The Grove, re [2009] NZLLA 506 (17 April 2009)

Last Updated: 23 November 2010

Decision No. PH 506/2009

IN THE MATTER of the Sale of Liquor Act

AND

IN THE MATTER of an application by SECOND IMPULSE LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated on the First Floor, 11 Tuwharetoa Street, Taupo, known as “The Groove”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TAUPO on 17 April 2009

APPEARANCES

Mr R W Murphy – agent for applicant
Mr G A Singer – Taupo District Licensing Agency Inspector – in opposition
Sergeant J McGrogan – NZ Police – in opposition
Mr E J Foley – Taupo District Council – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] On 1 April 2008 we heard an opposed application for the renewal of an on-licence issued to Second Impulse Limited, (hereafter called "the company"), trading under the name of “The Groove”. This was the first renewal since the licence had been granted on 6 July 2006. The main reason for the hearing was because objections had been filed by the Taupo District Fire Safety Officer and the Taupo District Council.

[2] The fire safety concerns were about public safety arising from overcrowding. The maximum occupancy for the premises had been fixed at 100 persons. This was because the bar is upstairs and the main access is one set of stairs. There were allegations that many more than that number had been present. The District Council’s opposition was based on ongoing noise issues. A schedule of 16 noise complaints between June 2007 and March 2008 was produced at the hearing. Concerns were also expressed at the hearing about the DJ doubling as the duty manager.

[3] In our decision Second Impulse Limited LLA PH 599/2008 we renewed the licence for a reduced period of 18 months. Some of the relevant comments are repeated below. We have added the emphasis.

[32] “We note that the agencies initially requested to speak to the duty manager, but were advised that he was playing music. This effectively answers any suggestion that at these premises a duty manager can also double as the DJ. We were pleased to hear from Mr Condon that he accepted the need to have someone else in charge other than the DJ. In our view, even the suggestion that a manager can undertake both roles, in a night-club that caters for up to 100 patrons, shows a lack of understanding of s.115 of the Act.

[33] The evidence we heard from the Fire Service about the occupancy capacity of the building suggests that the company was made aware of the limit of 100, but failed to re-act for some time. The evidence of the escape of noise was among the worst we have encountered from a licensee in its first year of operation. There were no less than 12 occasions over a period of nine months where there had been justified call-outs. That represents 33% of the times that the premises were open. Given the way the premises have been managed, it is no wonder the Alco-Link statistics were so bad. All in all, we were not impressed with the company’s first application for renewal of its licence. The issue for us is what the response should be.

[38] We believe it will be important to review the position again in the near

future. This will enable the parties to consider the implications of this decision, and take what action they may consider necessary. We expect that the premises will be closely monitored over the next eight months. If the complaints persist then the existence of the licence will be considered, as well as a reduction in the trading hours. Alternatively the Police and District Licensing Agency have the right to bring enforcement proceedings.

[39] A reduced renewal period will give the company a further ‘probationary’ period to show that it has learned from the mistakes of the past. For the reasons given, the on-licence issued to Second Impulse Limited will be renewed for a reduced period of eighteen months. This means that the licence will fall due again on 6 January 2009, in approximately eight months time”.

[4] The business trades as a night-club with hours authorised for the sale of liquor between 7.00 am and 3.00 am the following day. The premises are designated as supervised. Mr Thomas Earl Condon is the company’s sole director and Mr Michael Joseph Robert Adamson is the general manager of the business.

[5] The company duly applied for its second renewal of the licence. No changes were sought to the licence conditions. The application attracted opposition from the District Council. The basis for its objection related to further noise complaints since the last hearing. The Police also opposed the application. They produced a spreadsheet of incidents that had occurred since the last hearing. The spreadsheet demonstrated a chronicle of incidents including intoxication, disorderly behaviour, fighting, obstruction, lack of duty managers and frequent appearances in the Alco-Link data.

[6] The District Licensing Agency Inspector argued that the anecdotal evidence showed that the premises had been conducted in an improper manner. The Taupo Fire District advised that it had no objections, although it had received information from the Police of instances of overcrowding. The Medical Officer of Health advised that there was no opposition although the Police opposition was supported. Accordingly the application was set down for a public hearing.

[7] Mr R W Murphy appeared as agent for the company on very short notice. He initially applied for an adjournment because Mr Condon had a hearing in the High Court. However, it transpired that Mr Condon was able to be present and the application proceeded as scheduled. We are very grateful to Mr Murphy for the work he carried out to have the evidence prepared in time for the hearing. He requested that we hear the evidence in opposition first.

The Police

[8] Sergeant James McGrogan has held the Liquor Licensing portfolio for the past five years. In his opening submissions he produced a spreadsheet showing all visits to the premises where no problems had been detected, all visits or contact where enforcement issues were detected, intoxicated patron assessment forms, and Alco-Link data where offenders had listed “The Groove” as the place where they had consumed their last drink. He confirmed that the business generally opened on a Friday and Saturday night and was fairly quiet until about 11.00 pm onwards.

[9] The Sergeant noted that since our decision there had been four head counts and that the company had exceeded the occupancy limits on two occasions. He therefore submitted that the company had not learned from its previous mistakes. In addition he contended that there had been a number of occasions where no certificated manager was on duty. Instead there had been a series of temporary managers. He argued that this lack of responsible management had resulted in a high number of intoxicated patrons being located, as well as the company’s poor showing in the Alco-Link statistics. Given that the business only opened on two nights a week he argued that the data showed that the company was hardly contributing to the reduction of liquor abuse.

[10] Constable Tasha Marie Carley gave evidence that she visited the premises on 29 November 2008 at 12.45 am. She noticed a female patron, who was highly intoxicated, trying to climb the stairs on her hands and knees. Her friends were trying to convince her to come down and were asking the security people to stop her because of her intoxication. The Constable moved the patron from the doorway and told her she was too intoxicated to be in the bar. Her friends stated that they would try and take her home. The Constable returned at 2.00 am and went upstairs. She was standing by the door to the deck when two women started fighting. They were holding each other in headlocks, and trying to punch each other. One of them was the intoxicated patron who had been seen earlier. She was arrested for disorderly behaviour.

[11] Constable Natasha Thelma Marinkovich visited the premises on 19 April 2009. She recognised a male patron who she had dealt with before and who she believed was under age. He appeared to notice the Police and walked into the toilets with another person. Because of the level of noise from the music the Constable was unable to check on the person’s age using her radio. She then located the person on the deck area. He was not accompanied by a parent or guardian. The person admitted he was 17 years of age. He stated that he did not have identification and had not been challenged when he walked into the bar. He had been accompanied by a girl when he gained entry. The anecdotal evidence indicates that he had told a doorman that he was 18 and that this information had been accepted at face value.

[12] Constable Marinkovich spoke with Kylie Hodges who was the duty manager. Although she stated that she held a General Manager’s Certificate, she seemed very young and unaware of her role. She did not appear to understand the importance of keeping minors out of the premises, and was unable to give an estimate of how many patrons were present.

[13] Constable Kellie Parker is currently overseas. Her brief of evidence was accepted by consent. On 2 January 2009 at 12.47 am she located an intoxicated patron inside the bar. He was swaying, had bloodshot eyes and a strong smell of liquor. He regularly and repetitively slurred his words. He said he had been present for about three hours and had consumed 12 bottles of beer and six glasses of spirits. She advised the duty manager who was named as Kylie Hooker, and who was not the holder of a General Manager’s Certificate. Ms Hooker signed the Licensed Premises Patron Report.

[14] On 17 January 2009 at about 2.00 am the Constable located another intoxicated patron inside the premises. He was described as having slurred speech and talking nonsense both loudly and repetitively. He had impaired walking, glassy eyes and an inability to focus. He was behaving inappropriately. He said he had been present for two hours and had consumed seven bottles of beer and two glasses of spirits. Once again the duty manager was Kylie Hooker who signed the Licensed Premises Patron Report.

[15] At 2.17 am the Constable located another intoxicated patron. The patron had slurred speech, impaired walking and bloodshot and glassy eyes. She smelt of alcohol and was unable to focus. She stated that she had been present for 30 minutes. Although she stated that she had consumed eight RTDs it was acknowledged that these were most likely to have been consumed during the night. Ms Hooker signed off the Patron Report.

[16] Sergeant McGrogan visited the premises on 27 April 2008. He was with Ms Dawn Pickering-Meertens from Toi Te Ora Public Health. He advised that near the end of the evening he and Ms Pickering-Meertens counted 140 patrons leaving the bar. He believed the count was accurate. He noted that Mr M Adamson was the DJ. He advised that the Police had visited the premises on 14 June 2008 and had noted that the duty manager was Kylie Hooker who was not a certificated manager.

[17] On 26 June 2008 Sergeant McGrogan sent a letter to Mr Condon. He noted that the DJ was no longer used as the duty manager. He made reference to the sections of the Act on intoxication and enclosed a copy of the Hospitality Association of New Zealand’s (HANZ) guidelines that deal with intoxication. He also made reference to the finding of 140 patrons on the premises as well as an intoxicated patron on 14 June 2008.

[18] On 21 September 2008 at approximately 1.15 am the Sergeant conducted a hotel visit. He found that the male toilets had been trashed and spoke with the duty manager (Ms Chanelle Fraser), about the matter. He observed noise control officers arriving because of a noise complaint. He counted 102 patrons present at the premises.

[19] Sergeant McGrogan advised that Kylie Hooker had been the nominated duty manager on seven occasions between 19 October 2008 and 4 January 2009. At that time she was not the holder of a General Manager’s Certificate and was acting as an acting manager.

[20] On 13 December 2008 at approximately 2.50 am Sergeant McGrogan located an intoxicated patron inside “The Groove”. The patron was on the dance floor. He was slurring his words, swaying and staggering with glassy eyes and a sleepy look. He stated that he had been present for an hour and had drunk “heaps” of RTDs. Sergeant McGrogan stated that on this occasion the patron had not been referred to the duty manager and his assessment had not been signed off.

[21] On 17 December 2008 a general letter was sent to all licensees prior to the Christmas/New Year build up. References were made to patron intoxication and minors being found on the premises. On 21 December 2008 Sergeant McGrogan carried out another count of the patrons from 2.45 am onwards. On this occasion he obtained an accurate figure of 133 patrons. At the same time he located an intoxicated patron. He was swaying with impaired walking, had glassy eyes, was dishevelled and sleepy looking. He had been seen asleep at the bar. The patron stated that he had been present for an hour but declined to say what he had been drinking. The duty manager was not spoken to but Ms Pickering-Meertens agreed with his assessment.

[22] On 17 January 2009 Sergeant McGrogan visited the premises. At about 2.00 am he located a patron whom he believed was intoxicated. The person seemed to be having difficulty in getting the bottle to his mouth, was slurring his words, was very unsteady on his feet, had bloodshot eyes and had a strong smell of alcohol on his breath. He said he had been in the premises for three hours and was drinking RTDs. The duty manager was Kylie Hooker. She did not agree that the patron was intoxicated and stated that the staff were aware of what he had been drinking.

[23] Approximately 15 minutes later the Sergeant located yet another intoxicated patron inside the bar. He was slurring his words and having difficulty in speaking. He was swaying and had glassy eyes. He said he had been in the bar for 10 minutes and had one RTD. He became aggressive and abusive when spoken to. On this occasion the duty manager agreed with the assessment and signed the Patron Report.

[24] The Sergeant advised that at 3.20 am he and Ms Pickering-Meertens had a meeting with Mr Adamson the general manager regarding the performance of the bar that night. Straight after the meeting the Police located four intoxicated patrons over a 17-minute period inside the bar. Mr Adamson accepted an offer for the Police to conduct a training session with the staff which was carried out the following week. Mr Adamson said that he found the training very helpful. The Sergeant advised that on a visit the following night 93 patrons had been counted. The person who was the nominated duty manager was not the holder of a manager’s certificate.

[25] Sergeant McGrogan produced the Alco-Link data for the period 1 April 2008 to 19 January 2009. This system requires that every person who is arrested for an offence or who is processed for a traffic offence is asked where they consumed their last drink, and how long ago the drink had been consumed. The person is also assessed as to his or her degree of intoxication from nil to extreme. Over the time period 26 offenders had nominated “The Groove”. Of the 26 offenders 20 were assessed as either moderately or extremely affected by alcohol.

[26] Ms Dawn Pickering-Meertens is a Technical Officer for Toi Te Ora Public Health. She represents the Medical Officer of Health on liquor licensing issues. She was part of routine monitoring of licensed premises between Friday 16 and Sunday 18 January 2009. She visited all premises in Taupo that were open. She was primarily concerned about host responsibility practices such as the availability of food and non-alcoholic beverages. She confirmed that the person whose state of intoxication had not been accepted by the duty manager, was intoxicated in her opinion. Ms Pickering-Meertens confirmed the intoxication assessment made by Sergeant McGrogan on 21 December 2008. She gave supporting evidence of the count of 133 patrons on 21 December 2008 and 140 patrons on 27 April 2008.

The District Licensing Agency Inspector

[27] Mr Grant Singer is a Licensing Inspector with the Taupo District Licensing Agency. He relied upon his report. He recorded that Mr Adamson had not renewed his manager’s certificate when it fell due on 16 April 2008. He was aware of two staff members who held General Manager’s Certificates, being Chanelle Marie Fraser and Kane Graham Maxwell. He pointed out that a notice from Mr Adamson appointing Kylie Hooker as an acting duty manager had been sent to the wrong e-mail address.

The Taupo District Council

[28] Mr Eric John Foley is the Regulatory Manager for the Taupo District Council. He submitted a report to the Agency in which he confirmed that since the previous hearing there had been further complaints of noise nuisance. His report showed that on 9 April 2008 the Council issued a $500 infringement notice. Apparently this was because patrons had opened both sets of ranchslider doors onto the balcony. After the Police had counted 140 patrons at the premises, the Agency wrote and issued a final warning to Mr Condon. This followed a discussion with Mr Condon on 1 May 2008. The letter referred to both issues of occupancy numbers being exceeded and the ongoing escape of noise.

[29] On 21 September 2008 there was a noise complaint. The noise was apparently heard 1,250 metres away. The complaint was considered to be justified and a direction to reduce excessive noise was served on the company at 1.24 am. As a result of that incident the Council carried out the threat that had been contained in the warning sent on 2 May. On 1 October 2008 an Abatement Notice was served on Mr Condon. The business was required to use the best practicable option of ensuring that the emission of noise did not exceed a reasonable level. A breach of the notice can lead to a prosecution in the Environment Court or the issuing of an infringement fee.

[30] Mr Foley referred to a later incident on 12 December 2008 when he became acutely aware of the bass noise from “The Groove.” However, he was unable to take any further action at the time. At the hearing Mr Foley produced a further callout attendance report which showed that as a result of a noise complaint on 28 March 2009, a direction to reduce excessive noise was served on the duty manager at midnight.

The Application

[31] Mr Condon does not reside in Taupo. He said that the property had been purchased on the basis that the company could host 300 people in the bar and 50 on the deck. He contended that there was documentation to support this assertion but it had been misplaced. He said that he was waiting for approvals so that another fire escape could be built to allow numbers to increase to 200. He seemed to place some of the blame for the restricted numbers on the Council. He argued that it was company policy to adhere to the building warrant of fitness although he stated that with 100 patrons there was no profit. He said he had no excuse for the extra patrons on the two nights and assumed that security had lost count or that there was someone new on the door.

[32] Mr Condon stated that in order to compete commercially as an upstairs bar, “The Groove” became a ‘big sound night club’, and that noise complaints had followed. He argued that following the hearing they instituted changes. They closed off all windows and doors that were not fire escapes, the only exception being the door to the deck, which is controlled by a security guard.

[33] Mr Condon stated that a typical client arrived between 11.30 pm and midnight. Because the business is a late night club many people have been to other bars before they arrive. He advised that almost every open night the patrons were lined up waiting to get in. He said that the company had no need to have intoxicated people in the bar but no matter how vigilant the staff were, intoxicated patrons would manage to gain entry. He was confident that his security would spot these people and remove them as soon as practicable.

[34] As stated above, Mr M Adamson is the General Manager of the business. He appeared to have difficulty in accepted the statements made in the earlier decision that a DJ could not be an effective duty manager. He spent quite some time debating the point. He suggested that because he was no longer carrying out both roles the management of the premises had deteriorated. Mr Adamson expressed his frustration at the close monitoring of the premises that had taken place since the first hearing.

[35] Mr Adamson believed that the previous noise problems that had brought about the original objection had been remedied. He listed the remedial work to contain the noise as follows. He stated that the outside speakers had been removed. They had ceased to operate one of the three power amplifiers. Two of the onstage speakers had been disconnected. Acoustic baffling had been installed. One set of ranchslider doors had been permanently fastened. This had followed the issue of the infringement fee on 9 April 2008. On the other hand, Mr Adamson acknowledged that the company had not taken expert advice about how to control the noise. He pointed out that the company had only received two noise direction notices since the hearing in April 2008. In fact there had been three.

[36] Mr Adamson explained that on 21 September 2008 the guests at a private function had opened the bi-fold windows at the end of the bar to serve food on the balcony, and the staff had failed to close them. As a result excessive noise had been allowed to escape. He admitted that he operated a loud sound system but argued that the younger people enjoyed the louder dance environment. However, he said that the business tried to contain the noise levels.

[37] Mr Adamson contended that since the hearing the company had been extremely vigilant to ensure that they did not exceed the occupancy figure of 100. He stated that the security staff had counters and that he and the duty manager were constantly checking numbers and performing regular head counts. On the other hand he suggested that it could be difficult at times to be accurate with head counts because the patrons were moving about. He suggested that on rare occasions they might get it wrong.

[38] Mr Adamson explained that the company had employed two new managers but that one had gone overseas. Because of the problems in having suitably qualified people, he had appointed Ms Hooker as a temporary manger for three nights in November 2008. He then decided that Ms Hooker would apply for a manager’s certificate. However, she had failed to attend the training in December because she had been so busy and there was no course in January. He then sent the email notifying her appointment as acting manager but unfortunately it was incorrectly addressed. She now has the required qualification.

[39] Mr Adamson addressed the issue of intoxication and contended that intoxication was difficult to identify at times. He contended that a patron’s behaviour could change in 15 minutes. He stated that the company employed five to six security staff every night as well as the duty manager and himself. A number of intoxicated and troublesome patrons are removed on most nights. He noted that most patrons have been drinking by the time they arrived. He argued that on average 300 people would come through the door over a weekend. He suggested that 10 intoxicated patrons out of 15,000, while unacceptable had to be put in context. He referred to the four intoxicated patrons found at the end of the night. He advised that they were in a group, and were friends of a member of the bar staff, who was no longer employed by the company.

[40] Mr R W Murphy argued that in general terms the majority of the problems of liquor abuse were caused by the reduction of the purchasing age and access to cheap liquor. He questioned the occupancy level of 100 but this has been documented in the building’s warrant of fitness. He stressed the significant improvement in the number of noise complaints since the last hearing, and highlighted the fact that on 41 visits, no problems had been reported. He submitted that the application was a forerunner for trading hours in Taupo to be cut back to 1.00 am. The evidence was clear that this was not the case. The policy is to be reviewed but only after public consultation.

The Authority’s Decision and Reasons

[41] 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.

[42] As we stated in our decision a year ago it is up to the applicant to establish its suitability to continue to hold the licence in its present form. That message did not get through. Once again the company has failed to satisfy us that it is suitable to operate this licence in its present form. It is almost unheard of for a new business to appear before us twice within the first three years of the operation. It seems to us extraordinary that the company markets its business as a “loud sound” business but gets no specialist advice as to how to prevent excessive noise from escaping. One infringement fee and two directions to reduce noise may not sound much, but against the background of the previous hearing, they are three illustrations of improper management and unsuitability.

[43] Given the history of this licence two instances of exceeding safety limits are irresponsible. We thought it was quite inappropriate to try and do a head count inside the premises. With so many security people it cannot be too difficult to maintain the correct safe number. When the safety of the patrons is at stake then good management is paramount. The counting of patrons is not rocket science. Plenty of licensees face the same challenge. In our view the company should never exceed its limit. The prospect of the company being potentially able to host 200 patrons is quite daunting.

[44] Allowing unqualified people to be in temporary charge of a nightclub that trades to the early hours of the morning, is also a sign of unsuitability. There is no question in our mind that there is a link between inexperienced management and the number of intoxicated patrons found on the premises. These patrons are the very people that the Act is designed to protect. The numbers of intoxicated patrons found by the Police should not only be measured against the total number of people who visit the premises. They should also be measured against the number of times that the premises were open.

[45] In our view it is not good enough to suggest that the intoxicated patrons were not there to be seen. After all, their state of intoxication was plain enough to the Police. In our view management was clearly not doing its job. This company is doing very little to help achieve the Act’s objective. As long as the licence continues in its present form the health and safety of the patrons are likely to be compromised.

[46] The extant viewpoint of management that an active DJ can effectively control a busy licensed premises was an interesting argument given our earlier decision that such a practice was questionable. The suggestion that the DJ’s procedure of pre-loading music sequences will allow sufficient freedom to effectively manage all aspects of the premises has not been borne out by the reported events. In our experience working DJ’s cannot be fully effective as duty managers under a licence of this nature.

[47] We are not unaware that the object of the Act refers to a regulatory system that is ‘reasonable’. The company needs to know that we seriously considered whether to refuse the renewal of the licence. We believe that there are grounds to do so. One of the reasons that we have not pursued that option has been the company’s apparent belief that the licence will be renewed at any event. It may be that it has been lulled into a false sense of security by the lack of an enforcement application. Quite clearly the refusal to renew the licence will take the company completely by surprise. Given the company’s difficulties with late representation we believe that options other than refusal of the renewal of the licence should be explored.

[48] It appears to us that the company has not taken the opposition seriously enough. It has been unwilling and perhaps unable to spend serious money to fix the problems either by training or employing strong managers. Its appearance before us a year after the first appearance is a matter of considerable disappointment. It seems to us that there has been no consideration given to hard options such as turning down the music or changing the way the company carries our its business. The lip service management appears to pay to the process of monitoring the number of patrons inside the building, is also a cause for concern, particularly as such a process need not be complex.

[49] Nevertheless, given the submissions made by Mr Murphy, we are prepared to give the company one last chance to save the business. However, there will again be a truncated period of renewal, together with a change to the licence to help prevent further issues such as intoxication, as illustrated in the Alco-Link data.

[50] Clawing back the closing time will at least help to reduce the impact of the over-consumption of liquor. In considering a renewal we must have regard to the conditions of the licence. The company carries the onus of showing that the conditions should not be altered. It is our view that until such time as the company can show that it can control the way it sells and supplies liquor, its hours should be reduced. The evidence fell short of persuading us that the company is suitable to operate a licence after 2.00 am. Or that the company is entitled to have its licence renewed without any amendment to the conditions. We are not unaware of the impact of such a decision on the potential viability of the business.

[51] We refer to the international study sponsored by the World Health Organisation entitled ‘Alcohol, No ordinary commodity’ (Babor,T., Caetano,R., Casswell,S.,et al. Research and Public Health (2003) Oxford University Press/World Health Organisation, Geneva. August). In that document the following remarks can be found:

“The higher the average amount of alcohol consumed in a society, the greater the incidence of problems experienced by that society. Consequently, one way to prevent alcohol problems is through policies directed at the reduction of average alcohol consumption, particularly those policies that limit the availability of alcohol.”

It is widely and internationally accepted that reduction from alcohol related harm can best be achieved by applying combinations of the following strategies:

1. minimum legal purchase age;
2. government monopoly of retail sales;
3. alcohol taxes to increase the price;
4. restrictions on hours or days of sale;
5. outlet density restriction; and
6. licensing and enforcement to ensure compliance with these measures.”
   

[52] We have the jurisdiction to limit the trading hours. In considering an application for the renewal of an on-licence, we are governed by s.23 of the Act. That section reads:

(1) After considering an application for the renewal of an on-licence, the Licensing Authority shall –

(a) Renew the licence on the conditions presently attaching to it; or

(b) Renew the licence on such different conditions (relating to any matters specified in section 14(5) of this Act) as the Licensing Authority thinks fit; or

(c) Refuse to renew the licence.

(2) The Licensing Authority shall not exercise its powers under paragraph (b) or paragraph (c) of subsection (1) of this subsection except in response to –

(a) An objection duly made under section 19 of this Act; or

(b) A report duly submitted under section 20 of this Act; or

(c) A request by the applicant.

[53] Regulating the hours of trading has always been recognised as a useful tool in controlling liquor abuse issues as well as anti-social behaviour. 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.

[54] In Buzz & Bear Limited v Woodroffe [1996] NZAR 404, Mr Justice McGechan commented as follows:

“There is no doubt that upon renewal the Authority, which is obliged to consider conditions and reports, and to confirm on same or altered conditions (or to refuse renewal), can consider whether existing hours are appropriate and alter those hours. The restraint, and safeguard against ill-informed tinkering, is that such can occur only in response to inspectors’ or Police reports, or at the request of the licensee itself.

I am satisfied it was within powers, and proper, for the Authority to take into account, not only the specifics of the Cork ‘n’ Fork operation, but also more general community concerns which had been made known to it. Quite simply why not? Of course the Authority must be closely concerned with the actual operation of the actual licensed premises, here the Cork ‘n’ Fork. One does not renew a licence without thinking about the licensee and his operations. That is directed by s.22 (a) and (c). However, there is no logical or policy need to stop at that, as the licensee urges.

Times change. Communities and environments change. Social habits and levels of tolerance change. Obviously it would have been seen by the legislature to be wise to keep conditions imposed under review in light of potential social change. The licensee’s submissions would have licence conditions frozen in some time warp while the world marches on; not, even in the arcane world of liquor licensing, a likely legislative intention. Section 4 interpretation directives align with common sense to point towards allowing the Authority to engage in a wider perspective. It can keep its eye on wider trends and needs in a specialist area where it has unique, and uniquely current, expertise. Any licensee takes a licence under risk that conditions may change, and a report may recommend adjustment. There is no asset protected for all time whatever may happen outside.”

[55] For the reasons given, the on-licence will be renewed for one year to 6 January 2010. As from 8 June 2009 the trading hours will be 7.00 am to 2.00 am the following day seven days a week.

DATED at WELLINGTON this 11th day of May 2009

Judge E W Unwin
Chairman

The Groove.doc