Moonshiners Holdings Limited [2003] NZLLA 942 (11 December 2003)

Last Updated: 26 January 2012

Decision No. PH 942/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MOONSHINERS HOLDINGS LIMITED for an on-licence pursuant to s.9 of the Act in respect of premises situated at

42-48 Broadway, Kaikohe, to be known as “Dusty’s Place”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at KAIKOHE on 21 November 2003

APPEARANCES

Mr D Boesser – agent for applicant
Mrs L A Little – Far North District Licensing Agency Inspector – to assist
Mr R J Goodwin – objector

RESERVED DECISION OF THE AUTHORITY

The Application

[1] This is an opposed application for an on-licence, brought pursuant to s.9 of the Act. The applicant, Moonshiners Holdings Limited, is a private company owned and operated by Carol Mary Stewart, Keneti Stewart, Terry Wayne Henwood, and Leisa Anne Henwood. The premises in which the business will be sited, is situated at 42-48 Broadway, Kaikohe. It consists of a large building which was previously known as Brajkovich Wines Limited. The applicant company has operated an off-licence known as “Kenz Liquorland” on the premises since November 2002. This off-licence business was sited at the front of the building, but has recently been re-located to the rear of the premises closer to the residential neighbours.

[2] It is proposed that the front of the building will be converted into an “old-style” country and western style tavern with an open fireplace, and pioneer décor and memorabilia. The decision to place the potentially noisier aspect of the business closer to the main road was made out of consideration for the neighbours. The business is aimed at the “Blue Collar” market, and a good standard of dress code will be introduced. A full kitchen is to be installed. The new business is to be called “Dusty’s Place”.

• [3] The hours sought are as follows:
  

Sunday to Wednesday 10.00 am to 10.00 pm

Thursday to Saturday 10.00 am to 12.00 midnight

[4] The application was accompanied by a certificate under s.9(1)(e) of the Act that the proposed use of the premises for an on-licence met the requirements of the Resource Management Act 1991. The consent for the new activity was granted on 21 May 2003 on a non-notified basis. The Council was of the opinion that no one would be adversely affected by the grant of consent to the proposal. However, the Council reduced the hours of trading to 10.00 am to 10.00 pm on Sundays to Wednesdays, and the closing hour was limited to 12.00 midnight on Thursdays to Saturdays. As Mr Boesser pointed out, any possible future application to extend the hours of trading would have to be argued firstly before the Far North District Council, before any application could be entertained by the Authority.

[5] There were no objections from the Police, or the Medical Officer of Health, or the District Licensing Agency Inspector. The Inspector took the view that as the application complied with Council requirements and as the applicant was considered suitable, there was no legal reason to oppose the application.

[6] There were fifteen public objections to the application, and in addition, a petition was filed containing approximately twenty signatures. Public notification of the application had appeared in the Northland Age rather than the Northern News as prescribed for the southern area of the Far North District. As a consequence, some of the public objections were received late. In granting a waiver, the District Licensing Agency recommended that the Authority take all the submissions into account.

[7] The main concerns of the objectors were potential noise from the operation, the type of public disorder which is sometimes associated with licensed premises, the presence of “pokie” machines, and the hours of operation. As it happens only one objector appeared at the hearing to give evidence. Five other objectors were present, and they took the opportunity to ask questions of the Council representatives.

[8] In response to the objections, the applicant company was pro-active, and circulated a petition supporting the proposal. This supporting petition received 276 signatures. It is clear that a reasonably large proportion of the community considered that an up-market local tavern might add to the amenities of the neighbourhood. Two of the directors made an effort to communicate directly with the objectors. They submitted a further description of the proposed business. As a consequence ten of the objectors withdrew their opposition.

[9] Mrs Carol Mary Stewart gave evidence on behalf of the company. She is the holder of a General Manager’s Certificate. She said that the company was unsure at this time whether gaming machines would be introduced, although a separate room was provided for in the plan. The decision would depend to some extent on whether the company would be allowed to do so. She confirmed that there had been no adverse reports about the running of the off-licence over the past twelve months.

[10] Both Mrs L A Little, the Far North District Licensing Agency Inspector, and Mr Barry Webb, the Property Services Manager, gave evidence on behalf of the District Council. They may well have helped to “de-mystify” the process leading up to the application. Mr Webb in particular explained the way in which noise complaints would be dealt with. It seemed from the questions that the near neighbours were concerned about the noise emanating from the large car park which services the premises.

[11] As stated above, Mr R J Goodwin was the only objector to give evidence. His evidence was limited to potential anti-social behaviour and noise because the premises have yet to start trading. There is no track record on which to judge the managerial conduct of the premises. Mr Goodwin is the Pastor of the Kaikohe Baptist Church. He spoke about the number of liquor outlets in Kaikohe, and expressed concerns about any increase in the number of “pokie” machines in what he described as a “low socio-economic community”.

[12] As explained to Mr Goodwin, demand for services from licensed premises is not a consideration which the Authority is required to consider. By virtue of s.13(2) of the Act the Authority must not take into account any prejudicial effect that the grant of the licence may have on the business conducted pursuant to any other licence.

[13] Furthermore, the issue of “pokie” machines is not really a matter for the Authority to take into account when considering the grant of an on-licence. Our concern has focussed on whether a designation is appropriate for a separate gaming room where there is no bar. If the sale, supply or consumption of liquor is not the principal or exclusive use of any separate gaming room, we have consistently declined to designate it as supervised or restricted. However, if “pokie” machines are located in a bar, then we have no jurisdiction over them. As the number of such machines is now restricted to nine, each licensee must determine whether there is a benefit in having them installed.

Decision

[14] 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.

[15] A further relevant consideration is s.14(7) of the Act. This section 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.

[16] In this case, there is no contest with the suitability of the applicant. After all it is currently operating licensed premises. Sometimes the escape of noise or unruly behaviour can raise a question about the suitability of a licensee. However, in this case, there is no history of lax management. Since there are no objections from the reporting agencies, suitability is not an issue. Therefore, the potential impact of the business on the neighbours is the only issue which would appear to be relevant to the application. That concern can only be considered under the heading of the hours of operation. However, in this case, the hours are very limited for the type of operation which has been proposed. They could not be described as excessive. Although we have tended to adopt a conservative approach when fixing hours, the District Council has already given the lead.

[17] The case which is right on point is Cayman Holdings Limited LLA 145/2001. In that case, 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.”

[18] Mr Goodwin is apprehensive about what may happen, but it is our view based on the evidence we received that his fears may well be groundless. We have been consistent in holding that the escape of noise can reflect on the suitability of a licence holder. As was said in Paihia Saltwater (2001) Limited LLA PH 391/2001:

“Noise is not just a resource management issue. The escape of noise (particularly music) is an example of bad management. The Authority takes the view that if no attempt is made to prevent the escape of, or reduce noise, then it is the Authority’s duty to monitor the hours of opening, if not the existence of the licence.”

[19] Clearly it is in the applicant’s best interests to get on well with its neighbours. We have been satisfied that the company is a suitable entity to hold an on-licence. If there are noise or nuisance concerns, or if (for example) the applicant company ignores its business plan as explained to the neighbours, then those are matters which can be canvassed in the renewal process.

[20] Any new licence is issued for a period of one year. This gives residents and the authorities the opportunity to monitor the business. If the applicant shows 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 alter the hours of opening. In this way the applicant has a clear incentive to ensure that the concerns expressed by the objector are kept in mind.

[21] 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 a Resource Management Act certificate, then a liquor licence is appropriate. We grant the applicant an on-licence for the sale and supply of liquor for consumption on the premises, to any person present on the premises.

[22] The hours of trading will be:

Sunday to Wednesday 10.00 am to 10.00 pm

Thursday to Saturday 10.00 am to 12.00 midnight

[23] A copy of the licence setting out the conditions to which the licence will be subject is attached to this decision. The premises will be designated as supervised other than the area which is separately shown as a gaming room. It will up to the applicant to make a decision about whether to have a separate gaming room. Our understanding is that the Department of Internal Affairs will only grant a site permit where there is a designation imposed by this Authority.

[24] 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 in particular a building compliance certificate have been obtained.

The applicant is not entitled to sell liquor until the licence issues.

[25] 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 11th day of December 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Dusty’s.doc(nl)