City of Kingston Report to Council Report Number Mayor and Members of Council Cynthia Beach, Commissioner, Corporate & Strategic Initiatives

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To: From: Resource Staff: Date of Meeting: April 5, 2016 Subject: Executive Summary: City of Kingston Report to Council Report Number Mayor and Members of Council Cynthia Beach, Commissioner, Corporate
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To: From: Resource Staff: Date of Meeting: April 5, 2016 Subject: Executive Summary: City of Kingston Report to Council Report Number Mayor and Members of Council Cynthia Beach, Commissioner, Corporate & Strategic Initiatives John Bolognone, City Clerk Declaration of the Downtown Kingston Business Improvement Area as a Tourism Area for the Purposes of Exempting Businesses in the BIA from Restrictions of the Retail Business Holidays Act on a Year Round Basis Council, at its meeting held January 26, 2016, considered Report Number with respect to an application from the Board of Management of the Downtown Kingston! Business Improvement Area ( BIA ) requesting City Council to consider passing a By-law to declare the BIA a Tourist Area, for the purpose of exempting businesses in the BIA from restrictions of the Retail Business Holidays Act (the Act ), on a year round basis. If granted, this exemption would permit retail businesses in the downtown BIA to operate on New Year s Day, Family Day, Good Friday, Easter Sunday, and Christmas Day in addition to Victoria Day, Canada Day, Labour Day and Thanksgiving Day which are already exempted from the restrictions of the Act. At the aforementioned meeting, Council directed that a special meeting of Council in respect of the proposed By-law, in a public meeting format, be held on March 9, Staff was further directed to provide notice of the required public meeting in accordance with the Act. The purpose of this report is to provide Council with results of the public meeting and afford two options with respect to the proposed exemption. Staff is also recommending that should Council approve Option 1, that all three readings of the By-law be provided at the same meeting in order to facilitate the provision of further notice and the implementation process in a timely fashion. Council Meeting 12 April 5, Report to Council Report Number: Recommendations: Option 1 April 5, 2016 Page 2 of 9 That the necessary By-law to amend By-law Number being A By-Law to Permit Retail Businesses to Operate on Statutory Holidays During the Period Between May 1 to October 15, Inclusive in the Calendar Year for the Maintenance of Tourism in the City of Kingston to declare the downtown BIA a Tourist Area, as defined by the Retail Business Holidays Act (the Act ), for the purposes of exempting businesses in the Business Improvement Area from restrictions of the Act on a year round basis, as outlined in Exhibit D to Report Number , be presented to Council for enactment and given three readings at the same meeting; and That staff be directed to provide Notice of Passing of said By-law in accordance with the Retail Business Holidays Act. or Option 2 That Council not enact an amending By-law to declare the downtown BIA a Tourist Area, as defined by the Retail Business Holidays Act (the Act), for the purposes of exempting businesses in the Business Improvement Area from restrictions of the Act on a year round basis. Council Meeting 12 April 5, Report to Council Report Number: April 5, 2016 Page 3 of 9 Authorizing Signatures: Cynthia Beach, Commissioner, Corporate & Strategic Initiatives Gerard Hunt, Chief Administrative Officer Consultation with the following Members of the Corporate Management Team: Lanie Hurdle, Community Services Denis Leger, Transportation, Facilities & Emergency Services Jim Keech, President and CEO, Utilities Kingston Desiree Kennedy, Chief Financial Officer & City Treasurer Not required Not required Not required Not required Council Meeting 12 April 5, Report to Council Report Number: Options/Discussion: April 5, 2016 Page 4 of 9 Pursuant to the Retail Business Holidays Act (the Act ), municipal Councils in Ontario may pass By-laws to permit retail business establishments to be open on public holidays for the maintenance or development of tourism. The Act indicates that a municipal Council in passing a By-law under section 4(1) shall take into account the principle that holidays should be maintained as common pause days. The Act also expressly provides that a Council is not required to pass the By-law even if the tourism criteria are met. In 1998, Kingston s City Council enacted and passed By-law (attached as Exhibit B), which permits retail businesses operating in the entire municipality of Kingston to be open on public holidays from the 1 st day of May to the 15 th day of October, inclusive, in each calendar year. The holidays included in the current exemption are: Victoria Day, Canada Day, Labour Day, and Thanksgiving Day. The Board of Management of the Downtown Kingston! BIA requested that Council consider passing a By-law to declare the downtown BIA a Tourist Area, as defined by the Act, for the purpose of exempting retail businesses in the downtown BIA from the restrictions of the Act on a year round basis. The proposed changes, if approved, would permit retail businesses operating in the downtown BIA, to be open on New Year s Day, Family Day, Good Friday, Easter Sunday, and Christmas Day in addition to Victoria Day, Canada Day, Labour Day and Thanksgiving Day which are already exempted from the restrictions of the Act. The Application from the Board of Management of the Downtown Kingston! BIA is attached as Exhibit A hereto. The scope of the By-law enacting powers pursuant to section 4(1) of the Act may: a) apply to one or more retail business establishments or to one or more classes of retail business establishments; b) apply to all or any part or parts of the municipality in case of a by-law or to all or any part of a territory without municipal organization in the case of a regulation; c) limit the opening of retail business establishments on holidays to specific times or to a certain number of hours; d) permit the opening of retail business establishments on some holidays and not on others; e) restrict the opening of retail business establishments on holidays to specific periods of the year; and f) classify retail business establishments. Section 4(4) of the Act states, in part, that the Council shall consider a By-law under subsection (1) only on the application of one or more persons carrying on retail business in the municipality, or on the application of an association. As no other source of application exists, only the application that is before the Council can be considered. Therefore, no extension beyond the requested amendment in the current application is able to be considered. Ontario Regulation 711/91 passed under the Act gives more detail related to the tourism criteria that must be met before a municipality may pass a By-law. Specifically, section 2(2) of the Regulation indicates that an exemption granted on an area basis may only be given if: Council Meeting 12 April 5, Report to Council Report Number: April 5, 2016 Page 5 of 9 (a) all the retail business establishments in the area are within two kilometers of the tourist attraction; (b) the area does not exceed that necessary to encompass all of the retail business establishments for which an exemption is sought; and (c) at least 25 per cent of the retail business establishments in the area are directly associated with the tourist attraction or rely on tourists visiting the attraction for business on a holiday. Section 2(3) of the Regulation states that a tourist attraction is limited to natural attractions or outdoor recreational attractions, historical attractions; and cultural, multi-cultural or educational attractions. Section 6(1) provides that an application for an exemption under subsection 4(3) of the Act shall contain the following: 1. a description of the area or the retail business establishment for which the exemption is sought; 2. the justification, in relation to the seasonal nature, if any, of the tourist attraction, for the time period sought in the exemption; and 3. information establishing that the tourism criteria set out in this Regulation are met. In their application, attached to this report as Exhibits A - D, the Board of Management of the Downtown Kingston! BIA, provided their justification for meeting these requirements. Notice of Public Meeting: The Act requires that prior to passing a By-law Council shall hold a public meeting in respect of the proposed By-law and publish a notice of the meeting in a newspaper which has general circulation in the municipality at least thirty days before the meeting is to be held. Pursuant to the Act, an advertisement for the March 9 th public meeting was placed in the Kingston Whig Standard on February 2, 2016 (See Exhibit C). In addition, the notice was included on the City s website. Public Submissions: Contact Us Portal Through the Contact Us Portal, staff received one comment as outlined below: Comment: Please don t let the stores open on Christmas and other holidays like Family Day. Just heard on news this may happen. I work in retail part time and have no option on not working Sat or Sun. You cannot take them off of my advisability list. I get 5 holidays a year where I know I can get together with my whole family and friends, where I do not have to book them off and hope I get them or that my friends can get them off as well. Barbara P.S. When is the new bridge being built I vote for you in hope we get this bridge started soon. Response: Under the Employment Standards Act, those businesses as defined in the Retail Business Holidays Act; and the employees employed to work in those establishments; have the Council Meeting 12 April 5, Report to Council Report Number: April 5, 2016 Page 6 of 9 provision that an employee may refuse to work on a public holiday or a day declared by proclamation of the Lieutenant Governor to be a holiday for the purposes of the Retail Business Holidays Act. 2000, c. 41, s. 73 (1). An employee who agrees to work on a day referred to as a public holiday may then decline to work on that day, but only if he or she gives the employer notice that he or she declines at least 48 hours before he or she was to commence work on that day. Results of the Public Meeting: The Act also requires that Council shall permit any person who attends the meeting the opportunity to make representations in respect of the proposed By-law. At the public meeting, a total of five delegations appeared before Council to address the matter. An excerpt from the minutes, with respect to the delegation s representations, is referenced below as follows: Delegations 1. Doug Ritchie, Managing Director, Downtown Kingston! BIA appeared before Council and spoke to the passage of a by-law which would exempt businesses operating in the BIA from restrictions of the Retail Business Holidays Act ( the Act ) on a year-round basis. Mr. Ritchie advised Council that the Act prevents a small subset of businesses from operating on statutory holidays. He spoke to the types of businesses located in the BIA that are already exempt from the Act. He referenced examples of Ontario municipalities and areas of Toronto which have been declared Tourism Areas and subsequently granted year round exemptions from the Act. Mr. Ritchie noted the positive impact that holidays have on downtown Kingston and stressed the importance of boutiques and retailers being permitted to operate on holidays as they serve part of the tourism attraction. Mr. Ritchie clarified that businesses exempt under the Act are not required to be open and explained that employees are not forced to work on designated statutory holidays under the Act. He reiterated that the Tourism Area exemption would give all businesses a right to choose whether they wish to be open on statutory holidays under the Act. Mr. Ritchie noted that additional Kingston Transit service would not be required to facilitate a Tourism Area exemption under the Act as it has already been demonstrated that people are downtown on statutory holidays. Mr. Ritchie encouraged Council to approve the by-law which would exempt businesses operating in the BIA from restrictions of the Act on a year-round basis. 2. Justine Scala, owner, Minotaur Games and Gifts appeared before Council and spoke to the passage of a by-law which would exempt businesses operating in the BIA from restrictions of the Retail Business Holidays Act ( the Act ) on a year-round basis. Ms. Scala informed Council that she is supportive of the proposal to designate the BIA as a Tourism Area under the Act. She emphasized the importance of multi-culturalism in Kingston and stated that businesses should not be prevented from operating on Christian holidays. Ms. Scala stated that the conditions outlined in the Act are arbitrary and indicated that the language is quite vague. She spoke to the importance of Easter weekend to downtown Kingston. She stated that customers have expressed their support for downtown Kingston to be designated as a Tourism Area under the Act. Ms. Council Meeting 12 April 5, Report to Council Report Number: April 5, 2016 Page 7 of 9 Scala noted that independent business owners place high importance on flexibility and deserve the right to determine if they wish to be open on a statutory holiday. 3. Cyndy Gibson, owner, Agent 99 and Blueprint clothing, and Bev Allinson, owner and Managing Director, Confederation Place Hotel appeared before Council and spoke to a by-law which would exempt businesses operating in the BIA from restrictions of the Retail Business Holidays Act ( the Act ) on a year-round basis. Ms. Gibson informed Council that following discussions with her staff members it become apparent that people do not require the same days off as previous generations. She referenced the recent Tourism Kingston promotional video and indicated that tourists expect everything to be open in downtown Kingston. Ms. Gibson reiterated that other municipalities have been granted year round exemptions under the Act as Tourism Areas and stated that businesses in the BIA should be free to operate as they see fit. Ms. Allinson advised Council that shopping is viewed as a key part of the tourism and entertainment experience in Kingston. She stated that the entire downtown Kingston area should be seen and appreciated by tourists. Ms. Allinson stated that she is supportive of the BIA s desire to be designated as a Tourism Area under the Act. She commented that the downtown is facing challenges due to infrastructure construction and online competition. She reiterated that Easter weekend is a busy weekend in downtown Kingston and stated that BIA businesses would benefit from a Tourism Area exemption under the Act. 4. Mr. Adam Pottier, Kingston Gaming Access, appeared before Council and spoke to the passage of a by-law which would exempt businesses operating in the BIA from restrictions of the Retail Business Holidays Act ( the Act ) on a year-round basis. Mr. Pottier provided background information outlining the negative impact his business faces as it is unable to open on statutory holidays as defined by the Act. He indicated that customers often complain that his business is not permitted to be open on statutory holidays. Mr. Pottier mentioned that Kingston prides itself on being a tourism destination and indicated that Easter weekend is a popular weekend for tourists to visit Kingston. He noted that this matter is often raised at BIA meetings. He stated that the Act is outdated and indicated that all businesses in downtown Kingston should have the ability to set their own hours should they wish to operate on statutory holidays as defined in the Act. 5. Mr. Frank Dixon appeared before Council and spoke to the passage of a by-law which would exempt businesses operating in the BIA from restrictions of the Retail Business Holidays Act ( the Act ) on a year-round basis. Mr. Dixon suggested that staff connect with communities which have been designated a Tourism Area under the Act to gain information regarding their results. Mr. Dixon spoke to the importance of Kingston Transit operating on statutory holidays to ensure that employees can get to work. Next Steps: April 12, 2016 If a By-law is passed, notice will be provided. May 6, 2016 If the By-law is passed, and no appeals are made to the Ontario Municipal Board (OMB), the By-law will come into force. Council Meeting 12 April 5, Report to Council Report Number: April 5, 2016 Page 8 of 9 If Council decides to pass the By-law it does not come into force until thirty-one days after it has been passed by Council. Anyone who objects to the By-law may appeal this decision directly to the Ontario Municipal Board (OMB). If appealed, the By-law shall not come into force until all the appeals have been dismissed, or the day the By-law is amended in the manner specified by the OMB. Existing Policy/By-Law: By-law , A By-Law to Permit Retail Businesses to Operate on Statutory Holidays During the Period Between May 1 to October 15, Inclusive in the Calendar Year for the Maintenance of Tourism in the City of Kingston. The City s Official Plan places the Central Business District (CBD) at the top of the hierarchy of commercial designations (Section 3.4.7) in the City. The planned function of the CBD is to continue as a multi-faceted centre of the City and surrounding region. As such, it is recognized as the primary Centre of the City (Section 3.4.A.1) in which particular priority commercial functions will be protected including hospitality and tourist uses, entertainment facilities, cultural venues, and other attractions that serve both residents and visitors. In describing the Downtown & Harbour Special Policy Area, Section 10A of the Official Plan speaks to its continued form and function as a mixed use, commercial node with retail, office and tourist focus, resident population, and civic prominence. Section of the Official Plan (Tourism) recognizes the contribution of the tourist industry to the City s economy and indicates Council s intent to support a range of initiatives designed to expand the City s tourism potential. Notice Provisions: Notice of the public meeting was provided in accordance with the Retail Business Holidays Act, R.S.O. 1990, Chapter R.30. If a By-law is passed by Council, Notice of Passing will be provided in accordance with the provisions of the Act. Accessibility Considerations: This report is AODA compliant and may be available in alternate formats upon request. Financial Considerations: Not applicable. Contacts: John Bolognone, City Clerk, extension 1247 Blair Johnson, Corporate Records and Information Officer, extension 1316 Other City of Kingston Staff Consulted: Alan McLeod, Senior Legal Counsel Council Meeting 12 April 5, Report to Council Report Number: April 5, 2016 Page 9 of 9 Exhibits Attached: Exhibit A Exhibit B Exhibit C Exhibit D Application from the Board of Management of the Downtown Kingston! Business Improvement Area By-law , A By-Law to Permit Retail Businesses to Operate on Statutory Holidays During the Period Between May 1 to October 15, Inclusive in the Calendar Year for the Maintenance of Tourism in the City of Kingston Notice of Public Meeting Exemption to the Retail Business Holidays Act, R.S.O. 1990, Chapter R.30 Draft By-law 2016-XXX A By-Law to Amend By-Law Number A By-Law to Permit Retail Businesses to Operate on Statutory Holidays During the Period Between May 1 to October 15, Inclusive in the Calendar Year for the Maintenance of Tourism in the City of Kingston Downtown Business Improvement Area Exemption Council Meeting 12 April 5, To: Application to City of Kingston From: The Board of Management of the Downtown Kingston! Business Improvement Area Date: December 14, 2015 Re: Passing a By-Law declaring the DK! BIA a Tourism Area for purposes of exempting businesses in the BIA from the restrictions of the Retail Business Holidays Act on a year round basis The Board Motion: December 9, 2015 Moved by: Justine Scala Seconded by: Cyndy Gibson That the Board of Management of the Downtown Kingston! BIA ask City Council to consider passing a by-law declaring the BIA a Tourist Area for purposes of exemptin
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