Selwyn Cafe and Bar, re [2003] NZLLA 616 (4 September 2003)

Last Updated: 24 November 2010

Decision No. PH 616/2003 –

PH 617/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of applications by ROBERT LEONARD MASON and ROBYN ANN MASON trading in partnership for on and off-licences pursuant to ss.9 and 31 of the Act in respect of premises situated at 245 Selwyn Street, Timaru, currently known as “Selwyn Café and Bar”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TIMARU on 20 August 2003

APPEARANCES

Mr R L Mason, on behalf of applicants
Mr E Bennett – Timaru District Licensing Agency Inspector – to assist
Sergeant G A McCrostie – NZ Police – to assist
Mr R K Waugh – objector

Mrs H C Waldron – objector

Mr D G Macpherson – on behalf of Mr M A Kearns and Mrs M H Kearns - objectors
Mrs L Stevenson – on behalf of herself and Mr L R Stevenson - objectors
Mrs M N Aitchison – objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority are two opposed applications for on and off-licences, brought pursuant to ss.9 and 31 of the Act. The applicants are Robert Leonard Mason and his wife Robyn Ann Mason. If the applications are granted, the business will be operated from a large single story building, which was formerly a supermarket and toy store. The site is located at 245 Selwyn Street, in the Marchwiel suburb of the city of Timaru.

[2] A feature of the application is that the proposed licensed premises are adjacent to the Marchwiel Primary School to the south and east. There is a large Council Reserve, together with Plunket Rooms, and a kindergarten to the north. Across the road are residential properties. The area is predominantly residential.

[3] The applicants, together with the owner of the property, have been through a long process to obtain resource consent for the proposed business. In the face of considerable opposition, consent was finally granted on 11 March 2002, following a notified application. The opposition included a petition with 227 signatures. The resource consent permitted the establishment of a restaurant/café and bar. The consent had no less than sixteen conditions which related mainly to marketing, landscaping, and noise levels. One of the conditions restricted the hours of operation as follows:

Monday to Sunday 11.00 am to 11.00 pm

The Applications

[4] In the applications for the licences, the general nature of the business was described as a “Tavern – restaurant”. The sale of liquor was said to be the principal purpose of the business, although in the off-licence application, it was stated that the relationship of food to liquor would be 50/50. The applicants stated that they had yet to decide on a name for the business which would probably be “245 Selwyn Café & Bar”. At the hearing, Mr Mason confirmed that the name had still not been finalised.

[5] Indeed, a lack of detail about the proposed operation was one of the characteristics of the applications. For example, Mr Mason advised that the types of entertainment had yet to be decided. He wanted to open for business, and then find out what the public wanted. On the other hand he stated that market research had identified the site as being the best location for the proposed business. We did not have the advantage of seeing the research results.

[6] This lack of information about the applications, was a concern for the Authority. Different plans showed that a separate room had been set aside either for “entertainment”, or “gaming machines”, or a “children’s entertainment area”. Despite Mr Mason’s comments, we remain sceptical about the ultimate use of the room. We considered adjourning the applications to enable the applicants to be more specific. However, in view of the way in which the applications have evolved over such a long period, we decided that any further delay would be unreasonable for all parties. We are prepared to allow some leeway in the light of the fact that this is a “Greenfields” application. Without a history of trading, a lack of detail may be understandable.

[7] Nevertheless, it seemed to us that the applicants were under-prepared for the hearing. It is our view, having heard the evidence, that a significant part of the business will be based around gaming machines. These were shown in one of the plans, and confirmed by Mr Mason when he made his application for resource consent. The machines were not mentioned in Mr Mason’s brief. It seemed to us that the applicants were being unnecessarily coy. During cross-examination, Mr Mason would not comment on the possible revenue from gaming machines. He was unaware of the current policy of the Authority that the only areas which will be designated, will be those areas (such as bars and any bottle stores) which are used principally or exclusively for the sale, or supply, or consumption of liquor. With new licences, it is not possible to have a separate gaming room designated as ‘supervised’ or ‘restricted’, because it cannot meet the definition of a bar.

[8] Mr Mason told the Inspector that he anticipated that the sale of food would be the greater part of the business, and that full-time kitchen staff would be employed. During the hearing, he appeared to resile from that position, and although he declined to quote or comment on any figures, he thought that about half of the patrons would come to the premises to eat a meal. He did not expect the premises to trade in the same way as his other licensed premises.

[9] Once again the applications were short on detail. Nevertheless, a large part of the premises appeared to consist of tables and chairs as if for dining purposes. On one of the plans the area was described as “General Dinning (sic) Area”. The proposed menu seemed to have a wide range of café type food. Although the plan did not show any separate area for dining, it was our view that any such area should not have a designation, thereby enabling youngsters to access that part of the premises for a meal or other non-alcoholic refreshments, without having to be accompanied by a parent or guardian.

[10] As stated, the applicants filed a certificate from the Timaru District Council confirming that the proposed business met the requirements of the Resource Management Act 1991. The actual resource consent confirmed that the property was located in the Commercial 3 Zone.

[11] Neither the Police, nor the District Licensing Agency Inspector, nor the Medical Officer of Health had any objection to the application. The applicants have considerable experience having operated “The Old Bank Tavern” and “The Hairy Lemon” in central Timaru for some years. During the hearing, a number of concerns were raised about Mr Mason’s judgement, or lack of it. Nevertheless, he satisfied us that he and his wife were competent operators who could be relied upon to obey the law, and the conditions of any licence.

[12] The applicants sought identical licenced hours to those stated in the resource consent being:

Monday to Sunday 11.00 am to 11.00 pm

The Objections

[13] Public notification of the applications attracted objections from seven near neighbours, the majority of whom appeared at the hearing. A number of meetings were held with the applicants, but although they may have helped to resolve some of the issues, no compromise was possible. Essentially, the public response revolved around the location of the premises between the primary school, and the Plunket Rooms, and the kindergarten.

[14] A feature of the objections, was the absence of the primary school, and the kindergarten. Both had been represented at the hearings concerning the resource consent applications. Evidence was given that both had since been the recipients of generous donations from the “Southern Trust” and “Lion Foundation” which administer a number of gaming machines in the area.

[15] Mr Michael Anthony Kearnes and Mrs Maree Hazel Kearnes gave evidence. Both stressed that the area was low income, and that families would suffer once the gaming machines were put in place. Both spoke of the unsuitability of the site for licensed premises, and the depth of community feeling against the project. Mrs Kearnes gave evidence that she had visited other premises operated by the Masons, and noted that more people were playing the machines, than drinking.

[16] On their behalf, Mr D G Macpherson asked the Authority to have regard to changing conditions and community expectations, and decline the application. Mr Macpherson is the National Co-ordinator for the New Zealand Coalition for Gambling Reform Incorporated. We respect his views, and if we could, we would take into account the impact of gaming machines on vulnerable people. In previous decisions, we have discussed the difference between the siting gaming machines in suburbs, as opposed to the central business district. See for example, Café Liquer Limited LLA PH 305/2001.

[17] Mr Macpherson referred to s.13(1)(f) of the Act:

[1] In considering any application for an on-licence the criteria to which we must have regard are listed in s.13(1). These are:

(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.

[18] It was Mr Macpherson’s submission that the provision of gaming machines could be considered a service which was not directly related to the sale or supply of liquor or food. Accordingly, the impact of such machines on the lives of the residents was a matter which this Authority could take into account before granting any licence.

[19] A similar submission was made in The Local Bar Limited LLA 1196 –1197/98. In that case the Authority stated:

“We now turn to consider the question whether the provision of gambling facilities is a matter that the Authority should have regard to under s.13(1)(f)(ii) i.e. whether the applicant is engaged, or proposes to engage in the provision of any services other than those directly related to the sale and supply of liquor and food, and if so, the nature of those goods and services.

The Authority is charged by s.4 of the Act with exercising its jurisdiction, powers and discretions under the Act in the manner that is most likely to promote the object of contributing to the reduction of liquor abuse. We do not see the provision of gambling facilities on licensed premises as being likely to contribute to any increase in liquor abuse. Indeed customers occupied in playing gaming machines on licensed premises will in all probability consume less liquor than they might if the gaming machines were not there.

Gaming machines are common in taverns and other licensed premises.”

[20] As we said in Café Liquer Limited LLA PH 305/2001:

“According to the New Shorter Oxford Dictionary, the definition of “service” is:

‘Provision of a facility to meet the needs of or for the use of a person assistance or benefit provided to someone by a person.’ We were not satisfied that gaming machines could be brought within this definition. While it could be argued that gaming machines are used and enjoyed by many people, we are not persuaded that they can be classed as a benefit or a facility.”

[21] It is our view that the presence or absence of gaming machines should not affect the ultimate decision as to whether or not to grant a licence. On the other hand, we will not hesitate to curtail hours when circumstances warrant, and we will continue to decline to designate separate “casino areas”. Whether any licence holder wishes to commence a business under such restrictions is not a matter for us.

[22] Mr Ross Kenneth Waugh submitted that Mr Mason lacked insight and understanding of the community feeling against his project. Having decided on a site, Mr Mason was determined to see the project through despite any consequences. As a result, his decision-making processes had been called into account, particularly in choosing to establish licensed premises between a school, and a playcentre, and Plunket Rooms. The difficulty in accepting such an argument, is that it throws into focus the decision-making process of the Timaru District Council, and this is an area to which we are not prepared to go. A liquor licensing hearing is not an appropriate venue to relitigate a resource consent, nor is it within our jurisdiction to do so. Mr Waugh requested that the hours be limited from 5.00 pm to 11.00 pm to avoid conflict with school children.

[23] Mrs Hazel Cherry Waldron takes her granddaughter to the school hall during weekdays. She was concerned at the proximity of the proposed premises to a public park as well as the school. She objected to the siting of a gaming establishment near places of education. Her concerns also related to alcohol impaired drivers. She asked that any licence which might be issued have a condition preventing the siting of gaming machines. Pursuant to ss.14 and 37 of the Act, the Authority is limited to the type of conditions which may be imposed on any on and off-licence. The Authority is not able to ban such machines.

[24] Mrs Lyn Stevenson spoke on behalf of her husband and herself. She correctly questioned the request to designate the whole of the premises as “supervised”. It was her submission that the business emphasis had changed from food (in the resource management hearings), to liquor (before the Authority). She argued that the only reason that the applicants had requested a designation for the “children’s entertainment area”, was to allow the siting of gaming machines.

[25] Mrs Molly Aitchison is the street co-ordinator of the Neighbourhood Watch and Support Group for Upper Glen Street and Upper Selwyn Street. She objected to Mr Mason’s suitability, and gave a number of examples where in her opinion, he had been economical with the truth. She was concerned about the presence of “pokie” machines in an area which was economically disadvantaged. She noted that Marchwiel was classified as a decile 3 area.

Decision

[26] 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.

[27] Similar criteria apply in respect the grant of any off-licence. If on and off-licences are granted, the Authority may impose certain conditions pursuant to ss.14 (5) and 37(4) of the Act. These conditions relate to the days on which and the hours during which liquor may be sold or delivered.

[28] Two further very relevant considerations are ss.14(7) and 37(5) of the Act. These sections read:

In determining whether to impose conditions under subsection (5)(a) ((4)(a) for off-licence), 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.

[29] These sections give the Authority the responsibility and the power to fix the hours of trading after taking into account neighbouring land use. In this case, the way in which the neighbouring land is used, is significant. We considered whether to prevent trading until say 5.00 pm, but the absence of objections from the school and the other providers persuaded us that to do so, could be described as “heavy handed” or “unreasonable”.

[30] We accept a duty to apply an even-handed approach as suggested by the Court of Appeal in its recent decision Christchurch District Licensing Agency Inspector and another v Karara Holdings Limited and others CA 178/02 13 June 2003. In that case, the Court commented on the scheme of the Act as follows:

“Section 4 expresses a philosophy concerning the social utility of controls over the sale and supply of liquor which reflects the underlying policy of the Act. Parliament has declared that the Act’s system of controls over the sale and supply of liquor should be administered so as to contribute to the reduction of liquor abuse in the community within the limits of their capacity to do so. The stipulation that the object of the Act is to establish a reasonable system of control reflects that legislative perception. It also implicitly recognises that if the administration of the Act’s licensing system becomes too heavy-handed, so that it unreasonably inconveniences those wishing to purchase and consume liquor in a manner not giving rise to abuse, that result would be inconsistent with the statutory object.”

[31] However, in this case we have no hesitation in ordering that between 2.00 pm and 5.00 pm the premises will be closed. This should mean that the premises would be closed when the school starts, and when it finishes. Because of our concerns about the true nature of the business, the premises will also be closed at these times during school holidays. As stated, it will be up to the applicants to decide whether to proceed given the trading limitations imposed by the Authority. We take the view that in most cases, all new licences should have conservative hours which can be reviewed on renewal. We also considered closing the premises on Sundays in view of the uncertainty of the business. That is also a matter which can be reviewed on renewal.

[32] In the majority of 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. The onus of proving suitability is on the applicants, but in the absence of objections from the Agency or the Police or Public Health, an objector will have some difficulty in suggesting that the applicants will not obey the law.

[33] In terms of the other criteria referred to above, the Authority has little discretion. If an applicant is suitable, and has a valid resource management certificate, a liquor licence is almost inevitable given present legislative provisions. The Act requires us to be satisfied that the applicant is suitable, and will uphold the law. Apprehension of problems alone is not sufficient to prevent a suitable applicant, particularly one supported by the District Licensing Agency Inspector and the Police, from exercising rights granted by the local authority.

[34] Any new licence is issued for a period of one year. This gives residents and the authorities the opportunity to monitor the premises to see exactly what sort of business is developed. If the applicants show a lack of commitment to host responsibility, or to the conditions of the licence, then the Authority has the power to refuse to renew the licence, or amend the hours of opening. In this way the applicants have a clear incentive to ensure that the concerns expressed by the objectors do not become reality.

[35] Pursuant to s.14(4) of the Act, the Authority must designate the whole or one or more parts of the premises as restricted or supervised areas. In Kim Ashton Williams LLA 2291/96 an application was made for an on licence for a massage parlour. A request was made not to designate the premises as “restricted”. The Authority stated:

"The purpose in designating the premises "restricted" is to assist the intention of the legislature that liquor not be sold to persons under the age of 20."

[36] We have come to the view that in assessing which parts of any premises should be designated, our duty is to impose a designation on any bar. In s.2 of the Act a bar is defined as:

"Bar" in relation to any hotel or tavern, includes any part of the hotel or tavern that is used principally or exclusively for the sale, supply, or consumption of liquor.

[37] No licence will issue in this case until the applicants have submitted a plan to the Agency showing a separate dining area. Our intention is to designate the bar and the big screen TV, and pool table area. The dining area will not be designated, and neither will the area variously shown as “entertainment”, “gaming machine area” or “Kids entertainment area”. If there are difficulties in interpreting our decision on the issue of designation, then the matter can be referred back for a further public hearing. In this way the objectors would have an opportunity to comment. We believe that this procedure is necessary because of the lack of information and detail provided with the application.

[38] We are satisfied as to the remaining matters to which we must have regard as set out in ss.13(1) and 35(1) of the Act. Given that the applicants are suitable, and have a valid Resource Management Act Certificate, liquor licences are appropriate. We grant the applicants an on-licence for the sale and supply of liquor for consumption on the premises, to any person present on the premises. We also grant the applicants an off-licence for the sale and delivery of liquor on or from the premises to any person for consumption off the premises.

[39] The hours of trading will be:

Monday to Sunday 11.00 am to 2.00 pm

5.00 pm to 11.00 pm

[40] Copies of the licences setting out the conditions to which the licences will be subject are attached to this decision.

[41] The licences 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. Such clearances will include confirmation from the Inspector that he has received a plan setting out the correct areas to be designated as “supervised”.

The applicant is not entitled to sell liquor until the licences issue.

[42] The applicant’s attention is drawn to ss.25 and 48 of the Act obliging the holders of on and off-licences 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 September 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Selwyn Café and Bar.doc(nl)