Newell [2009] NZLLA 1062 (21 September 2006)

Last Updated: 28 January 2012

Decision No. PH 1062/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an appeal by KEITH PHILIP NEWELL pursuant to s.137 of the Act against a decision of the Queenstown-Lakes District Licensing Agency granting an application for a special licence in respect of premises situated at 54 Shotover Street, Queenstown, known as “Revolver”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Members: Ms J D Moorhead
Dr J Horn

HEARING at QUEENSTOWN on 1 September 2009

APPEARANCES

Sergeant K P Newell – NZ Police – appellant
Mr J D G Stapleton – on behalf of respondent
Mr L Webster – Queenstown-Lakes District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an appeal brought by Sergeant Keith Philip Newell of the Police, against a decision of the Queenstown-Lakes District Licensing Agency. The Agency granted a special licence to Independent Holdings (2006) Limited (hereafter called “the company”), pursuant to s.74 of the Act, for an event described as the “Easter Music Festival” (hereafter called “the festival”). The event or series of events were to occur over the three nights of 10 to 12 April 2009.

[2] The hours that the company is currently entitled to sell and supply liquor pursuant to its licence are Monday to Sunday, 7.00 am to 2.30 am the following day. The business operates under a tavern style on-licence and trades as “Revolver”. Because of the style of its licence, the company is prevented from selling liquor on Good Friday, Easter Sunday, Christmas Day and before 1.00 pm on Anzac Day.

[3] The proposed festival was scheduled to run on three consecutive nights. The first night’s entertainment was due to commence at 9.00 pm on Good Friday (10 April) and end at 2.00 am the following day. The second night was due to commence at 9.00 pm on Easter Saturday (11 April) and end at 2.00 am on the Easter Sunday. The third night was due to commence at 9.00 pm on Easter Sunday (12 April) and end at 2.00 am on the Easter Monday. Each night of the festival was scheduled to last for five hours, meaning a total of 15 hours. The proposal was that eight of these hours would take place during what are known as the three and a half sacrosanct days. The price of a ticket was fixed at $10. This allowed entry to all three performances.

[4] The application for a special licence was considered by the Agency at a public meeting on 3 April 2009. The company confirmed that it had assembled six live acts involving over 20 artists and that it had taken many months to plan such an event. It was contended that many of the performers were tertiary students who were only available over the Easter break. The application was opposed by the Police and the District Licensing Agency Inspector. The main ground for the opposition was that the festival appeared to be contrived to enable the company to trade at times when the premises would otherwise be required to be closed. In addition it was contended that the festival was ‘business as usual’.

[5] The District Licensing Agency took the view that the musical festival was special in relation to the company’s usual entertainment. The Agency decided to grant the application on the grounds of consistency with other licensed premises being permitted to operate over Easter. However, the Agency imposed a number of conditions. These included a requirement that the company provide free food in at least two areas of the premises, and that tickets be purchased prior to 6.00 pm on the day the first event was due to take place. Furthermore the company was prevented from admitting new patrons after 10.00 pm. Effectively the Agency imposed an early one-way door policy to prevent any possibility of patron migration during the festival.

[6] Sergeant K P Newell exercised his right to appeal against the decision. He was good enough to lodge his appeal after the event had taken place. Effectively he was seeking guidance on how the Agency might view future applications of a like nature. The Queenstown-Lakes District Licensing Agency agreed to abide our decision. The appeal was conducted by way of a rehearing based on the evidence and the submissions.

The Rehearing

[7] The Police submitted that the only issue was what constitutes a “special event”. Sergeant Newell confirmed that there had been no incidents of concern during the festival. He submitted that “Revolver” was one of Queenstown’s leading venues for live acts and bands. He argued that on any given night, particularly Thursdays, Fridays and Saturdays, the company hosted a variety of local, national and international acts and performances. He stated that live acts were what “Revolver” was about. It was what they did. He therefore contended that the festival was simply “business as usual”. He accepted that the Easter Festival had slightly different aspects to its normal fare. However, he suggested that the company had contrived to host a festival of performances that would enable it to continue normal trading over the Easter weekend.

[8] Mr John Stapleton is a director of the company. He explained that the company has held the licence for about three years. He described the business as a live entertainment venue that constantly hosts live entertainment in all genres of original music. In addition there are stand up comedy acts, film premieres, theatre nights and guest speakers. He thought that the business was unique in Queenstown, and that every event the company hosted was special. He produced posters to show the variety of Acts that had been attracted to Queenstown. He accepted that the business could qualify for an entertainment style licence but wanted to wait for the renewal process before requesting a variation to the licence.

[9] Mr Stapleton made these comments:

“Our Easter Special licence application for a Live Music Festival was no different or out of keeping with any event we have had the opportunity to be involved in. We did not change our spots to suit or evade the rules. We stayed true to the passion we have for talent in the community.”

[10] Mr Stapleton contended that the long weekend offered a run of days that suited the music acts and the customers. He advised that most national acts have booking agents working for them and most dates are booked three months in advance, particularly when the acts are popular. He said that he had not before arranged to have six bands playing over a weekend or over three consecutive nights. He thought that the target audience was locally based. He advised that door charges were common and may range from a gold coin and upwards.

The Authority’s Decision and Reasons

[11] Although the application was described as a social gathering under s.74 of the Act, it seems clear that the intention of all parties was to deal with the application as an event or an occasion. Section 73 of the Act states:

A special licence authorises the holder of the licence to sell and supply liquor, on the premises or conveyance described in the licence, to any person attending any occasion or event or series of occasions or events described in the licence.

[12] It will be noted that the event or occasion does not have to be “special”. It is the licence that is special because it is authorising a licensee to sell and supply liquor at times when the premises should by law be closed. In fact the 1999 amendment to the Act removed the word “particular” from “particular occasion or event”. Although the word “particular” remained in s.79 of the Act, it appears that this was in error and that Parliament intended that the event or occasion was not required to be unique or significant.

[13] Thus the circumstances that have triggered the request for the licence must provide its legitimacy. The Authority has made it clear in previous decisions than an application for a special licence should be refused, if contrived solely for the purpose of enabling trade when the legislation otherwise required premises to be closed (see Coyote Holdings Limited LLA PH 689/2002 and Universal Liquor Limited LLA PH 806-807/2003). In most cases it is not difficult to recognise an application that has been contrived to enable the licensee sell liquor during the sacrosanct days or after hours. We accept that this case is finely balanced.

[14] In considering the application there are three background matters that in our view have some relevance. The first factor is that in the last two years the Queenstown-Lakes District Licensing Agency has granted special licences to three other licensees for music festivals over Easter. The times of the respective musical festivals over Good Friday, Easter Saturday and Easter Sunday nights were more liberal than the present application.

[15] The only difference between this application and the previous applications appears to be that the previous grants were to businesses that did not normally host such events. On the other hand, we could find nothing in the Act that effectively disqualifies an entertainment venue from obtaining a special licence to host the same types of promotions that are normally found in its venue. It seems to us that by its nature an entertainment venue is not the type of business that attracts drinkers on a regular basis.

[16] The real issue when considering such an application is to question whether the effect of the special licence is to enable the drinkers to continue to socialise in the same way that they normally do when the premises are legitimately open for business. In this case the inability to allow patrons to enter the premises after 10.00 pm is a very effective way of ensuring that only music fans will be present and that there will be no migration of drinkers.

[17] The second background consideration is that this company should not really be trading under a tavern style licence. It does not portray itself as a tavern and has no intention of encouraging people to attend the premises purely to socialise and consume liquor. Had it applied for a different style of licence then it is probable that it would not have had to apply for a special licence to host the festival.

[18] The third consideration is that the law currently provides that premises will be closed at certain times. There is a difference between an application to trade after or before “the normal closing time”, and an application to trade at a time that Parliament has nominated as having special social, religious or historical significance.

[19] We find it helpful in considering this appeal to refer to s.79(1) of the Act. This section contains matters to which the District Licensing Agency shall have regard when considering an application for a special licence. In view of the fact that the event has been held without incident then many of the questions raised by the criteria have already been answered. Nevertheless we propose to consider each of the matters 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.

[20] Mr Stapleton suggested that the majority of patrons attended only one session. However, the fact that a patron was able to be present throughout the weekend for an entry fee of $10 does not make the event seem much different from the norm. Mr Stapleton argued that the period of Easter was convenient for many artists in terms of arranging time away from work, family and travel. We accept that having the event on three consecutive days makes it more like a festival. We did not think that the application was grounded on a desire to enable people to party. In fact the company referred to pre-selling tickets and supplying food when it filed the application. On balance we considered that the application was a genuine attempt to provide a festival of local entertainment over a long weekend.

(b) The suitability of the applicant.

[21] The Police made it clear that suitability is not an issue.

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

[22] The request is to allow the company to host a music festival that will last for a total of 15 hours. Over half of the hours (eight) will be taken up with trading during the sacrosanct days. That imbalance is a matter of concern. In granting the application we would have been inclined to disallow the company from selling liquor on Good Friday. It seems apparent that the premises are not used principally or exclusively for the sale and consumption of liquor, despite the style of licence that is in force. Accordingly, there would be nothing to prevent the company starting its festival at 9.00 pm on Good Friday but not selling liquor until midnight (see s.170(1) of the Act). This would have had the effect of allowing the festival to proceed, but giving some recognition to the significance of Easter.

[23] We accept that this slight amendment to the overall decision is effectively tinkering with a matter that has been determined by the Agency after hearing all the arguments for and against. For that reason the comments have been included as a possible guide to the future, but will have no bearing on the final outcome.

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

[24] The whole of the premises is designated as a supervised area.

(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.

[25] Given the company’s suitability, and the conditions imposed by the Agency (particularly about security and the one way door policy), we believe that there should be no issue with the sale of liquor to prohibited persons.

(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.

[26] The issue of providing complimentary food as well as a range of non-alcoholic drinks has been addressed by the Agency in the conditions of the special licence. It seems to us that given the numbers that attended the festival, and the lack of concerns raised by the Police, the company has established that it has the management systems in place to control the sale and supply of liquor pursuant to a special licence.

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

[27] These reports were submitted by the Police and the Inspector. The Police have had the opportunity to amplify their submissions.

[28] As will be apparent, we had some concerns about the company’s ability to sell liquor for such a long period during Good Friday and Easter Sunday. However, with the conditions imposed by the Agency we believe that the decision is unimpeachable. For the reasons that we have attempted to articulate, the appeal is declined.

DATED at WELLINGTON this 21st day of September 2009

Judge E W Unwin
Chairman

Revolver.doc