South Coast Properties Limited and Cambridge Equine Trustee Limited, re [2002] NZLLA 270 (24 May 2002)

Last Updated: 8 March 2010

Decision No. PH 270/2002 – PH 271/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by SOUTH COAST PROPERTIES LIMITED and CAMBRIDGE EQUINE TRUSTEE LIMITED trading in partnership for an on-licence pursuant to s.7 the Act in respect of premises situated at 265 Otumoetai Road, Tauranga, known as "Mandy's Bar & Grill"

AND

IN THE MATTER An application by SOUTH COAST PROPERTIES LIMITED and CAMBRIDGE EQUINE TRUSTEE LIMITED trading in partnership pursuant to s.18 of the Act for a renewal of an on-licence in respect of premises situated at 265 Otumoetai Road, Tauranga, known as "Mandy's Bar & Grill"

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TAURANGA on 2 May 2002

APPEARANCES

Mr H P Kynaston for the partnership
Ms D L Daubney – Tauranga District Licensing Agency Inspector – in opposition
Mr T G Sievers for the Secretary of the Tauranga District Licensing Agency – to assist
Mr R C Keam for the Otumoetai Baptist Church – in opposition
Mr G L Hartstone – in opposition
Mr B J Looker – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are two applications before the Authority. The applications are in the alternative. The first is for an on-licence pursuant to s.7 of the Act. The second is for renewal of the original on-licence pursuant to s.18 of the Act. Both applications are in respect of premises situated at 265 Otumoetai Road, Tauranga. The applicants in each case are South Coast Properties Limited and Cambridge Equine Trustee Limited trading in partnership ("the partnership"). The application for renewal is brought by the partnership as agents for Margaret Kathleen Andersen the licence holder.

[2] At the time the applications were filed the premises was known as "Mandy's Bar and Grill". Since the filing of the applications on 16 October 2001 and 19 November 2001 respectively, the name of the premises has changed to Cruzaz Café.

[3] Both applications are opposed by the District Licensing Agency Inspector on the ground that the premises has been operated contrary to a Consent Order issued under the Resource Management Act 1991.

Issue

[4] The issue to be determined is the suitability of the partnership pursuant to ss.13(1)(a) and (d) and 22(a) and (c) of the Act.

Background

[5] The premises has a long history as a restaurant starting in 1982 when it was a BYO restaurant. In 1991 it became a licensed restaurant. In 1995 the owner applied for resource consent to operate a tavern. The consent was granted on the basis that it would be reviewed after 6 months. Twenty-five submitters appealed the decision. Proceedings followed in the Planning Tribunal. There were several public meetings and protracted negotiations among the parties. Finally, the Planning Tribunal (now the Environment Court) sealed a Consent Order on 31 May 1996.

[6] The Consent Order provided for a restaurant with a bar. It did not authorise a tavern. The Order established a new set of conditions.

[7] The Consent Order stated (amongst other things):

"That pursuant to section 104 and 105 of the Resource Management Act 1991 consent is granted to W C Anderson, to establish and operate a bar within an existing restaurant premises, at 265 Otumoetai Road, Tauranga...subject to the following conditions."

(a) Hours

The maximum hours of operation of the bar be between 4.00 pm –10.00 pm Monday to Saturday inclusive, save that the bar may continue to operate under the terms of its present liquor licence (annexed hereto as Schedule 1 ) until 1.00 am for the limited purpose of serving any person present on the premises for the primary purpose of dining.

(b) Operation

That the bar is limited to and means that building area marked 'proposed bar area as defined in the floor plan attached hereto as Schedule 2...

(c) The bar is limited to being ancillary to the existing restaurant."

(d) Noise

...

(e) Entrances

The principal entrance to the activity shall be by way of entrance through the existing restaurant and its entrance which has frontage on Otumoetai Road.

(f) Signage

That there be no signage to indicate the rear service lane entrance as a separate entrance, or any signage indicating that there is a bar in that vicinity (save that the existing awning signage at the rear of the premises may remain)."

[8] The definition of "ancillary" was referred to in a report to the Tauranga District Council dated 14 March 2001 prepared by Harrison Grierson Consultants Limited. Paragraph 5.1 of the report states:

"*Note – compliance with condition (c) [ancillary] could be arguable as the definition of "ancillary" is open to interpretation. We are aware that the restaurant business is sub-leased and operates as an independent business. However, as the bar remains used by restaurant patrons for before and after dinner drinks and for functions in much the same manner as described in the 1995 application, then we believe it can be considered as ancillary."

[9] In LLA 1221/2000 dated 26 October 2000 the Authority granted Margaret Kathleen Andersen an on-licence allowing her to sell liquor to any person present on the premises during the following hours:

(i) The Bar

Monday to Saturday 4.00 pm to 10.00 pm

(ii) The Restaurant

Monday to Sunday 7.00 am to 1.00 am the following day (7.00 am to 12.00midnight on the Thursday before Good Friday, Easter Saturday, Christmas Eve, and the day before ANZAC Day) to any person who is present in the restaurant area of the premises.

[10] In a corrigendum to that decision dated 9 August 2001 the Authority amended those hours to take account of a change in the law, even though the Consent Order applied to the entire premises. The Sale of Liquor Amendment Act 1999 repealed subs.(1)(a), (b) (c) and (d) of s.7. Those paragraphs of subs.(1) had specified the classes of persons to whom liquor could be sold. Paragraph (b) had provided that liquor could be sold to "any person present on the premises for purpose of dining." In its place, s.7 now simply provides, that liquor may be sold or supplied "to any person present on the premises..."

[11] In the corrigendum the Authority said in regard to hours:

"The hours constraints relating to the bar area only to casual drinkers and arise from a Resource Consent Order granted at a hearing in Tauranga on 27th May 1996 (by the (former) Planning Tribunal) to Wayne Carl Anderson who was subsequently granted an on-licence pursuant to the Sale of Liquor Act 1989 by this Authority. The Consent Order went on to allow for the sale of liquor in the entire premises (the emphasis is ours), to any person present for the purpose of dining between 7.00am and 1.00am the following day on any day of the week."

[12] Consequently, the new hours in the corrigendum were changed to:

"Monday to Sunday 7.00 am to 1.00 am the following day (7.00 am to 12.00 midnight on the Thursday before Good Friday, Easter Saturday, Christmas Eve, and the day before ANZAC Day)"

The Authority went on to state:

"Accordingly the restrictions as to who may be in the bar before 4.00 pm and after 10.00 pm from Monday to Saturday and at any time on a Sunday, becomes matter for compliance by the licensee and (if required) enforcement by the Local Authority, without appearing as a condition on the licence."

[13] A temporary authority was issued to the partnership on 26 October 2001. As is detailed later, the applicant then remodelled the premises and turned it into a tavern and casino bar. The temporary authority expired on 26 January 2002. The partnership applied for another temporary authority on 15 January 2002. The Inspector opposed this application on the grounds that the partnership was not operating the premises in accordance with the Consent Order.

[14] The Tauranga District Council Hearings Committee [District Licensing Agency] heard the application for the second temporary authority on 19 February 2002. The Committee reserved its decision to allow the partnership time to reconfigure its premises in accordance with the Resource Consent, and to the satisfaction of the Council.

[15] On the 26 February 2002, following a site inspection, the Committee reconvened the hearing at the request of the partnership. The Committee resolved to decline the application. The grounds were that the Committee was not satisfied that the partnership was operating the premises in accordance with the Consent Order. The District Licensing Agency could not issue a temporary authority because under s.9(1)(e) compliance with the Resource Management Act 1991 is a prerequisite to the granting of an on-licence.

Neighbouring Land Use

[16] The premises is in a suburban shopping centre in a Commercial Business Zone. The centre is occupied by a dental surgery, and other retail outlets. There are residential properties and a church to the rear of the premises. Across the road at the front is another church, some residential properties, and a school.

The Objectors

[17] There were twelve objections to the on-licence application lodged with the District Licensing Agency. Of the twelve, three objectors gave evidence. One objection was in petition form. It contained the signatures of twenty-two residents of Claremont Terrace. Another six objections were from business owners in the shop units adjoining the applicant's premises. The principal concerns of the objectors were; the inadequacy of parking caused by the arrival of Cruzaz, the escape of noise through the bi-fold window, the conduct of patrons towards passers-by, patrons drinking on the street, the effect of the bar on the neighbourhood, and the changed use of the premises.

Mr Bird's Evidence

[18] Mr Bird is a director and shareholder of South Coast Properties Limited. He was appointed by the partnership to act as general manager of Cruzaz, with overall responsibility for its establishment and management. He has a Bachelor of Commerce degree, and is a member of The Institute of Chartered Accountants. He is currently completing a Master of Business Administration degree.

[19] Mr Bird had worked as an accountant for Ernst and Young, a finance broker for Brock Finance Limited in Hong Kong, a manager for Mitchell Bird Clothing Limited, and an adviser/negotiator for a firm of barristers and solicitors.

[20] Since 1996 he has been involved in the establishment and management of four other licensed premises at Rotorua. They are Colonial Tavern and Liquorland, Whiskey Jacks, and Trac Sports and Winners Café. None of the premises trade as restaurants.

[21] He said all those "premises are still trading. They have traded without significant incident," and are on good terms with the relevant agencies.

[22] Mr Bird said that apart from the breach of the resource consent, he was not aware of any concerns by the Tauranga District Licensing Agency, Tauranga District Council, the Police, or Public Health regarding the way Cruzaz has been managed.

[23] Mr Bird said the partnership purchased Cruzaz after seeing an advertisement for a "Restaurant Bar". The business had operated as a quiet neighbourhood restaurant and bar. The clientele was middle-aged and well established. Apart from the installation of gaming machines the partnership did not initially envisage any other significant change. The only major addition they intended to introduce, was a gaming option. They saw the machines as having a low impact on neighbours with minimal noise. The partnership viewed a local casino as having limited beverage sales, and clients coming and going with a minimum of fuss. The association of a suburban casino shop with a restaurant seemed not to have been considered seriously.

[24] Prior to filing the application for the on-licence, Mr Bird had a meeting on 10 October 2001 with Paula Oude-Alink of the Tauranga District Licensing Agency and her boss, Mr T G Sievers. Mr Sievers outlined the history of the site and the planning requirements. He provided copies of the Harrison Grierson report of 14 March 2001 to Mr Bird. They discussed the corrigendum decision of the Authority of 9 August 2001. Mr Sievers also advised Mr Bird of the past concerns of the objectors to the premises, which related mainly to the use of the back bar.

[25] Shortly after that meeting the partnership applied for an on-licence. Mr Bird alleged that Paula Oude-Alink suggested that he make a change to the application form. The form referred to the business as a "Neighbourhood Tavern". Ms Oude-Alink suggested that the form be changed to refer to a restaurant. Mr Bird did not agree. He asked her to amend the form to read "Neighbourhood Tavern/Restaurant". In our view this attitude confirms the applicant’s intentions not to operate a restaurant.

[26] Mr Bird said as a result of the meeting, a reading of the Harrison Grierson report and further discussion with Ms Oude-Alink the partnership's understanding was that the premises had to be operated as a restaurant bar, but the bar had to be ancillary to the restaurant. In those circumstances it is surprising that the application was for a neighbourhood tavern.

[27] After the temporary authority was issued, the partnership traded for a week as Mandy's Bar and Grill. The premises were then closed for a week for renovations. Because of the limited numbers of patrons the partnership believed that it could integrate the bar operation with the restaurant at the front of the building. It was suggested that the partnership’s intention was to overcome the objectors' concerns about the effects of the bar at the rear of the premises. We do not accept that the intention was for this reason at all.

[28] The partnership constructed a bar at the front of the building. They installed bar leaners and stools. A pool table was also installed in the front portion of the building. Eighteen gaming machines were installed in the former bar at the rear of the building.

[29] The premises opened on 7 January 2002. According to Mr Bird the partnership's expectations were that the alterations would not significantly increase turnover. In fact there was a dramatic increase in turnover by about 500-600%. Liquor takings were approximately eight to nine times that of the food takings. Mr Bird said the partnership did not realise that this activity made the business a tavern or that they were in breach of the Consent Order. We do not accept his assertion.

[30] Mr Bird said that in early January the partnership applied for another temporary authority. Ms Daubney made an inspection on 11 January 2002. On 18 January Ms Daubney advised the partnership by letter that she would be opposing the application because they were operating outside the terms of the Consent Order. The partnership took legal advice. Mr Bird said, "it was only at that point that we realised that different interpretations applied." It may be that Mr Bird had his own interpretation of what he 'could get away with'.

[31] Mr Bird asked the Agency what he should do. According to him he was advised to continue trading as the temporary authority was due to expire on 26January. The partnership then removed the pool table, and confined its operating hours from 4.00 pm to 10.00 pm. Most of the bar leaners and stools were replaced with traditional dining tables and chairs. The duty manager was instructed that after 26 January no casual drinkers were to be on the premises. After that date meal specials were offered.

[32] Mr Bird said when the temporary authority expired the partnership traded as an unlicensed restaurant until 22 February 2002. On that date the gaming machines were also removed. There has been no trading on the premises since that date.

[33] Mr Bird said that if the on-licence is granted, the partnership intends to promote the restaurant. He said that food would be the primary focus of the business. He said that until they obtain the approval of the Council they would not sell liquor for consumption in the restaurant area unless the persons are present for the purpose of dining. He said they would do that "even though [that] is not strictly required by the Sale of Liquor Act." Mr Bird agreed that it was their intention to run a restaurant with two bars. He said their real wish in the long term was to run a tavern. We do not accept that the focus of the business will be on food. A study of the menu confirms our view.

[34] Mr Bird said that they did not want to remove the bar from the front of the building because it was installed at great expense. He said the partnership intended to make an application for a resource consent in about 2-4 weeks to trade as an integrated neighbourhood cafe/bar. He said as long as the premises was required to be a "restaurant and ancillary bar," it would primarily be used as a place for diners to have pre and post-prandial drinks in the front of the building. Once again we have no confidence in such an assertion.

[35] Mr Bird said that he was aware of the objections that patrons had been observed drinking outside the premises. He said that the manager has advised him that on one occasion a patron was standing outside. He was spoken to, and moved back inside the premises.

Ms Daubney's Evidence

[36] Ms D L Daubney is the Inspector for the Tauranga District licensing Agency.

[37] Ms Daubney referred to the history of the premises, and the Consent Order and the corrigendum, which was issued. She said that prior to purchasing the business, Mr Bird was advised of the restrictions on the operation of the premises. She referred to the file note of that meeting.

[38] Ms Daubney said that during a routine monitoring on 11 January 2002 she found that the premises had been significantly altered. Contrary to the Consent Order, the premises was being operated as a tavern.

[39] Ms Daubney said that after purchasing the premises the applicant had closed the premises for renovations. The front area of the premises that was previously utilised as a restaurant, was altered to accommodate the bar. Eighteen gaming machines were installed at the rear of the premises where the bar had previously been. The dining furniture was replaced with bar furniture and a pool table. The front of the premises was altered to include a bi-fold window.

[40] Ms Daubney said that when the premises re-opened, the applicant began trading as a tavern serving casual drinkers in what was formerly the restaurant area. As a consequence, Ms Daubney opposed the applicant's second application for a temporary authority. When the application was opposed, Ms Daubney said the applicant altered the premises again by removing the pool table. The pool table was replaced with a small number of dining tables and chairs. The bar leaners remained. The area at the rear of the premises continued as a casino.

[41] Ms Daubney referred to the reconvening of the hearing for the temporary authority and the Committee's decision.

[42] Ms Daubney said that the Agency was concerned that the applicant had not followed due process regarding Resource Management Act issues in attempting to establish a neighbourhood tavern. She referred the Authority to its decision in John Renner Mackie LLA 196/2002. In that case the Authority was concerned about an abuse of process by the applicant. In the J R Mackie case the applicant had initially said the premises was going to be a café with gaming machines. He later changed the application to a restaurant style licence in an apparent attempt to ensure the issue of a licence without a public hearing. The applicant then operated the premises as a tavern in contravention of the conditions of the licence.

[43] Ms Daubney said that:

"Given the fact that the applicant was informed on numerous occasions of the requirements relating to the Consent Order, yet proceeded to alter the premises and to trade as a tavern, raises (sic) concerns regarding the suitability of the applicant to hold a liquor licence."

Mr Keam's Evidence

[44] Mr Keam is a practising solicitor. He made his submissions in his capacity as an Elder of the Otumoetai Baptist Church. The church is a neighbour of the applicant's premises.

[45] Mr Keam traversed the history of the premises, and the Consent Order. He noted that the Consent Order restricted the bar area to a small space at the rear of the restaurant. The principal access was to be through the front entrance of the restaurant on Otumoetai Road. He said:

"The Consent Order deliberately purports to discourage traffic in and around the rear entrance way in the vicinity of the church property by dictating that there is to be no signage to indicate the rear service lane entrance as a separate entrance or any signage indicating that there is a bar in the vicinity."

[46] Mr Keam then referred to the Authority's Decision PH 1221/2000 and its corrigendum. He said that the Authority made it clear that the licensee was still required to "observe the strictures of the Consent Order."

[47] Mr Keam said that on 11 January 2002, when the premises re-opened following extensive alterations, it was immediately apparent that the character of the premises had been substantially changed. "Any pretence of being a restaurant had been removed and had all the hallmarks of a bar or tavern." Mr Keam described the other changes that had been made including the scant menu that had replaced the full dining menu. He noted that the applicants had also flouted the Consent Order by allowing the rear entrance to become a principal thoroughfare.

[48] When the Authority visited the site there was a sign stating "principal entrance" above the doorway leading from the rear bar area to the restaurant.

[49] Mr Keam said: "The applicants are not amateurs in relation to Resource Consent issues or the operation of licensed premises."

[50] Mr Keam submitted that:

"Because of the cavalier attitude adopted by the applicants immediately after they took over the premises the Church has no confidence that they will be co-operative and sensitive to the needs of their neighbours in future. There seems to be no doubt that the applicants were well aware that they were flouting the conditions of the Consent Order..."

Mr Looker's Evidence

[51] Mr Looker is a resident of 286 Grange Road. His address is directly behind the applicant's premises.

[52] Mr Looker said the "Consent Order states that:

1. The bar area is limited strictly to the area defined in the original floor plan...
   
2. The bar is limited to being ancillary to the existing restaurant operation.
   
3. The designated bar area is the only area where liquor can be sold and consumed by casual drinkers between the hours of 4-10 pm Mon to Sat.
   
4. The Principal Entrance shall be by way of entrance through the existing restaurant via Otumoetai Road."
   

[53] Mr Looker said that the premises were clearly laid out as a tavern style operation in breach of the Consent Order. He said the Hearings Committee and his solicitors upheld this view. In support he produced a copy of his solicitors' letter to the Tauranga District Council.

[54] Mr Looker said that when the premises was operating as Cruzaz bar:

"It had a negative and detrimental effect on the immediate residential area. Traffic congestion and parking problems were multiplied in what was already a busy area. The operation attracted a large number of casual drinkers, patrons were observed on several occasions consuming liquor on the pavement in the afternoon, which coincided with young children passing along the pavement as they left for primary school. Patrons continued to enter and exit the premises through the rear fire exit despite the premises principal entrance being Otumoetai Road and continued to cause noise and disturbance to the residents in the evening as they arrived and departed in their cars parked in the Otumoetai Baptist Church carpark."

[55] Mr Looker said that the partnership are experienced operators in the liquor industry. They were fully aware of the Consent Order and resource management matters applying to the premises, yet they had blatantly ignored the Consent Order. He said this reflected poorly on their suitability to operate licensed premises, and demonstrated a readiness to ignore the law.

Mr Hartstone's evidence

[56] Mr Hartstone is a resident at 10 Claremont Street. He has lived there for 16 years. His property is one of four that adjoins the parking area being used at the back of the premises.

[57] His background is in the highly regulated transport industry where a failure to follow the regulations can have dire consequences. Therefore, he could not understand how an experienced liquor licensee could flout the law and not suffer any consequences. He said that because the applicant has blatantly disregarded its current licence, he held grave fears that it would not obey the law.

Mr Kynaston's Submissions

[58] Mr Kynaston said that there was no need for the Authority to determine whether the premises has or will operate as a tavern or a restaurant. It was simply a question of compliance. He said his client accepted that it started operating as a tavern, but it did not accept that it deliberately flouted the Consent Order conditions. He submitted that the applicant "mistakenly identified the tavern as a restaurant because it did not understand the legal tests." It may be it mistakenly identified the restaurant for a tavern.

[59] Therefore he argued that this was simply a case in which the Authority was required to assess the applicant's suitability.

[60] Mr Kynaston referred to the Authority's decision in John Renner Mackie LLA 196/2002. He said that case and the present case were quite different. Mr Mackie had allowed Renners to operate as a tavern for about one and one half years. The applicant had operated its premises as a tavern for one and one half weeks. It then took steps rectify that situation. Mr Kynston said that the applicant had never received an Abatement Notice.

[61] Mr Kynaston referred us to the Authority's decisions in Valley Brewing Company Limited LLA 2342/93 and Station Café Casino Limited LLA 2346/93 which dealt with the blurred distinction between taverns and restaurants. In the Valley Brewing Company Limited decision the Authority noted the judgment in Governors Tavern (Hamilton) Limited v McGregor (Hamilton City Council) High Court Hamilton AP 85/92 where Doogue J said at page 6:

"There is nothing mutually exclusive so far as the definitions of 'restaurant' and 'tavern' are concerned under the 1989 Act."

[62] Mt Kynaston submitted that the law was quite confusing.

The Authority's Conclusion and Reasons

[63] The issue of suitability has been the major theme throughout this application. That issue has essentially been based upon the allegation that the premises has been operated contrary to a Consent Order.

[64] Suitability arose in Re Sheard [1996] 1 NZLR 751, 758 where Holland J said:

"The real test is whether the character of the applicant has been shown to be such that he is not likely to carry out properly the responsibilities that are to go with the holding of a licence."

[65] The history of this application has done nothing but increase our concerns about Mr Bird's, and therefore the partnership’s conduct and suitability. Mr Kynaston sought to persuade us that the applicant through Mr Bird had not deliberately flouted the consent conditions. Rather that the applicant did not understand the legal tests, and the distinction between a tavern and a restaurant.

[66] We cannot accept that view for a number of reasons. First, Mr Bird has a professional background. Secondly, his work history demonstrates that he is anything but naïve. Thirdly, he has been involved in the establishment and management of four licensed premises over approximately six years. In other words he is not unfamiliar with the requirements of the Resource Management Act 1991 or the Sale of Liquor Act 1989. Fourthly, prior to purchasing the premises Mr Bird, had a meeting with members of the District Licensing Agency. It would appear that the meeting was lengthy and thorough. The Agency's file was disclosed to Mr Bird. It revealed all the history and associated issues related to the premises. Copies of all the relevant documents were given to him. Mr Bird had the conditions of the Consent Order explained to him. The Order confirmed why a tavern style licence was not possible.

[67] At that stage it would be difficult to say that Mr Bird was not fully aware of his obligations. At the meeting Mr Bird said that he would seek the assistance and advice of Beca Carter Consultants as to what options were available. If necessary he said they would apply for a new resource consent. That statement would seem to indicate that Mr Bird, had a pretty good idea of the significance of the Consent Order, and its effect on the partnership's wish to establish a neighbourhood tavern.

[68] It would be fair to say that after 10 October 2001 [Mr Bird's evidence was 4 October but the file note states 10 October], Mr Bird had been forewarned of what lay ahead of him. At that time he had not taken over the premises, as the temporary authority was not issued until 26 October 2001.

[69] The applicant through Mr Bird has breached the Consent Order in two respects. First, it has operated as a tavern. Secondly, it has changed the location of the bar contrary to the Consent Order.

[70] Mr Bird filed the application for a tavern style on-licence on the 16 October 2001. On the application form the business was shown as a "Neighbourhood Tavern". He was advised by Ms Oude-Alink that he should change it to a restaurant licence. The reasons why it was necessary were explained to Mr Bird again. Mr Bird said he did not want to apply for a restaurant licence. After some discussion Ms Oude-Alink amended the application form to read "Neighbourhood Tavern/Restaurant". Mr Bird acknowledged during his evidence that after reading the Harrison Grierson report, he knew that the premises had to be operated as a restaurant and any bar had to be ancillary to the restaurant.

[71] The second breach occurred when Mr Bird set up a bar in what had previously been the restaurant area. In its place the former bar area became a casino. Under condition (b) of the Order the bar was required to be in the area shown on the plan in Schedule 2. That is, in its original position at the rear of the premises.

[72] Both those matters demonstrated Mr Bird’s and the partnership’s persistence in ignoring the advice received from the Agency.

[73] In the two cases referred to by Mr Kynaston in paragraph [61] the Authority took the view that both premises were operating as taverns. The officers of the Hutt City Council chose to conclude that they were restaurants with a bar and a Resource Management Act certificate was issued accordingly. Those cases are clearly different from the facts of the present case. The issue here is one of compliance. The Consent Order confined the type of business that may be on the site. The Council officers had explained the requirements of the Consent order to Mr Bird more than once, and he was supplied with all the relevant documents. One could say that he could not have been more fully informed on all issues.

[74] Mr Kynaston also referred us to a third decision of the Authority in Cin Cin on Quay Limited LLA 618/91. There the Authority set out its views on what is a tavern. It said:

"Whether or not a particular licensed premises is a tavern is a question of fact for the Authority to determine. Factors that the Authority would have regard to include:

(1) The proportion of total income of the licensee derived from:

(a) the sale of liquor,

(b) the sale of food,

(c) cover charges derived from persons present on the premises for the purpose of attending entertainment.

(2) Whether the premises are in fact operated as a tavern and perceived by the public as such."

[75] After considering all the evidence we can only conclude that the applicant blatantly ignored the Consent Order. We cannot accept that Mr Bird with his background was confused as to the distinction between a tavern and a restaurant. The facts of this case reflect poorly on the applicant’s suitability to operate licensed premises. It demonstrates a readiness to ignore the law. In terms of s.13(1)(d) of the Act, the issue is whether we have sufficient faith that the applicant will ensure that the laws relating to the supply of liquor to prohibited persons, will be observed. Prohibited persons are defined in s.2 of the Act as persons under 18, intoxicated persons, and any other persons prohibited by the licence. In this case, based on the evidence that we heard, we are satisfied that the applicant will not uphold the law, and s.13(1)(d) in particular.

[76] For the reasons expressed above we are not prepared to grant the applicant a new on-licence. That application is therefore declined. We also take the view that the application is not a genuine application for a licence for a restaurant with an ancillary bar. The menu does nothing to give us confidence that the bar will be ancillary to the main business of supplying good food. The visit satisfied us that the premises could be a fine restaurant. Although the applicant has placed a few tables and chairs in the old restaurant area, it seemed to us that the two bars occupied more space. In short we very much doubt the bona fides behind the application.

[77] The problem therefore is what to do about the application for renewal of the on-licence previously issued to Margaret Kathleen Andersen. The Hearings Committee has declined to issue another temporary authority for the reason already referred to in this decision. We have to balance the fact that the applicant has proven to be unsuitable to be the holder of an on-licence with the fact that there has been no serious liquor abuse issues in this case. In effect the breach of the Consent Order was not Ms Andersen’s responsibility.

[78] The licence being renewed is for a restaurant. We therefore reluctantly grant the application for renewal for 18 months to 24 May 2003. That will allow the applicant to demonstrate to the District Licensing Agency that it can operate a restaurant properly in accordance with the Consent Order. Alternatively, it can either sell the business or apply for a new resource consent.

DATED at WELLINGTON this 24th day of May 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

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