Jones and Jones, re [2002] NZLLA 116 (19 March 2002)

New Zealand Liquor Licensing Authority

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Jones and Jones, re [2002] NZLLA 116 (19 March 2002)

Last Updated: 20 February 2010

Decision No. PH 116/2002 – PH 117/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of applications by ANTONY JOHN JONES and MAREE ELIZABETH JONES trading in partnership pursuant to ss.18 and 41 of the Act for renewal of on and off-licences in respect of premises situated at the ground floor, 40 Victoria Street, Kaponga, known as "Kaponga Tavern"

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WANGANUI on 27 February 2002

APPEARANCES

Mr A J Jones – for the applicant
Mr S Shera – on behalf of the South Taranaki District Licensing Agency and
New Zealand Police – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority are applications by Mr and Mrs A J Jones pursuant to ss.18 and 41 of the Act for renewal of their on and off-licences in respect of premises situated at 40 Victoria Street, Kaponga, known as the "Kaponga Tavern". Mr and Mrs Jones also sought to increase their opening and closing hours to maintain consistent hours for the seven days of the week.

[2] Their current trading hours are as follows:

On-licence Monday to Saturday 7.00 am to 3.00 am
Sunday 9.00 am to 10.00 pm
Off-licence Monday to Saturday 7.00 am to 11.00 pm
Sunday 9.00 am to 10.00 pm
Across the bar Monday to Friday 7.00 am to 3.00 am
(Off-licence) Saturday 7.00 am to 12 midnight
Sunday 9.00 am to 10.00 pm

[3] Their proposed trading hours would be:

On-licence Monday to Sunday 7.00 am to 3.00 am
Off-licence Monday to Sunday 7.00 am to 11.00 pm
Across the bar Monday to Sunday 7.00 am to 3.00 am

[4] When considering such applications, the criteria to which this Authority must have regard are contained in ss.22 and 45 of the Act. These criteria are:

(a) The suitability of the licensee:

(b) The conditions attaching to the licence:

(c) The manner in which the licensee has conducted the sale and supply of liquor pursuant to the licence:

(d) Any matters dealt with in any report made under section 20 of this Act.

[5] In the case of the off-licence the criteria in s.45 are substantially the same, although the wording is slightly different. Instead of 'supply' the issue is 'delivery'.

[6] The applications drew an adverse report from the South Taranaki District Licensing Agency Inspector. She stated that she had no objection to the renewal of the licences. Subject to the issue of the 3.00 am closing, she also had no objection to the proposed changes to the trading hours to bring consistency for each day of the week. However her letter concluded:

"It is my recommendation that as the closing hours applied for are in contradiction to this District Licensing Agency's recently adopted liquor policy, the renewal application be forwarded to the Liquor Licensing Authority for determination."

[7] The evidence disclosed that the South Taranaki District Council had adopted a Liquor Licensing Policy in October 2001. That policy had adopted a blanket closing time for the area of 2.00 am. Under days and hours of operation the Policy reads:

This Agency will not grant any new or renewal On, Off, Club, or BYO licence to any premise to operate beyond 2.00 am.

[8] As can be seen, the Inspector was not only recommending that the application to increase certain hours be declined, she was also recommending that the current trading hours be curtailed. Accordingly the applications were set down for a public hearing.

The Hearing

[9] At the hearing, the Police were represented by Mr Shera who also represented the District Licensing Agency. Although the original Police report was favourable, the Police had a right of audience pursuant to s. 108 (b) of the Act. The opposition to the continuation of the 3.00 am closing times also drew a letter of support from the Medical Officer of Health.

[10] The Authority is governed by s.23 of the Act:

(1) After considering an application for the renewal of an on-licence, the Licensing Authority may—

(a) Renew the licence on the conditions presently attaching to it: or

(b) Renew the licence on such different conditions (relating to any matters specified in section 14(5) of this Act) as the Licensing Authority thinks fit; or

(c) Refuse to renew the licence.

[11] If the conditions of the licence are to be changed by the Authority in any way, this can only be done in response either to an objection, or a report submitted by a District Licensing Agency Inspector or the Police or the Medical Officer of Health. As can be seen by the reference to s. 14(5), on any renewal application, the Authority is given the power to review the days on which, and the hours during which liquor may be sold. Recent decisions of the Auckland High Court in Sheepys Limited AP77-SW01 and Club Raro Limited AP86-SW01 both dated 10 December 2001, confirm the Authority's discretion to cut back a licensee's operating hours on a renewal. In both of the above cases, the reasons for cutting the closing hours back, was because of the noise factor.

The Applicants

[12] Mr and Mrs Jones have owned and operated the Kaponga Tavern for just on five years. During that time they have never had cause to call the Police to the premises. Mr Jones stressed that they close the bar whenever required by law, notwithstanding that they live in a relatively isolated community.

[13] They believed that they were being discriminated against because of problems occurring in the central business district of Hawera some 30 kilometres away.

[14] Mr Jones stated that they used the 3.00 am closing about once a month when they engaged the services of a live band. He regularly drives the courtesy van to ensure that his customers are safe. He believed that if he was required to close at 2.00 am then it was possible that his customers would drive to Stratford some 20 kilometres away. Stratford is in another region where 3.00 am closing is still the norm. He submitted that the change in hours could produce migratory drinkers with the attendant risk of people driving after drinking. He also objected to the costs of having to pay for special licences. In summary he asked why a tavern with an exemplary record should be penalised because of social problems elsewhere.

[15] In its decision, Clarendon, Kakaramea, Waverley, Albion & Waitotora Hotels [1992] NZAR 488 the Authority was faced with a similar situation. Five hotels had applied for a 3.00 am closing time. The Police objected partly on the grounds of a lack of Police resources. Because the Authority had already granted a 3.00 am closing time to a number of outlets in the South Taranaki, the Authority felt obliged to grant the applications. The Authority stated:

"It is undesirable to have different closing times in such a geographical district as this and provide unfair competition and the likelihood that as one outlet closes there is another outlet which has later hours which could lead to a "migration of drinkers."

The Objector

[16] Ms S Jones is a South Taranaki District Licensing Agency Inspector. She confirmed that the South Taranaki District Council Judicial Committee had formally adopted the Liquor Licensing Policy at its 10 October 2001 meeting. Under the policy, all licensed premises across the district were to be closed at 2.00 am. Ms Jones stated that one of the main drivers in proceeding with the development of the policy was that community expectations were high. The media had highlighted the number of incidents of bad behaviour in the community especially during November 2000, and particularly in Hawera. The public had demanded that some action be taken.

[17] She said that the policy had been adopted after extensive consultation with the hospitality industry. All licensees had been invited to a public meeting to discuss the proposed policy. Mr Jones was at the meeting and expressed his concern at the proposal to close at 2.00 am. She noted the lack of public submissions opposing any part of the policy. The policy had received the strong support of the Medical Officer of Health. Of the 39 on-licences in South Taranaki more than two thirds had indicated their support for the new policy. Many had voluntarily reduced their trading hours back to 2.00 am at the renewal of their licences.

[18] She noted that smaller towns lacked the Police and Agency resources to deal with groups of unruly people causing disruption in the early hours of the morning. It was her view that longer opening hours were contributing to a greater degree of intoxication amongst patrons. In turn this resulted in a greater degree of street disorder and other alcohol related offending. In H L Walker and W J Walker (31 May 2001, High Court, Wellington AP87/01) Fisher J said at paragraph [46]:

"In principle it could not possibly be the case that no matter how remote and unpopulated an area might be, and no matter how uneconomic it might be to provide police there, the Authority could ignore the unavailability of the police to respond to the probable consequences of extending the licensing hours."

[19] Ms Jones said that the Agency was prepared to process up to 12 applications for a special licence on the one form. She did not accept that a large number of drinkers would 'migrate' to Stratford. She pointed out that if Kaponga stayed open to 3.00 am, the same temptation to travel would apply to others in South Taranaki. Ms Jones submitted that the policy had 'flexibility' because there was an ability to apply for special licences if the reduced hours proved to be too conservative in the face of public demand.

[20] Her conclusion read:

"Until now the Police and District Licensing Agency have taken the softly, softly approach – and I believe it's time to get serious, and take responsibility for the liquor related issues facing our community. A 2.00 am closing across the district, although might not be the ultimate solution, is certainly a step in the right direction."

The Policy

[21] The adoption of liquor licensing policies was first encouraged by the Authority in Andrew Watson Rae & Co Limited LLA 1710/92. In that case the Authority said:

"We have frequently expressed a wish to hear from Local Authorities – particularly in relation to trading hours. In our first Annual Report to Parliament we indicated that we wished to know that recommendations from Licensing Inspectors reflected the views of the Local Authorities. We mention in the report that some Local Authorities had expressed views on trading hours based solely on the level of resources and personnel available to local Police and the Ministry of Transport. We had anticipated the adoption of policy guidelines by Local Authorities to assist Licensing Inspectors in reporting on individual applications. Such guidelines would need to have regard to the statutory criteria, particularly neighbouring land use considerations in respect of trading hours. We saw that as a means by which the community or communities might have an input and whilst we would not be bound by any such guidelines, we saw them as being of value to us in the exercise of our discretion."

[22] In the case of H L & W J Walker v New Zealand Police (supra) Fisher J stated at paragraphs 32 and 33:

"Following that invitation, district licensing agencies have prepared appropriate Policies and referred them to territorial authorities for adoption. The Policies are then seen by the Authority as a helpful source of information as to what a local community wants on liquor licensing matters. Essentially it is the perceptions and desires of the local community as expressed through their elected representatives, presumably after some level of consultation with the community.

It would of course be wrong for the Authority to fetter its discretion by treating the content of the Policy as a mandatory requirement or rule. However, it could not be suggested that the Policies are irrelevant on an application of this nature. I have already held that the matters expressly referred to in s.22 are not exclusive. Section 4 requires reference to the object of reducing liquor abuse. The views of local residents are likely to be helpful in deciding how that object can best be achieved and balanced against the desire for access to liquor in appropriate circumstances."

[23] The Judge was careful to ensure that there should be no rigid application of a policy. That issue was discussed by Robertson J in The Old Forge Ltd v Papakura DLA [1996] NZAR 305, in which he said:

"I am not persuaded that there is anything intrinsically wrong in a body such as the Liquor Licensing Authority developing a consistent approach to application for hours. The legislative framework enables flexibility and appropriate response to individual circumstances, but basic justice requires that even handed and consistent approach. What the Authority must not do is close its mind to individual applications in an over rigid application to its policies."

[24] In Evolution Foods Limited LLA 224/2001 the Authority stated (at paragraph 13) that one of the greatest attributes of the Wellington City Council's Liquor Policy was its flexibility. On that occasion we were discussing the policy for on-licences, and the mechanism which enabled applicants to seek hours beyond those recommended in the policy.

[25] There is little flexibility in the South Taranaki Liquor Policy. We do not think that it is enough to require licensees to rely only on special licences to trade beyond the recommended hours. On the other hand we appreciate the reasoning behind the absence of any exceptions to the general rule. A number of local bodies have expressed similar concerns about the need to claw back hours from 3.00 am to reduce the incidence of unruly behaviour and noise. It is clear to us that in many parts of the country the public are seeking a blanket curtailing of the hours.

[26] The difficulty with such a proposal is exemplified in the present case. On the one hand the Council seeks to uphold the integrity of its scheme at such an early stage of its evolution. On the other hand Mr and Mrs Jones state that to impose restrictions upon them is unfair. They argue that they represent a genuine exception to the rule.

Decision

[27] It seems to us that whatever decision we come to, there may well be a problem with migratory drinkers, although we accept the view of the Police Sergeant that such a problem will not be as severe as foreshadowed. If the hours stay at 3.00 am, there may be migration from Hawera and other towns where the hours have already been reduced to 2.00 am. If the hours are reduced to 2.00 am, there may be migration by Kaponga residents to Stratford. It is also possible that if the current scheme works, then Stratford and other areas to the north may imitate it.

[28] If the hours stay at 3.00 am then the last few licensed premises which have not supported the policy, may well use the precedent to support their wish to stay out of the loop. If that happens then it could be argued that the Authority has not supported the community's wishes.

[29] The balancing exercise in this case is not without difficulty. We have decided to compromise. We have been influenced to some extent by the provisions of s.4 of the Act.

"The object of this Act is to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse as far as that can be achieved by legislative means."

"The Licensing Authority ... shall exercise its jurisdiction, powers and discretions under this Act in the manner that is most likely to promote the object of the Act."

[30] It seems to us that the reduction of liquor abuse is much more likely to be achieved if licensed premises in the South Taranaki District have their closing hours reduced from 3.00 am to 2.00 am. It seems to us that more and more communities are rejecting the 3.00 am closing time as incidents of unruly conduct continue to escalate. We accept that such a reduction will not on its own solves the problems. We acknowledge that the Council and the Police have undertaken a number of joint initiatives aimed at harm minimisation.

[31] We believe that the serious approach currently being adopted by the District Licensing Agency and the Police will be eroded if the current application is granted.

[32] On the other hand, Mr and Mrs Jones have already shown that the community of Kaponga can cope with later hours of closing. We intend to require them to comply with the Policy for a minimum period of twelve months. In terms of reducing liquor abuse their individual concerns will have to be subsumed to the general public good. No doubt they, and the Agency and the Police will closely monitor the situation over the next twelve months. Issues such as special licences, migrating drinkers and the community response will be recorded. If at the end of the period of time, Mr and Mrs Jones are still of the view that they have a genuine case for an exception from the Policy, we invite and indeed encourage them, to apply for a variation of their closing hours.

[33] For the reasons we have given, we propose to renew each licence for a period of three years. The hours for each licence will be as follows:

On-licence Monday to Sunday 7.00 am to 2.00 am
Off-licence (bottle store) Monday to Sunday 7.00 am to 11.00 pm
Off-licence (across the bar) Monday to Sunday 7.00 am to 2.00 am

DATED at WELLINGTON this 19th day of March 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

Kaponga Tavern.doc (aw)