The Loaded Hog, re [2001] NZLLA 323 (3 August 2001)

Last Updated: 19 March 2010

Decision No. PH 323/2001 – 324/2001

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an appeal by THE LOADED HOG GROUP LIMITED pursuant to s.137 of the Act against a decision of the Auckland District Licensing Agency refusing an application for a special licence in respect of premises situated at 204 Quay Street, Auckland, known as “The Loaded Hog”

AND

IN THE MATTER of an appeal by THE ONETANGI BEACH HOTEL LIMITED pursuant to s.137 of the Act against a decision of the Auckland District Licensing Agency refusing an application for a special licence in respect of premises situated at 1 Third Avenue, Onetangi, Waiheke Island, known as “Onetangi Beach Hotel”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at AUCKLAND on 24 July 2001

APPEARANCES

Ms M A Leca – for both appellants
Sergeant M J Lopdell – NZ Police – in opposition
Mr G S Whittle – Auckland District Licensing Agency Inspector – in opposition

RESERVED DECISION OF THE AUTHORITY

Preliminary legal issue:

[1] At the commencement of the hearing, Sergeant M J Lopdell raised a jurisdictional issue. He submitted that we were unable to determine the appeal because there was no longer a ‘live’ issue. He relied on the Authority’s statement to that effect in Chicos Restaurant Limited LLA 2011 – 2012/98.
[2] We reserved the question at the time. The Chicos case concerned an application for a special licence for one hour from 0230am to 0330am for a “Wings and Wheels” theme night. We suspect that it may have been to watch a formula one car race. The event was for the evening of 12 April 1998. The local District Licensing Agency heard the matter after the event on 21 May 1998. The application was declined.

[3] In the course of the appeal the Authority was asked to make certain rulings. It made a number of observations, and said

“The Authority has declined the invitation to further hear this appeal as there is no live issue before the Authority.”

[4] It will be seen that there was no ‘live issue’ before the District Licensing Agency either. However the agency made its decision to enable the applicant to have the matter tested on appeal. One of the issues to be considered was whether there was any difference between watching a rugby match or a car race.

[5] In this case we believe that the wider issues are very much alive. Both appellants have expressed an interest in running similar events next year. It may be that the Hospitality Association of New Zealand wishes to have the matter resolved before the High Court. In the interests of achieving finality on the vexed question of special licences, we think it should have that opportunity.

[6] As a matter of practicality, it would be highly unlikely for any licensed premises to have sufficient time to appeal a special licence decision of the District Licensing Agency, prior to the ‘event’ taking place.

[7] Our decision has not been affected in any way by pressure recently applied on the Authority, in respect of decisions made concerning liquor licences and gaming machines.

Introduction:

[8] In February 2001, the Auckland District Licensing Agency received two applications for special licences over the forthcoming Easter period.

[9] One was on behalf of the Loaded Hog for its premises in Quay Street. A special licence was requested from 11.00am to 3.00am the following day on Thursday 12 April, Good Friday 13 April, Saturday 14 April, and Easter Sunday 15 April.

[10] The occasion or event was said to be an Easter Carnival. The application stated that activities would include flame jugglers/throwers, acts with crowd participation, and amusement games. The idea was to have one part of the bar set up with fun activities, and the other half for those wanting to dance.

[11] The other application for a special licence was filed on behalf of the Onetangi Beach Hotel for its premises on Waiheke Island. The occasion or event was the Waiheke Island of Jazz. This was a major annual musical event attracting large crowds and international artists. The hours sought were from 10.30am to 1.00am the following day on Good Friday 13 April, Saturday 14 April, and Easter Sunday 15 April.

[12] Reports on the applications were sought from the Police and the District Licensing Agency Inspector. Both were opposed to the grant of the applications

[13] Accordingly the two applications were considered by the Auckland District Licensing Agency Committee on 3 April 2001. In a written decision dated 2 May 2001, the applications were declined. The Committee came to the conclusion that for a large part of the Easter break the two premises would be operating in their normal manner.

[14] Both appellants exercised their right to appeal against the decision. The appeal was conducted by way of a rehearing.

The rehearing:

[15] Evidence on behalf of the Loaded Hog was given by the outlet manager, Stephen Clarke. Part of his role is the responsibility for planning and organising promotions and events. He saw a need to bring people to the Viaduct area. In January 2001, he had witnessed the annual busker’s festival in Christchurch. He discovered that ‘Heart of the City’ in Auckland was arranging a similar festival over a period of six weeks finishing at Easter.

[16] Mr Clarke’s aim was to utilise the existing performers over the Easter period. It seems that the buskers would be outside initially. They would be performing for the crowd and would not necessarily be interacting with patrons from the Loaded Hog. They would come into the Loaded Hog later in the evening. His idea was to have a cover charge after 10.00pm which would cover food.

[17] Mr Clarke produced a flyer which showed that there would be shows daily from 3.00pm to 5.00pm. He confirmed that these would take place outside the Loaded Hog and in an area adjacent to it. The Loaded Hog has an outdoor area where liquor can be served but this was not the area where the buskers would be performing. The flyer referred to two cabaret shows from 8.30pm to 11.30pm on Friday 13th and Sunday 15th.

[18] Mr Clarke acknowledged that the organisation of the ‘event’ was less than perfect. He said that the detailed plans for the events were not completed because of uncertainty about whether the special licence would be granted.

[19] Evidence on behalf of Onetangi Beach Hotel Limited was given by Ms J Rouse, the sole shareholder of the company. Ms Rouse has considerable experience in the hospitality industry. She said that the ‘Waiheke Island Festival of Jazz’ has been a feature of Easter Weekend for approximately 10 years. Special licences have been regularly granted.

[20] The Onetangi Beach hotel has an important involvement with the festival. It provides a large permanent undercover venue. It appears that most of the main events are staged in marquees at Matiatia some 12 kilometres from the hotel. However the hotel offers toilet and watering facilities, and the large kitchen is utilised to provide food. The hotel is an enthusiastic supporter of the festival. The Palaver Bar at the hotel has generally recovered the most stubs or tickets during the weekend of all the venues.

[21] Ms Rouse produced a programme for the event. It appears that the hotel was the venue for the ‘Passport of Jazz day’ on Saturday 14 April 2001 from 2.00pm to 6.00pm, and Sunday 15 April 2001 from 2.00pm to 6.00pm. On both occasions a jazz band had been booked to play. Ms Rouse complained that she was not in a position to book any other artists because of the uncertainty of getting a special licence.

The Loaded Hog:

[22] The current licensed hours for the Loaded Hog are

Monday to Friday 24 hours

Saturday 24 hours till 4.00am the following day

Sunday 9.00am to 12.00 midnight

[23] As a hotel/tavern the Loaded Hog is governed by the provisions of s. 14 (2) and (3) of the Act.

It is a condition of every on-licence granted in respect of a hotel or tavern that no liquor is to be sold or supplied on Good Friday, Easter Sunday, Christmas Day, or before 1pm on Anzac Day to any person other than

(a) Any person who is for the time being living on the premises, whether as a lodger or an employee of the holder, or otherwise; or

(b) Any person who is present on the premises for the purpose of dining.

Nothing in subsection (2) of this section shall affect the sale or supply of liquor pursuant to and in accordance with any special licence granted in respect of the hotel or tavern.

[24] It will be seen that Mr Clarke was seeking to trade on Good Friday and Easter Sunday from midnight the previous day to 3.00am, and from 11.00am to midnight on the day in question. A total of sixteen hours on each of the two days. According to his flyer, this extension of hours was to enable the patrons to watch a cabaret show from 8.30pm to 11.30pm.

The Onetangi Beach Hotel:

[24] The current licensed hours for the Onetangi Beach Hotel are

Monday to Saturday 9.00am to 1.00am the following day

[25] The Onetangi Beach Hotel is also governed by the provisions of s. 14 (2) of the Act.

[26] It will be seen that no special licence was needed for the concert on the Saturday. The applicant appeared to be seeking an extension of fourteen and a half hours on each of Good Friday and on Easter Sunday, to enable patrons to participate in or listen to a live performance on Easter Sunday from 2.00pm to 6.00pm.

The submissions:

[27] S. 73 of the Act reads:

A special licence authorises the holder of the licence to sell and supply liquor, on the premises or conveyance described in the licence, to any person attending any occasion or event or series of occasions or events described in the licence.

[28] The section is governed by s. 79 which lists the criteria to which the District Licensing Agency shall have regard. These criteria include

(a) The nature of the particular occasion or event or series of occasions or events in respect of which the licence is sought.

(c) The days on which and the hours during which the applicant proposes to sell liquor.

[29] Ms Leca submitted that it was open for us to conclude that Easter was an occasion or an event. She argued that festivals such as the Waiheke Island of Jazz and Buskers were just aspects of the Easter weekend. She suggested that the Authority adopt a broad and liberal approach to interpretation as appeared to have happened in David Alan Thomson LLA 1287/97.

[30] In that case, application was made for a special licence under s.74 to stay open on Christmas Eve 24 December 1996 from midnight to 2.00am on Christmas Day. The social gathering was described as ‘allowing the general public to celebrate the Christmas season.” The District Licensing Agency granted the application but only until 1.00am.

[31] On the appeal brought by the Police, (heard after the event), the Authority was not prepared to interfere with the exercise of the Agency’s discretion.

[32] On the other hand in the well known decision of Alan Robert Christie LLA 1225/2000, (heard after the event), the Authority held that the events to be held in the hotel to celebrate Easter were contrived to coincide with the times that the tavern was required to close. The Authority saw a distinction between Christmas Eve and the ‘sacrosanct’ days referred to in s.14 (2) of the Act.

[33] Ms Leca then submitted that if it was found that the Buskers Festival and the Waiheke Island Festival of Jazz were occasions or events, then provided the appellants participated in the occasions or events, a special licence should have been granted. She disputed any suggestion that the event or the occasion referred only to the actual sessions or performance times. It seems from her argument that the hours of the special licence are not necessarily related to the occasion or the event.

[34] The issue would appear to be whether (for example) people who had registered for the jazz festival, and who were drinking at the hotel at say 10.00pm on Good Friday night, when that night’s scheduled concert was taking place twelve kilometres away, were “attending” the festival.

[35] The Collins Concise Dictionary defines ‘attend’ as

To be present at (an event etc.) In our view this is the appropriate definition.

[36] The corollary of her argument would appear to be that if a hotel in Auckland participated in the Waiheke Island Jazz Festival (by way of sponsorship or assistance with organisation), then that hotel would be able to open on Good Friday and Easter Sunday to patrons who had registered for the festival. The issue would then become what is required in order to be a significant participant in the running of a festival. The result would be an enforcement nightmare.

[37] A further problem with Ms Leca’s submission is that she seems to be submitting that it is in order for people to be able to drink at the hotel or tavern well after one of the jazz concerts or the busker’s cabaret have concluded. For example the busker’s cabaret was due to finish at 11.30pm. Ms Leca appears to be suggesting that it is in order for those who attended the cabaret to be able to continue drinking until the special licence has expired (i.e. until 3.00am the following day).

[38] It seems clear that applicants will frame their applications to allow a reasonable drink up time. In some cases there may be an extra hour or half hour. A sporting event may conclude at the final whistle.

[39] However we believe that the Sergeant and the District Licensing Inspector are right in their submissions. If one is attending an event or an occasion, then one is present at that event or occasion. Once the event or the occasion has concluded, then the holder of the licence is no longer able to supply liquor, because there is no longer an event or an occasion for the patrons to attend.

[40] To suggest that the Loaded Hog and the Onetangi Beach Hotel should be able to be open for most of Good Friday and most of Easter Sunday on the basis of one three hour cabaret and one four hour concert, is to render the current law otiose.

[41] We have no doubt that the Waiheke Island of Jazz Festival is an event or an occasion within the meaning of s.73 of the Act. On the present information before us a special licence would have been granted on Easter Sunday from 1.30pm to 6.30pm to coincide with the concert which was taking place at the hotel that afternoon as part of the Jazz Festival. No agency could be expected to grant a special licence for an event which had not yet been organised.

[42] It is likely that the busker cabaret shows at the Loaded Hog would have been accepted by us as events or occasions, although we would have enquired why they were being held on Good Friday and Easter Sunday and not at any other time during Easter. Had they been accepted as events or occasions, then special licences would have issued from say 8.00pm to midnight on both days for the bar in which the shows were due to take place. It is very unlikely that Mr Clarke’s idea to set up half the bar for dancing would have been approved.

[43] No other extensions to the licences would have been accepted. It is our view that the District Licensing Agency was right to reject the applications in the form in which they were presented.

[44] Ms Leca submitted that it was unfair that special licences were issued for the three marquees at Mataitai. These were the venues for the main concerts. In terms of the ticket holders attending those events, the licences were entirely appropriate.

[45] We decline Ms Leca’s invitation to revisit the Alan Robert Christie (Sugar Shack) decision (supra). It is a recent decision of this Authority. It relates to certain facts but the legal analysis is the same.

[46] Hotels and taverns are required to close for three and a half special days each year unless patrons go there to dine. If an occasion or event or a series of occasions or events take place on the premises, then a District Licensing Agency has the discretion, (having regard to the criteria), to grant or decline the application.

[47] For the above reasons the appeals are dismissed.

DATED at WELLINGTON this day of August 2001

Judge E W Unwin Mr J C Crookston
Chairman Member

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