Darkside Gallery gets court date for selling too much food

Halifax is taking the Darkside Gallery & Café to court Tuesday, saying the business has violated the local land-use bylaws by selling too much food and not enough art.

Business could be fined $47K for being out of compliance with the zoning

Owner Oliver Mahon (left) serves customers at the Darkside Gallery & Café. It has been charged with violating the land-use bylaw in Dartmouth. (Shaina Luck/CBC)

Halifax is taking the Darkside Gallery & Café to court Tuesday, saying the business has violated the local land-use bylaws by selling too much food and not enough art.

"I do think that they're being overzealous and rather draconian in their pursuit of this case," said Oliver Mahon, the co-owner of the art store and café. 

Mahon is worried the city will fine his business $47,000 for being out of compliance with zoning, which he says would close the business and bankrupt him and his wife.

Mahon, along with his wife and co-owner Megan Hirons Mahon, opened the Darkside Gallery & Café in October 2014.

The business sells art, T-shirts, and mugs. It also serves coffee, pastries, and lunches. 

Potential $47K fine

Darkside Gallery & Café opened in October 2014. (Shaina Luck/CBC)

The building on Windmill Road is zoned as an art store and gallery, with "coffee service as an accessory use."

Last week, the city informed the Mahons that it could fine them a minimum of $100 per day the business was out of compliance with the zoning.

The Mahons calculate they've been in business 470 days, landing them a total potential fine of $47,000.

The Mahons say shortly after they opened their business, city inspectors told them they were not in compliance with zoning bylaws.

The inspectors thought the business was doing too much food and beverage service, and questioned the owners about the ratio of art sales to food sales.

"He said, 'Well, if you sell five cups of coffee and four units of art, it's primarily a coffee shop,' which is quite absurd, I think," said Oliver Mahon.

Tiffany Chase, a city spokeswoman, says when the Darkside opened, it operated differently than in the proposals.

"They were required to submit drawings to indicate to us what portion of the business would be dedicated to the accessory coffee service versus the rest that would be an art gallery, and what ended up going into the design was actually a much broader service of food and beverages on site, that clearly constituted a café and restaurant use," said Chase.

Food gets people in the door

Darkside Gallery & Café estimates more than half their profits come from selling art. (Shaina Luck/CBC)

The owners of the Darkside estimate 55 per cent of their profits come from art, while the rest comes from food and drinks.

They say they rely on foot traffic from selling food and drinks to pull in people who are interested in their art.

They also say they have asked the city to outline how much of the business must be dedicated to what purpose.

"They haven't given us any metrics like how much of your store should be dedicated towards art, what's the maximum amount to be dedicated to food and beverage. We don't have guidance on that," said Oliver Mahon.

The city says it is supportive of a café in that location, but there is a development agreement process that needs to be followed in order to change the zoning.

Chase says the Mahons applied for a development agreement before opening, and then rescinded their application on the same day. 

The Mahons agree they rescinded their application, but say their landlord and their lawyer are working with the city on a development agreement that would cover them.  

"While we started it, in the end it wasn't our place. It was the place of the landlord because it is his building, and that would change his zoning going forward," said Megan Hirons Mahon.

As for the $47,000 fine, Chase says it will be up to a judge to calculate whether a fine is warranted, and if so whether it will be levied based on the city's $100-per-day rate.

The city and the business are set to meet in Dartmouth provincial court on Tuesday afternoon. 

About the Author

Shaina Luck

Reporter

Shaina Luck covers everything from court to city council. Her favourite stories are about ordinary people in extraordinary circumstances. Email: shaina.luck@cbc.ca

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