Tui Point Pool & Darts Club Incorporated, re [2009] NZLLA 1366 (9 December 2009)

New Zealand Liquor Licensing Authority

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Tui Point Pool & Darts Club Incorporated, re [2009] NZLLA 1366 (9 December 2009)

Last Updated: 14 January 2010

` Decision No.PH 1366/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by TUI POINT POOL & DARTS CLUB INCORPORATED pursuant to s.55 of the Act for a club licence in respect of premises situated at 4 Edward Street, Pahiatua, known as “The Shed”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at PALMERSTON NORTH on 26 November 2009

APPEARANCES

Mr R A Clark – on behalf of applicant

Mr C Locke – Tararua District Licensing Agency Inspector – to assist

Mr C R Hince – on behalf of the Hospitality Association of New Zealand Incorporated – objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority is an application by Tui Point Pool & Darts Club Incorporated (hereafter called “the Club”) for a club licence in respect of premises situated in Edward Street in Pahiatua. The business is described in the application as a sports and recreational facility. Hours were sought to sell liquor between 1.00 pm and 1.00 am the following day, seven days a week. No designation was requested.
[2] The application is unusual as it relates to a building on private land. Mr Frank Brandon is a painting contractor. Prior to that, he operated a grocery business and a hotel. About three and a half years ago, with the consent of his family, and with the help of his close friends, he built a large shed on his property at 4 Edward Street in Pahiatua. This was no ordinary shed. It has toilet facilities and is generously furbished using a number of chattels from his previous licensed premises. There is an outside area that is landscaped and used for barbecues.
[3] The intention was to establish a private club for friends and family to socialise and play pool and darts. A constitution was agreed. The object of the Club was to provide a safe and comfortable environment for members (and their families) to enjoy games of pool and/or darts, and other recreational activities that the Club deemed suitable.
[4] It seems that the Club became quite successful, and it was not long before allegations emerged that the Club was selling liquor to its members. The precise nature of the way in which liquor was supplied was not established at the hearing. There may have been occasions where members brought their own requirements. There may well have been other occasions where liquor was supplied contrary to the provisions of the Act. It is clear that the premises were being used as a place of resort for the consumption of liquor.
[5] A courtesy visit was paid to the premises in February 2009 by the Tararua District Licensing Agency Inspector, as well as a member of the Police. Mr Brandon effectively acknowledged that “things had got a bit out of hand over the years”, although this had never been his intention. Mr Brandon was given three options. He could either cease what was happening, or apply for a special licence as and when required, or he could apply for a club licence.
[6] Accordingly the application for a club licence was filed with the Tararua District Licensing Agency on 2 July 2009. It was received by the Authority on 23 September 2009. The application was accompanied by a certificate from the Tararua District Council issued under s.55(1)(e) of the Act, confirming that the use of the premises for a private pool and darts club met the requirements of the Resource Management Act 1991, and that the building met the requirements of the New Zealand Building Code.
[7] There was no opposition from the Police or the Medical Officer of Health. In his report, the District Licensing Agency Inspector made no recommendation. He recognised that Mr Brandon should have known the requirements of the Act, and that the alleged operation of unlicensed premises brought the suitability of the Club into question.
[8] However, when he gave evidence at the hearing, the Inspector recommended that the application be granted. He said that he was impressed with the standard of the premises, which were better appointed than similar clubs. He confirmed that some special licences had been issued to the Club in the interim. By implication he accepted that this was a genuine club with an active membership worthy of holding a club licence.
[9] Public notification attracted two public objections. The first of these was from the proprietor of a hotel in Pahiatua located about 300 metres from the proposed premises. His objection was based on the Club’s suitability. He made certain allegations about Mr Brandon’s conduct and behaviour towards him. He also contended that intoxicated people had been consuming liquor on the Club’s premises. Finally he argued (contrary to the provisions of s.59(3) of the Act) that the grant of a club licence might impact on the viability of existing licensed premises in the area.
[10] This objector failed to appear at the hearing and no explanation was received as to why he was not present. Consequently his objection carried little weight, as there was no way of knowing whether he continued to be concerned about the proposed licence or whether he was unable to substantiate his complaints. Mr Brandon was very keen to establish his personal suitability but was unable to test the objector’s assertions.
[11] The second objection was from Mr C R Hince, the Central North Island Regional Manager of the Hospitality Association of New Zealand Incorporated (hereafter called HANZ). He contended that the premises had been operated as a place of resort in breach of the Act. Although he accepted that this allegation was unproven, he submitted that it raised serious issues about the Club’s suitability. Mr Hince was also rightly concerned that the Club was unincorporated.
[12] Questions were raised about whether HANZ had a greater interest in the application than the public generally. We note that HANZ is a statutory body created in 1969, and subsequently restructured. It has in excess of 2300 members who are engaged in all aspects of the hospitality industry. There is a perception that HANZ speaks for all involved in the industry on a continuing national basis. The Association has been previously granted appearance and speaking rights under s.108(f) of the Act, in cases of national significance.
[13] In an appeal by Invercargill Workingmen’s Club Incorporated LLA PH 50/2002, the status of HANZ as an objector was challenged. We ruled in that case that the association had a greater interest in the application than the public generally. In our view, national industry organisations such as HANZ and SCANZ have a wealth of knowledge that is often helpful and always pertinent to the decision making process. Quite often the decision to be made will have an impact on the members of the organisation. There may be occasions where HANZ should have speaking rights only. In this case we accept that it is a valid objector.

The Application

[14] Mr F G Brandon gave evidence primarily to contest allegations that had been made about his character and reputation. He stated that he did not currently have a position on the Club’s management committee. He contended that the Club would never have more than 30 members. He submitted that the Club was committed to providing a family-friendly atmosphere. He pointed out that as a result of the objection as well as a request from the Authority's secretariat, the Club was now incorporated.
[15] Mr Brandon confirmed that an agreement had been reached with the Club that either party could terminate the lease on giving three months notice. He was supported by the presence of the Club’s secretary and six of the Club’s members. He noted that three of the members were currently being trained to hold the appropriate managers’ certificates.
[16] The Club was represented and supported by Mr R A Clark who is the Chief Executive Officer of the Sporting Clubs Association of New Zealand (SCANZ). Mr Clark advised that he was assisting the Club because of what the members had managed to achieve. It was his opinion that for its size the Club was well able to cope with the responsibilities associated with the holding of a club licence.
[17] In response to a request from the Authority’s secretariat, the Club set out a schedule of proposed activities. These included the following:

• [a] An active pool and darts ladder competition in the afternoons and evenings.
• [b] It was hoped to have reciprocal games with five local clubs that were based in licensed premises in the area.
• [c] Occasionally there were two-day events with clubs from other parts of the North Island.
• [d] Local competitions usually run for up to 28 weeks each winter on Mondays, Tuesdays and Wednesdays. The evenings start at about 6.00 pm and finish at 11.30 pm allowing for supper and other social activities.
• [e] There will be club evenings and club competitions. These will include a meal and social evening.
• [f] It is hoped to allow the facilities to be used as a function venue for birthdays, weddings and funerals for members.

The Objection

[18] Mr C R Hince is the Central North Island Regional Manager of HANZ. He did not take an active part in the proceedings particularly as the Club had become incorporated since his objection had been filed. While he stressed that selling liquor without a licence, and allowing premises to be used as a place of resort for the consumption of liquor, were serious matters, he accepted that sometimes it is preferable to have businesses under the Act’s umbrella, so that their activities can be monitored. He made the point that the grant of a licence should not be an evolving process.

The Authority’s Decision and Reasons

[19] In considering an application for a club licence we are directed by s.59(1) of the Act to have regard to certain criteria. We do not propose to list all the criteria because in our view, the relevant issues are the suitability of the Club, the days on which and the hours during which the Club proposes to sell liquor, the days on which and the hours during which the premises are used for the club’s activities, and the reports received from the Inspector, the Police and the Medical Officer of Health.
[20] To a lesser extent we will also consider the steps proposed to be taken by the Club to ensure that the requirements of the Act in relation to the sale of liquor to prohibited persons are observed, and the Club’s proposals relating to the sale of food. Pursuant to s.59(2) of the Act we are required to be satisfied that the predominant purpose for which the premises will be used is other than the consumption of liquor.
[21] Page v Police (unreported HC V Christchurch AP 84/98 24 July 1998) Panckhurst J commented on the issue of suitability in this way:

“Section 13(1)(a) provides that the applicant for an on-licence must demonstrate his or her suitability. In other words what is required is a positive finding. That implies an onus upon the applicant to demonstrate suitability. Such suitability is not established in a vacuum but in the context of the particular case: for example, the place, the intended business (here in a difficult central city location), the nature of the business itself, the hours of operation and the intended activities, provide the basis for the assessment of the individual.”

[22] In this case the Club is limited in its activities by the size of its club rooms and the restriction on its membership. While there probably have been previous breaches of the Act, the Club has responded appropriately and it has been required to undergo considerable costs and compliance measures, as well as delay. These factors together with the delay to its plans and the need to comply with the law, should have ingrained on the membership the need to respect the law. The absence of adverse comment from the monitoring agencies shows an acceptance of the general policy to invite such organisations ‘into the tent’ where their activities can be the subject of regular compliance visits, renewal of licence, and the power of entry.
[23] As to the trading hours we note that the Club provided us with proposed activities rather than its actual programme. It seems to us that the Act expects there to be a link between such activities and the proposed trading hours. Our policy is to act conservatively when fixing the operating hours for any new licence particularly where there is no trading history. The Club assured us that there were no problems with neighbours. However, we believe that trading hours can have a significant impact on others. It seems to us that later trading hours should be earned, particularly on renewal when the neighbours and the reporting agencies have had a greater opportunity to assess the impact of the licensed venture.
[24] The issue of trading hours is revisable on renewal. Considerations will include such matters as the number of special licences applied for during the previous 12 months. The promotion of food is often a good indicator of good management. The advantage of the licence being issued for one ‘probationary’ year is that it is a sound way of finding out how the licence is being operated and whether it should be varied in any way.
[25] For the reasons we have attempted to articulate we have been satisfied as to the criteria in s.59(1) of the Act. We grant the Club a licence for the sale and supply of liquor for consumption on the premises, to:

• [a] Any member of the club; or
• [b] Any person who is a guest of, and is accompanied by, a member of the club; or
• [c] Any member of any other club with which the holder of the licence has an arrangement for reciprocal visiting rights for members of the clubs.

[26] A copy of the licence setting out the conditions to which the licence is subject is attached to this decision. The premises will be undesignated. The hours of operation will be Sunday to Thursday 1.00 pm to 11.00 pm and Friday and Saturday 1.00 pm to 12.00 midnight.
[27] The licence will not issue until:

• [a] The expiry of 20 working days from the date of this decision. That period is the time provided by s.140 of the Act for the lodging of a notice of appeal;
• [b] All outstanding clearances have been obtained.

[28] The company’s attention is drawn to s.70 of the Act obliging the holder of a club licence to display 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.

DATED at WELLINGTON this 9TH day of December 2009

Judge E W Unwin
Chairman

The Shed.doc