Hicks v Wood [2004] NZLLA 818 (29 November 2004)

Last Updated: 23 January 2012

Decision No. PH 818/2004 –
PH 819/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by PATRICK BROGAN, ROBERT GARETH WILLIAM WOOD and GANOKPHON WOOD
trading in partnership pursuant to s.9 of the Act for an on-licence in respect of premises situated at 313-315 Maunganui Road, Mount Maunganui known as “Bobby’s Bar Massage and Strip Club”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for cancellation of General Manager’s Certificate Number GM 1326/98 issued to ROBERT GARETH WILLIAM WOOD

BETWEEN ARTHUR JOHN HICKS
(Police Officer of Mount Maunganui)

Applicant

AND ROBERT GARETH WILLIAM WOOD

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TAURANGA on 21 October 2004

APPEARANCES

Sergeant A J Hicks - NZ Police - applicant for cancellation of General Manager’s Certificate and in opposition to application for on-licence
Mr P D Swain - agent for applicant for on-licence and respondent

Ms D L Daubney - Tauranga District Licensing Agency Inspector - in opposition to the application for on-licence
Mr R Burgess - Tauranga District Licensing Agency Inspector - to assist

Objectors

Mr P G Brennan,
Mr P J Harris - Paramount Apartments Body Corporate.
Ms G L Watson - Paramount Apartments Body Corporate.

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an opposed application by Patrick Brogan, Robert Gareth William Wood and Ganokphon Wood, trading in partnership, for an on-licence in respect of premises situated at 313-315 Maunganui Road, Mount Maunganui, known as “Bobby’s Bar Massage and Strip Club” (“Bobby’s Bar”). The business intends to trade as a massage parlour, adult entertainment (strip show), and commercial sex venue. The hours sought are to sell liquor at any time on any day.

[2] At the start of the hearing Mr Swain advised the Authority that Mrs Wood’s name had been inadvertently excluded from the application and he sought to amend the application by having her name included. That application, and a waiver pursuant to s.111 of the Act were granted.

[3] The application is opposed by the Police, Health Protection Officer, and the Inspector because the hours do not accord with the Tauranga District Council’s Sale of Liquor Policy.

[4] Clause 5.1.1.1 of that policy refers to new applications for on-licences and states:

• “On-licensed premises trading within the Tauranga District which create, or have the potential to create, adverse environmental effects on a site in a Residential Activity Zone not be permitted to operate beyond 1.00 am.
  
• On-licensed premises trading within the Tauranga Central Business District which do not create, or do not have the potential to create, adverse environmental effects on a site in a Residential Activity Zone not be permitted to operate beyond 3.00 am.
  

Explanation:
Restrictions on the hours of operation may minimise adverse effects of the licensed premises on the surrounding environment.

[5] Public notification of the application attracted four objections, one of which did not address the criteria in s.13 of the Act. The other three objections all cited hours as a cause for concern. Other misgivings expressed were more to do with moral issues, and other matters not contained in s.13 of the Act.

[6] The premises are situated in a commercial business zone on a main arterial route in Mount Maunganui surrounded by residential development. There are other licensed premises in the vicinity. Directly behind the premises is a service lane which adjoins residential properties. The nearest residential property is approximately seven metres from the site occupied by the applicant’s premises. Further along the road is a residential apartment building.

[7] The premises have been a massage parlour for 18 years. The previous operator did not hold a liquor licence.

[8] The ground for the application for cancellation of Mr Wood’s manager’s certificate is that “the conduct of the manager is such as to show that he is not a suitable person to hold the certificate”. In particular, it was alleged that “on the 1st day of March 2004 [he] was convicted in the Taupo District Court for male assaults female. (Penalty for this offence is two years imprisonment.)

[9] On the application of Mr P D Swain, the applicant’s agent, the Authority made an order pursuant to s.107(5) of the Act, prohibiting publication of the details of the assault by Mr Wood. Accordingly, we have refrained from discussing the matter other than in general terms. Mr Swain said that the application was not made lightly, but the factual situation was embarrassing for Mr and Mrs Wood. He emphasised that the victim was not Mrs Wood.

Applicant’s Evidence

[10] Mr R G W Wood has held a General Manager’s Certificate for six years and a Massage Parlour Licence for 25 years. He also holds a Brothel Operator’s Certificate issued under the Prostitution Reform Act 2003. He has therefore had to meet statutory suitability requirements to obtain those certificates and licence. He has been involved in the operation of massage parlours and strip clubs since 1976.

[11] He and Mr Brogan operated a massage parlour in Taupo which was issued a liquor licence in 1998. Live strip shows were also provided as part of the business. The original trading hours were from 6.00 pm to 3.00 am the following day. However, they subsequently obtained a 24-hour licence entitling liquor to be sold when massage facilities were being operated. That business was sold in July 2004. Mr Wood purchased “Bobby’s Bar” in June 2004. Mr Brogan is a financial partner in “Bobby’s Bar”, but takes no part in its day to day operations. After doing some alterations and modifications to the premises, the partnership had been trading for about six weeks, at the time of the hearing.

[12] Mr Wood said that the partnership had spent a considerable sum of money improving and modifying the premises. Those improvements included a number of noise attenuation measures such as replacing the windows with noise reduction glass, installing double thickness drapes, and a dead air zone noise buffer. In addition, he had installed cameras and monitors. He stated that he had found that similar improvements to the Taupo premises had worked efficiently. Mr Wood acknowledged that patrons could call in just to have a drink, although they would have to pay a cover charge to watch the strip shows.

[13] Since 1998 Mr Wood’s liquor licence and General Manager’s Certificate have been renewed without objection. Mr Wood’s wife also holds a current General Manager’s Certificate as well as a Brothel Operator’s Certificate. Mr Wood noted that the massage parlour which had previously occupied the building in Tauranga, had operated from 11.00 am to 5.00 am the following day.

[14] Mr Wood said that because the staff are encouraged to talk to patrons during the performance, noise levels would be kept low, and under no circumstances would live bands be played on the premises. He stated that the music for the strip shows is supplied by a computer programme selected by the performers. He acknowledged that because of the proposed strip shows, the business would be different from that which had previously been operated on the site.

[15] Mr Wood confirmed that patrons are checked before they are allowed to enter the premises through a door that is electronically operated from the reception office. He said the premises had been operating for six weeks from 10.00 am to 6.00 am the following morning except for Sunday, Monday and Tuesday when the premises close early. In that time there had been no problems with the Police, Council Noise Control Officers, or any other person. He said if the partnership were granted its application, it would hold the only 24 hours licence in Tauranga. Based on his experience in Taupo where he had held a late licence, Mr Woods did not expect migratory drinkers to be attracted to the premises. On the other hand, it was pointed out that the Taupo business was located in a commercial area, and although there was a backpackers’ hostel nearby, there was no neighbouring residential zone, as in Tauranga.

[16] Mr Wood observed that although his application for a Brothel Operator’s Certificate was initially declined because of his assault conviction, a waiver of disqualification under the Prostitution Reform Act 2003 was subsequently granted. Mr Wood had pleaded guilty to assault on legal advice, and was fined $250 plus costs. He said the Judge had accepted that it was a domestic related matter, and alcohol was not a factor in the offence.

Police Evidence

[17] Timothy James Mills and his wife live in Mount Maunganui. They objected to the applicant being granted a 24-hour liquor licence based on the potential for street disorder. The Police called Mr Mills as a witness. He stated that disorder already occurred in front of their residence by patrons from other licensed premises in the area. He said such disorder occurred up until approximately 2.00 am even though the premises in the area closed at 1.00 am. Mr Mills accepted that such problems could not all be attributed to “Bobby’s Bar”. He contended that he and his wife were kept awake by patrons swearing and yelling. Drunken patrons have also caused damage to his property. Mr Mills believed there would be a lot of trouble from transient drinkers attracted to the premises by a 24-hour liquor licence. It was also his experience as a young man that strip clubs were rowdy places, and that the imposition of a cover charge would not prevent patrons from visiting the premises in order to drink.

[18] Arthur John Hicks is a Police Sergeant stationed at Mount Maunganui. He has held the liquor-licensing portfolio for three years. Sergeant Hicks said that the Police believe that Robert Gareth William Wood was not a suitable person to hold a General Manager’s Certificate, and that his certificate should be suspended or revoked. He referred to Mr Wood’s conviction in the Taupo District Court on 1 March 2004 for a charge of “male assaults female”. He produced a summary of facts from that hearing together with photographs of the victim, and the brief of evidence from a witness. Mr Wood disputed some aspects of the brief.

[19] Sergeant Hicks said that the Police also objected to a 24-hour licence because of the closeness of the premises to residential properties. He contended that the noise, drunkenness, and general nuisance caused by patrons leaving the premises, and transient drinkers congregating outside, would not be in the best interests of residents living in the vicinity. He anticipated that street disorder would increase in summer.

[20] Sergeant Hicks referred to the Tauranga District Council’s liquor licensing policy restricting all on-licences that have the potential to create adverse environmental effects on a site in a Residential Activity Zone, to a closing time of 1.00 am.

[21] Sergeant Hicks advised the Authority that all other licensed premises in the area have a 1.00 am closing time with a half-hour drink up time. He was concerned that if the application were granted it would create a domino effect causing other licensed premises in the area to seek the same hours. The Police were also concerned that transient drinkers going to “Bobby’s Bar” 24 hours a day, and the noise from the strip club would create problems for the nearby residents. He produced photographs of “Bobby’s Bar” indicating its proximity to residential housing.

Inspector’s Evidence

[22] Darrienne Louise Daubney has been a District Licensing Agency Inspector since 1990. She referred to the Tauranga District Licensing Agency Sale of Liquor policy restricting the maximum hours of operation for on-licensed premises in close proximity to residential properties to 1.00 am. She confirmed that this policy was established to minimise potential adverse effects of licensed premises on the surrounding environment. The Tauranga District Plan does not restrict the hours of operation for activities, such as commercial sex premises and strip tease in a Commercial Business Zone. She acknowledged that there was a conflict between the District Plan and the policy.

[23] Ms Daubney said that the policy was adopted by the Tauranga District Council after full consultation with the community and licensees. She noted that the Authority has had regard to the policy in its decision in Uranus Direct Limited LLA PH 891/2003 in respect of premises known as “Mount Mellick” which is located next door to the applicant’s premises. Ms Daubney expressed her concern that a grant of extended hours to a premises in this location would set a precedent for others in the locality to follow.

[24] When Ms Daubney saw the residents’ objections she noted the potential adverse effects that could result from playing amplified music at the premises. Consequently, she recommended that the applicant obtain an Acoustic Design Certificate from a suitably qualified and experienced engineer. The assessment from Design Acoustics Limited noted that a considerable amount of noise control work had been carried out. It pointed out that the partnership had agreed to limit the noise level inside the bar to 80 dBA L10 or less. The assessment showed that any noise would comply with the Council’s stringent noise limits at night-time.

[25] Ms Daubney also expressed concern that extended hours could result in the migration of patrons from nearby premises after those premises are required to close. She also noted that the renovations to the premises with the provision of a bar, stage and seating area as well as the advertising showing the premises as “Bobby’s Bar Massage and Strip Club”, may well be perceived by the public as a tavern or night club. It was her impression that the premises were more of a “club” type of activity with the provision of entertainment, and not simply a brothel. If the premises were operated as a brothel with an on-licence, her concerns about the hours of operation and the potential adverse effects on the neighbouring land users would be reduced. However, should the premises operate as a bar, massage and strip club then she believed that the restricted hours imposed by the Tauranga District Licensing Agency’s Liquor policy were appropriate for the site.

Objector’s Evidence

[26] Mr P Brennan owns a property adjacent to the applicant’s premises. He expressed concern about the proximity of the applicants’ premises to a well established residential area, and the potential noise and vandalism implications that the premises would have on the surrounding area. He also believed that many people would be prepared to pay a $20 cover charge in order to keep drinking.

[27] Mr P Harris appeared on behalf of the Paramount Apartments Body Corporate and four other apartment owners. He said that all the owners bought their apartments knowing full well that the bars in the area would close at 1.00 am. He suggested that the two or three other residential blocks being constructed in the area would be affected by the granting of the application. He also expressed concern that other bars in the area would also seek a similar extension of hours. Currently, the bars closed at 1.00 am and patrons were usually off the street by 2.00 am to 3.00 am. While that situation was disturbing, Mr Harris realised that the bars were there first, and he and the other residents could accept that situation. They objected to the increased hours because they did not want to have to cope with drunks on a weekly basis which he understood occurred in The Strand in Tauranga.

[28] Ms G L Watson who was present, had signed an objection along with four other apartment owners including Mr Harris. A brief of evidence from Mr H D Balsom was disallowed as he was not available for cross-examination.

Applicant’s Final Submissions

[29] In his very helpful submissions, Mr Swain argued that the maximum penalty for the assault by Mr Wood was two years imprisonment. The Judge after hearing submissions from Police and defence counsel obviously viewed the incident as a “minor domestic difference”. Consequently, Mr Swain suggested that as the Judge had imposed a light penalty the conviction should not in the circumstances be a bar to the partnership obtaining a liquor licence. Nor should it interfere with Mr Wood’s General Manager’s Certificate.

[30] Mr Swain said that the fact that Mr Wood had been granted a Brothel Operator’s Certificate, after the background of the assault had been examined by another District Court Judge, enhanced that submission. He reiterated that no alcohol was involved, and the incident had not happened on licensed premises. Mr Swain suggested that given Mr Wood’s “track record” in managing licensed premises, and given that he had been granted a Brothel Operator’s Certificate, there were no adverse comments against him in that regard. He considered that it was also worth noting that following Mr Wood’s conviction the Taupo Police had not made an application under s.135 of the Act. Mr Swain submitted that a finding that Mr Wood was unsuitable would be contrary to the findings of those two District Court Judges.

[31] Mr Swain noted the conflict between the District Plan, which allowed the premises to operate for 24 hours, and the local liquor policy which restricted the hours of operation to 1.00 am. He referred the Authority to its decision in Ohakune Club Incorporated LLA 797/2003 that said:

“Where a local authority adopts a liquor policy after public consultation, and a formal ratification process, we will not be slow to acknowledge the recommendations contained in it.

Nevertheless, neither do we allow our discretion to be fettered where an application is deemed to be reasonable, and the object of the Act at s.4 is not at risk.”

[32] Mr Swain then referred to Jancliffe Holdings Limited LLA PH 1164/2000. In that case the Authority had to consider the hours for a massage parlour where the Hastings District Licensing Agency had a policy of a 3.00 am closing time. The policy had been formulated in 1993/1994 and at the time of the hearing in year 2000 it had not been reviewed. At paragraphs 49 and 50 the Authority said:

49. “Any Agency liquor “policy” or “guideline”, [we prefer the latter terminology] should be the subject of regular review...but in general the Authority is slow to give weight to guidelines which had not been established or reviewed in the last five years...

50. Secondly, experience throughout New Zealand shows that smaller licensed premises of many types are developing which cater for specific needs and markets. Where such premises are operated within the law, even at hours that may be regarded as less than mainstream, there is not an automatic or blanket need to restrict their operations...”
    

[33] Mr Swain submitted that those comments were equally valid in the present case. He also referred to Capital Incorporated Limited LLA 43/2003 where the Authority granted an on-licence in an “on the papers” decision for a massage parlour. At paragraph 2 on page 2 of that decision we said:

“We have pointed out in earlier decisions that where a Local Authority adopts a liquor policy after due community consultation and a ratification process, we will not be slow to consider recommendations contained therein. On the other hand, we have a duty to a prospective business operator not to allow our discretion to be fettered where we are satisfied that the applicant is suitable, and the object of the Act, at s.4, is not in jeopardy.”

[34] In the present case Mr Swain submitted that because the applicant’s premises is a brothel as described in the Prostitution Reform Act, liquor sales are ancillary to the main purpose of the business. We accept that this is the case, but we have taken the view that the fact that these premises also intend to offer strip tease entertainment distinguishes the business from those in the cases cited above.

[35] Mr Swain submitted that Mr Wood had a proven management style over 25 years including six years with Mr Brogan operating premises with a liquor licence in Taupo. In all that time there had not been any allegations against Mr Wood of improperly operating any premises.

[36] Mr Swain submitted that if the Authority saw fit to impose a closing time of 1.00 am that did not mean that the premises had to close because the Planning Certificate permitted the premises to operate 24 hours per day. He referred the Authority to the judgment of Tipping J in Hayford v Police (16/10/92, HC Christchurch AP 254/92) where His Honour said:

“Thus what the prosecution must prove on a charge under ss.170 171 is that the principal or exclusive function of the part of the licensed premises in question was for the sale, supply, or consumption of liquor. It is the nature of the place where the person is found within the licensed premises that is crucial, not the nature of the activity going on in that place at the time of finding. The place must be part of the licensed premises of a kind which is used principally or exclusively for the sale, supply, or consumption of liquor. It matters not whether alcoholic liquor is actually being sold, supplied, or consumed at the time when the person is found on the relevant part of the premises.”

[37] We note that at page 9 of the judgment His Honour went on to say:

“Clearly a bar in a nightclub is used for the most part for the sale, supply, or consumption of liquor. I have assumed that the bar area and the dance floor were distinct in separate parts of the premises. That will be a question of fact and degree. It may well be that in many cases the bar cannot be sensibly separated from the adjoining areas and that people who are in those adjoining areas should be treated as being in the bar.”

[38] We agree with Mr Swain that any decision about trading hours should not mean that the business would have to close early. Rather, it means that liquor may not sold or consumed. However, to avoid any breach of s.170 of the Act, the partnership will have to ensure that there is some sort of demarcation point immediately in front of the bar, beyond which patrons cannot go after 1.00 am.

Authority’s Conclusion and Reasons

On-licence application

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

[40] The relevant provisions of s.13(1) of the Act would appear to be limited to paragraphs (a), (b) and (g):

[41] In this case there has been an issue taken with the suitability of one of the partners. We do not think that in the overall context of the case that one incident relating to one of the partners should result in the partnership being deemed to be unsuitable to hold a liquor licence. That is particularly so when consideration is given to the length of time that the partners have operated other premises without any blemishes whatsoever. Although the objectors expressed concerns about the potential for noise escaping from the premises there was no evidence of specific incidents which brought the suitability of the applicant partnership into question. The applicants deserve credit for the improvements they have made to the interior of the building

[42] When considering the days and hours of opening, the Authority is governed by s.14(7) of the Act. This section gives the Authority the discretion to have regard to the fact that there are residential properties in the vicinity when fixing the hours of operation. That section reads:

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

[43] As regards the Tauranga District Council’s Sale of Liquor policy we have said previously that it is a balanced approach between the needs of the community, and the requirement to consider the objectives of the Sale of Liquor Act. In our view the policy assists in establishing a reasonable system of control aimed at reducing the effects of liquor abuse. The policy has set out guidelines based on the perceived expectations of the residents and the licensees. The policy has been shown to have flexibility because hours outside the guidelines have been authorised, although not in this particular area.

[44] Mr Swain suggested in his submissions following a decision of the Authority in Jancliffe Holdings Limited (supra) that the Authority should be slow to give weight to guidelines which have not been established or reviewed in the last five years. We have been advised that the present policy has been in place for four years and there is a proposal to review the policy in the near future. By comparison the policy in Jancliffe Holdings Limited had been formulated in 1993/1994 and the hearing took place in 2000. We are therefore satisfied that the policy in the present case should not be accorded any less weight because of the time it has been in force.

[45] The Authority established some general principles for on-licences for taverns, albeit as far back as 1995. In K R Burton & C A Burton (LLA 2020-2025/95), the following formula was suggested:

“(a) If there are residential neighbours, closure is around 11.00 pm week days and midnight or 1.00 am on Friday and Saturday nights;

(b) In other cases closure is at 3.00 am; and

(c) 24-hour licences are the exception rather than the norm.”

[46] This policy received some endorsement from Robertson J in Ole Forge Limited v Papakura District Licensing Agency [1996] NZAR 305 at 309:

“I am not persuaded that there is anything intrinsically wrong in a body such as the Liquor Licensing Authority developing a consistent approach to applications for hours. The legislative framework enables flexibility and appropriate response to individual circumstances, but basic justice requires an even handed and consistent approach. What the Authority must not do is to close its mind to individual applications in an over-rigid application of its policy.

[47] In Uranus Direct Limited LLA PH 891/2003 at paragraph 39 we said:

“As a matter of interest, the Wellington District Licensing Agency views its guidelines as the absolute maximum, unless circumstances exist where it can be shown that there are specific, justifiable reasons for extension to the hours of operation, and that an exemplary management regime is operating, and that any impacts on the community amenities and city safety are prevented from occurring, or are satisfactorily managed. In other words a precautionary approach is warranted unless there are truly exceptional circumstances. In the same way the Tauranga District Council takes the view that the policy guidelines remain in place if there is a potential to create adverse environmental effects.”

[48] In that case there was an application for variation for conditions of an on-licence in respect of a tavern known as “Mount Mellick”, and as noted above, “Mount Mellick” is located next to the premises to which this application relates. In that decision we were persuaded that if the closing hour was extended to 2.00 am there would be a very real potential for the creation of adverse environmental effects on the residential neighbourhood.

[49] In the present case the applicant’s premises originally operated as a massage parlour with extended hours, but without a liquor licence. Consequently, there was no noticeable impact on the residential neighbourhood. However, we note that the premises are now advertised as “Bobby’s Bar Massage and Strip Club”. The Inspector has concluded that the alterations being made to the premises give the impression that it is more than simply a brothel. The bar and strip club activities in our view would create an attraction for patrons when other licensed premises are closed. Mr Wood has offered to delete the word “bar” from the name of the premises and its advertising. A name change does not of course necessarily change the nature of the premises or the way that the business is conducted or perceived.

[50] In paragraph [43] of Uranus Direct Limited (supra) we said:

“In our opinion, it is likely that if the application were to be granted, then the other licensed premises in the vicinity would inevitably follow. The applicant company has shown that this will happen because it has done so itself. It may be considered unfair that Mr Shipman’s company finds itself associated with other businesses which may not have the same managerial skills. We believe that the extension of the closing hour for “Mount Mellick” would have an impact on the other three bars which are situated close by. There would either be a migration to “Mount Mellick”, or the other bars would apply for the same hours. If this application was granted, the Agency or the Authority could only refuse further applications by other licensees on the grounds of suitability. In our view, the consequences of the extra hour’s trading by the four licensed premises in this community, could well be catastrophic for the surrounding residents.”

[51] In the final analysis, Ms Daubney is right. The provision and marketing of the bar appears to play a significant role in the proposed business. If the business consisted solely of a commercial sex premises and massage parlour, then the emphasis would change, and the sale of liquor would play a relatively minor part in the proposed activities. A 24-hour licence might be appropriate in those circumstances. The present set-up with its stripping stage, seating, and bar is similar to what might be expected in a night club. Despite the cover charge, it is in our view likely, that patrons from other establishments will be attracted to continual drinking at the premises. In that case the community expectations, as depicted in the Tauranga District Licensing Agency Sale of Liquor Policy, will become ignored.

[52] In Consolidated Hotels Limited LLA PH 654/2004 we said at paragraph [33]

“While there should be no rigid application of the policy, it seems to us that we would need some cogent arguments as to why there should be a departure from a community’s recommendations. We have referred to the object of the Act, and the concerns about migratory drinkers, and the domino effect if the application was granted. We have also referred to the fact that although the business qualifies as a nightclub/entertainment centre in terms of the licence, it is not sufficiently unique as to create a specific justifiable reason to extend the current hours of operation.”

Then at paragraph [40] we said:

“In our view, the application of the Strategy across all on-licences in the area, will both multiply the perceived benefits in terms of health and anti-social behaviour, and avoid the concentration of problems in a particular premises simply because they are the last premises open for sale of liquor. The circumstances in this case are not truly exceptional, justifying a departure from community expectations.”

[53] We are satisfied as to the matters to which we must have regard as set out in s.13(1) of the Act. We have not been persuaded that we should depart from the Tauranga District Council’s Sale of Liquor Policy. We think that the licence should be operated for 12 months so that its actual impact on the community can be assessed. We grant the applicant an on-licence for the sale and supply of liquor for consumption on the parts of the premises as described in the licence, to persons present between the hours of 7.00 am and 1.00 am the following day. A copy of the licence setting out the conditions to which the licence is subject is attached to this decision.

[54] The on-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 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.

[55] The applicant’s attention is drawn to ss.25 and 115 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 principle 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.
  
• [c] In addition, while any manager is on duty, the name of the manager is to be prominently displayed inside the premises so as to be easily read by the persons using the premises.
  

Application for cancellation

[56] In an application brought pursuant to s.135 of the Act, the Authority must be satisfied that one or both of the two grounds under subs.(3) have been satisfied. In the present case the Police have relied upon ground (3)(b) “that the conduct of the manager is such as to show that he is not a suitable person to hold the certificate.” If we are satisfied that the ground has been established then we must decide whether it is desirable to make an order of suspension of cancellation of the certificate. In this case the Police rely simply on Mr Wood’s conviction for assault. They contend that such conduct has brought his suitability into question. Mr Wood has four other convictions between 1978 and 1994 and none of them involve violence or liquor related offences. In Valesha Anna Marx LLA 946-947/97 the Authority said:

“... we are generally inclined to give little weight to convictions:
more than ten years old provided there has been no offending of any kind since that time; ...
On the other hand we usually give added weight to any conviction:
... disclosing two or more serious convictions of a similar type; and for assault or violence offences against any person ...”

The Authority always considers any act of violence seriously because managers are required to interact with the public and with staff. In this case the violence was aggravated by the fact that the victim was a woman.

[57] We accept that two District Court Judges looked at the facts separately. One from the point of view of s.194 of the Crimes Act, and the other from the point of view of certification under the Prostitution Reform Act 2003, and they came to the conclusion that the offending was at the lower end of the scale. The fine of $250 shows this. However, for the purposes of an applicant proving suitability for a liquor licence and a General Manager’s Certificate, we are not bound by that view. We are more than satisfied that Mr Wood’s conduct has fallen below the standards expected of the holder of a General Manager’s Certificate. The next issue is whether it is desirable to make an order under s.135(6) of the Act.

[58] For the reasons we have expressed above we believe that an order is desirable, although we acknowledge that cancellation of the certificate would be out of proportion to the conduct complained of. That is particularly so in light of Mr Wood’s previously unblemished conduct, and his record of running massage parlours and licensed premises.

[59] We therefore order that General Manager’s Certificate number GM 1326/98 issued to Robert Gareth William Wood be suspended for one month from 13 December 2004.

DATED at WELLINGTON this 29th day of November 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

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