Sky Restaurant and Karaoke [2010] NZLLA 1397 (25 November 2010)

Last Updated: 17 December 2010

[2010] NZLLA PH 1397

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by PACIFIC SKY LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 2 Kitchener Street, Auckland known as “Sky Restaurant and Karaoke”

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Mr P M McHaffie

HEARING at AUCKLAND on 14 October 2010

APPEARANCES

Mr J D Young –for applicant
Mr G S Whittle – NZ Police – to assist
Ms A L Marsh – Auckland District Licensing Agency Inspector – to assist
Mr J Gow – objector
Ms D Knowles – objector
Ms H J Harrison – objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority for determination is an application by Pacific Sky Limited (“the company”) pursuant to s.18 of the Act for the renewal of an on-licence in respect of premises situated at 2 Kitchener Street, Auckland known as “Sky Restaurant and Karaoke”.

[2] The company holds a tavern style on-licence for the premises which was first issued on 24 February 2009. Accordingly, this is the first application for renewal of the licence. The licensed hours are at any time on any day. The application sought no changes to the present conditions of the licence. Neither the Police nor the Inspector opposed the application.

[3] The premises are located in Khartoum Place between Kitchener Street and Lorne Street. Khartoum Place is a public area with two courtyards, an upper and lower level. “Sky Restaurant and Karaoke” is located in upper Khartoum Place. Khartoum Place is within the “Queen Street Valley Precinct” under the Auckland City District Plan-Central Area. “Food and beverage”, “Entertainment/gathering” are permitted activities and do not require resource consent.

[4] Advertising of the renewal application attracted nine public objections from owners or residents of the St James Apartments. The St James Apartments are located on the corner of Kitchener and Wellesley Streets and are directly across Khartoum Place from the premises. The issues raised by the objectors included noise problems, disorderly behaviour, intoxicated patrons, rubbish, urine and vomit in doorways. Some also opposed the current trading hours. The application was accordingly set down to be determined at a public hearing.

The Application

[5] Mr Jung Han Kim is the operations manager for the company. He has held a General Manager’s Certificate for the last five years. The restaurant area can seat up to 150 people with 13 karaoke rooms. There is an external smoking area in front of the principal entrance but alcohol is not permitted to be consumed in this area which is monitored by CCTV. Six bar staff are employed, all of whom hold General Manager’' Certificates. Two waitresses and two cooks are also employed.

[6] Mr Kim said that homeless people sometimes gather and sleep in Khartoum Place and that young people sometimes drink there. There are two 24 hour internet cafes on Khartoum Place, one next door to the premises and another six metres away. There is a bar nearby in Lorne Street which has a 24 hour licence and a steakhouse and bar on the corner of Khartoum Place and Lorne Street.

[7] Mr Kim pointed out that the objectors had not complained about noise from the karaoke rooms or restaurant but the behaviour and noise of people on Khartoum Place. He said that they monitor their customers and ask them to talk quietly or come inside. They have signs asking people to be quiet because of neighbouring residents. He said that while they do ask others to be quiet, it is very difficult to manage or prevent people talking or laughing in a public area, especially when they are not their customers. During and after trading hours they check the area and clean up.

[8] Mr Kim did not accept that it was their customers who vomit and urinate in Khartoum Place or that they served intoxicated customers. He noted that the Police visit the premises regularly and had not raised any issues. It was his view that it was unreasonable to expect that a busy CBD public open space will be quiet.

The Objections

[9] Evidence was given by three of the objectors. Ms Helen Harrison is an owner and resident of apartment 3C at the St James Apartments. The two bedrooms of her apartment face onto Khartoum Place. She spoke on behalf of the body corporate. There are 30 residential apartments and art galleries at street level.

[10] Ms Harrison said that “Sky have allowed the excessive consumption of alcohol that has led to arguing, yelling, fighting, vomiting and wilful damage of Upper Khartoum Place and to sleep deprivation for neighbouring residents”. Ms Harrison produced a record of noise and disturbance complaints that she had made. However when asked if she had specific evidence that “Sky Restaurant and Karaoke” was responsible, she acknowledged that she didn’t have any. In any event the noise is no longer an issue for her personally. All the windows in her apartment have been double glazed and in February 2010 she installed an additional aluminium frame double glazed window along with sound insulated blackout lined curtains in her bedroom.

[11] Ms Diane Knowles also lives in the St James Apartments. She said that she had been forced to move out of her bedroom into another bedroom that does not face Khartoum Place, because of sleep disturbance. It was her view that the “Sky Restaurant and Karaoke” was not an appropriate business for the area which she saw as being an arts quarter rather than an entertainment area. She also referred to the vomit, urination and rubbish in the area.

[12] Mr John Gow is a director of John Leech Gallery which is housed on the ground floor of the St James Apartment building. An objection was made by John Leech Gallery on behalf of the Auckland Art Precinct to the renewal of the licence. The Auckland Art Precinct comprises 10 businesses in the block of Wellesley, Kitchener, Victoria and Lorne Streets. The concerns of the precinct were recorded as “public drunkenness, vomiting, urination, fighting and littering”.

The Authority’s Decision and Reasons

[13] Section 22 of the Act sets out the criteria the Authority is obliged to have regard to in determining the renewal application. These are as follows:

(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:

(d) Any matters dealt with in any report made under s.20 of this Act.

[14] The objectors raised issues as to the suitability and management of the licensee company as well as the hours of the licence. While their concerns may be understandable, the objectors by their own admission were not able to produce any probative evidence linking the premises to the disturbances complained of, all of which occur in Khartoum Place rather than on the premises. The Authority viewed the area. Not only are there two 24 hour internet cafes nearby, the area is a public precinct and pedestrian access way to Albert Park and the University. There was also evidence given that Lower Khartoum Place is frequented by the homeless who use the fountain to wash their clothes and young people who drink there. In other words, the “perpetrators”, as was submitted by the applicant’s counsel, could have come from anywhere.

[15] In the Narrows Landing Limited decision NZLLA PH 479/2003 the Authority commented as follows:

“... it is hard for objectors who hold genuine concerns, to mount a significant and sustainable challenge. It is just as difficult for an applicant to respond effectively to general criticisms of being too noisy. Nevertheless unless neighbours are prepared to provide details of when breaches of the Act and the Resource Management Act occur and what action was taken, it would be difficult for them to overcome the threshold of factual information to put the applicants to proof.”

[16] The Authority also stated in The Landing Bar Limited decision:

“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 ... The evidence has to be measured against... the fact that none of the reporting agencies raised any issue about the company’s suitability to continue to hold the licence in its present form.”

[17] The reporting agencies in this case did not oppose the application. The District Licensing Agency Inspector, Ms Marsh, said in her report that she has had “no issues with the premises over the past 12 months”. Mr Whittle for the Police, also advised that the Police had no enforcement issues with the premises.

[18] In the circumstances we are satisfied as to the matters that we must take into account. The on-licence is renewed on its current conditions for the full three year term. We point out however that it is always open to the agencies to bring enforcement action should circumstances warrant it.

DATED at WELLINGTON this 25TH day of November 2010

B M Holmes
Secretary

Sky Restaurant and Karaoke.doc