T & G Trading Company Limited [2008] NZLLA 988 (23 July 2008)

Last Updated: 27 January 2012

Decision No. PH 988/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by T & G
TRADING COMPANY LIMITED

pursuant to s.18 of the Act for renewal of an on-licence in respect of premises
situated at 22-24 Kitchener Street, Auckland, known as “Café Favourite”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 10 July 2008

APPEARANCES

Mr R H Bryant – agent for applicant
Ms M J McLeod – Auckland District Licensing Agency Inspector – to assist
Mr G S Whittle – NZ Police – to assist

Objectors

Mr R Duncan
Mr P N McMillan

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application by T & G Trading Company Limited (hereafter called the company), for the renewal of its on-licence. The on-licence was first granted on 24 June 2005. The application represents the second renewal following a truncated renewal granted by the Authority after a public hearing on 1 November 2006. The business trades as a Korean café under the name of “Café Favourite”. The on-licence currently permits trading hours from 7.00 am to 12.00 midnight the following day, Monday to Sunday. Trading is permitted only when the premises are being operated as a restaurant.

[2] The café/restaurant is situated in a building known as the "Kitchener Street Studio Apartments". This is an old structure used primarily for residential apartments. There used to be two shops on the lower floors. One was a hairdresser. The other was an unlicensed restaurant. The evidence at the previous hearing was that both businesses closed early, and caused no problems to the occupiers of the building.

[3] This is the company’s second appearance before us in 18 months. On the last occasion we heard evidence about unacceptable noise levels and inappropriate patron behaviour. It was also alleged that the business was trading as a nightclub sometimes to 6.30 in the morning. In the event we reduced the period of renewal to allow for the premises to be further monitored, and we reduced the closing hour from 3.00 am to 12.00 midnight.

[4] In the decision T & G Trading Company Limited LLA PH 1098/2006 we made the following comments:

“It may be that not all the evidence linked the noisy patron to “Café Favourite” but the overwhelming impression from the evidence was that there is a serious lack of management skills in the operation of these premises. In addition there was in our view a failure to appreciate the difference between running a café and running a bar. In summary, the manner in which the applicant has conducted the sale and supply of liquor pursuant to the licence has been less than exemplary. In our experience there have been only a few first time renewals which have given cause for this level of concern.

We are concerned with the way the premises are managed. To refuse to renew the licence would in our view be an unreasonable licensing reaction to the way the premises have been operated. On the other hand we need to make it perfectly clear that the premises will be closely monitored over the next twelve months. If the complaints persist then the existence of the licence will be considered as well as a further reduction in the trading hours.

We believe it will be important to review the position again in the near future to give all parties the opportunity to consider the implications of this decision and take what action they may consider necessary. It may be that if the company can satisfy us that the operation is purely a well-run café, the trading hours could be extended. It may be that enquiries should be made to see whether a tavern licence can be granted for this site. It may be that the company should look at its plan to see whether there is somewhere else for the patrons to smoke”.

[5] The company sought no changes to the conditions of the licence. The Medical Officer of Health and the District Licensing Agency Inspector did not oppose the application, although the Inspector had some concerns about the lack of the required public notice of the renewal application. This document must be attached in a conspicuous place on the site within 10 working days after the renewal application has been filed. The Inspector visited the site twice and there was no signage.

[6] The Police report indicated that the company might be removed from the Companies Register due to the late filing of the annual report. In the event the document was duly filed, and no opposition was recorded. Public notification attracted objections from the same two residents who had opposed the first renewal of the licence. Mr R Duncan resides in the apartment above the premises. He chronicled close to 7,500 incidents over a period of 186 days and nights since the previous public hearing. Mr P N McMillan resides above Mr Duncan. He cited lack of public notification, lack of consideration to the neighbours, and lack of signage about the trading hours. Accordingly, the application was set down for a further public hearing.

The Application

[7] Mr R H Bryant appeared as agent for the company. He stated that he had checked with his client that the public notice had been displayed on the front door. It had been taken down on 6 January 2008 when the interior of the premises was repainted. He pointed out that s.22(4) of the Act did not specify how long the notice must be displayed.

[8] Mr Bryant made it clear that although the company was required to stop selling and supplying liquor by midnight, there was nothing to stop it continuing to trade as an unlicensed café. He submitted that because the café’s floor was wooden there was bound to be noise when the furniture was moved. He confirmed that the sub woofers had been disconnected. However we note that at the previous hearing we were advised that the sub woofers were turned off at all times. He suggested that some of the reported incidents could have been caused by patrons of other licensed premises in the area.

[9] Mr Bryant noted that there had been no reported noise complaints, and no suggestion that the company was a regular contributor to the Alco-Link data. He submitted that because of the ethnic nature of the business as well as its customer base, there was bound to be more smoking and people noise, than other cafes of the same size.

[10] Mr Gun Yung Ou is one of the company’s directors and shareholders. He gave evidence on the company’s behalf. He admitted that the company’s operation caused some discomfort to the neighbours and said he was very sorry. He said he tried very hard to find solutions to keep the neighbours happy, but that this was not an easy task as the company’s wants and needs were different. He stressed that the café was located in Auckland’s central business district and therefore there was always a considerable amount of noise.

[11] Mr Ou stated that he tried to keep noise to a minimum by cutting out the bass speakers and asking the customers to be quiet after dark. He said that he had put up warning posters but these had been removed. Mr Ou advised that most of the customers were students from the University and AUT, as the business was on the main thoroughfare for the students to get into the city. He accepted that they could be a noisy crowd in that they talked and laughed a lot. He estimated that 80% of his customer base was of Asian extraction. He denied that the company played loud music.

[12] Mr Ou contended that he wished to resolve the outstanding issues, and was looking at either getting a rug or soft footing for the furniture, and was thinking about ways to put notices up that would be safe, as well as providing an outside ashtray for cigarette butts. He promised to do his best to rectify and reduce the noise issues. He acknowledged that the company was two months behind with the rental but said that he had come to an accommodation with the landlord.

The District Licensing Agency Inspector

[13] Marieta Jane McLeod is a Licensing Inspector with the Auckland District Licensing Agency. She firmly recommended that if the Council was to take the objectors’ concerns seriously, then it was important that a complaint was made if there was excessive noise. She stated that the Council could only react if there was a data base of evidence. She confirmed that since the last pubic hearing there had only been one noise complaint logged with the City Council. This was on 19 January 2007 and the noise was deemed to be not excessive.

[14] She produced further evidence from the Council’s database showing all types of complaints about all the premises in Kitchener Street between 2003 and 2008. Once again this showed that there were no recent complaints involving excessive noise from the subject premises.

[15] Gary Selwyn Whittle was an Inspector with the Auckland District Licensing Agency. He is currently a Licensing Administrator with the Police. He confirmed that when he visited the premises on two occasions in January 2008, he found that the appropriate signage was not displayed. These omissions had been rectified when he later visited the premises in June 2008.

The Objectors

[16] Mr Ross Duncan suggested that the Authority’s previous decision was intended as a guide to the company’s future behaviour, and it had been largely ignored. He contended that the company was abusive towards its neighbours. As stated earlier he had compiled a list of incidents between December 2006 and January 2008. He summarised these incidents under the following headings:

Voices outside
Voices inside
Hoicking and spitting
Cigarette smoke
Litter
Furniture scraping
Music
Footsteps inside
Painting and doing work in the café

[17] Mr Duncan was prepared to concede that some of the items might not be liquor related. However the impact of his evidence was that the company had virtually ignored the warning contained in the last decision and therefore the application to renew the licence should be refused. He concluded:

“The terms of my life are being dictated by the nature of this business and the way it is run. Sleep, creativity, study, simple relaxation, professional obligation, recreation, peace, mental and physical health, ability to earn an income, general energy, the ability to plan, and happiness are all in the sway of these disturbances. Some of these episodes last from 9.30 am until well after midnight. A minimum of fifteen hours a day, six days a week and including public holidays.

Sometimes the disturbances don’t last as long as that and sometimes longer. Sometimes the disturbances are intermittent and sometime non-stop. When the Log shows an evening with lots of disturbances then that evening is largely lost to me. If the entries continue into the early hours of the morning then that evening is lost to me and the following day seriously compromised or completely lost. “Will I sleep tonight?” “How can I plan for tomorrow?” “I think I’ll finish my book and have an early night.” On three or four occasions I have been too exhausted and upset to go to work.”

[18] Mr Peter McMillan lives two floors above the business. He accepted that his life was not as affected by noise as Mr Duncan. He stated that at least twice a week (and sometimes more), his sleep was disturbed by customers of “Café Favourite”. He stated that these occurrences were well after the time when members of the public might be expected to be dining. He said that the noise of patrons spilling out of the premises when they closed was a regular and constant state of affairs.

[19] Mr McMillan referred to an incident at about 2.00 am on 28 April 2008, when he had observed Mr Kim (the company’s other director and shareholder) acting in a disorderly manner along with other patrons. Both Mr McMillan and Mr Duncan made the point that the absence of noise complaints should not be seen as any indication that the operation of the café had improved. They argued that ringing noise control was often a pointless exercise. This was partly because of the delay between the incident that disturbed the sleep and the arrival of a noise control officer.

The Authority’s Decision and Reasons

[20] Pursuant to s.22 of the Act we are required to have regard to the following matters when considering the application:

(a) The suitability of the licensee;
(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; and

(d) Any matters dealt with in any report made under s.20 of this Act.

[21] As stated in the earlier decision it is up to the company to establish its suitability to continue to hold the licence. If the company reaches that threshold, then it must satisfy us that the licence should remain in its present form or whether the trading hours should be further reduced. In this case the existence of the licence is now at issue. We agree with the objectors. The company has shown no consideration of the neighbours. It has not heeded the warnings.

[22] It is all very well for Mr Ou to apologise, but an apology (however sincere) is no compensation for lack of sleep. It is all very well to think about resolving the problems but in this case the objectors are entitled to expect some action. The fact is that the company has not done anything since the last decision. The company was portrayed in the last decision as having an indifferent attitude. Nothing has changed.

[23] Potentially, we could renew the licence for another truncated period and further reduce the trading hours. However, we believe that the time has come to consider whether the company has shown itself suitable to continue to hold the privilege of a licence. Accordingly we have decided that the application will be adjourned for a period of eight months from the date of this decision. We are not unaware that a substantial part of the adjourned period will include the time that students will not be attending the University or AUT.

[24] The application will be set down for a further public hearing after that time has expired. We will hear fresh evidence from the parties and make our decision based on that evidence. We anticipate that such evidence will include a record of noise complaints logged with the Auckland City Council.

[25] When he gave evidence, Mr Duncan made a number of suggestions as follows:

Adjustments to achieve at least a measure of harmony with residents are hardly difficult.

• Rubber stoppers or felt on the chairs or instructions to staff to list or place them.

• Receptacles outside for cigarette butts and packets.
• Asking patrons, staff and proprietors to smoke across the road.
• To have someone outside controlling noise and litter and smoke.
• To ask the staff to wear soft soled shoes.
• Soften the banging of doors.
• To not party on until 6.30am eating, drinking, playing loud music, talking in loud voices, playing cards, leaving with raised voices.

[26] It is accepted that very few of these items are connected with liquor abuse but we are now concerned with suitability. What steps the company takes in response to the above issues, and what undertakings the company gives, and what sort of business plan is produced will eventually determine the application. For our part we would expect to receive undertakings about what music will be played and when. In addition we would need to hear when the unlicensed activity is to cease. Based on the evidence we will consider (a) whether the company is suitable to retain the licence: and (b) whether the conditions of the licence should be further amended. In the company does not appreciate such close attention, it could consider surrendering its licence, and trading as an unlicensed café/restaurant.

[27] For the reasons given the application is adjourned for a period of eight months from the date of this decision.

DATED at WELLINGTON this 23rd day of July 2008

Judge E W Unwin
Chairman

Café Favourite.doc