Charlies Entertainment Limited [2009] NZLLA 1304 (1 December 2009)

Last Updated: 29 January 2012

Decision No.PH 1304/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by CHARLIES ENTERTAINMENT LIMITED pursuant to s.9 of the Act for an on-licence in respect of premises situated at 366-368 Karangahape Road, Newton, Auckland known as “Charlies Bar”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms J D Moorhead

HEARING at AUCKLAND on 23 October 2009

APPEARANCES

Ms J E Dahlin – agent for applicant
Miss A L Marsh – Auckland District Licensing Agency Inspector – in opposition
Mr G S Whittle – NZ Police – to assist
Mr T Zuniga – objector

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application brought by Charlies Entertainment Limited (hereafter called the company) for an on-licence in respect of premises situated in Karangahape Road, Auckland, known as “Charlies Bar”.
[2] Mr Okusitino Siale Hola is the sole director of the company. He and his wife are shareholders but his wife does not take an active part in the management of the premises.
[3] The application arises from the take over of an existing business which was known as the “Owl Bar”. The company took over the business on 27 February 2009, and has been operating on temporary authority ever since. The base licence has hours authorised for the sale of liquor from 8.00 am to 3.00 am daily.
[4] When the application was filed the company sought to sell liquor at any time on any day. In other words it requested a 24-hour licence. This request drew opposition from the Police and the District Licensing Agency Inspector as well as the owner of the premises. In addition letters of opposition were received from the next door business as well as two other people who had businesses in the area.
[5] The basis of the public objections was disquiet about the proposed hours, as well as significant difficulties with patron behaviour under the existing conditions of the licence. Because this was not an auspicious debut by a new licensee the application was set down for a public hearing.
[6] The nature of the hearing changed when it was revealed that the company had decided no longer to pursue a 24-hour licence. The hours to be sought are exactly the same as the current base licence, that is from 8.00 am to 3.00 am the following day daily.
[7] Accordingly and pursuant to s.10(4) of the Act, where there is a licence currently in force, and an applicant seeks the same conditions that presently apply to that licence, an objection may only be made in relation to the suitability of the applicant.
[8] In this case the application was accompanied by the appropriate certificate that the proposed use of the premises meets the requirements of the Resource Management Act and the New Zealand Building Code.
[9] At the hearing we heard from Mr Hola. He had worked as a manager of premises across the road for some time and has held a General Manager's Certificate for approximately eight years. It was earlier in the year that he decided to purchase his own business.
[10] He had not realised that running a business is so different from managing one. It is clear that the exercise has been something of a learning curve for him. Not unnaturally he has tried to increase the size of the business but in so doing has created some problems for the neighbourhood.
[11] Prior to his taking over the business there was little activity in the bar. Many patrons used the gaming machines but there was not a great deal of drinking. Mr Hola targeted shift workers, construction workers and other people in the area. He acknowledged that the people he targeted are more or less the same clientele that had frequented the previous business. “Charlies Bar” is a small bar catering for a maximum of 98 persons. Forty percent of the income is from the site rentals of the 18 gaming machines.
[12] Mr Hola discovered a difficulty with the operation of the premises concerning the front window. Often people would leave their drinks at the window and go outside to have a cigarette, then attempt to access their drinks through the open window. In addition there has been an amount of interaction with people who are legitimately using the footpath. Mr Hola decided to close the window until a security screen can be fitted to prevent that from happening.
[13] He found that there was an existing liquor ban but this did not extend into the area immediately adjacent to the bar. There was a difficulty caused by people purchasing cheap liquor from off-licences and drinking it not far from the premises. He thought that some of the problems may be related to such people rather than his own patrons.
[14] He has a strict policy not to allow liquor to be removed from the premises. He is hopeful that in time he can have the smokers transferred from the footpath at the front of the premises, to an area at the back. He indicated that if that were to happen there would be no way that the patrons would have access to the carpark at the back of the premises.
[15] He said that there were three employees who held General Managers’ Certificates. In addition there are security people at the door. He discourages anybody who may have been smoking cannabis or anyone who wears gang patches from entering the premises.
[16] Mr Hola apologised to the objectors for some of the incidents which he accepted were entirely due to poor supervision by duty managers and/or doormen. He said that he would like to work closely with his neighbours in order to try to help make Karangahape Road a safe place to visit.
[17] In view of the change of hours, the District Licensing Agency Inspector withdrew her opposition. Further, the Police were sufficiently impressed with the evidence not to pursue the matter. An undertaking was given by the Police that if the licence were to be granted, then during the probationary year there would be regular monitoring of the premises. The Police advised that they would not hesitate to bring actions under the enforcement provisions of the Act if breaches of the Act were found to exist.
[18] Mr Thomas Zuniga was the only objector to appear at the hearing. He and his wife own the adjacent business, which is called “Peachy Keen Vintage Department Store” and which is a vintage clothing store. Mr Zuniga had respect for Mr Hola in his efforts to try to make the business profitable. But he did have concerns about the patrons.
[19] He said for the most part they are reasonable, but when they are inebriated they can be alarming. He referred to incidents that had occurred during the day. His trading hours are from 10.30 am to 6.00 pm. He accepted that the change to the trading hours had made a significant difference to his apprehension about the type of activity that goes on outside the bar.
[20] Although Mr Zuniga’s concerns are real they could not be sufficient to prevent the issue of a licence given the lack of opposition from the reporting agencies.
[21] In those circumstances we have come to the view that since the company has resource consent to operate the licensed premises from the site, and since the company is in our view suitable to hold a licence, then there is no impediment to the grant of an on-licence. We note that any new licence is granted for one year. This gives the neighbours and reporting agencies the opportunity to comment after the first ‘probationary’ year. This in turn encourages the licensee to ensure that the concerns expressed at the hearing do not become reality.
[22] Accordingly we are satisfied as to the criteria set out in s.13(1) of the Act and we grant the company a licence to sell and supply liquor on the premises situated in Karangahape Road and known as “Charlies Bar”, to any person present on the premises.
[23] The hours of operation will be from 8.00 am to 3.00 am the following day on a daily basis. The premises will be designated as restricted as per the base licence. The licence will issue after the expiry of 20 working days, which is the time allowed for any appeal in respect of this decision.
[24] The company’s attention is drawn to ss.25 and 115(3) of the Act obliging the holder of an on-licence to display:

• [a] A sign attached to the exterior of the premises so as to be easily read by persons outside each principal entrance, stating the ordinary hours of business during which the premises will be open for the sale of liquor; and

[b] A copy of the licence, and the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through the principal entrance; and
[c] The name of the duty manager placed inside the premises so as to be easily read by persons using the premises.

DATED at WELLINGTON this 1ST day of December 2009

B M Holmes
Deputy Secretary

Charlies Bar.doc(aw)