Reinheima Holdings Limited, re [2004] NZLLA 229 (5 April 2004)

Last Updated: 2 March 2010

Decision No. PH 229/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by REINHEIMA HOLDINGS LIMITED pursuant to s.16 of the Act for variation of the conditions of an on-licence in respect of premises situated at 25 Tay Street, Invercargill, known as “Players Entertainment”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at INVERCARGILL on 25 March 2004

APPEARANCES

No appearance by or on behalf of applicant
Ms D M McDonald – Invercargill District Licensing Agency Inspector – in opposition
Sergeant I C Temple – NZ Police – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application by Reinheima Holdings Limited to vary the conditions of its on-licence. The business which is situated at 25 Tay Street Invercargill, is known as “Players Entertainment”. The premises opened in 1998 as a pool hall designed mainly for young people. Invercargill is part of the Invercargill Licensing Trust District, and consequently, pursuant to s.216(a) of the Act, no on-licence in respect of any premises which is not owned or operated by the Invercargill Licensing Trust, can be issued for a tavern. In order to retain their licences, all other premises must ensure that the sale of liquor does not become the principal aspect of their businesses.

[2] Presently, the building consists of a mezzanine floor which contains a bar, pool tables, and a number of gaming machines. It is designated as a supervised area, and is rather more sophisticated than the ground floor. The ground floor also consists of pool tables, and other games which target young people. This area is not designated although it has a bar. The bar consists of a small counter area with a chiller containing a variety of alcoholic and non-alcoholic drinks. The on-licence states that liquor may be sold at a time when facilities are provided for the playing of snooker, pool, billiards and video games.

[3] The application to vary the conditions of the licence, was filed on 5 September 2003, and seeks to have the ground floor designated as supervised. In the application, the company stated that it wished to have the area designated as supervised because alcohol was sold on the ground floor, and it was therefore inappropriate for children.

[4] The application must be viewed against the following background. On 18 February 2003, the Authority heard an identical application. On that occasion the ground for the application was to enable the company to place its gaming machines on the ground floor. The designation was sought to comply with the requirements of the Department of Internal Affairs. The application was opposed by the Police and District Licensing Agency Inspector on the grounds that the proposal was contrary to the Authority’s policy of declining to designate areas where there was no bar.

[5] The Authority heard evidence at the hearing, and issued a decision on 13 March 2003. The application was refused on the ground that its primary duty was to impose a designation on any bar or other area used principally or exclusively for the sale and consumption of liquor. If the ground floor changed its emphasis and was used principally or exclusively for the sale and consumption of liquor, then it would be in breach of s.216 of the Act. Furthermore, the Authority was not prepared to depart from its stated policy concerning the designation of separate gaming rooms where little or no liquor was consumed. See Sporting Investments Limited LLA PH 486/2002.

[6] No appeal or application for rehearing was lodged in respect of the decision, but the present application was received by the Invercargill District Licensing Agency less than six months later.

[7] The application was opposed by the Police and the District Licensing Agency Inspector. Numerous letters and telephone calls between the Agency, the Police, and representatives of the company, followed. Many of the letters written on behalf of the company were unhelpful and indicated a lack of understanding of the Act. Despite, or possibly because of some intemperate remarks from Mr L M Crimp on behalf of the applicant company, no agreement was reached, and the matter was set down for a public hearing.

The Hearing

[8] As indicated above, there was no appearance by or on behalf of the applicant company. At the conclusion of the hearing, the Authority indicated that the application would again be refused, and that reasons would follow in a reserved decision.

[9] Dawn Merrin McDonald is a Liquor Licensing Inspector for the Invercargill City Council acting as the District Licensing Agency. She produced a letter dated 11 September 2003 from Ms T Kruse on behalf of the company. That letter stated that there was a third party who was interested in revamping and leasing “Players”. A condition of the proposed lease was the premises be “R 18”. The Inspector replied and suggested that the proposed purchaser of the business apply for a temporary authority.

[10] Further correspondence followed and a meeting between the Secretary of the Agency and Mr L M Crimp acting for the applicant company was held on 16 October 2003. It appears that the intending lessee wanted the ground floor to be used by “sophisticates” and not young street people. It also appeared that the company’s licence to use gaming machines had been cancelled. On 20 October 2003, the company wrote a further letter setting out the reasons that the new lessee wished to exclude young people from using the ground floor.

[11] In the event, the opposition was not withdrawn. Part of the reason was that there were some outstanding building compliance issues, and a Fire Evacuation Scheme had yet to be filed and accepted. Furthermore, the Inspector felt that it would be irresponsible to act against a former decision of the Authority.

[12] On 22 January 2004, Ms McDonald wrote to Reinheima Holdings Limited (attention Tracy Kruse). She noted that “Players” had been closed for some time, and that a new lessee was being considered. She suggested that if this was the case, then the company might wish to withdraw its application. She further suggested that a withdrawal of the application on the day of the hearing could mean that the suitability of the applicant might be challenged in the future.

[13] Mr L M Crimp replied on 17 February 2004:

“We can’t withdraw the application until we know if the new lessee is successful in their application for a suitable licence. It is not us that is ‘wasting the Liquor Authority’s time’. You and the Police oppose everything the writer does, thus it is you that is time wasting.”

[14] The company also wrote to the Police. On 9 September 2003, Ms Tracy Kruse wrote that the company wanted to keep young people out of the premises in order for “Players” to have a reputation as a sophisticated venue. In her letter, she also stated that a training and playing programme for people (some will be under 18), to play pool will be held one night a week and supervised by an expert player. How the youngsters were going to be allowed on supervised premises, was not explained. In each letter written by Mr L M Crimp, he was insistent that the Police withdraw their opposition.

[15] As late as Friday 19 March 2004, the Police had been advised by a representative of the company, that the application was proceeding. The evidence was that the premises have been closed for some time, and a temporary authority had been granted to a new proposed lessee. An application for a new on-licence has been received and advertised.

Decision

[16] Section 16 of the Act provides the process by which the holder of an on-licence can apply to vary the conditions of that licence. Section 16(7) reads:

In considering the application, the Licensing Authority or District Licensing Agency, as the case may require, must have regard to such of the matters specified in section 13 (1) of this Act as are relevant to the application.

[17] The relevant provisions of s.13(1) of the Act would appear to be limited to subsections (a) (c) and (g) as follows:

(1) In considering any application for an on-licence, the Licensing Authority or District Licensing Agency, as the case may be, must have regard to the following matters:

(a) The suitability of the applicant:

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

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

[18] In this case the suitability of the company is a live issue. We cannot understand why the company through its representatives took such a confrontational approach to the reporting agencies. To fail to appear on such a major application without apology or notice is either arrogant or negligent, and is unfortunately, similar to the attitude to the Agency and the Police displayed in the correspondence. The company has obtained a Building Code Compliance Certificate, but it is still in arrears with its Fire Evacuation Plan. The latter is a serious issue which might well prevent a renewal of a licence.

[19] In the light of these circumstances, we would be unlikely to exercise our discretion in the applicant’s favour. This is a pity. If the company could show that it intended to alter the style of the operation, without trespassing against the provisions of s.216 of the Act, and if it could assure the Authority that this was not a second attempt to move the gaming machine operation into a separate room downstairs, then there seems no reason why the application should not be granted.

[20] However, in this case, the company has not shown the courtesy of appearing to support the application, and answering the genuine concerns raised by the reporting agencies. In those circumstances, we draw the inference that in the light of the proposed sale of the business, the company is no longer interested in pursuing the application. It is accordingly refused.

DATED at WELLINGTON this 5th day of April 2004

Judge E W Unwin J C Crookston
Chairman Member

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