Licence Appeal Tribunal File Number: 15228/LLCA

In the matter of an appeal from a Notice of Proposal to Review an Application for a Liquor Licence under the Liquor Licence Control Act, 2019, S.O. 2019, c. 15, Sched. 22.

Between:

Simona LP o/a Simona

Appellant

and

Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019

Respondent

-and-

Cindy Weedon and Steven Moss

Added Parties

DECISION

VICE-CHAIR:

Colin Osterberg

APPEARANCES:

For the Appellant:

Sean Bayley, Owner of appellant business

For the Respondent:

Added Parties:

HEARD:

Ashley An, Counsel

Cindy Weedon and Steven Moss, self-represented

November 29, 2023 by videoconference

OVERVIEW

1Simona LP o/a Simona (the “appellant”) applied for a licence to sell alcoholic beverages pursuant to s. 3 of the Liquor Licence and Control Act, 2019, S.O. 2019 c. C.15, Sched. 22 (the “Act”). The liquor licence, if issued, would apply to the outdoor area of the premises located at 59 Merchants’ Wharf, Unit A, Toronto, Ontario (the “premises”). The appellant intends to operate a licensed restaurant at the premises and the attached outdoor area is to be a licensed patio (the “patio”). The patio will have a seating capacity of 229 persons.

2The Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 (the “Registrar”) received objections to the application from four individuals and issued a Notice of Proposal to Review an Application for Licence (“NOP”). The appellant appeals the NOP to the Tribunal. Two of the objectors, Cindy Weedon and Steven Moss were added as parties to the appeal by order of the Tribunal.

ISSUES

3The issues in dispute are:

i. whether the added parties have established, on a balance of probabilities, that the issuance of a licence to operate a liquor consumption premises to the appellant with respect to the patio is not in the public interest, having regard to the needs and wishes of the residents of the municipality in which the patio is located;

ii. whether, in the circumstances of this case, conditions should be attached to the licence, if one is granted.

RESULT

4I find that the added parties have not established, on a balance of probabilities, that the issuance of a liquor licence for the patio is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the patio is located. I order the Registrar to issue a licence to the appellant for the patio.

5I order that the licence issued to the appellant with resepct to the patio be subject to a condition that alcohol shall not be sold or served for consumption on the patio after 11:00 p.m.

ANALYSIS

The issuance of the licence and the public interest

6Section 3(6) of the Act provides that the Registrar shall not issue a licence to operate a liquor consumption premises if issuing 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 to be licensed are located.

7After the hearing, the Tribunal may direct the Registrar to issue the licence or to refuse to issue the licence. If the Tribunal directs that a licence be issued, it may impose any condition on the licence that it considers proper to give effect to the purposes of the Act.

8The good faith concerns of the residents in the immediate area of the premises at issue who are the most affected by the proposed licence will be given greatest consideration as compared to those who are less directly affected. In determining whether the needs and wishes of the residents are presented on a good faith basis, 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.

9In making its decision, the Tribunal is required to balance the appellant’s qualified right to a licence against the needs and wishes of the residents of the municipality.

10The onus is on the added parties to prove on a balance of probabilities that 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, to grant a licence to the appellant.

The liquor licence and the public interest

11The premises are located on the ground level of a 13-floor residential condominium building. The added parties are condominium owners who live on the second floor, above the premises and the proposed patio. The primary concern expressed by the added parties is that the presence of a licenced patio at the premises will result in excessive noise as a result of the number of people allowed to be on the patio and the use of speakers to play music on the patio. They also expressed concern that a patio would encroach on the current use of the land as a park, a use that the added parties enjoy.

12Given that the added parties live in the condominium units directly above the premises, they will be the unit owners most directly effected by the presence of a patio and the accompanying sounds.

13I note that the added parties’ concerns were not specific to the issuance of a liquor licence but were related to the patio and the impacts it would have on their enjoyment of their condominium units. That said, they are concerned that allowing the consumption of alcohol would exacerbate the noise problems both in terms of volume and how late the patio activities will continue at night. The added parties recognize that the appellant has a qualified right to a liquor licence but argue that that qualified right is subject to their needs and wishes as the residents of the municipality who will be most affected by the presence of the patio.

14The appellant plans to operate an upscale Mediterranean restaurant at the premises. It is not planning to operate a night club. The appellant says that it operates nine restaurants in the Toronto area, has been in the restaurant business for 23 years and has an excellent history of compliance with regulations and by-laws governing the operation of licensed establishments. Its owners say that there is no reason to believe that the appellant would not comply with existing regulations with respect to noise and the service of alcohol and that the licence for the patio should be issued without conditions.

15The respondent takes no position on the issuance of a liquor licence with respect to the patio and says that any conditions attached to the licence must be related to the purposes of the Act and must be fair and enforceable. The respondent notes that licence holders are already subject to various responsibilities including limitations relating to noise.

16Steven Moss and Cindy Weedon gave evidence at the hearing. They described their concerns about the noise which would result from the number of patrons on the patio as well as the use of music amplification equipment. They are also concerned that a large patio would encroach on the existing parkland which has pleasant scenery including trees, paths, and park benches. Mr. Moss and Ms. Weedon do not trust that the patio will be operated with due consideration for the neighbouring condominium units given that there has been very little attempt to mitigate the sound of the indoor part of the restaurant, whose licence has already been approved.

17Francesco Scolozzi is another condominium unit owner who testified at the hearing. He is concerned that the value of his unit will be negatively impacted by the presence of a patio and the lack of noise attenuation in both the indoor and outdoor parts of the restaurant. He says that the unit owners chose to live in a quiet location and that the patio is likely to disturb that significantly.

18I accept that the presence of a patio, including amplified music, in close proximity to the added parties’ condominium units will likely result in noise being heard in those units, and certainly on the balconies overlooking the proposed patio. The intended seating capacity for the patio is over 200 and the volume of the music would have to be at levels sufficient to be heard by that number of people.

19However, the issue for the Tribunal is not whether a patio is in the public interest, or even whether amplified music should be allowed, but whether the added party has demonstrated that the issuance of a liquor licence is not in the public interest. The Tribunal has no authority to prevent the appellant from operating a patio on the premises with or without amplified music. If, however, it is demonstrated that the issuance of a liquor licence is contrary to the public interest because of the noise that would result from such issuance, then conditions may be imposed to mitigate that concern.

20I am not satisfied that the issuance of a liquor licence with respect to the proposed patio is, in itself, contrary to the public interest. The appellant will be required to comply with the municipality’s noise by-laws and other regulations. The evidence presented at the hearing is that the appellant has a history of compliance with liquor licence requirements and by-law restrictions and there was no evidence presented to suggest that those regulations would not be complied with if a licence is issued for a patio at the premises.

21Further, I am not satisfied that the serving of alcohol would necessarily increase the noise emanating from the patio to unreasonable levels for the neighbouring residents. The appellants intend to operate a restaurant on the premises and patio and not a night club. I am not satisfied that the noise levels that will result from the appellant’s business will be unreasonably disruptive in the circumstances.

22I am not satisfied that the issuance of a liquor licence for the patio is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the patio is located.

Conclusions

23I am required to balance the needs and wishes of the residents with the appellant’s qualified right to a licence.

24I have considered the concerns expressed by the objectors and the witnesses at the hearing. I must not rely on speculation or unsupported concerns in reaching a conclusion and I may not make orders which rely on considerations beyond those required by the Act and applicable case law.

25I find that the added parties failed to establish that granting a liquor licence for the patio is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the patio are located. I order the Registrar to issue a licence to the appellant for the patio.

Conditions

26The Added Parties ask the Tribunal to impose the following conditions if it determines that a licence should be issued.

1. Restricting the size and capacity of the patio;

2. Prohibiting the use of outdoor speakers; and

3. Restricting the hours of operation of the patio.

27I am not satisfied that it would be appropriate to restrict the size and capacity of the patio. The size and capacity of a premises to be used as a restaurant patio is a matter that is subject to municipal regulation and is not within the specific mandate of the Tribunal. It is not for the Tribunal to restrict the size and capacity of premises generally but to determine whether the issuance of a liquor licence is appropriate or not. The appellant will be subject to municipal zoning and noise by-laws and I am not satisfied that additional restrictions are appropriate as the result of the issuance of a liquor licence for the premises.

28I am not satisfied that the use of outdoor speakers should be prohibited in the circumstances. Again, the appellant is subject to municipal noise by-laws and I am not satisfied that the noise generated by speakers on a restaurant patio will be unreasonably disruptive to the neighbouring residents.

29I am satisfied that a condition restricting hours of operation of the patio is appropriate. The premises are located in a mixed-use condominium building with residences immediately above the proposed patio. In my view, serving alcohol on a patio with such a large seating capacity and playing amplified music on that patio, becomes unreasonable, and contrary to the public interest, in these circumstances where it takes place too late in the evening. In my view, the appropriate balance of the needs and wishes of the unit residents and the appellant lies in a condition that requires the appellant to end the sale and service of alcohol for consumption on the patio at 11:00 p.m.

ORDER

30Having considered the evidence and submissions of the parties, I order the Registrar to issue a licence to the appellant for the patio.

31I order that the licence issued with respect to the patio be subject to the condition that no alcohol be sold or served for consumption on the patio after 11:00 p.m.