The Landing Bar Limited, re [2009] NZLLA 349 (7 April 2009)

New Zealand Liquor Licensing Authority

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The Landing Bar Limited, re [2009] NZLLA 349 (7 April 2009)

Last Updated: 27 March 2010

Decision No. PH 349/2009

IN THE MATTER of the Sale of Liquor Act

AND

IN THE MATTER of an application by THE LANDING BAR LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 30-32 State Highway 6, Franz Josef, known as “The Landing Bar”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Dr J Horn

HEARING at HOKITIKA on 19 March 2009

APPEARANCES

Mr P J Egden – for applicant
Mr W Godfrey – Westland District Licensing Agency Inspector – to assist
Mr R A de Graaf – on behalf of Scenic Circle Hotels Limited – objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] The Landing Bar Limited (hereafter called "the company") has applied for the renewal of its on-licence in respect of premises situated in Franz Josef, known as “The Landing Bar”. The company holds a tavern style licence with an additional focus on the supply of food. The business operates as a tavern, with hours authorised to sell liquor between 6.00 am and 3.00 am daily. No changes were sought to the conditions of the licence.

[2] This application is the first renewal following the company’s ‘probationary’ year, the initial licence having been granted on 12 September 2007. It is of interest that when the company originally applied for a licence, a late objection was received from Scenic Circle Hotels Limited on behalf of "Scenic Circle Franz Josef Glacier Hotel" located across the road from “The Landing Bar”. At that time, the objector referred to such issues as unacceptable noise, and inappropriate patron behaviour leading to litter and human detritus. Although the objection was out of time, the claims were duly investigated by the District Licensing Agency Inspector. He believed that the premises were being managed in accordance with the conditions of the base licence, and issued a new licence accordingly.

[3] There was no opposition to the renewal of the licence from the Police or the Medical Officer of Health. In his report, the District Licensing Agency Inspector confirmed that since the licence had been issued, no complaints had been received from the objector or any other member of the public. He said that he was surprised to receive the objection. He stated that he had received reports of intoxication and misconduct by a number of sub-contractors who were living in the town as part of their employment in constructing a new “Scenic Circle” complex. He accepted that some noise might be generated by the tavern as a result of the use of an outside deck. However, the Inspector had no concerns about the licence being renewed.

[4] The application attracted an objection from a solicitor acting for Scenic Circle Hotels Limited, on behalf of the “Scenic Circle Franz Josef Glacier Hotel” located opposite “The Landing Bar”. The objection was based on the company’s suitability in that it was alleged that liquor was being sold in an irresponsible manner, resulting in guest disruption to the enjoyment of their stay in Franz Josef. The objection also expressed concern about the trading hours. It was claimed that the guests of the hotel were being disturbed by excessive noise levels. Finally there were complaints about raucous and intoxicated behaviour by patrons of “The Landing Bar” as well as consequential litter in the area.

[5] On 17 March 2009 the solicitor for Scenic Circle Hotels Limited advised that his client no longer opposed renewal of the licence. However, the objector asked that consideration be given to a renewal of the licence with reduced trading hours. It was suggested that the tavern close at 1.00 am. The company was represented by Mr P J Egden. He stressed the lack of opposition from the monitoring agencies, and contended that the objector was unable to establish that its complaints could be traced to the activities of “The Landing Bar”.

The Application

[6] Mr Jamie Francis Caldwell is the company’s sole director and shareholder. He has been in the hospitality industry for the past 20 years. He is actively involved in the management of the business. He accepted that from time to time noise emanating from “The Landing Bar” might have caused disturbance to guests of the “Scenic Circle Franz Josef Glacier Hotel”. However, he was adamant that the majority of the complaints could not be linked to his premises.

[7] Mr Caldwell argued that the hotel was surrounded by three bars and restaurants. Furthermore, the hotel is on the route taken by tourists on foot moving to and from their accommodation. He submitted that these tourists may have consumed liquor at any number of licensed premises or privately. He denied any suggestion that the business was a night club, and suggested that he was trying to create a relaxed environment to enjoy food and liquor, and watch televised sport.

[8] Mr Caldwell argued that the premises catered for an older age group, and were regarded as more subdued than other licensed premises in the area. It was his view that over the last two years, the company had received no more than six phone calls from the hotel complaining about noise. He contended that on each occasion the company had dealt with the complaint promptly and appropriately.

[9] Mr Caldwell was equally adamant that the company did not serve intoxicated persons, and that it had a strict rule that no glassware or bottles could be removed from the premises. Accordingly he denied any responsibility for the alleged raucous behaviour or litter referred to in the objection. On a positive note Mr Caldwell took pride in the company’s involvement in the community. He fully supported the regular meetings that are now held with other establishments to resolve any issues. This attitude was confirmed by the production of five supportive letters as well as comments made by Mr J C C Dean who was called as a witness.

[10] Mr Dean was an impressive witness in that he appeared to be objective. He has lived in the area for 18 months and is a Rural Nurse Specialist contracted by the West Coast District Health Board to provide on call healthcare services. Consequently he and his partner have been called out at all times of the night to casualties of liquor consumption. He stated that “The Landing Bar” was the only place in the town that he had not been called to. He said that he always checked with the patient to establish the last place where that person was served liquor. He then visited those premises to discuss the consequences. He stated that he has yet to visit “The Landing Bar” in this capacity.

[11] Mr Dean confirmed that while socialising at the company’s premises he had been impressed with the supervised guidance and support given to the staff by the managers, as well as the high profile that the management team maintains in the bar. He stated that he often drives around the town and can hear loud noise. It was his opinion that such noise does not come from “The Landing Bar”.

The District Licensing Agency Inspector

[12] Mr Warren Godfrey is an Inspector with the Westland District Licensing Agency. He supplied a further report at the hearing. He reiterated that the Agency had not received any complaints about the operation of the “The Landing Bar” other than the two objections from Scenic Circle Hotels Limited. He repeated his earlier contention that the recent noise and behavioural issues had been caused by construction workers who were working on a new “Scenic Circle” hotel to be named “Te Waonui Forest Retreat”. He noted that these premises had recently been granted a licence with 3.00 am closing. Mr Godfrey stated that in his view, many of the construction workers drank at the premises where they were staying, before heading into town. Consequently there had been a number of car crashes, fights and unruly behaviour.

The Objector

[13] Mr Richard Anton de Graaf is the West Coast Area General Manager for Scenic Circle Hotels Limited and was appointed to this position in October 2008. Consequently he was unaware of what had been happening prior to that time. He accepted that having met with Mr Caldwell, the claim about unsuitability could not be sustained. However, Mr de Graaf stated that the noise from “The Landing Bar” continued to be a cause for concern because of disruption to the hotel’s guests.

[14] Mr de Graaf advised that in May 2008 a major tour operator had given notice of its intention to cancel future reservations with effect from November. Part of the reason for the change was said to be that the recent re-opening of “The Landing Bar” across the street had made the lodging experience in the 500 and 600 blocks of rooms noisy and that the company had received numerous complaints from its guests.

[15] Mr de Graaf produced three extracts from guest survey forms. Each one of the comments referred to excessive noise, although one of the complaints was in relation to rowdy drunken shouting. However, it was revealed that two of the hotel rooms were situated on the other side of the building away from the tavern. Mr de Graaf accepted that those particular hotel guests could not have been referring to “The Landing Bar”.

[16] Mr de Graaf was of the opinion that all licensed premises in Franz Josef, including the two “Scenic Circle” hotels, should close at 1.00 am. He made the comment that 90% of the hotel guests are in bed before 10.00 pm. However, any such blanket proposal would have to be promoted by the local authority, after consultation with the community, and in conjunction with a liquor policy. The evidence we heard suggested that such a proposal would face a number of difficulties. We note that after several years, another tourist town (Paihia), has finally achieved a standard closing time of 1.00 am.

The Authority’s Decision and Reasons

[17] Pursuant to s.22 of the Act we are required to have regard to the following matters when considering an application for the renewal of an on-licence:

(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.

[18] The onus is on the company not only to establish its suitability to continue to hold the licence in its present form, but also to persuade us not to change the trading hours to mitigate any proven adverse impact on the community. In considering an application of this nature, we are required to review the operations of the tavern after its first probationary year.

[19] It has always been our view that allowing excess noise to escape to the detriment of the neighbouring community is an example of unsuitability. However, the evidence in this case lacked detail. What we received was largely second-hand or hearsay. The evidence has to be measured against the evidence given by Mr Dean, and the fact that none of the reporting agencies had raised any issue about the company’s suitability to continue to hold the licence in its present form. The lack of any formal complaint to the Agency or the Council is a relevant factor.

[20] In the decision of The Narrows Landing Limited LLA PH 479/2003 it was stated:

“Nevertheless unless neighbours are prepared to provide details of when the breaches of the Act or the Resource Management Act occur and what action was taken, it would be difficult for them to overcome the threshold of factual information required to put the Applicants to proof.”

[21] That is what has happened on this occasion. The evidence has failed to persuade us that it is appropriate or reasonable to alter the trading hours. In cross-examination, Mr de Graaf was forced to acknowledge that he had no evidence that any litter had come from the company’s premises, or that any disturbance from pedestrians was linked to “The Landing Bar”.

[22] In summary there was some anecdotal evidence of noise issues but clear evidence that any concerns had been promptly dealt with. To have an objector prepared to give evidence on a first renewal does not normally happen without good cause. On the other hand the lack of proof of specific incidents makes it very difficult for an applicant to respond. We believe it would be unreasonable to make any changes to the licence in such circumstances.

[23] In summary the company has satisfied us that it is suitable to continue to hold the on-licence in its present form. We do not see a need to alter the conditions of the licence. There have been no proven breaches of the Act. The company is well aware that the licence is a privilege and not a right, and that it carries certain responsibilities. We are satisfied that the criteria set out in s.22 of the Act have been met and confirm that the licence will be renewed for three years to 12 September 2011.

DATED at WELLINGTON this 7th day of April 2009

Judge E W Unwin
Chairman

TheLandingBar.doc