Doreen, re [2003] NZLLA 218 (4 April 2003)

New Zealand Liquor Licensing Authority

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Doreen, re [2003] NZLLA 218 (4 April 2003)

Last Updated: 1 March 2010

Decision No. PH 218/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MURRAY WILLIAM DOREEN pursuant to s.9 of the Act for an on-licence in respect of premises situated at 135 Fairfield Road, Levin known as “The Ranch House Café, Murrayfield Clydesdales”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at PALMERSTON NORTH on 31 March 2003

APPEARANCES

Mr M W Doreen – applicant
Mr M P Weir – Horowhenua District Licensing Agency Inspector – to assist
Mr G S Blair – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an opposed application by Murray William Doreen for an on-licence pursuant to s.9 of the Act. The business known as "Murrayfield Clydesdales" has been operating for about twelve months. The principal purpose of the business is a tourist complex at 137 Fairfield Road in Levin. Currently the business caters for tourists who arrive by bus. Those who visit the site are offered tours of the museum, garden, greenhouse facility, access to the gift shop, and of course a “Clydesdale Horse Show”. The greenhouse facility displays a large variety of hybrid lilies.

[2] In addition to the above, the complex offers the “Ranch House Café”. Currently the café offers catered meals by way of lunches, or Devonshire morning and afternoon teas. This is the facility for which Mr Doreen is seeking an on-licence. He would like to offer the visitors the opportunity to have a glass of wine or beer with their lunch. In the course of time, he hopes to cater for weddings, family reunions, Christmas functions, conferences and the like. He stated that the tourist venture tends to attract more mature patrons. The business was still "getting on its feet".

The Application

[3] On 23 September 2002, Mr Doreen completed his application for an on-licence in respect of the "Ranch House Café". In his application, he stated that the principal purpose of the business was a tourist complex. No designation was sought.

[4] Subsequently Mr Doreen filed a certificate from the Horowhenua District Council. This confirmed that the property was located in a rural zone, and that the proposed use as a licensed restaurant/café/tourist complex, met the requirements of the Resource Management Act 1991. Furthermore, it was confirmed that the building met the requirements of the New Zealand Building Code to the extent required by the Building Act 1991.

[5] Neither the Police, nor the District Licensing Agency Inspector, nor the Medical Officer of Health had any objection to the application. The Inspector confirmed that there would be three persons who would be available to manage the licensed premises.

[6] The applicant sought the following licensed hours:

Monday to Sunday 7.00 am to 2.00 am the following day

[7] Following concerns expressed by the Police, the applicant reduced the proposed hours to a 1.00 am closing. Mr Doreen gave evidence that he appreciated the quite rural atmosphere where he had established the complex. He had no intention of turning the premises into a tavern style venue. He believes that the venture was very quietly run, and he has tried to be considerate of his neighbours.

[8] He had asked for an early opening hour in case there were people who wanted to enjoy a champagne breakfast. He had requested a late closing time to cater for the Christmas functions and the like. On the other hand, he suggested that it would be wrong to portray the business as a seven day a week operation. The current patronage represents about 2 to 3 busloads a week.

The Objections

[9] Public notification of the application attracted a petition which was signed by most of the residents in Fairfield Road. There were 18 signatories. The petition read:

"We are writing in objection to the application of the liquor licence application being the hours from 7 am to 2 am.

If the licence was granted, there would be an increased noise level and traffic flow in the late hours of the evening and the early hours of the morning disturbing the peace and quiet of this tranquil semi-rural area.

We would consider it to be more appropriate if the hours were restricted from 7 am to 8 pm.

Therefore please take this objection into consideration when processing the above application."

[10] It will be seen that the objection related almost exclusively to the hours of operation. Mr Grant Stephen Blair was one of the original signatories. He lives close to the premises. He gave evidence that the residents had held a meeting when they realised that an on-licence was being applied for. He said that the neighbours had no qualms about the tourist venture, and the presence of large numbers of tourists during the day. The concerns of the residents related to the hours of trading, and the nature of the proposed operation. The neighbours were worried in case the venture was not viable, and the applicant decided to expand the sale of liquor side in order to generate income. On that basis, the "group" had asked that the hours be cut back to 10.00 pm.

[11] He had been asked to speak with Mr Doreen to reconsider the hours of operation, and also provide a written plan of the final potential of the proposed business. In other words to what extent it was proposed that the business would expand. He said that he had been unsuccessful on both counts.

[12] Mr Blair acknowledged that over the months, there had been changes of views by some of the original signatories. Some were no longer concerned with the application. He had expected that there would be another three objectors at the hearing, but Mr and Mrs Sue had been required to go into Wellington at the last moment.

Decision

[13] In Cayman Holdings Limited LLA PH 145/2001 the Authority stated:

“The Authority’s approach has been to satisfy itself that the applicant is suitable and will uphold the law. The Police or District Licensing Agency Inspector are empowered to apply to vary, suspend or cancel a licence pursuant to s.132 of the Act if problems arise. Apprehension of problems alone is not sufficient to prevent a suitable applicant, particularly one supported by a District Licensing Inspector and the Police from exercising rights granted by the District Council.”

[14] In the majority of on-licence applications, the essential issues to be determined by the Authority will relate to the suitability of the applicant, and the days and hours of operation. The tailoring of conditions in each licence to meet each particular factual situation is the responsibility of the Liquor Licensing Authority, or if unopposed, the District Licensing Agency.

[15] There are a number of public safeguards built into the Act. Any new on-licence is issued for a period of one year. This gives residents and the authorities the opportunity to monitor the business to see whether fears of excessive noise, or traffic problems and/or unruly behaviour, are realised. If they are, then the Authority has the power to refuse to renew the licence, or alter the hours of opening. In this way the applicant has a clear incentive to ensure that it complies not only with the conditions of its licence, but the nature of the proposed business.

[16] Another form of protection for the residents is s.132 of the Act. The Police or the District Licensing Agency Inspector are empowered to apply to vary, suspend or cancel a licence if problems arise, concerning breaches of the Act or the conditions of the licence.

[17] In considering an application for an on-licence the Authority is directed by s.13(1) to have regard to the following matters:

(a) The suitability of the applicant;

(b) The days on which and the hours during which the applicant proposes to sell liquor:

(c) The areas of the premises or conveyance, if any, that the applicant proposes should be designated as restricted areas or supervised areas:

(d) The steps proposed to be taken by the applicant to ensure that the requirements of this Act in relation to the sale of liquor to prohibited persons are observed:

(e) The applicant's proposals relating to –

(i) The sale and supply of non-alcoholic refreshments and food; and

(ii) The sale and supply of low-alcohol beverages; and

(iii) The provision of assistance with or information about alternative forms of transport from the licensed premises:

(f) Whether the applicant is engaged, or proposes to engage, in –

(i) The sale or supply of any other goods besides liquor and food; or

(ii) The provision of any service other than those directly related to the sale and supply of liquor and food,- and, if so, the nature of those goods or services:

(g) Any matters dealt with in any report made under section 11 of this Act.

[18] A further relevant consideration is s.14(7) of the Act. This reads:

In determining whether to impose conditions under subsection (5) (a) and, if so, what conditions, the Licensing Authority or the District Licensing Agency, as the case may be, may have regard to the site of the premises in relation to neighbouring land use.

[19] This section refers to the Authority’s responsibility to fix days and hours of opening. In this case, this is very much a live issue. The current operation is being run on a limited scale. Mr Doreen talked about the tourists returning home about 3.30 pm in the afternoon. It has been our experience with other licensed premises in rural areas, that when premises are used as venues for other events such as weddings etc., then noise and nuisance issues follow. Sound has more impact in a country atmosphere.

[20] We believe that it is important to start any licensed operation in a conservative way. The applicant can test the demand. He can apply for special licences for special events. The number of special licences utilised can then show a demand for longer hours. If longer hours are applied for, the neighbours can then indicate whether or not the operation of a licensed café has interfered with their way of life. A "worst case" scenario given the requested hours, is that Mr Doreen could sell the Clydesdales, and concentrate solely on establishing a function venue.

[21] Mr Doreen was not able to establish any good argument why the licensing of the "Ranch House Café" required or justified a closing time of 1.00 am. The way he depicted the business, suggested that the sale of liquor would play an important, but nevertheless relatively insignificant part of the overall concept. If it is intended to change the nature of the business, (for example by catering for functions on a nightly basis), then it is appropriate that any such change be placed before the neighbourhood, by way of an application to extend the hours of trading.

[22] In our view, there has been no real challenge to Mr Doreen’s suitability. In the absence of concerns from the reporting authorities any such challenge would be difficult at any event. Although he was asked to set out potential plans for any expansion of the business, we believe that Mr Doreen was entitled to refuse. We think it unlikely that he knows how the business will ultimately develop. To be constrained by a written forecast does not make good business sense.

[23] We are satisfied as to the remaining matters to which we must have regard as set out in s.13(1) of the Act. Given that the applicant is suitable, and has an RMA certificate, then a liquor licence is appropriate. We have little hesitation in granting the applicant an on-licence for the sale and supply of liquor for consumption on the premises, to any person present on the premises. The hours will be:

Monday to Sunday 10.00 am to 11.00 pm

[24] A copy of the licence setting out the conditions to which the licence is subject is attached to this decision. It will be a restaurant style licence. In other words liquor may only be sold when the premises are being operated as a restaurant.

[25] The licence will not issue until:

(a) The expiry of 20 working days from the date of this decision. That period is the time provided by s.140 of the Act for the lodging of a notice of appeal.

(b) All relevant clearances have been obtained. The applicant is not entitled to sell liquor until the licence issues.

[26] The applicant’s attention is drawn to s.25 of the Act obliging the holder of an on-licence to display:

(a) A sign attached to the exterior of the premises so as to be easily read by persons outside each principal entrance, stating the ordinary hours of business during which the premises will be open for the sale of liquor, and

(b) A copy of the licence, and the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through the principal entrance.

DATED at WELLINGTON this 4th day of April 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Clydesdales.doc(nl)