BBC Enterprises Limited, re [2005] NZLLA 103 (7 March 2005)

Last Updated: 20 February 2010

Decision No. PH 103/2005

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an appeal by BBC ENTERPRISES LIMITED pursuant to s.137 of the Act against a decision of the Hamilton District Licensing Agency refusing an application for a special licence in respect of premises situated at 1 York Street, Hamilton known as “Hillcrest Tavern”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at PAPAKURA on 28 February 2005

APPEARANCES

Mr D J Thompson – agent for BBC Enterprises Limited - appellant
Sergeant S A Innes – NZ Police – in opposition
Mr T P Van Der Heijden – Hamilton District Licensing Agency Inspector – in
opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] On 17 December 2004, the Waikato Student Union made application to the Hamilton District Licensing Agency for a special licence pursuant to ss.73 and 74 of the Act. The occasions or events were described as “40th Anniversary of Waikato University and Orientation week 2005 – Live music, promotions, product presentation – information for WSU students for 2005”. The events or occasions were to occur from 5 March 2005 to 13 March 2005, and the hours that the company intended to sell liquor were from midnight to 2.00 am. The name and address of the proposed licensed premises was given as “Hillcrest Tavern” at 1 York Street, Hamilton. The premises in question trade as a tavern with a closing hour of midnight Mondays to Saturdays, and 11.00 pm on Sundays.

[2] The application was signed by Mr Stephen Gilmore the General Manager of the “Hillcrest Tavern”. As was pointed out by Mr D J Thompson, the appellant’s agent, there were a number of errors in the application. For example, the application should have been made in the name of BBC Enterprises Limited, the licensee of the “Hillcrest Tavern”. In addition, the application should have been made pursuant to s.73 of the Act. Furthermore, Mr D J Thompson asked the Authority to note that since the application had been filed, the business had been taken over by a new company known as Mitchell Enterprises (Waikato) Limited. This company currently holds a temporary authority to carry on the business of the “Hillcrest Tavern” for three months from 8 February 2005.

[3] The Hamilton District Licensing Agency requested that the application be publicly notified. We accept Mr Thompson’s submission, that pursuant to s.76(4) of the Act, the Agency’s Secretary could only require that notice of the application be attached in a conspicuous place on or adjacent to the site. As a consequence of the public notification, objections were received from 18 residents. In addition, the application was opposed by the Police and the District Licensing Agency Inspector. The application was therefore considered by the Statutory Management Committee of the Hamilton City Council on 18 February 2005.

[4] At the hearing, the appellant was represented by Mr Stephen Gilmore the manager of the tavern, together with Mr Geeming Wong, the manager of the Waikato Student Union Incorporated, and Messrs R and B Mitchell the owners of the tavern. According to the minutes of the meeting, all parties including one objector spoke. A petition supporting the proposal was tendered, along with a somewhat neutral letter from the Director of Marketing of the University of Waikato. Little reference was made to the criteria contained in s.79 of the Act other than by the Inspector in his report. In a written decision dated 21 February 2005, the Committee declined the application. The City Manager stated that it had been resolved:

“That the application be declined and the applicant advised of the right of appeal to the Liquor Licensing Authority.”

[5] It will be noted that no reasons were given for the decision. The minutes which were subsequently produced disclose that one councillor was not convinced that the celebrations could not be held within the tavern’s existing trading hours. The Chairman of the Committee was reported as being concerned about anti-social problems associated with previous events of this nature. In fairness to other applicants, we assume that the comments made at the hearing will ensure that reasons will be given for any future decisions. The appellant exercised its right to appeal against the decision. The appeal was conducted by way of a rehearing in accordance with the provisions of s.137(6) of the Act.

The Rehearing

[6] At the hearing before the Authority, Mr D J Thompson presented written submissions. He was supported by Mr Bob Mitchell a director of the applicant company, together with Mr Stephen Gilmore the General Manager of the “Hillcrest Tavern”, and Mr Geeming Wong the Manager of the Waikato University Students’ Union Incorporated. All three were said to be available to answer questions.

[7] Mr Thompson confirmed that the purpose of the special licence was to enable liquor to be sold between midnight and 2.00 am the following day, to those attending the 40th Anniversary of the University of Waikato, and the Students’ Orientation Week. He said that these occasions and events were conducted by the Students Union for enrolled students. He confirmed that the events were exclusively for students, and that the tavern management and staff would inform any casual drinkers on the premises that they would have to vacate the premises by 7.00 pm each day. He advised that entry would then be vetted by means of identification of the students.

[8] Mr Thompson further submitted that the Students’ Union was to provide live bands, as well as tennis swing ball, games, teams competitions, mini miniature bike games and similar fun activities. He argued that the events were special events which would be closed to the public.

[9] At the request of the Police, Mr Stephen John Gilmore was sworn in so that he could be questioned about the application. He confirmed that there was a partnership between the tavern and the Waikato Students’ Union Incorporated to hold all night-time events for the Official Orientation 2005 Celebrations. He said that a few tickets to the events had already been sold. He confirmed that bands had been arranged, and the general public would be excluded from 7.00 pm. Mr Gilmore accepted that there might be resource consent considerations as to why the tavern’s trading hours did not extend past midnight. He was unable to say why it was necessary for the activities to continue after midnight. He appeared to accept that the 40th Anniversary celebrations were to be held on campus.

[10] Sergeant S A Inness holds the liquor licensing portfolio as part of his duties in Hamilton. He referred to the lack of supporting evidence or documentation. He produced a list of the proposed activities as supplied to him by Mr Geeming Wong. He believed that the activities would be open to the public, although this was firmly contradicted by Mr Gilmore. He submitted that the application was vague and opportunistic. He argued that in Bond St Inn Limited [1997] NZAR 9 the Authority had stated:

‘We have a firm view as to what the special licence is not intended to cover. It is not intended to be a means for hotels and taverns to obtain extended trading hours, at times when the premises would otherwise be required to be closed ...”

[11] Mr Theo Van Der Heijden is a Liquor Licensing Inspector employed by the Hamilton City Council. He confirmed that the suitability of the applicant company and the manager was not in question. He was concerned that the application was little more than a device to obtain longer trading hours for the tavern over the period of nine nights. He also referred to the fact that historically there had been property damage and other disorder during Orientation Week in past years. This damage and disorder had been the responsibility of a small number of patrons and had occurred between the tavern and the University after the tavern had ceased trading.

The Authority’s Decision and Reasons

[12] Pursuant to s.73 of the Act, a special licence authorises the holder of the licence to sell and supply liquor, on the premises described in the licence, to any person attending any occasion or event or series of occasions or events described in the licence. Although the reporting agencies were concerned that there were differences between the application made before the Council Committee, and the application before us, the fact is that the appeal is by way of a rehearing. The test is not whether the Council’s decision was right or wrong, but whether the application before us satisfies the criteria.

[13] Pursuant to s.79(1) of the Act, in considering any application for a special licence, the District Licensing Agency shall have regard to a number of criteria. We propose to consider each issue separately in the context of the appeal.

(a) The nature of the particular occasion or event or series of occasions in respect of which the licence is sought.

[14] We believe that the appellant has established that there is a partnership between the tavern and the Students’ Union to use the tavern for the Orientation 2005 celebrations. We also think that such an event which only happens once a year is different, warranting the issue of a special licence. In our view there is no suggestion of business as usual if the normal customers are being asked to leave at 7.00 pm. It seems to us that on each of the evenings it will not be business as usual. Instead there will be a number of games and promotions, and on certain nights live bands have been engaged.

(b) The suitability of the applicant.

[15] As stated, suitability is not an issue

(c) The days on which and the hours during which the applicant proposes to sell liquor.

[16] Both the Authority on appeal, and the Agency, have a duty to fix the days and hours of trading. In doing so, it is likely that such matters as potential disorder may be taken into account, as well as the uncertainty surrounding the resource management issues. The structure of the Act is not based on the issue of need. Nevertheless, when an applicant applies to trade on nine consecutive nights, it will be important to establish why blanket approval has been sought. After all the proposed hours of trading should relate specifically to the event. In this case it is hard to believe that all the different events and occasions which have been planned, will conclude at the same time.

[17] In this case, there was never any attempt to explain exactly what was to happen over the nine days. The lack of information adds credence to the Police submission that the application was vague and opportunistic. It seemed to us that the University’s 40th Anniversary celebrations were something of a red herring. In the final analysis we were satisfied that while the Orientation Week is a particular occasion or event, there is no justification given for continuing to 2.00 am for nine nights, except perhaps on the weekend when the bands had been arranged. There was never any serious attempt to explain why the promotions and games, or even the initiation party needed to continue after midnight. On the face of it, the application appears to be a contrived attempt to gain the maximum hours in case there was a demand for extended trading over the whole of the Orientation Week.

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

[18] The premises are currently subject to a supervised designation.

(e) 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.

[19] In this case, Mr Gilmore satisfied us that with the identification of all patrons, there should be no opportunity for patrons under 18 years of age, or who were intoxicated, to be admitted.

(f) 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 alcoholic beverages; and

(iii) The provision of assistance with any information about alternative forms of transport from the licensed premises.

[20] We accept that the tavern will have its normal amenities such as food, a range of non-alcoholic drinks, and facilities enabling patrons to call a taxi or make use of the free bus.

(g) Any reports made under section 78 of this Act.

[21] These reports were submitted by the Police and the Inspector, and read at the hearing. It seems that both reporting agencies were of the view that the functions would be open to the public at large. It was on the basis of the evidence given at the hearing, that we believe that there should be a limited grant of a special licence. We have limited the special licence this year to two nights. The appellant did not satisfy us that the application was not a means to obtain extended trading hours when the premises would otherwise be required to close.

The Special Licence

[22] For all these reasons, we confirm the advice given to the parties following the hearing. The decision under appeal will be reversed to a limited extent. The Hamilton District Licensing Agency is requested to issue a special licence to Mitchell Enterprises (Waikato) Limited, authorising the sale and supply of liquor on the premises described in the licence, to any person attending the Waikato University Students’ 2005 Orientation celebrations, on Friday 11 March 2005, and Saturday 12 March 2005, from 7.00 pm to 2.00 am the following day.

DATED at WELLINGTON this 7th day of March 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

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