Bar Mojo Limited, re [2009] NZLLA 295 (27 May 2009)

New Zealand Liquor Licensing Authority

[Index] [Search] [Download] [Help]

---

Bar Mojo Limited, re [2009] NZLLA 295 (27 May 2009)

Last Updated: 14 March 2010

Decision No.

IN THE MATTER of the Sale of Liquor Act

AND

IN THE MATTER of an application by BAR MOJO LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 2 Crawford Place, Gisborne, known as “Soho Bar”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at GISBORNE on 27 February 2009

APPEARANCES

Mr R W Murphy – agent for applicant
Ms A S Joe – Gisborne District Licensing Agency Inspector – to assist
Mr P D Willock and Mrs O S Lewis – representing Senator Motor Inn – in opposition
Mr G M Brown – representing Pacific Harbour Motor Inn – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an opposed application by Bar Mojo Limited (hereafter called "the company") for the renewal of its on-licence. The premises are situated in the Port of Gisborne. The area is a mix of licensed premises, fishing industry enterprises, and typical port/marina activities. The building is a split-level brick and weatherboard structure with retailers located on the upper level. On the ground floor there are kitchen and bar areas as well as a permanently covered-in area at the front of the building. This covered-in area is primarily used as a dining area, although it seems that it may morph into a dance floor later in the evening.

[2] The business trades as a tavern under the name of “Soho Bar”. The on-licence was granted on 22 June 2007, and the present application represents the company’s first renewal following its ‘probationary’ year. The authorised trading hours are between 7.00 am and 3.00 am daily.

[3] When the company applied for renewal of the licence, it sought to vary the conditions of the licence by trading to 4.00 am on Saturday, and 6.00 am on New Year’s Eve. This aspect of the renewal attracted opposition from the Police, Medical Officer of Health, the District Licensing Agency Inspector and members of the public. As a result, that aspect of the application was abandoned. Consequently the monitoring agencies raised no further issues.

[4] In addition the company sought to redefine the premises by extending the licensed area in front and to the side of the building. A sketch plan was submitted but it was not drawn to scale. We understand that there is an area about two metres wide defined by wine barrels. The proposed area hugs the contour of the building. The reasons for the request were stated to be for a smoking and “cool down” space adjacent to the dance floor. The company advised that security fencing would be used on busy nights, and on quiet nights the proposed area would be supervised by security staff. The short to medium term plan called for permanent fencing as well as seating. It appears that the Agency did not deal with the application in anticipation that we would give a ruling following the public hearing.

[5] Public notification attracted two objections from two motel complexes across the river about 300 metres away. Both referred to concerns raised by motel guests when a band was playing at the “Soho Bar”. The primary cause of concern was the invasive noise caused by the thumping of the bass beat. There was also a complaint about intoxicated patrons walking across the railway line to the centre of town, and creating disorder and damage outside the motel.

[6] One objection enclosed a copy of a letter that had been received from a motel patron complaining about the noise from the night club across the river. In addition there was a cancellation of a booking because of the noise from across the river. Both objectors indicated that they would have no difficulty with the licence being renewed if the company could keep noise emissions below nuisance levels.

[7] The District Licensing Agency arranged for the parties to meet to see whether some resolution could be reached. The objectors were given the right to telephone management directly whenever noise became an issue. However, they were unable to make contact when they wanted to do so. In October 2008 noise measurement readings were undertaken by the Council and the company was found to be compliant. The Inspector reported that the Council had received seven noise complaints between 26 January 2008 and 14 December 2008. On one occasion a noise direction had been issued and that was in January 2008.

The Application

[8] The company was represented by Mr R W Murphy. He suggested that the application may not have reached a public hearing stage if there had been no request to extend the trading hours. He stressed that the noise levels and complaints had abated since the objections had been filed. He argued that the positive involvement of the Port Authority would go a long way to resolving any future issues.

[9] Mr Anthony MacGregor Trafford is one of the company’s directors and shareholders and gave evidence on the company’s behalf. He said that the company was trying to promote a sophisticated bar that provided a relaxed yet classy dining and drinking environment. In addition the company decided to provide entertainment and had arranged for national and international artists to play at the venue, He stated that over 100 "gigs" had taken place since the business was established.

[10] Mr Trafford confirmed that the bar was open from Wednesday to Sunday for the majority of the year and seven days a week for the four weeks over Christmas and New Year. He submitted that most nights of the week the bar was closed at midnight with the latest closing time being 1.00 am. On these occasions music was background only. On the other hand, he stressed that a major part of the company’s business was providing musical entertainment usually on a Saturday, and occasionally on a Friday.

[11] Mr Trafford produced the resource consent document showing that the average maximum noise level (L₁₀) as measured at the boundary of any site zoned residential was not to exceed 45 dBA and the maximum noise level (L_max) was not to exceed 70 dBA. These were the levels that the company was trying to keep to. Mr Trafford acknowledged that when the objectors had rung (after the meeting) the phones might not have been answered because they were so busy. He considered that most of the noise complaints were in the summer months when it is hot and when the company used to open doors and windows for ventilation.

[12] Mr Trafford produced a summary of the changes made by the company to reduce noise emissions. These initiatives included the following:

• Since February 2008, stopped all artists and acts playing in the front of the bar. Undertaking given never to allow this to happen again.
  
• Since August 2008, outdoor speakers at front of bar turned off at midnight. No longer using second sub-woofer (bass) at front of bar.
  
• Ensure fire doors at rear are closed after 1.00 am whenever possible.
  
• From 15 November 2008 turned bass setting down. In addition the sound equipment has been changed to ensure that the speakers are pointing to the back of the building.
  
• Used sound surveillance and monitoring to gauge actual sound levels.
  
• Since 22 February 2009 installed air conditioning.
  
• Provided signage to say that doors must remain closed from 11.00 pm.
  

[13] In addition Mr Trafford said that the company intended to plant a live hedge along two edges of the car park to try to absorb noise. Furthermore when there is music entertainment the intention is to make the rear doors the main entry and exit for the building. This will prevent the front doors from being opened when people come and go. It was noted that the company had joined the voluntary one-way door accord.

[14] Ms A Hughes is the contracts manager for the Eastland Group. The Group is owned by the Community Trust and the Gisborne District Council. Eastland Group manages a number of the Council’s strategic facilities including the Port. She confirmed that as with other centres the Group has recognised the value that the inner harbour can bring to the city as the focus shifts away from an industry centred area to a hub for tourists and locals to enjoy. Consequently the Group was very interested in developing the area in which “Soho Bar” is based. The Group is also the company’s landlord.

[15] Ms Hughes confirmed that the company had sought the Eastland Group’s support for its renewal application. She was aware that the issue was the reverberation of the bass noise. She had been advised of the steps that had been taken to lessen the impact of the noise on the neighbours. Ms Hughes gave a commitment that Eastland Group intended to work with the company to achieve better noise control. In other words the Group wished to be an active part of the solution to the noise issues and their impact on the environment.

The District Licensing Agency Inspector

[16] Ms A S Joe has been a Licensing Inspector with the Gisborne District Council for six years. She produced a very full report on the application. She confirmed that the last noise complaint had been on 14 December 2008. On that occasion the concern was in relation to the noise being made from people in bars generally. No action had been taken. She accepted that there were no concerns about the company’s suitability. She noted that the company sent six members of staff to a course for professional door persons. Ms Joe pointed out that the premises are designated as supervised to 9.00 pm, and designated as restricted after that time.

[17] Ms Joe referred to the seven noise complaints. A noise direction notice had been issued on 26 January 2008. Ms Joe noted that on three occasions the noise had been deemed not to be excessive. On two other occasions the noise related to patron noise and was also deemed not to be excessive. The seventh complaint was made some days after the noise had been considered to be a problem. Accordingly no action could be taken.

The Objectors

[18] Unfortunately Mr G M Brown had to leave before the hearing had been completed. He represented the "Pacific Harbour Motel" complex. The objection had been filed by a firm of chartered accountants on his behalf. The objection had been to the extension of trading hours as well as the renewal of the licence. No details of noise nuisance were given in the original objection. We note that when he spoke with the Inspector, Mr Brown indicated that he had not experienced any further noise issues since the letter of objection had been written. He told her that he had discovered that customers had checked out early, because of the bass beat the previous night. No other details were forthcoming and it was not clear whether Mr Brown wished to maintain his objection.

[19] Mr P D Willock is a part owner of the "Senator Motor Inn". He had written the original letter of objection because he had been made aware that guests had complained bitterly about being kept awake by the thumping of the bass beat. He was also notified that there had been cancellations of bookings, and his manager was concerned enough to appear at the hearing. It is clear that the manager, Mrs O S Lewis (who gave evidence at a previous hearing), had a more detailed knowledge of the issues faced by the business.

[20] However, after hearing the company’s evidence Mr Willock took a much more conciliatory view. He welcomed the suggestion of a noise management plan and believed that it was important for the two businesses to work together. He was looking for some formality and structure so that the company knew where it stood. He believed that it was important for the motel to know the correct avenues to lodge complaints if and when necessary.

The Authority’s Decision and Reasons

[21] 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.

[22] The company carries the onus of showing that the conditions should not be altered. If a licensee cannot control the impact of its operation on its neighbours, then one of the ways of ensuring that this happens is by reducing the trading hours.

[23] In the decision of N.B.T. Limited LLA PH 584-585/2005 we dealt with another opposed application for renewal. We made these comments:

"Limiting the hours of operation has become established as an important tool in addressing the growing social and economic cost of alcohol-related crime, disorder, and anti-social behaviour. Although it has been said that the issue is not so much about the hours of trading, as the way the premises are managed, it is our experience, that the longer the hours, the greater the potential exists for liquor abuse, or breaches of the Act. In our view, the liberal hours that have been granted in the past have not been universally respected."

[24] On a renewal application, it is also up to an applicant to establish its suitability to continue to hold the licence in its present form. In 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."

[25] This is a new business where music features in the weekend. The bass noise appears to be the primary cause of many of the problems. The immediate answer is to delete the bass but in our dealings with licensees nationwide this solution is seen as too simplistic. The inability to control the escape of noise can reflect on the suitability of a licensee to continue to hold an on-licence. It can also result in the trading hours being reduced to alleviate the nuisance and distress. In this case however, the evidence from the objectors was short on specifics. It is fair to say that the evidence from the objectors did not reach the threshold where we considered it necessary to take action.

[26] The evidence adduced by the company was reasonably impressive. There were two reasons for this. First, the pro active measures taken by the company once it appreciated that its activities were having an adverse effect on the environment on the other side of the river. This document would form an excellent basis for a noise management plan. Secondly, the company seems to have the full support of the Eastland Group in trying to resolve the issues.

[27] We have decided to adjourn the application to enable the company (assisted by Eastland Group) to produce a noise management plan. This plan will address the issue of noise and will show how the company intends to manage the noise it creates to ensure that no nuisance is caused to others. This will include how the company intends to manage and control the behaviour of patrons when they leave the premises.

[28] The document will contain the steps that have been taken by the company as well as the steps that the company intends to take, to attenuate the noise levels. It will detail the anticipated number of music events that are expected to take place, and the ways in which the residential objectors can raise issues with management if motel customers are disturbed. It will be clearly understood that the ways in which noise is to be managed will have a similar status to undertakings given by a licensee. Any breach will be seen as an example of unsuitability and could lead to an application being filed by the Inspector or a member of Police for the suspension or cancellation of the licence.

[29] The objectors should have the opportunity to comment on the plan. After the expiration of six months from the date of this decision, we will call for comment from the objectors and the three agencies. If they (or any one of them) wish to give further evidence on the plan or the proposals in the plan, or if they would like the opportunity to comment on any incidents that have occurred since the hearing, then we will arrange a further fixture accordingly. On the other hand if they have no wish to be heard, and are reasonably satisfied with the steps taken by the company, then the on-licence will be renewed for three years on present conditions.

[30] As for the application for redefinition of the premises, that will be refused. We are unable to accept an application for redefinition without a scale plan and permanent boundaries. At any event given the current hearing, we would not have confidence in the company’s ability to supervise an outside area. Given the current concerns about the escape of noise the prospect of patrons consuming liquor outside the building is quite daunting. In our view such activity would increase the likelihood of further noise. The company would have to show exemplary management and produce much more probative evidence to obtain such a concession. Even if it did, our reaction is that we would be unlikely to licence the area past 5.00 pm initially and that any future increases in such hours would have to be earned.

[31] For the reasons given the application for renewal is adjourned for six months.

DATED at WELLINGTON this 27th day of March 2009

Judge E W Unwin
Chairman

Soho Bar.doc