October 5, 1998

To:Toronto Community Council

From:Angie Antoniou, Acting Assistant Director, By-law Administration and Enforcement, City Works Services

Subject:Unauthorized Temporary Marketing Enclosure - St. Andrew Street Flankage of 350 Spadina Avenue (Downtown)

Purpose:

To report on the applicant's deviation from City Council's approval and on the deficiencies of the structure now in existence on the St. Andrew Street flankage of 350 Spadina Avenue. As this is a matter of public interest, it is scheduled as a deputation item.

Funding Sources, Financial Implications and Impact Statement:

Not applicable.

Recommendations:

It is recommended that:

1. City Council deny the request from Mr. Nguyen, owner of Phuc Loi Company Ltd., o/a Pho Hung Restaurant & Market, to maintain the canopy as constructed on the St. Andrew Street flankage of 350 Spadina Avenue;
2. That after the hearing of deputations:

(a)a 60 day written notice of cancellation of the temporary marketing enclosure be provided to the licence holder and the licence holder be required to restore the City's right-of-way on the St. Andrew Street flankage to its original condition;

OR

(b)a 60 day written notice be provided to the licence holder to modify the temporary marketing enclosure by:

(i)allowing the roof and steel supports to remain with the condition that the glazed and wooden side panels enclosing the cafe area be removed;

(ii)the portion of the canopy constructed occupying the 2 refrigeration units be removed from within the right-of-way;

(iii)any other modifications as may be deemed necessary by the Commissioner of Works and Emergency Services as the modifications of the canopy are under way; and

(iv)Mr. Nguyen enter into an agreement with the City of Toronto, in the form satisfactory to the City Solicitor and the Commissioner of Works and Emergency Services.

Background:

City Council, at its meeting of April 16, 1998, approved the construction of a temporary marketing enclosure (canopy) on the St. Andrews Street flankage of 350 Spadina Avenue, and an area adjacent to the canopy to be used for boulevard cafe purposes.

Mr. Thoi Nguyen, owner of Phuc Loi Company Ltd., o/a Pho Hung Restaurant & Market, constructed the temporary marketing enclosure contrary to the approval given by City Council and is now requesting approval for this structure to remain within the City boulevard.

Comments:

The original approval consisted of permitting a boulevard cafe area and the construction of a temporary marketing enclosure (canopy) to allow for the sale of foodstuff and other merchandise, such as dry and cut flowers and souvenirs.

The temporary marketing enclosure (canopy) was to be constructed of steel framework covered by removable prefabricated panels of a synthetic material and glazed windows and rigid insulation. This structure was to be constructed under the authority of a permit as the repaving of the boulevard. Furthermore, the canopy was not to go past the residential entrance on the St. Andrew Street flankage.

Staff on routine inspection on May 20, 1998 noticed that the construction of a canopy was completed without the benefit of a permit and the newly constructed canopy did not meet the requirements of Chapter 313 of the former City of Toronto Municipal Code and as approved by City Council in the following areas:

• the temporary marketing enclosure was constructed permanently over the right-of-way;

• wire mesh was installed within the boulevard and raised by approximately 76 mm above the sidewalk grade, thereby creating a potential trip hazard;

• 2 large refrigeration units had been installed within the marketing enclosure;

• the entrance to the second and third storey residential units had been enclosed within the canopy, thereby creating a fire hazard.

Mr. Nguyen was requested to stop operating the canopy enclosure and was given 30 days to bring the canopy into conformity with Chapter 313 of the former City of Toronto Municipal Code.

At the request of Mr. Tony Ruprecht, M.P.P. Parkdale, staff met with Mr. Chee, Mr. Trac Bang Do and Mr. Nguyen on July 3, 1998 to discuss the issues and took a look at possible alternatives which would allow Mr. Nguyen to modify the existing structure.

At the meeting, Mr. Nguyen had indicated that he no longer wished to use the canopy for the display of merchandise but rather as an extension of his restaurant. Mr. Nguyen argued that the canopy would enhance the comfort of his cafe patrons and would allow him to better secure the boulevard cafe when it is not in use to prevent theft of the cafe furnishings.

Mr. Nguyen further indicated that he is concerned that he had incurred a considerable expense in constructing the canopy and that he will suffer additional financial hardship if he is requested to remove the structure and construct something that would comply with City Council's original approval.

The existing marketing enclosure is not acceptable as enclosures permitted for marketing and cafes are considerably different. The table below illustrates the important differences between marketing enclosures and cafe enclosures.

Chapter 313 of the former City of Toronto Municipal Code permits temporary partial enclosures for boulevard cafe areas. Temporary partial enclosure is defined as a structure erected on a licensed boulevard cafe area which consists of a retractable or removable canvas-type awning made with a light metal or reasonably equivalent frame affixed to the adjacent building. It may have canvas or similar sail goods material from the roof awning to the fence on the two sides of the structure extending from the building and has canvas or similar sail goods material screens between the top and bottom rails of the fence; and has open entrances/exits which shall remain free and unobstructed.

A temporary full enclosure on a licensed boulevard cafe area is similar in appearance to the temporary partial enclosure, but with the important distinction that panels are permitted on the front facing the street from April 1 to March 30 and September 15 to November 1. For the balance of the cafe season, the cafe must remain open to the street.

In order to assist the applicant, the possibility of closing and leasing the affected portion of the St.Andrew Street right-of-way was investigated. St. Andrew Street has a right-of-way width of 20m. This is typically the minimum width required to accommodate existing and future municipal services and utilities within the public right-of-way, as well as providing space for poles and signs, storage of snow clearing operations, etc. A Toronto Hydro conduit is located within the canopy area. Given the existing utility located on these lands, this area of the road allowance cannot be considered surplus to the City's requirements and therefore, it is not feasible from a technical perspective to close these lands.

In response to Mr. Nguyen's concern of the considerable expense to modify the canopy structure, we would have no objections to allowing the roof and steel supports to remain with the condition that the glazed and wooden side panels enclosing the cafe be removed so that the cafe is open to the street from June 1 to September 14. The applicant should then be required to enter into the applicable agreement for the continued maintenance of the roof with supports or any other additional requirements deemed necessary by the City Solicitor and the Commissioner of Works and Emergency Services.

Conclusion:

The existing permanent enclosure for the boulevard cafe on the St. Andrew Street flankage of 350 Spadina Avenue does not meet the provisions of Chapter 313 of the former City of Toronto Municipal Code. Mr. Nguyen built a canopy contrary to the approvals given by City Council and without the benefit of a permit.

However, given his concern on the financial burden he would incur, I have no objections to allowing the roof and steel supports to remain with the condition that the glazed and wooden side panels enclosing the cafe be removed so that the cafe is open to the street (including other modifications necessary during the removal of this canopy).

With respect to the part of the canopy that houses the two refrigeration units located on the St.Andrew Street flankage (Area 2 on Appendix 'A'), there are no provisions within the Municipal Code to allow the use of the City's right-of-way for this purposes. Therefore, it should be removed and the applicant be given 60 days to remove such structure.

Boulevard cafes provide a significant contribution to the vitality of streets and sidewalks. Inasmuch as I can sympathize with Mr. Nguyen on the considerable expenses he has incurred and will incur to modify the canopy, his request to maintain the existing canopy could set a dangerous precedent and I cannot recommend approval.

Contact Name and Telephone Number:

Angie Antoniou, 392-1525

Acting Assistant Director

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