proposed licence. Additionally, if given permission from the Town, they plan on building a new driveway to the winery which should address some of the concerns.
54Further, in the exhibits filed, it was clear there are two other neighbours whose properties abut on the Queenston property, neither of whom have registered objections to this application.
55Ms. Zalepa also pointed out that at Creekside, where they have a Tied House licence, there are three neighbours in similar locations to the objectors vis a vis the winery.
ANALYSIS
56In a hearing held pursuant to section 6 (2) of the Act, I must balance the needs and wishes of the residents with the appellant’s desire to operate its business. I must also bear in mind the appellant has a presumptive right to the 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.
57I listened to and carefully considered the concerns of Ms. Hassebroek, Ms. Bonaffino and Mr. Bosc. I have also reviewed the exhibits filed by them. They are worried about the potential impact the Tied House licence might have on the neighbourhood. Additionally, they question the appellant’s preparedness to responsibly manage the property given alleged infractions in the months proceeding the filing of their objections.
58In deciding this issue, I must focus on the present application and not rely on speculation or possibilities in reaching a conclusion. Additionally, I must be cognizant not to consider concerns that are not enforceable by or within the mandate of the AGCO. For example, the concern with respect to noise is more properly addressed in zoning bylaws and Town enforcement bylaws.
59With respect to the concerns about alleged violations of bylaws and AGCO regulations, I do not share the concerns expressed by the objectors. Had such concerns been present they would have born some weight in terms determining the issue of public interest.
60However, I accept Ms. Zalepa’s evidence that the appellant was and is alive to all of their obligations both as it relates to the Town bylaws and the AGCO regulations and that they take steps to ensure compliance with both. Of significance in reaching this conclusion is there was no one from either the AGCO or the Town called to express concerns over non-compliance. Surely, if the respondent was concerned about non- compliance, evidence would have been called on the issue.
61Additionally, I accept Ms. Zalepa’s evidence that in her over twenty years in the industry she has not been involved in any infractions. There was also no evidence to indicate the appellant company has a history of infractions.
62In reviewing the other concerns raised by the objectors, I find them to be based on speculation and projection rather than the present situation.
63The speculation, concerns, and fears of the objectors were not substantiated by evidence sufficient to demonstrate that the granting of a Tied House licence is not in the public interest.
64I find the added party has not proven, on a balance of probabilities, that it is not in the public interest to grant a Tied House licence to the appellant.
65Additionally, given the history of the appellant with respect to the operation of their other winery, specifically the lack of any evidence of non-compliance, together with the absence of any issues with respect to enforcement at Queenston, I find there is no need to impose any conditions on the licence.
DECISION
Pursuant to the authority vested under the provisions of the Act, I direct the Registrar to approve the application for a Tied House licence made by 2601636 Ontario Inc., operating as Queenston Mile Vineyard.
LICENCE APPEAL TRIBUNAL
_________________________
Katherine Livingstone, Member
Released: August 29, 2019