Northcote and Birkenhead Tigers Rugb League and Sports Club, re [2003] NZLLA 522 (30 July 2003)

Last Updated: 23 November 2010

Decision No. PH 522/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by NORTHCOTE & BIRKENHEAD TIGERS RUGBY LEAGUE & SPORTS CLUB INCORPORATED pursuant to s.62 of the Act for variation of the conditions of a club-licence in respect of premises situated at 12-14 Birkenhead Avenue, Birkenhead, North Shore City, known as “Northcote & Birkenhead Tigers Rugby League & Sports Club”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 15 July 2003

APPEARANCES

Mrs S S Shirkie – Northcote & Birkenhead Tigers Rugby League & Sports Club -

applicant
Mrs P M Cudby – North Shore District Licensing Inspector – in opposition
Constable A B Cruickshank – NZ Police – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority is an application for variation of the trading hours of a sports club. The Northcote & Birkenhead Tigers Rugby League & Sports Club Incorporated (hereafter called the Club), has a proud history of serving the interests of rugby league in the community for over 90 years. Eventually the Club became too large for its premises, and 21 years ago, it purchased a building in the Highbury Shopping Centre in the middle of Birkenhead. The Clubrooms are situated over some retail shops. The entrance to the Club is from a back lane off Mokoia Road. The Club has provided financial assistance to the Council to help maintain the sporting grounds which are situated a kilometre away from the Club Headquarters, at the Birkenhead War Memorial Park.

[2] Currently the Club has 19 rugby league teams who range from schoolboys through to the Premier League. We understand that the Club has to find up to $100,000 a year to maintain its top team in the Premier League. It is the Club’s view that it provides an asset to the community in that it encourages sport at all ages. In addition members are given the opportunity to socialise in a responsible and controlled way.

[3] The main lounge and bistro bar are situated upstairs, where the members can enjoy a view of Rangitoto and the Waitemata Harbour. The downstairs bar is known as the “Backbar” because it is sited at the back of the building. The bar has 12 gaming machines, an eight ball table and Sky TV. At the hearing, the “Backbar” was said to be a popular meeting place for members. There is a Club night on a Friday night, and members are encouraged to use the facilities for birthdays, weddings etc. The Club used to sponsor and promote softball during the summer. Currently the summer months are taken up by a large number of teams who play touch and tag. There also two netball teams sponsored by the Club.

The Application

[4] At present, the Club has the following licensing hours:

Monday to Wednesday 3.00 pm to 10.00 pm

Thursday to Saturday 3.00 pm to 12.00 midnight

Sunday 3.00 pm to 11.00 pm

The last time a variation was approved was in 1998, when minor variations were made to allow trading to midnight rather than 11.00 pm on Thursdays through to Saturdays. In addition, the opening and closing hours for the first part of the week were altered from 4.00 pm to 11.00 pm to 3.00 pm to 10.00 pm.

[5] In its application, the Club has requested that the opening hour be brought forward to 11.00 am each day. There was some evidence of the obtaining of special licences, but it appears that these were obtained for social functions to enable the Club to trade later at night.

[6] In a letter to the District Licensing Agency the club gave the following reasons for the application:

“The Club’s committee would like to be able to open at 11am daily to cater for their members, a number of whom are shift workers and also quite a few pensioners. They have advised the committee that they would like to be able to patronize [sic] their Club earlier in the day.

Also the revenue from the gaming machines plays an important part in the future development of the club, this is another reason why the club would like to be open more hours.

We intend to hold games during the week such as Indoor Bowls, Darts, 8-Ball & Cards for the members”.

[7] The Club has 350 members who are involved in the game of rugby league, and a further 300 members who are social members and team supporters. Membership subscription is only $15 per person, and there is currently a drive to attract more members. Mrs Sally Shirkie is the Club’s general manager. She has held the position since December 2002. She is the holder of a General Manager’s Certificate, and has 30 years experience in the hospitality industry.

[8] As with many sporting clubs with an amateur base, there is a continual need to maintain and improve the facilities and to attract new members in an effort to ensure that the community will continue to be provided with access to sport. Mrs Shirkie produced a copy of the rules of the Club. These confirm that the object of the Club is to promote and foster the game of rugby league. We have no doubt that this is the Club’s predominant purpose.

[9] Mrs Shirkie candidly acknowledged that rugby league playing or training hours were not to be increased. The purpose of the application was to ensure that the members make better use of the facilities, at a time when the club’s rooms are empty and unused. Any revenue which is generated will be used for the overall operation of the Club. Mrs Shirkie suggested that society had changed since the Club was first granted its licence. For example, there were a number of members who were shift workers or pensioners who do not have SKY TV, and who may well utilise the premises during the late morning if they were open. Mrs Shirkie acknowledged that there was a sign advertising the “Backbar” with the following comments:

North Harbour Leagues Club Back Bar, Sky Sports, Big Screen,

Gaming Machines, $1,000 Jackpot, Become a member now, $15 pp.

[10] In other words the emphasis of the Club has changed so that there were nearly as many non-playing members as players. We were not advised of the number of members who were under the age of eighteen. It seems to us that there has developed a subsidiary reason for the Club’s existence based on the ability to socialise and play the gaming machines. With the appointment of Mrs Shirkie it appears likely that the Club will continue to expand.

The Opposition

[11] The application drew opposition from the District Licensing Agency Inspector and the Police. Accordingly the matter was set down for a public hearing. Mrs P M Cudby is the North Shore District Licensing Agency Inspector. She submitted that the licensing hours should relate to the days on which and the hours during which the predominant purpose of the Club was being conducted.

[12] Her reason for opposing the application was because the hours proposed did not relate closely to the hours during which the predominant purpose of the Club was being undertaken. She suggested that the hours were more suited to a tavern or a chartered club. She argued that pensioners and shift workers would not be involved with the game of rugby league from 11.00 am to 3.00 pm on Mondays to Fridays.

[13] Constable Andrew Bryan Cruickshank is the North Shore Police liquor licensing officer. He was concerned that the original advertisement outside the “Backbar” did not mention that the facilities were for Club members only. He noted that this has since been rectified. It seemed to him that the Club was promoting itself as a tavern. His concern also was that the hours were akin to a tavern, and had no relationship with the game of rugby league.

[14] Both the Inspector and the Police Constable acknowledged that a case had been made out for increased hours over the weekend. It seems that the Club is well run, and there have been no reported incidents of liquor abuse or breaches of the Act. In those circumstances, particularly as the request was to open during daylight hours rather than later at night, the reporting agencies were prepared to withdraw any opposition in respect of increased hours during Fridays, Saturdays and Sundays.

[15] In view of the very tenuous link between the increased hours and the playing of Rugby League, we thought that the concessions made were generous but realistic. The proposal to reduce the hours sought in the application, was considered by the Club’s management committee at a meeting held the night after the hearing. The Authority was advised that the Committee’s decision was to press for extended hours for the whole week.

Decision

[16] The criteria to be considered by the Authority when considering the application for variation, are the same criteria which must be considered in an application for a new club-licence, so long as they are relevant to the application. These criteria are contained in s.59(1) of the Act and are:

(a) The suitability of the applicant:

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

(c) The days on which and the hours during which the premises are used for the club’s activities:

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

(e) The proportion of the membership of the club who are prohibited persons:

(f) 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:

(g) 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:

(h) Any matters dealt with in any report made under section 57 of this Act.

[17] Little assistance can be obtained by applying these criteria to the present application. There is no issue with the suitability of the applicant Club. It seems to us that the only relevant matter is contained in s.59(1)(c) of the Act. The Authority is bound to enquire into the days on which and the hours during which the premises are used for the Club’s activities. In some ways it could be argued that the premises are always being used for the Club’s activities, because the members are socialising in their Club rooms. However, it will be noted that pursuant to s.59(2) of the Act, in any application for a new club licence, the Authority or District Licensing Agency must be satisfied that the predominant purpose for which the premises are being used is other than the consumption of liquor.

[18] Some assistance can be obtained by reference to previous decisions of the Authority. In Rovers AFC (Whangarei) Incorporated LLA 1621/91 the Authority stated:

“If a voluntary association of persons in the nature of a sports club as defined in s.2 of the Act and of this type seeks hours beginning at 11.00 am every day a query is raised as to whether the predominant purpose for which the club premises will be used is other than the consumption of liquor. The Authority has a complete discretion as to the hours during which liquor may be sold on premises. We do not consider that the club activities outlined in the present application warrant hours as early as 11.00 am or later than 12.00 midnight. Part IV of the Act makes provision for special licences to be granted for particular occasions that cannot be catered for within the terms of the licence granted.”

[19] Similar comments were made by the Authority in Bream Bay Club Incorporated LLA 1035/91. In Karaka Sports Ground Society Incorporated LLA 117/92, the Authority stated:

“We agree that the closing hours of 12.00 midnight Monday to Friday and 1.00 am on a Sunday are more akin to on-licence hours than those of a sports club. The hours sought will be approved but with a closing time of 10.00 pm Monday to Thursday and 12.00 midnight Friday and Saturday”.

[20] In Waihi Beach Memorial RSA Incorporated LLA PH 201 – 202/2002 the Authority commented that:

“If a club reaches the stage where its primary income is derived from the sale of liquor it runs the risk of not only losing its identity, it runs the risk of losing its licence altogether.” Later we said:

“It is our view that if clubs push the boundaries in making their hours similar to those of on-licence premises, then the distinction between on-licences and clubs will become blurred. If this application were to be granted, other clubs, which may in their view, have unique or distinct features, would follow with similar applications.”

[21] This case illustrates the fundamental tension which exists between the genuine needs and aspirations of a sporting club to promote and foster its chosen sport, and the requirement to ensure that a club does not become a commercial enterprise, aimed at making a profit from its liquor sales in order to subsidise the club’s activities. It seems to us that this Club has reached the stage where it must seriously consider whether to convert the premises into a tavern, thereby losing its special character, but nevertheless having a greater chance of surviving in a modern sporting era. Unless the Club can show that any increased hours are linked to the playing of its nominated sports, then it is unlikely that further applications will be granted. Either that or the Club must change its constitution to change the emphasis from rugby league, to social activities.

[22] For the reasons we have given, we order that the existing licence be varied so that the opening hours be extended to 11.00 am on Fridays, Saturdays and Sundays.

DATED at WELLINGTON this 30th day of July 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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