Texas Rose Limited, re [2009] NZLLA 152 (20 February 2009)

Last Updated: 27 January 2010

Decision No. PH 152/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by TEXAS ROSE LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 12 Durham Street East, Auckland, known as "The Elbow Room"

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 9 February 2009

APPEARANCES

Miss E L M Wright – on behalf of applicant
Mrs S L Noble – Auckland District Licensing Agency Inspector – to assist
Mr G S Whittle – NZ Police – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Texas Rose Limited (here after called "the company") for the renewal of its on-licence in respect of premises situated in Durham East, Auckland. The business is known as "The Elbow Room".

[2] The business was acquired in December 2006, and the on-licence was issued on 7 March 2007. The on-licence allows the sale of liquor at any time on any day in the interior of the premises, and between 9.00 am and 11.00 pm in the outdoor dining area. This is effectively a smoking area. This is the first application for renewal following the first ‘probationary’ year.

[3] The application attracted no opposition from the Police, the District Licensing Agency Inspector or from the Auckland Regional Public Health Service. On the other hand a public objection was received, which addressed the criteria.

[4] The objector is a resident in an apartment block close by the existing business. The objection was on the basis of excess noise from the premises. The objector requested that the hours of operation be reduced to 9.00 pm, or the sale and supply of liquor be restricted to the interior of the premises, and/or that a restriction be imposed to ensure that all windows and doors were closed to reduce the escape of noise.

[5] It so happens that the objector did not appear. It is nearly 12 months of course since the objection was first filed. The difficulty we face when an objector does not appear is that we have no way of knowing whether the objector still wishes to maintain his objection. Furthermore if an objector does not appear, he or she cannot be questioned as to any allegations that have been made in the objection.

[6] On the other hand it is clear that there have been incidents of excessive noise. The evidence indicates that over the past 12 months there have been no less than five excess noise directions served on the company. The last two directions were served on the company on 24 and 28 October 2008.

[7] The criteria which must be taken into account on any renewal are set out in s.22 of the Act. They relate to the suitability of the licensee, the conditions attaching to the licence, the manner in which the licensee has conducted the sale and supply of liquor pursuant to the licence, and any matters dealt with in any report made under s.20 of this Act.

[8] It is up to the company to establish its suitability. The established jurisprudence on renewals shows that the escape of noise causing nuisance to residents can be regarded as showing the unsuitability of a licensee. Other cases indicate that if necessary, the hours of operation may be altered from time to time by the Authority in response to proved allegations.

[9] The representative from the Police has pointed out that the company does not feature in any Alco-link data. The indications are that apart from potential escape of noise, the business is otherwise well managed.

[10] Miss Emma Wright is one of the directors of the company. She has appeared before us to explain that the company has recently decided not to host any more live music. This decision has been taken to ensure that if the licence is renewed, there will be no possibility of escape of noise causing nuisance. On behalf of the company she has given an undertaking that while the company is under present ownership, there will be no live music.

[11] There was another issue relating to food hygiene which has been satisfactorily explained. Miss Wright has pointed out that since the decision has been made not to allow live music, there have been no further noise complaints.

[12] Most licensees are able to renew their licence after their ‘probationary’ year without public objection. In this case there was an objection but the contents of the objection have not been sustained.

[13] In all the circumstances we have accepted the undertaking, and we propose to grant the renewal of the on-licence for the requisite three years without alteration to the conditions.

[14] The application is granted accordingly.

DATED at WELLINGTON this 20th day of February 2009

B M Holmes
Deputy Secretary

The Elbow Room.doc(aw)