Sheehan v The West Pack Limited [2006] NZLLA 289 (20 April 2006)

Last Updated: 14 March 2010

Decision No. PH 289/2006 –
PH 290/2006

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for suspension of on-licence number 006/ON/210/2004 issued to THE WEST PACK LIMITED in respect of premises situated at 3 Totara Avenue, New Lynn, Waitakere City, known as "Lone Star Café & Bar"

BETWEEN JASON PAUL SHEEHAN

(Waitakere District Licensing Agency Inspector)

Applicant

AND THE WEST PACK LIMITED

Respondent

AND

IN THE MATTER of an application pursuant by THE WEST PACK LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 3 Totara Avenue, New Lynn, Waitakere City, known as “Lone Star Café & Bar”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

DECISION

We have before us an application by Mr J P Sheehan, an Inspector for the Waitakere District Licensing Agency, for suspension of an on-licence held by The West Pack Limited, in respect of premises situated at 3 Totara Avenue, New Lynn, Waitakere City, known as “Lone Star Café & Bar”. We are also asked to determine an application by The West Pack Limited, for renewal of the on-licence.

The grounds for the suspension application are that the on-licence has been conducted in breach of the following provisions of the Act:

(i) Section 115(1), which provides that a manager must be on duty on licensed premises at all times when liquor is being sold to the public, and s.115(3) which requires a licensee to take all steps to enable a manager to comply with subsection (1); and

(ii) Section 130 which requires the licensee to give notice of appointment of any manager of any licensed premises; and

(iii) Section 165, which creates an offence for any person who, being the licensee or a manager of any licensed premises, sells or supplies liquor to any person at any time when the licensee is not authorised by the licence or the Act to sell to that person; and

(iv) Section 167, which creates an offence for any person who, being the licensee or manager of any licensed premises, allows any person to become intoxicated on the premises; and

(v) Section 172A(b), which creates an offence for a licensee who fails to ensure compliance with s.115, and s.172A(c), which creates an offence for any licensee who fails to give notice of appointment as required by s.130 of the Act; and

(vi) Section 216, which provides that no on-licence shall be granted to any person other than the licensing trust in respect of any hotel or tavern in the trust district.

Public notification of the application for renewal of the on-licence attracted an ‘expression of interest’ from the General Manager of the Portage Licensing Trust, within whose boundaries these premises are located. The letter was filed with the District Licensing Agency after the final date prescribed by s.19 of the Act, and gave no details as to the nature of the ‘interest’.

Nevertheless, the trust is sensitive to its privileged position in the district, and it is not the first time that it has expressed misgivings in relation to the conduct of other licensed operations within its area of influence.

It is further alleged that the premises have been operated in breach of the following conditions of the licence:

(a) Liquor may be sold only on the following days and during the following hours:

On such days and during such hours as the premises are being operated as a restaurant but not other than on the following days and hours:

Monday to Sunday 4.00 pm to 12.00 midnight

(b) Food shall be available for consumption on the premises as follows:

At all times when the premises are authorised to be open for the sale of liquor, food of a range and style similar to that shown on any menu submitted shall be conveniently available for all patrons and the availability of those foodstuffs shall be notified to them by appropriate notices throughout the premises.

(c) The licensee shall ensure that signs are prominently displayed within the licensed premises detailing information regarding alternative forms of transport from the premises.

(d) The licensee shall ensure that the provisions of the Act relating to the sale and supply of liquor to prohibited persons are observed and shall display appropriate signs adjacent to every point of sale detailing the statutory restrictions on the supply of liquor to minors and the complete prohibition on sales to intoxicated persons.

More particularly it is alleged that at approximately 10.20 pm, on 2 June 2005, the Agency Inspector entered the premises on a routine visit to ensure compliance with the provisions of the Act and the conditions of the licence.

During the course of his visit he discovered that the signage identifying the duty manager was incorrect, the kitchen was non-operational although it was anticipated that the premises would remain open for about another hour and a half, and a significant number of patrons were drinking on the premises without the Inspector being able to confirm that they were, or had been on the premises for the purpose of having a meal.

The Inspector also observed additional patrons entering the premises to purchase liquor, without giving any indication that they intended or expected to eat. It was clear to the Inspector that service of liquor continued throughout the duration of his visit.

It is further alleged that on Thursday 16 June 2005, at approximately 10.15 pm, two officers from the Auckland Regional Public Health Service entered the premises. They observed a number of patrons seated at an outdoor smokers area, where evidence of liquor consumption (beer glasses and the like) was noted. A further eight persons in the interior of the premises, which shortly increased to 14, were also seen to be consuming or recently to have consumed liquor. There was no observable evidence of any food consumption. The kitchen was in the process of closing and of being cleaned.

Upon inquiring as to the availability of food the officers were advised that the restaurant menu was unavailable as the kitchen had closed. A variety of snack-type meals was still available.

The officers also observed two female patrons whom they considered to be intoxicated. Such assessments are of course, subjective, but the fact that the officers were present in a professional capacity may give some weight to their view of the situation. The officers also found promotional material advertising ‘drink specials’ between 7.00 pm and 11.00 pm on Thursday nights.

Auckland Regional Public Health staff made a further visit to the premises to ensure compliance, on Friday 12 August 2005. They were able to obtain liquor without being asked whether they intended to dine. It was noted that there were a number of patrons present who were drinking but not eating, some of whom were watching a televised sporting fixture on a large screen located in the bar.

On Thursday 15 September 2005, two staff members of Waitakere City Council entered the premises in the late afternoon. After having purchased drinks they entered the restaurant area and inquired as to the availability of food.

They were advised that the kitchen was closed, and that only the bar menu was available. They returned to the bar and purchased squid rings. By the end of the visit, which took about one hour, other patrons had entered the premises and were drinking. There was nothing at that stage to indicate that any of those persons had ordered, or intended to partake, of a meal.

The applicant has formed the view that, at times, the business is operating in a manner akin to that of a tavern, which is itself a breach of condition (b) of the licence. This view is reinforced by the observations of the Regional Public Health staff, and personnel from the Waitakere City Council, who all found that the provision of food varied considerably, and at times clearly did not comply with the relevant condition prescribed by the on-licence.

In decision PH 208/2005, an application by Gordon Brett Pay, for suspension of an on-licence held by Baba Louies Limited, we said that it was not sufficient simply to ensure the presence of a kitchen, with the limited availability of light meals or snack foods, for part of the time that the business was operating. We referred to the relevant condition in the on-licence and said, at paragraph [35]:

“[35] It will be noted that the wording is in the present tense. The restaurant must be operating to enable liquor to be sold. The wording is not has been operated, or could be operated, or capable of being operated. In order to sell liquor the premises must be being operated as a restaurant. The New Shorter Oxford English Dictionary defines “operate” as “To work, expend labour on” or “To be in action be functioning”. Both indicate activity. It follows therefore that in an operating restaurant, there will be chefs or cooks who are working, a kitchen which is functioning, and diners who are eating. Put in another way, operating a licensed restaurant means more than having kitchen and dining facilities available.”

The substance of the Inspector’s application satisfies us that the relevant breaches of the provisions of the Act, and of the conditions of the on-licence, have been established.

The licensee has not disputed any of the facts laid before us. It follows, therefore, that in any proceedings before the Authority, a period of suspension of the on-licence is a probable outcome.

However, prior to the public hearing which was scheduled to take place on 5 April 2006 to determine the matters, the parties have negotiated a settlement, by consent, to resolve the issues raised in the suspension application, without the requirement to appear before the Authority.

The licensee has provided a signed undertaking to the effect that:

(i) the bar shall only be open at such times as the restaurant kitchen is operating; and

(ii) liquor shall be sold ‘only sparingly’ to casual drinkers, and all persons ordering liquor will be advised of the requirement to order food; and

(iii) signage will be reinforced to point out to patrons that the business trades as a restaurant, and that liquor is ancillary to food.

In return for this undertaking, the Inspector, with the acquiescence of Auckland Regional Public Health, whose representative, in his report to the Agency on the renewal application, expressed misgivings as to the operation of the business, has recommended that the suspension application be adjourned for six months.

It has further been agreed that the on-licence be renewed for one year, which will provide for an expiry date close to the termination of the recommended adjournment.

Having considered the recommendations from the Agency Inspector his application stands adjourned, by consent, for six months. The on-licence is hereby renewed, on the existing terms and conditions, until 29 September 2006. A notice of renewal will accompany this decision.

Prior to that date, a further application for renewal must be filed with the District Licensing Agency in accordance with s.18 of the Act. If there are no further concerns raised in relation to the conduct of the business at that time, it is anticipated that the suspension application will be withdrawn.

DATED at WELLINGTON this 20th day of April 2006

______________________
B M Holmes
Deputy Secretary

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