Licensing bylaw gets its second reading, sent back for changes

The proposed "comprehensive licensing bylaw" was the main - and oft contentious - topic of debate at council, Monday night. We had been given a draft version to consider and discuss with our constituents, 10 days earlier. But the version we got in the agenda package, Friday, was very much altered from the previous draft (which in turn was altered from the draft before it). And on Monday, at 3:30 p.m., another, revised version was emailed to councillors. It was obvious from the start it wasn't going to get passed, Monday, because none of us had time to digest and discuss the changes from Friday, let alone from Monday's update.

I was personally disappointed that a bylaw with so many changes was presented to council with only a weekend to read it, to discuss it with constituents. The changes in the Friday version meant that the vast majority of work spent on the previous draft was wasted. There was no warning I could see in our email that a subsequent draft was coming, but nonetheless, the recommendation to council was to pass it, Monday. That to me is not good process.

Of course, it didn't happen - I got the bylaw deferred to June 28. This gives the patio owners a little more time to enjoy their use.

Council as a whole did discuss the bylaw and the individual sections (schedules) within it. I can't speak to whether my colleagues read the entire bylaw, or even any of it. I certainly did, and led the discussion on most of the proposed changes. Some of my colleagues said little during the debate.

Although some of my concerns raised in the first go-around (and commented on previously in this blog) were addressed, a lot weren't. So some of my points were made a second time, Monday. I still think that merging unrelated elements like patios, buskers and fireworks sales into a single bylaw is wrong, and there should be a separate bylaw each for sales, for patios and for buskers.

This time, the bylaw was accompanied by a staff report. That's where my questions started.

My previous concerns about confidentiality and the removal of records without a warrant remain unanswered and still my paramount concerns. I still believe this bylaw violates the Charter's restrictions on unreasonable search and seizure. Section 5.4.b allows officers to "inspect and remove documents or things relevant to the inspection for the purpose of making copies or extracts." 5.4.c says we 'require information from any person concerning a matter related to the inspection." This strikes me as a presumption of guilt without having to prove any wrongdoing or show a reasonable concern for public health o safety before removing material or demanding information. Little too 1984 for my tastes. I brought this up last time, but Monday the Mayor whisked through the front section before I could bring it up again this time around. Perhaps he's comfortable with those sections. I'm not.

The staff report says the Police Services Board will be the licensing committee. That was never discussed previously by council and is apparently a dictate from staff. I don't think that's appropriate. We should at last have a BIA representative on the licensing committee, since many of these licence applications relate to the downtown. I am also concerned that there is, to my knowledge, no business owner on the Police Services Board, and only the Deputy mayor with any retail experience. Who on the Board has experience with busking, secondhand goods, patios, or auctions? I'm a believer in being judged by your peers, not just by someone in authority.

Similarly, the report dictated that the Arts and Culture Advisory Committee would audition the buskers prior to them applying for a licence. Again, this was a staff dictate, not a decision of council. The bylaw, however, was different. It said it would be the town's Arts & Culture Coordinator, plus two other people she chose. Again, that was arbitrarily decided by staff, not a decision of council.

If we're changing staff job descriptions or adding workload, that should go through the HR committee, not via a licensing bylaw. And there could be accusations of favouritism over the A&C Coordinator's choices and their collective decisions, if someone doesn't get approved to play. I don't think we should put anyone on staff in what could be a politically sensitive position like that.

I really believe council should have a say on who makes these decisions. I am uncomfortable when council is taken out of the process and has no input into issues and processes that concern the public interest. So I fought for, and won, a council-appointed committee to be created that would audition the buskers, with the A&C Coordinator as part of that committee. We have a lot of local musicians and actors who would be good at peer-reviewing buskers. Let's involve the public, since, after all, it's their downtown and their entertainment.

Buskers remain restricted, now to five locations instead of the original three, but too my mind it's far too restrictive. Councillor Jeffrey said it was limited to those areas because her Arts & Culture Advisory Committee felt it would too hard to police if it busking was allowed everywhere downtown. Like I said previously: we control culture, we license it and as tax it, but we don't embrace it.

At least I got it so buskers could sell their own CDs. They still can't even have amplification - not even the small battery-powered micro-amps many buskers use elsewhere. When I suggested we allow them, up to a power rating of 2 watts, Councillor Labelle grumbled he didn't know what 2 watts meant and was worried they would overpower the music coming from the downtown speakers.

That was another issue: will the downtown shut off the music piped through those speakers when buskers are playing?* No one could answer.

So the regulations for busking are a little improved, but still too restrictive for my taste. (I have to wonder how many people who crafted this bylaw and those at the table who support this section have ever even seen buskers peforming, much less understand the concept).

Auctioneers. The proposed fee was $250, double what Barrie and Toronto charge. Lots of Ontario municipalities don't even regulate auctioneers or charge them a fee. Why should we, I asked. No answer. I asked if the town had contacted the single local auctioneer (George Pfifer) before crafting this bylaw and didn't get an answer. I suggest that the answer would be no.

It disturbs me that we can't just pick up the phone and talk to someone about a bylaws that could, potentially, affect his or her livelihood. It's not like we have a hundred calls to make for every category. One, maybe two auctioneers. Half a dozen restaurant owners who might have a patio. Three pawnbrokers or hock shop owners. Two taxi companies.

But we don't. We don't even mail them directly - we depend on notices in the front windows of town hall or the ads in the paper. I'm not sure why we can't contact anyone directly - I know this council has, collectively, shunned public input into many issues, but that should not affect staff.

Anyway, that fee for auctioneers was adjusted down to $150, with a $50 reduction for holding a licence with the Auctioneers' Association of Canada. A small victory. I had to ask, though, why we even needed to charge local auctioneers a fee at all. After all, they already pay taxes here.

Patio owners can't have advertising on their umbrellas - so they won't be able to get corporate sponsors for them. Just another expense we're dumping on the restaurateurs on top of the other expenses in this enforced, highly unpopular move to the curbside.

Council Edwards and I both commented on the restrictions that demanded heritage colours on the umbrellas, thinking we're going a little too far with our demands. Does anyone really think having a bright green or yellow umbrella will upset the Grand Scheme of Things and knock the earth off it's axis? Councillor Foley might. He argued that bright colours would spoil the image. Similarly Councillor Jeffrey argued it would spoil the "brand" we're trying to promote. Neither would allow advertising even if they were, as I suggested, in heritage colours. I can't see how having a muted Guinness or Creemore logo on an umbrella will cause The End of The World As We Know It, but I'm in the minority.

Councillor Jeffrey commented that there are 200 colours in the heritage palette and that should be enough for anyone. Councillor Foley upped that to 300. I'm not sure who is right, but even at 300, it's still a small palette. The old computers of the early 1990s had palettes of 256 very distinct colours. In the mid 1990s, this we upped to 65,526. Today's computers have a palette of 16.7 million colours - and that colour space is actually not even close to the full gamut of colours the human eye can see. So when someone boasts we have 200, even 300 colours, I put it in that perspective.**

I trust you read the report in the Connection this weekend that says Guelph is moving patios back to the building side because the AGCO decided to enforce its laws about carrying liquor across public spaces. Councillor Jeffrey has vigorously promoted Guelph as the model for curbside patios we should follow. She's still defending the move to the curbside, even in light of the AGCO's decision and Guelph's recidivism. You might recall I suggested at the table that the AGCO would enforce the laws, despite her unsupported claims they would not.

The Fire Chief reiterated his argument that patios on the curbside posed a greater problem for fire safety, and that a 4-foot (1.1 m) space between patios was necessary for firefighters to get to a scene in case of an emergency (which could also require paramedics to move injured people into ambulances, etc.).

Not to mention that the space available will be considerably less than they can have now and that will hurt their business. The argument that the patios will be larger curbside is horse puckey. At present they're allowed to be 2.5 metres deep, and stretch from property line to property line. At the curbside, they will be a max of 2.4 metres deep, minus 0.7 metre (2 ft) on each side from the property line (for the safety laneway demanded by the Fire Chief). Plus licensed patios will need space within that enclosure for a wet bar and/or fridge, since the AGCO won't allow open alcohol to be carried over public space. How can a smaller, more constricted space be construed as larger than what they have now? But Councillor McNabb insists they will be.

I, of course, will continue to oppose this section of the bylaw because it forces patio owners to move to the curbside. I think it's a bad decision, supported by only a very small group (most of whom are at the council table).

Second-hand goods. The original bylaw was written to cover pawnbrokers. That term as mysteriously been removed from the new bylaw and been replaced by "a Dealer (sic) in second-hand goods." That's a wide net that now includes second-hand books, antiques, used or previously-viewed DVDs, used video games and more. That would include, for example, the G&M Hospital, which sells second-hand books and magazines from its commissary, Blue Mountain Music and JB's Guitars, EB Games, two used book stores, all of the second-hand clothing stores, the two used book stores, the Re-use Store, Too Good To Be Through, Rogers and Blockbuster - none of which had to have a licence before. Most of these are also downtown, which means they will have to pay another licence fee on top of their already steep BIA fees.

I'm not sure if they still do it, but most of the computer shops in town have in the past sold refurbished (second-hand) equipment as well. And, of course, used cars are, by definition, second-hand goods. So are used motorcycles, ATVs, PWCs and snowmobiles. If the law gets passed without a clearer or more refined definition, it will mean a lot of local businesses will require a licence to operate or face a hefty fine. I suggest we restore the term "pawnbroker" to the bylaw and remove "Dealer (sic) in second-hand goods."

Fines! It's a maximum of $100,000, with a daily max of $10,000. I think that's a bit excessive. Do we come up with these numbers from some basis in law, or simply choose big numbers to threaten the consequences of disobedience? I'm not how a judge would react if we went to court demanding a $10,000 fine for parking a hot dog cart a couple of metres too close to another food vendor.

Food vendors. In the first draft, vendors couldn't be closer than 50 metres away from one another. That's 162.5 feet away. We had a parking study in the 1990s that said people were reluctant to walk more than 200 feet from their parked car. So 162 feet seemed reasonable to me. In Friday's draft it had stretched unaccountably to 220 metres (722 feet)! That, I was told, was the average size of a block on First Street. Well, it isn't. On First Street, blocks are the short side. The long size runs at 90 degrees to First Street. And yes the long side might be more than 200 metres, but that's way too long and way too restrictive. It would mean no other food vendor was allowed for 220 metres in any direction. What if they're not competing, like ice cream and hot dog vendors? Why shouldn't they be allowed side by side? Let's go back to the 50 metre separation.

Transient Sales. These are often people who come into the community from outside to sell - sometimes in special sales (like the weekend golf equipment sellers at local hotels or flower sellers at intersections), sometimes door to door, sometimes business to business. They don't pay local taxes, seldom obey local sign bylaws, and in my experience often don't get a licence, either (just ask those door-to-door sellers to produce one and see how they run). They can severely hurt local businesses - sporting goods and florists in particular. A single corner flower seller from Barrie who parks at Hume and Hwy 26 can outsell all of the local florists on Mothers' Day, without having to pay for more than a van to carry the flowers and one person to take the money.

These aren't vendors at special events like the Elvis Festival or Farmers' Market, by the way.

The new bylaw makes it less expensive for a lot of these out-of-town merchants: $60 per sale up to five days in length, and $500 for using a larger area (more than 200 sq. ft). There's nothing about obeying sign bylaws (or requiring a security deposit from them t ensure they obey them). There's nothing to prohibit them from using public property (like intersections). I think it's too low and should be much higher to discourage casual sellers from taking sales from local merchants who pay taxes here. Make it $500 for small sales and $1,500 for larger ones. Why disadvantage out local merchants by making it less expensive for outsiders?

While there have been improvements, it is, for me, still a highly flawed document that often belabours common sense. The concerns about the assault on civil liberties alone will keep me from voting for it. When all schedules are pulled apart and presented separately for voting, I might be able to vote for the schedule on snowplough operators. But not much else, unless there are a lot of revisions next draft. I still won't vote for the patio section, unless the patios are restored to the building side.

I truly hope we get the next version at least a week before the discussion, and not have it arrive on a Friday evening, expecting to be passed on the following Monday.

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* I hesitate to call it "elevator music" since few elevators these days have music like that. It's not always schmaltzy, but it often is. I don't know how many people still believe music of their liking has to be foisted on the general public. Maybe it's time to reconsider why and when we have music piped downtown.

** Today's wide range of colours on fabric and in paints comes in part because over the last century we developed less expensive, easily mass-produced dyes. It wasn't that they didn't have the same range of colours in the 1890s as we do today - but many colours were a lot more expensive to produce. Take a look at the fabric samples from 1890 on Sharon's Antiques and you'll see material as bright and decorative as anything we have today. The 1890s were not all sepia - that's merely the effect of the aging silver nitrate in old photographic material. See here for a palette of heritage colours, here, here and here for others. There are many of these online, and a lot are dissimilar. As this site notes (emphasis added), "Colors in paint had always been determined by the availability of natural pigments. However , after 1850, this changed with the invention of analine dyes. This created a fashion for intensely bright and acidic yellows, purples and greens. In reaction to this bombardment of color, muted colors became the rage at the end of the 19th and early 20th century. Arts and Crafts interiors favored green – yellows, terracottas, greyed rose, and warm blue greens. Late Victorian homes sported deep rich colors such as chocolate brown, maroon, mustard, and earthy reds. Woodwork was painted with clear or colored varnishes."