Marshall, re [2008] NZLLA 1801 (22 December 2008)

Last Updated: 13 February 2010

Decision No. PH 1801/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by ALAN MARSHALL pursuant to s.9 of the Act for an on-licence in respect of a vehicle based at 1 Masefield Street, Upper Hutt, known as “Alan’s Party Bus”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin

Member: Mr P M McHaffie

HEARING at WELLINGTON on 8 December 2008

APPEARANCES

Mr L O Tuffs – agent for applicant
Mr A R Cox – Upper Hutt District Licensing Agency Inspector – in opposition
Sergeant R B Hough – NZ Police – in opposition
Ms J A Parris – representing Medical Officer of Health - submitter

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application by Alan Marshall for an on-licence in respect of a conveyance (bus) known as “Alan’s Party Bus”. The application was lodged with the Upper Hutt District Licensing Agency on 12 September 2008. It is proposed to operate the business as a tour bus with hours to sell or allow consumption of liquor between 7.00 am and 3.00 am the following day, seven days a week. The concept is that persons will hire the bus or pay the charter fee, and be taken on a tour of licensed premises and/or places of entertainment. It is intended that the bus will be stored at 1 Masefield Street in Upper Hutt.

[2] The bus has been equipped with a stereo sound system, karaoke and a flat plasma screen for on-board entertainment. The patrons will be able to drink and eat at various destinations, and will be permitted to bring liquor on board when boarding on the first occasion. In addition there will be limited sales of liquor on the bus. Mr Marshall requested that the bus be designated as supervised.

[3] Public notification of the application attracted an objection from the directors of a company located in Masefield Street in Upper Hutt. They claimed that the storage address for the bus (advertised as 2 Masefield Street) did not exist. That issue was resolved when it was discovered that the bus was actually stored at 1 Masefield Street. Once the correct address had been established, the company took no further action and was not represented at the hearing.

[4] Both the Police and District Licensing Agency Inspector filed reports in opposition. The Police expressed fears that the vehicle had the potential to become a ‘mobile bar’. The Inspector’s main concerns were that the applicant would have difficulty in controlling intoxication when drinking on the bus was permitted, as well as drinking in other bars, not under the applicant’s control. Accordingly the matter was sent to the Authority for determination.

[5] The Medical Officer of Health filed a report in opposition. Ms A J Parris had concerns around the perceived inadequacy of Mr Marshall’s host responsibility policy. Under s.11(1)(c) of the Act, the Medical Officer of Health is not required to file a report. Accordingly, Ms J A Parris exercised her right of audience under s.108(c) of the Act, to present a submission on the basis that it might assist us in dealing effectually with the application (see s.109 of the Act).

The Applicant

[6] Mr Alan Marshall is an entertainer who resides in Upper Hutt. He holds a General Manager’s Certificate issued on 26 September 2008. He produced a reference from D A Richards & Associates (licensing consultants), confirming that he has a high level of respect for the requirements of the Act, and does not condone drunken or disorderly conduct on his bus. Mr Marshall spoke of his wish to establish a mobile entertainment centre by using a tour bus.

[7] He stated that he had arranged to lease a bus, and had it equipped with a good sound system that could be used for karaoke. He advised that the business had been in operation for about six months. He obtained a special licence to operate his first tour in early August 2008. Since that time a further seven special licences had been issued to members of the public who had chartered the vehicle. At least three more special licences were expected for events to be held in December.

[8] Mr Marshall advised that his basic plan was to tour around the Wellington region, travelling no further north than Plimmerton, visiting hotels along the way. He said that there would be times that he would be asked to travel further afield, hence the request for a conveyance licence to 3.00 am. As stated in the documentation that accompanied the application, his target market included team building, pub-crawls, hen parties, stag nights and corporate stress relief. A sign to this effect is painted on the side of the bus. He said he would also cater for any group that wanted to make a special trip such as to the Wairarapa, or the local paintball facility.

[9] He advised that the standard tour would result in some five stops at licensed premises. He indicated that he would generally stop after travelling for 10 or 15 minutes. This was primarily to allow for a toilet stop. He said that food could be purchased at all of the premises that are visited. In addition a microwave had been installed and meals could be heated up or pre-ordered. The menu states that pies, pizza, quiche or sandwiches are available. He expected that during the tour, patrons would have the opportunity to use a TAB or play the gaming machines at the licensed premises being visited. He said that the tours would normally finish at about midnight, and patrons would then be taken home or dropped off in Wellington. He indicated that he had no formal arrangements with any of the premises being visited.

[10] Mr Marshall said that with large groups there would be a back-up vehicle to keep an eye on what was happening in the rear section of the bus. He stated that he would stand at the front near the driver and direct the entertainment . If there were up to 40 passengers there would also be a tour guide to watch the crowd while he was entertaining them. Mr Marshall stated that other employees were in the process of obtaining General Managers' Certificates.

[11] Mr Marshall confirmed that the contract with the owner provided that he would supply the driver as well as the bus. He stated that the bus is equipped with three large rubbish bins as well as a bucket and mop. He claimed that he would get off the bus whenever it stopped in order to accompany his clients inside the licensed premises. This is to ensure that they were not served with spirits, as he did not want them being sick on the bus.

[12] Mr Marshall’s evidence had its share of contradictions. His publicity under the heading “We know how to Party” indicated that non-alcoholic drinks as well as beer cans are available to be purchased as well as wines by the glass. On the other hand he indicated that there was no current intention to sell liquor during a tour. His initial plan said that each patron could bring six drinks on board the bus. In evidence he said that each individual patron could bring on board six cans of beer or four RTDs or small bottles of wine. On the other hand he said there would be no glass allowed on the bus. Alternatively, he accepted that a large group could bring chilly bins of any size onto the bus. It appears that members of the group could then help themselves under supervision from the group’s leadership. He accepted that the patrons would be encouraged to sing along as well as dance. Initially he had stated that he would drive the bus but that plan had since changed.

[13] Mr L O Tuffs appeared as Mr Marshall’s agent. He submitted that there were other similar business models operating in New Zealand. He produced a copy of an on-licence issued by the Auckland District Licensing Agency on 19 September 2008. The licensee is 42 Below Limited and the conveyance is known as the “Bacardi Bus”. The licence authorises the licensee to sell or supply liquor at any time on any day for a maximum period of five hours for any scheduled charter.

[14] Mr Tuffs understood that for the past four years, the Christchurch District Licensing Agency had been issuing special licences to enable party buses to operate pub tours by coach. A recent legal opinion obtained by the Council had confirmed that the special licences were not appropriate, as they did not cover BYO liquor. Apparently this manner of supply is the principal way in which liquor is consumed on the tours. The issue had yet to be resolved. One option was that party bus operators could apply for an on-licence but none had done so.

[15] Mr Tuffs argued that Mr Marshall was in a position to refuse to allow patrons to bring liquor on to the bus. He submitted that the back-up vehicle could be used as a ‘place of safety’ in accordance with s.168(2) of the Act. In addition he submitted that more substantial meals could be supplied on request. He confirmed that the bus driver would not be the duty manager. He contended that Mr Marshall had complied with all the criteria set out in s.13(1) of the Act and the on-licence should be granted.

The District Licensing Agency Inspector

[16] Mr A R Cox is an Environmental Health Officer with the Hutt City Council. He carries out environmental health and liquor licensing duties as part of a contract between the two councils. He said that he had checked with other agencies, but had yet to discover that a licence had been issued to enable passengers to be conveyed between licensed premises. He stated that he had opposed the application on the basis of the difficulty Mr Marshall would have in controlling and monitoring liquor consumption, particularly with events such as stag nights and hen parties. Mr Cox argued that although Mr Marshall had stated in his ‘vision’ that he did not want to be known as a ‘booze bus’, that was precisely the perception that had been generated by his business plan.

[17] Mr Cox argued that if a patron consumed six cans or drinks on the bus and had one drink at each of the five licensed premises that were to be visited, that would be a minimum of 11 drinks, with a high potential for intoxication. He submitted that more drinks would be purchased on a stag night. Mr Cox suggested that the music being played on the bus would add to the culture of excessive drinking. He contended that there was no way that Mr Marshall could control the patrons once they had entered a bar. He painted a scenario of 40 passengers with Mr Marshall attending to one intoxicated passenger. He questioned whether in those circumstances Mr Marshall could control the drinking behaviour of the remaining patrons.

[18] Mr Cox said he was unimpressed with the following comments from the host responsibility policy.

“After 20 minutes you will be reassessed, if you are still intoxicated you will be asked to stop drinking alcohol and only allowed non alcoholic drinks, refusal will result in you being put off the bus and will offer to arrange transport home for you.”

He argued that if an intoxicated person was to be removed from the bus, that person would be unlikely to be acceptable as a passenger in a taxi.

The Police

[19] Sergeant R B Hough spoke on behalf of the Police. He confirmed that the Police did not believe that Mr Marshall would be able to control the intoxication of his patrons, particularly when they visited licensed premises along the way. He argued that the mobile nature of the application set it apart from other licences. He submitted that the proposal also had a potential to create road safety problems. He argued that the range of food for sale was inadequate given the nature of the business.

[20] The Sergeant suggested that if special licences were issued for particular events, then the Police and District Licensing Agency Inspector would have a better opportunity to offer advice and guidance. Under the proposed licence neither the Police nor the Inspector would know where the bus was. This would prevent them from carrying out their monitoring role.

The Medical Officer of Health

[21] As stated above, Ms Jayne Parris represented the Medical Officer of Health, and made submissions. She has been the Liquor Licensing Officer with Regional Public Health for two years. She argued that events such as 21st birthdays, stag nights and hen parties were renowned as events in which heavy drinking took place. Accordingly, she did not believe that Mr Marshall could control and monitor liquor consumption. She suggested that an average person could only process one standard drink per hour. On the basis that each patron could bring on board six drinks, with the ability to purchase more at the five stops, she argued that there was a high chance of intoxication.

[22] Ms Parris was critical of some of the comments in the host responsibility policy, and suggested for example, that it would take more than 20 minutes for a passenger to sober up. She considered that as a responsible host, Mr Marshall should always have substantial food available when alcohol was being served. It was her view that Mr Marshall would find it very difficult to monitor alcohol consumption if passengers were allowed to bring their own supplies on to the bus.

The Authority’s Decision and Reasons

[23] In considering an application for an on-licence we are directed by s.13(1) of the Act to 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:

(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 33 of this Act.

[24] It will be noted that all these criteria relate directly or indirectly to achieving the Act’s objective. In this case, some of the criteria have been satisfied. Probably the most important issue is the steps proposed to be taken by Mr Marshall to ensure that the requirements of the Act in relation to the sale of liquor to prohibited persons are observed. Issues such as suitability and the proposed trading hours should also be examined. In addition we need to focus on Mr Marshall's proposals relating to the sale and supply of food. Finally, the case must be looked at in a different light because Mr Marshall intends to provide other services. He intends to stop up to five times during the charter of the bus in order for the passengers to be able to enter other licensed premises. This service is additional to a stated intention to allow passengers to bring their own liquor on board the bus.

[25] We deal with these criteria separately. It will be noted that the onus is on Mr Marshall to satisfy us as to these criteria. As was said by Wild J in Goldcoast Supermarket Limited and another [2001] 2 NZLR 769:

“In practical terms, I think that means granting applications only to responsible applicants who satisfy the Authority that they have suitable premises and will have proper controls over the sale of liquor from those premises during the hours of sale which they are seeking.”

The steps proposed to be taken to ensure that the requirements of the Act in relation to the sale of liquor to prohibited persons are observed

[26] Here we have to consider the likelihood of passengers becoming intoxicated. We agree that Mr Marshall has considered a number of initiatives. The addition of a back-up vehicle for large crowds will assist with taking an individual home or keeping that person safe. However, we are by no means satisfied that the licensee can control the consumption of liquor given the right to bring liquor on board the bus. There seemed to be no clear plan about this aspect of the business. We had the strong impression that Mr Marshall was reacting to the questions, rather than following a predetermined action plan.

[27] While we agree that other conveyance licences have been granted, they are generally not to allow the conveyance to stop at five licensed premises along the way. The type of business proposed has been likened to a BYO-style licence. But BYO licences only exist under s.28 of the Act for restaurants. In other words the Act envisages that the patron will be consuming a substantial meal while imbibing his or her BYO liquor.

[28] The difficulty about the control of liquor that is allowed to be taken in to premises/conveyances is illustrated in this quotation from the decision of David Robson v Spotless Services (NZ) Limited and anor LLA PH 1047-1048/2006:

“Following a negative incident in 2000, the Stadium reassessed its risks under its alcohol management plan. The conclusion was that smuggling alcohol into the Stadium was the greatest risk leading to potential liquor abuse. The evidence showed that if liquor was purchased from the controlled outlets, it was safer for everyone. In 2003, all beverages other than sealed bottled water were banned from being brought into the Stadium. At a one-day cricket international some 500-600 thermoses were confiscated and 60% of them were found to contain alcohol. The policy has received some negative publicity, but the results have been worth it as it is believed that, the Stadium has the best record of crowd behaviour in the country.”

[29] Given the type of operation proposed to allow six drinks per person on the bus, and five stops at licensed premises, we believe that it would be nearly impossible for Mr Marshall to have a reasonable system of control over his customers' ability to drink excessively. We were not satisfied that Mr Marshall could effectively ensure that his patrons did not consume spirits, or any other type of hard liquor, whilst visiting other licensed premises.

Suitability

[30] Mr Marshall has been around the sale of liquor for many years in his primary vocation as an entertainer. We recognise his dream to operate a party bus but he has little experience in controlling licensed premises. In our view the type of activity associated with a “pub crawl” would require exceptional ability and focus. We accept that Mr Marshall has the talent to entertain the passengers, but doubt that he can control their drinking at the same time. It seems to us that Mr Marshall has not fully thought through his intentions regarding the use of a back-up vehicle as both a monitoring station and a safety haven.

The days on which and the hours during which the applicant proposes to sell liquor

[31] Little thought has gone into the trading hours as they affect the operation. To sell liquor, or allow it to be consumed, between 7.00 am and 3.00 am the following day is clearly out of the question. To have passengers still consuming liquor on the bus after midnight will create more than enough problems. Were we to grant a licence then a maximum period of five hours between 7.00 pm and midnight would be appropriate for the new venture during its ‘probationary’ year.

The sale and supply of food

[32] We accept that the supply of food will present difficulties on the bus. However Mr Marshall is effectively seeking to operate a mobile bar. There is no expectation that each patron will have a substantial meal during the journey. We believe that it will be important to promote the supply of food, and would expect that the following condition would be imposed if a licence were to be granted:

"A range of food choices must be readily available at all times that the bus is under charter. Menus must be visible and food should be actively promoted. A minimum of three types of food should be available. The range or style of food will be as shown on any menu submitted. Alternatively the range of food should include such items as panini, pizza, lasagne, toasted or fresh sandwiches, wedges, pies, filled rolls, and/or salads".

The provision of any service other than those directly related to the sale and supply of liquor and food

[33] Under this criterion we again focus on the intention to provide entertainment on the bus in between the stops at five licensed premises. We also take into account the type of activity that the tours are aimed at. We agree with the monitoring agencies that stag nights and hen parties are the sort of activity where heavy drinking can be anticipated. The issue is whether we would grant an on-licence for the sale and supply of liquor for consumption on a bus, in the knowledge that (a) the passengers may have already been drinking; (b) they will be visiting licensed premises on the way, and (c) that they expected to bring liquor onto the bus for consumption.

[34] The difficulty about such a proposal is that there will be times when the bus tour will attract people who have already been drinking. Furthermore, the activity on the bus is designed to encourage patrons to drink more. After all the advertising on the bus includes the words "pub crawl". In addition the passengers will be given the opportunity to drink over a sustained period of time. The longer a person is able to drink the greater the likelihood of intoxication. Unless skilfully managed, an on-licence such as this is likely to act as a catalyst for misbehaviour. The concept has the potential to be a mobile nuisance.

[35] In summary we do not believe that the proposed business has been seriously evaluated. We were left with the impression that Mr Marshall was unaware of the potential pitfalls that could manifest themselves during a tour of licensed premises. We thought he was somewhat naive in his lack of understanding of people’s ability to access liquor. We would have to be seriously impressed with the business plan before we would licence a bus that takes people on a ‘pub crawl’.

[36] In summary, we are not satisfied as to the matters to which we must have regard as set out in s.13(1) of the Act. In particular Mr Marshall has failed to satisfy us that he is suitable to operate such a licence and control the supply of liquor to the patrons. He has been unable to show us that the proposed trading hours will contribute to the promotion of the Act’s object. His proposals for the promotion and supply of food are inadequate. There are serious problems concerning the ability of the agencies to monitor the business. Finally, the type of tours that are proposed will probably mean that the grant of a licence will produce a serious problem with intoxication and resultant harm.

[37] For the reasons stated, the application is refused.

DATED at WELLINGTON this 22nd day of December 2008

Judge E W Unwin
Chairman

Alan’s Party Bus.doc