Waima Sports Club Incorporated [2006] NZLLA 811 (29 September 2006)

Last Updated: 23 January 2012

Decision No. PH 811/2006

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by WAIMA SPORTS CLUB INCORPORATED pursuant to s.64 of the Act for renewal of a club licence in respect of premises situated at School Road, Waima, Hokianga, known as “Waima Sports Club”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms P A Ballard

HEARING at KAIKOHE on 25 September 2006

APPEARANCES

Mr N P J Moses – on behalf of applicant
Mr J Thorne – Far North District Agency Licensing Inspector – to assist
Mr G Maihi – Trustee – Eru Haami Kohe Pia Whanau Trust – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application by the Waima Sports Club Incorporated (hereafter called the Club) for the renewal of its club licence. The Club was first granted a licence by the Authority in 1993 and the licence has been regularly renewed, without opposition, since 1994.

[2] The current trading hours are for a total of 36 hours a week. The hours which were originally granted are seldom used. They are as follows:

Monday to Wednesday 7.00 am to 10.00 pm
Thursday and Friday 6.30 am to 11.00 pm
Saturday 1.00 pm to 12.00 midnight
Sunday 3.00 pm to 10.00 pm
Public Holidays 1.00 pm to 11.00 pm

[3] The clubrooms are situated at School Road in Waima. The land is leased from the Eru Haami Kohe Pia Whanau Trust (hereafter called the Trust). We were advised that the Trust was established through the Maori Land Court in 2006 so as to give the shareholders and beneficiaries a voice in the operation of the neighbouring Tuhirangi Marae. We believe that the lease is for 21 years from February 1987 at $500 per annum. We were led to believe that there is a right of renewal available to the Club in 18 months, although the rent may well be re-negotiated at that time.

[4] The Club’s licence fell due for renewal on 4 July 2006. No changes were sought to the conditions of the licence. There was no opposition from the Police, or Medical Officer of Health, or the District Licensing Agency Inspector. However, public notification attracted an objection from Mr G Maihi, the Chairman of the Trust which leases the land to the Club. He objected because he alleged that the Club was not acting within the terms of its constitution in that it was not operating as a sports club, and had not done so for many years. A letter in support of the renewal application was filed by Mr E Love, the manager of the local “Taheke Tavern.”

[5] An attempt was made through the District Licensing Agency Inspector to have the matter resolved by negotiation, but one of the parties was not prepared to meet and the matter was duly set down for a public hearing.

The Application

[6] The Club was represented by its current Chairman Mr N P J Moses. Mr Moses was a foundation member of the Club and was its Chairman previously. He confirmed that the Club had been incorporated in 1988 with the following objects:

1. To promote and foster youth development by promoting fostering and controlling sporting activities within the Waima community.
   
2. To purchase, take on lease or otherwise acquire land, buildings or other property which may be requisite for the purposes of or conveniently used in connection with any of the objects of the Cub and to sell lease or mortgage or otherwise dispose of same.
   

100. To do all such other lawful things as are incidental or conducive to the attainment of the foregoing objects.
     

[7] Mr Moses stated that initially, the Club’s focus was on assisting youth in the community in an attempt to give them something to do by participating in sporting and recreational pursuits. Although the early emphasis was on social rugby, he was proud of the way that the members had built the clubrooms without debt. He stated that the Club’s rooms were used by a number of community groups, and over a period of time, the Club became a valuable community asset.

[8] On the other hand, as stated by the District Licensing Agency Inspector, over the years the population of Waima has declined and Club numbers have dwindled. The sporting activities through no one’s fault have not developed as was first envisaged. It appears that the Club has been used more for social events.

[9] Mr Moses stated that he had gone to live in Auckland and had no intention of returning to the Club until he was approached by one of the owners about two years ago. She asked him to return and help the Club back on to its feet. The owner was very concerned at the way the Club was being managed. Mr Moses gave evidence that he had returned to assist and that in the last two years, there had been a resurgence in interest from the members, to the extent that a rugby team was about to commence playing in the local competition.

[10] Mr Moses drew up a number of rules and protocols to ensure that there was no disrespect to the activities in the neighbouring Tuhirangi Marae. It seems that there had been considerable concern that the Club premises had been allowed to open when a tangi was taking place. Mr Moses gave an assurance that this would not happen, and that the Club’s car park would always be available for use by the Marae. It was clear that he and his members respected the Marae’s position and its standing in the community.

[11] Mr Moses referred to a number of initiatives which had been promoted by the Club’s committee including opportunities for young people to participate in social events as well as sports. He paid tribute to the voluntary work carried out by the committee members. He was supported by at least 10 members of the Club who took the trouble to be present to show their support for the application. It was acknowledged that the Trust had valid concerns about the Club’s operations, but these concerns had now been attended to.

[12] Mr E V Love is the manager of the “Taheke Tavern”. He appeared in support of the application and asked that it be noted that he did not supply the Club’s liquor requirements. He was very keen for his grandchildren to be able to continue to use the Club’s facilities. He confirmed that he had recently hosted a training course for managers and that the Club had sent along three members who were about to apply for their Club Manager’s Certificates.

[13] Mrs T L Absolum has been a member of the Waima Maori Committee since 1998. She has been a member of the Club for three years and spoke of the way that the members had combined to bring the Club back into order. She noted that the Maori Committee had a monitoring role over most of the activities in the area including many of events held at the Club’s rooms. She referred to the ‘Pa Wars’ in which two to three thousand people participated, and which was partly hosted by the Club. This was confirmed by the Police when they reported on the application. She believed that the Club had considerable potential to provide facilities for the young people in the community.

[14] Mr G Maihi confirmed his original objection. He stated that in the Trust’s view there had been no youth sporting programme and that community support for the Club was low. He argued that the objectives written in the constitution had enabled the Club to secure the lease in the first place. He contended that there was now a broken link in the chain, in that the Club’s objective was not being met. Accordingly, he argued that the Club’s legal position was tenuous.

[15] Mr Maihi spoke of the disrespect to the land when the club’s premises were opened during a tangi. He questioned who would be running the bar if members such as Mr Moses lived in Auckland. Mr Maihi spoke of excessive consumption of liquor and disorderly behaviour but gave no details.

[16] Finally, we heard from Mr D B P Hohepa, a kaumatua. He spoke about his concerns about the consumption of alcohol and its impact on the people. Mr Hohepa candidly disclosed that the trustees really wanted to get the land back.

The Authority’s Conclusion and Reasons

[17] In determining any application for the renewal of a club licence, the Authority is required to have regard to the matters listed in s.68 of the Act. These criteria are:

• (a) The suitability of the applicant:
  • (b) The conditions attaching to the licence:

(c) The manner in which the licensee has conducted the sale and supply of liquor pursuant to the licence:
(d) Any matters dealt with in any report made under section 66 of this Act.

[18] In this case the only real issue is the Club’s suitability. After all, there was no valid or sustained objection about the trading hours or any of the other conditions of the licence. Although there was a passing reference to the way the Club conducted the sale and supply of liquor pursuant to the licence, there was no evidence sufficient to establish a factual threshold requiring the Club to rebut such an allegation. To some extent the issue relates to the possible change of emphasis from a sporting club to a venue which is apparently used more for socialising and drinking. Pursuant to s.2 of the Act, a club includes a voluntary association of persons who combine for any purpose other than gain.

[19] In general terms, the licensing hours should relate to the days on which and the hours during which the predominant purpose of the Club is conducted. It is accepted that there will be some leeway, but any club must be careful to ensure that it does not promote itself as a tavern. If it does, then the hours may have to be restricted. One of the matters which the Authority must consider when considering an application for a club licence, is the days and hours during which the premises are used for the club’s activities. The Authority must also be satisfied that the predominant purpose is other than the consumption of liquor.

[20] The preferred approach to the issue of suitability is contained in the comments of Panckhurst J in Page v Police (unreported HC V Christchurch AP 84/98 24 July 1998). He stated:

“Section 13(1)(a) provides that the applicant for an on-licence must demonstrate his or her suitability. In other words what is required is a positive finding. That implies an onus upon the applicant to demonstrate suitability. Such suitability is not established in a vacuum but in the context of the particular case: for example, the place, the intended business (here in a difficult central city location), the nature of the business itself, the hours of operation and the intended activities, provide the basis for the assessment of the individual.”

[21] Here we are dealing with a small club which was set up many years ago to provide sporting facilities and opportunities for the young people in the area. It may be that over the years the original intention has been lost sight of. However, we believe that clubs such as this one deserve all the support and encouragement they can get. In today’s semi-professional sporting and recreational environment with commercial sponsorship, it is hard for amateur clubs to survive and maintain enthusiasm.

[22] It may be that the Club should look at its constitution to see whether it is appropriate to amend its objectives. We did not see the lease and cannot comment whether such a change might place the lease at risk. On the other hand, we were impressed with the enthusiasm of Mr Moses and the members, and their commitment to work hard for the Club, and do their best to promote their club and its objective. It is not easy for an objector to show unsuitability particularly if there are no concerns raised from either the Police or the District Licensing Agency Inspector. In this case, the fact that the Club has registered three of its members to be trained to achieve a Club Manager’s Certificate shows a high degree of host responsibility.

• [23] In terms of the renewal of the licence we believe it would be unreasonable to refuse to renew the licence on the basis of the evidence before us, particularly in the absence of any proved offending against the Act, and the absence of concerns from the reporting agencies. The Club may wish to take the opportunity to review what its core activity is going to be for the future, and include any such proposal by amending its constitution. In the meantime, we are satisfied as to its suitability to continue to hold a club licence.
  

[24] Accordingly, the club licence issued to Waima Sports Club Incorporated is renewed for three years to 4 July 2009.

DATED at Wellington this 29th day of September 2006

Judge E W Unwin Ms P A Ballard
Chairman Member

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