Fatzcat Bar & Grill Limited, re [2007] NZLLA 258 (23 March 2007)

New Zealand Liquor Licensing Authority

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Fatzcat Bar & Grill Limited, re [2007] NZLLA 258 (23 March 2007)

Last Updated: 7 March 2010

Decision No. PH 258/2007

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by FATZCAT CAFÉ & BAR LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at Level 2, Sofitel Building, 8 Duke Street, Queenstown, known as “Fatz Cat Café & Bar”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin

Member: Ms P A Ballard

HEARING at QUEENSTOWN on 28 February 2007

APPEARANCES

Mr C M Cloudesley – on behalf of applicant

Ms T J Surrey – Queenstown-Lakes District Licensing Agency Inspector – in opposition
Sergeant A J Harris – NZ Police – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application by Fatzcat Café & Bar Limited (hereafter called “the company”) pursuant to s.18 of the Act for the renewal of an on-licence in respect of premises situated at Level 2, Sofitel Building, 8 Duke Street, Queenstown known as “Fatz Cat Café & Bar”. There is also an application for variation of conditions of the on-licence.

[2] The licence was issued on 26 September 1996 and fell due for renewal on 26 September 2006. The company seeks to extend the hours of trade so that it may operate 24 hours every day. Mr C M Cloudesley is the sole director of the company. He explained that he did not anticipate that the company would use the extended hours on a regular basis, and that he wished to have the 24 hour licence to give him flexibility in operating his business and to ensure viability in the competitive restaurant market. He sought to provide a service to hotel guests, many of whom were from overseas and who he said expected to be able to drink with their meals in the early hours of the morning.

[3] Mr Cloudesley emphasised that he intended to provide a full restaurant service and that the principal purpose of the business would remain as a restaurant. The business has been in existence for 11 years operating within its authorised hours. There have been no applications made for special licences.

[4] Mr Cloudesley took the opportunity to compare the authorised hours for taverns (which are only required to serve bar and snack food) with the more restricted hours for restaurants where substantial meals are on offer. However, in our view, there is no comparison. The main reason that restaurants are licensed is to allow patrons to drink while they are dining. There was no probative evidence that patrons would be requiring full meals after 1.30 am. Mr Cloudesley was asked how many times had had been asked to provide a meal after 1.30 am and his reply was once.

[5] Mr Cloudesley seemed to take exception to being told what he could and could not do. He asked us to allow him to run his restaurant as he wished. Mr Cloudesley needs to be reminded that the sale of liquor is still regulated and that one of the areas of concern is the tendency by many members of the public to drink to excess. We have no doubt at all that if this restaurant was allowed to sell liquor at any time on any day, then liquor abuse issues would follow, not just from “Fatz Cat Bar & Café” but from others that would seek to follow the precedent that had been set.

[6] During the hearing Mr Cloudesley stated that he might wish to serve breakfasts, particularly to bus patrons. There was no probative evidence that such patrons might wish to have a drink, but the reporting agencies had no objection to an earlier opening time of 6.00 am.

[7] The application was opposed by the District Licensing Agency Inspector and the Police. In her report, the Inspector noted that the premises were operating in compliance with the licence and the Act. Ms Surrey explained that the Agency opposed the extension of trading hours on the grounds that the hours sought are not appropriate for this type of operation. The concern was not so much a reflection on the suitability of the applicant company but rather a concern that a precedent should not be set for this style of operation.

[8] The Inspector noted that the Queenstown-Lakes District Plan placed no restrictions on trading hours for an on-licence premises where the principal business was the operation of a dining facility and the sale of food. The District Council’s Liquor Licensing Policy currently permits 24 hour trading for on-licences in the Central Business District. However, the policy is currently under review and the implementation of a blanket closing time is one of the issues to be considered. Given that background, the Inspector concluded that it was inappropriate for the reporting agencies to support an application for 24 hour trading. She did not oppose a 6.00 am opening time.

[9] Sergeant Harris for the Police also noted that there was no other 24 hour restaurant on-licence in the Queenstown-Lakes District and that if the application were granted, it would set an unwelcome precedent. He highlighted the difficulties that the reporting agencies experienced in monitoring premises under the existing regime and observed that in the context of the current review of the District’s Liquor Policy, the Police and other enforcement agencies had proposed a 1.00 am closing time for all restaurants.

[10] Sergeant Harris pointed out that although “Fatz Cat Café & Bar” was physically part of the “Sofitel Hotel” complex, it was privately owned. There are three other restaurants in the hotel complex, one of which has a hotel style licence. The other two have tavern licences. In his view, these ensured that hotel guests were amply provided for.

[11] At present, the applicant has a 7.30 am to 1.30 am licence. The Police were prepared to agree to a 6.00 am opening time to allow the applicant to cater for patrons leaving on early morning tour buses.

[12] The Police identified a further impediment to granting the application to extend the hours. They contended that Mr Cloudesley’s conduct on two occasions in the past 18 months had called into question his suitability as the sole director of the applicant company. There was an incident on 20 September 2005 when Mr Cloudesley had been refused entry to the “Wharf Casino” due to his level of intoxication. The second incident was on 23 February 2007 and at the time of the hearing was still under investigation. It involved a complaint by a staff member of threatening behaviour by Mr Cloudesley.

The Authority’s Decision and Reasons

[13] With respect to the renewal application, we see no reason to refuse it. The Inspector stated that there was no opposition to the renewal on the existing terms and conditions, and Sergeant Harris stated that the premises had not come to notice for any liquor abuse issues.

[14] We now turn to the applicant’s request to allow 24 hour trading. Section 16 of the Act governs the process by which the conditions of a licence can be varied. In making a decision we are required to consider the relevant matters contained in s.13(1) of the Act. These criteria are the same as must be considered when an on-licence is granted.

[15] The relevant provisions of s.13(1) of the Act are subs.(a), (b) 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:

(b) The days on which and the hours during which the applicant proposes to sell liquor:

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

[16] As far as the company’s suitability is concerned, we do not think that the incidents referred to by the Police are in themselves a sufficient reason to refuse to grant the variation to the hours. With respect to the first incident, we note there was no conviction and Mr Cloudesley was able to explain that there were extenuating circumstances. The second incident, being still under investigation, cannot be conclusive.

[17] Our focus is on the hours sought. We heard from the enforcement agencies about the problems encountered in policing in Queenstown and their view that liquor-related offending could be curbed by stricter controls on licensed premises. We are aware that the current Liquor Policy is under review. With these matters in mind, we took the opportunity to visit the premises. We concluded from both the décor and the medium-priced Italian-style food, which included pizzas and various kinds of pasta, that “Fatzcat Café & Bar” is primarily a family style restaurant. We also noted that it is located in the hotel complex and accessible from the hotel, although it has its own entrance to the street.

[18] While we understand Mr Cloudesley’s wish to be able to sell liquor to patrons in the early hours of the day and his view that overseas visitors expect such service, we consider that the hotel’s bar amply suffices to provide that option. Indeed, Mr Cloudesley confirmed in his evidence that he has had little demand to provide late meals and that, generally, his last customers leave around 10.30 pm. Although he indicated that he would be prepared to provide meals in the early hours of the day, he acknowledged that his reason for seeking the extension in hours was primarily to give him some flexibility should the need arise at some time in the future. He regarded his application as something of a test case.

[19] We are concerned that if the company’s restaurant is allowed to trade until later, there is a danger that it will attract patrons who go there only to drink. There are two potential consequences for such activity. First, that the business may lose its original identity after a certain time in the evening where it switches from a restaurant to a tavern style operation. Secondly, there still seems to be a belief that all a restaurant has to do to keep selling liquor is to have substantial meals available. We refer to what was said in Craig John Crosse LLA PH 108/2007:

[23] ...There is a significant difference between a restaurant where people may gather to dine and at the same time enjoy a glass of wine or other liquor as part of the meal, and a bar, where patrons congregate in order to have a drink, and socialise or listen to music. While the Act allows for casual drinking, the conditions of the licence make it clear that liquor may only be sold when the premises are being operated as a restaurant. ...

[24] We have previously held that operating a restaurant means that there will be chefs or cooks who are working, a kitchen which is functioning, and diners who are either eating or about to eat or who have just finished. Put in another way, operating a licensed restaurant means more than having kitchen and meals available. Casual drinkers are patrons who call to the restaurant for the sole purpose of having a drink. To do so is quite legal provided of course the premises are being operated as a restaurant. However, if the restaurant is not operating, then the bar must close.

[20] In all the circumstances, we decline the extension sought. We are particularly mindful that the reporting agencies are opposed to the granting of a 24 hour on-licence to a restaurant and that they have legitimate concerns that other applications will be made thus increasing the potential for disorder in the community. There was no particular reason given for the request and little supporting or persuasive evidence.

[21] Accordingly, and for the reasons given, we order that the on-licence issued to FatzCat Bar & Café Limited is renewed until 26 September 2009. The application for 24 hour trading is declined. The trading hours will be Monday to Sunday 6.00 am to 1.30 am the following day.

DATED at Wellington this 23rd day of March 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

FatzCat.doc