Nikora, re [2008] NZLLA 1805 (23 December 2008)

Last Updated: 13 February 2010

Decision No. 1805/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an appeal by MARLENE NIKORA pursuant to s.137 of the Act against a decision of the Gisborne District Licensing Agency granting applications for special licences in respect of premises situated at 2 Crawford Road, Gisborne, known as “Soho Bar”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr P M McHaffie

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an appeal brought by Sergeant Marlene Nikora of the Police, against a decision of the Gisborne District Licensing Agency. On 3 December last, the Agency granted special licences to Bar Mojo Limited (hereafter called ‘the company’) pursuant to s.73 of the Act, for an occasion or event described as the “Rhythm and Vines Music Festival” (hereafter called ‘the Festival’). The event or occasion is to occur over the three days of 28-30 December 2008.

[2] The hours that the company is currently entitled to sell and supply liquor pursuant to its on-licence are Monday to Sunday 7.00 am to 3.00 am the following day. The special licence applications sought to extend the closing time to 5.00 am the following day, for each of the three days of next week being the Sunday, Monday and Tuesday. These days coincide with the Festival, which is held annually in Gisborne. The Festival started in 2003 as a 24-hour event catering for about 2,000 patrons. This year it will be held over three days and 25,000 patrons are expected.

[3] The Festival is an R18 event. The majority of festival goers are aged between 20 and 30. The Festival features a large number of national and international acts. The event is held on the “Waiohika Estate Vineyard” some six kilometres north of the city. The “BW Camping” grounds have been established in conjunction with the festival on three different sites. It seems that the “BW Camping” sites also provide entertainment. The “Soho Bar” was said to be the only 'Partner' bar for the two events. The applications were brought to provide an environment for artists, media officials, VIPs and attendees of the events, to “wind down, time out, relax and debrief”.

[4] The applications were opposed by the Police and the District Licensing Agency Inspector. The main grounds for opposition were that the proposed hours were outside the hours recommended by the Gisborne District Licensing Agency. In addition it was contended that the special licences would attract patrons who were already intoxicated. It was submitted that the applications were another way of extended the normal drinking hours. The applications were therefore considered by the Gisborne District Licensing Agency on 3 December 2008. At the hearing, all parties were able to make submissions. The applications were granted by the Agency.

[5] The appellant exercised her right to appeal against the decision. Because of the time constraints the appeal was conducted on the papers, and the parties were given the opportunity to make submissions. We are grateful to the parties for agreeing to expedite the appeal process. Considering the constraints of time the submissions were welcomed for their research and quality. An appeal of this nature must be conducted by way of a rehearing based on the evidence and the submissions.

The Rehearing

[6] The Police submitted that the event in the bar would be no more than to enable those present to enjoy the bar facilities and consume liquor. They referred to a 1977 decision involving the Fitzroy Tavern in which the learned Magistrate had pointed out that there had to be a purpose for the function other than the mere enjoyment of bar facilities. Sergeant M Nikora suggested that the majority of the guests would be members of the public who had attended a concert at the Festival rather than artists and VIPs and representatives of the media.

[7] The Police submitted that the applications were simply a method to obtain the right to be open when the premises would normally be closed. It was argued that granting the applications would encourage other premises to make similar applications the following year. In addition the Police were concerned about the extra demand that would be placed on their limited resources. It was contended that in the past there had been no special licences granted, and therefore there had been no reason for the patrons to come into the city centre.

[8] The District Licensing Agency Inspector supported the Police position. She stated that the company had already had problems with the escape of noise. She advised that the company’s application for renewal of its licence had been opposed by public objectors because of noise issues. The Inspector was sceptical that the “debrief” needed the attendance of persons who had simply attended the Festival.

[9] The company repeated the submissions that had persuaded the Agency to grant the applications. It confirmed that it was the only ‘Partner' bar for the two events to “provide entertainment after they close”. The ability to provide entertainment after the bar had closed at 3.00 am was a major concern for us. The submission confirmed that the entertainment would primarily be for “wind down, time out relaxation and debrief”. On the other hand the submission indicated that the company would provide national and international musical entertainment. We were advised that attendees and others would be identified by legitimate ID tags and wristbands.

[10] The company argued that the DJs would not be playing in the outside area or in the front bar of the premises. The inference is that they would be playing elsewhere in the building. The company claimed that the noise levels would be no different from a normal Saturday night. We were advised that the number of security people would be doubled for the occasion.

The Authority’s Decision and Reasons

[11] Under s.74 of the Act, a special licence for a social gathering authorises the holder of the licence to sell and supply liquor for consumption on the premises, at any time when the premises are required to be closed for the sale of liquor, to any person attending social gatherings of any kind or kinds specified in the licence.

[12] Pursuant to s.79(1) of the Act, the District Licensing Agency shall have regard to a number of matters when considering an application for a special licence. We propose to consider these criteria in the context of this appeal.

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

[13] Clearly the Festival is a significant traditional event for Gisborne. It is understandable that the company as the single partner might want to have the opportunity to provide hospitality to those associated with the Festival. On the other hand it is clear that the availability of liquor will be extensive for the duration of the Festival at different sites.

[14] The issue is whether there is a purpose for the proposed gatherings at the bar, other than to continuing to enjoy the facilities and the entertainment provided by the bar. If the purpose was to allow the artists, other VIPs, and those associated with the management of the Festival to wind down, then there might have been a good reason to grant the applications. But the company’s submission clearly indicates an intention to continue to party.

(b) The suitability of the applicant

[15] Suitability is an issue on this occasion, given the allegations about the company’s ability to control the escape of noise. The company claimed that these occasions would be like a normal Saturday night, but this cannot be the case given the apparent intention to continue with musical entertainment for a further two hours. If the company is currently facing noise complaints, it is most unlikely to receive the benefit of further trading hours, during which entertainment will continue to be provided to the same level and degree.

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

[16] It seems to us that an extra two hours' trading on the three consecutive mornings are excessive, given that the Festival concerts finish at 12.00 midnight on 29 December, and 1.00 am on 30 December. "BW Camping” is providing its own series of concerts, but special licences have already been granted to 3.00 am for these. The potential for liquor abuse is normally in direct proportion to the hours of trading. In other words, the longer the hours of trading, the greater the potential for liquor abuse. Given the object of the Act we are unable to see how the ability to trade to 5.00 am would help to promote the reduction of liquor abuse in these circumstances.

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

[17] Not applicable. We can assume that such designations are already in place.

(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

[18] The issue is whether the premises will only admit patrons who are 18 years of age or older, and who are sober. This was an issue raised by the Police. Their concerns were that if special licences were granted, patrons who had been drinking might be encouraged to come to town in anticipation that they might be able to continue drinking. Whether or not they were refused entry to the bar, the presence of such patrons in the city centre would create a problem from the Police perspective.

(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.

[19] It is accepted 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. It is noted that nothing out of the ordinary was offered.

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

[20] These reports were submitted by the Police and the Inspector, and have been amplified in their submissions. We think that the concerns expressed by the agencies were well founded. With DJs playing music, and the majority of the patrons being persons who have already attended a concert and enjoyed drinking to 3.00 am, it will be business as usual at the “Soho Bar”. Not only that, but it will be the Police who will be responsible for attending any incidents that result from over consumption.

[21] In summary we do not believe that the applications were realistic attempts to provide a quiet environment to enable those associated with the promotion and management of the Festival to wind down. In its submission the company made these comments:

“If a decision on our current submission can not be agreed in our favour we would propose a second option as an alternative. The Police have expressed concern in their appeal about allowing persons with a General Admission ticket on the premises after 3am. Bar Mojo Ltd could accept making a concession and only allowing Artists, Media and VIP persons to attend this event. It is not or favoured option but one we would consider.”

[22] While we accept that the concession goes some way towards alleviating the concerns of the monitoring agencies, we are unable to say with certainty that the type of function is going to change. For our part if there were to be a genuine wind down option with no music, and just the opportunity for artists and promoters and VIPs to chat and have a quiet drink for an hour, then we would have had no difficulty in granting an application in this form. However, with the shortage of time, and the uncertainty of the type of function that is being proposed, it is not possible to amend the applications along the lines suggested by the company.

[23] In the light of the above comments, and taking account the criteria in s.79(1)(a) of the Act (in particular the nature of the occasion, the company’s suitability, the hours that were sought to trade, and the reports from the monitoring agencies), we believe that the appeal should be upheld. For the reasons set out above, the applications for special licences for 28-30 December 2008, are refused.

DATED at WELLINGTON this 23rd day of December 2008

Judge E W Unwin
Chairman

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