Thorne v Moonshiner [2010] NZLLA 437 (28 April 2010)

Last Updated: 30 April 2010

Decision No.PH 437/2010

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for suspension or cancellation of on-licence number DLA/01/ON/017/2005 issued to MOONSHINER HOLDINGS LIMITED in respect of premises situated at 42-48 Broadway, Kaikohe, known as “Dusty’s Place”

BETWEEN JOHN ALBERT THORNE

(Far North District Licensing Agency Inspector)

Applicant

AND MOONSHINER HOLDINGS LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: Judge J D Hole
Member: Mr P M McHaffie

HEARING at PAIHIA on 26 March 2010

APPEARANCES

Mr J A Thorne - applicant
Mrs C M Stewart - on behalf of respondent
Senior Constable G L Wright - NZ Police - to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This decision relates to an application dated 8 October 2009 brought by the Far North District Licensing Agency Inspector pursuant to s.132 of the Act for the suspension and/or cancellation of the on-licence issued to Moonshiner Holdings Limited in respect of premises situated at 41-48 Broadway, Kaikohe known as “Dusty’s Place”.

Background

[2] The on-licence was first issued to the respondent in 2004 for tavern premises situated at 42-48 Broadway, Kaikohe. Since that time there has been a history of noise complaints. When the on-licence came up for renewal in February 2008 an objection was filed. As a result the respondent submitted a noise control management plan and gave undertakings to control noise. One of those undertakings was to have live bands play off-site in a rural location by way of a special licence. Ultimately the objector indicated that she no longer wished to pursue the objection and it was withdrawn. Accordingly the application was unopposed and the Authority renewed the on-licence on the same terms and conditions as previously. In its decision NZLLA PH 622/2008 dated 9 May 2008, the Authority referred to its decision in Paihia Saltwater (2001) Ltd NZLLA PH 391/2001 where it said:

“Noise is not just a resource management issue. The escape of noise (particularly music) is an example of bad management. The Authority takes the view that if no attempt is made to prevent the escape of, or reduce noise, then it is the Authority’s duty to monitor the hours of opening, if not the existence of the licence.

We have already heard from licence holders who have either installed air conditioning so they can keep doors and windows closed, or have employed security people to monitor outside noise, or they have installed automatic sound control systems. We will always give full credit to those holders who acknowledge any existing noise problem and try and do something about it. In our view the term ‘host responsibility’ does not exclude the people who live nearby.

Many licensed premises have shown that they can operate in harmony with their residential neighbours. It is no coincidence that the managers and owners of such premises also show a commitment to the reduction of liquor abuse. ..."

The decision then reads:

In light of the withdrawal of the objection we now propose to deal with the matter on the papers. In doing so, we point out that should the manner of operation of the business bring it to the attention of the enforcement authorities, we would expect from them an application, pursuant to s.132 of the Act, for variation, suspension or cancellation of the licence.

[3] Since the date of that decision, from between 1 October 2009 and January 2010 a total of 41 complaints have been lodged with the Far North District Council in respect of the premises. Most, but not all, were from the same complainant, Mrs Lynne Davey. As stated in Paihia Saltwater (2001) Ltd (supra), the number of complaints per se is not necessarily indicative of a noise problem although no one should have to put up with sleepless nights arising from badly managed licensed premises.

[4] Between 14 October 2008 and January 2009 the premises were operated under a temporary authority by a different company. Ultimately the proposed sale of the business to that company did not eventuate and the respondent resumed occupation of the premises.

[5] The applicant recognises that the 2008 noise management plan was not complied with as it became impractical for live bands to play off-site.

Present Application

[6] The grounds referred to in the application are those set out in s.132(3)(b) to the effect that the conduct of the licensee is such as to show that it is not suitable to hold the licence. In particular, it is alleged that not only is the respondent in breach of its noise management plan but also it has continued to create noise problems affecting the complainant Mrs Davey and her family. Paihia Saltwater (2001) Ltd (supra) is relied on.

[7] Mrs Davey is a sincere objector. It was plain from her evidence that she was not pursuing her complaints in a vindictive or unreasonable manner. She and her family live at 11 Sydney Street, Kaikohe. Mrs Davey’s mother lives at 17 Sydney Street, Kaikohe. The respondent’s premises are between the two addresses and there are no significant buildings between the respondent’s premises and the two residences. The respondent’s premises are in a commercial zone whereas the residential properties in Sydney Street are zoned for residential purposes.

[8] Mrs Davey’s concern is that the loud noise emanating from “Dusty’s Bar” makes sleep impossible. Her mother is ill and needs sleep. She has repeatedly sought help from her local Council noise control officers; but remains unsatisfied. Occasionally, after complaints, noise volumes are reduced for a short period of time but then they gradually increase. In particular she and her family are disturbed by the loud bass noise that comes from occasional bands and when there are disc jockeys entertaining in the premises. Karaoke evenings are also of concern.

[9] Mr Garnham is the Environmental Health Officer for the Far North District Council. He has monitored the noise on a number of occasions and gave details as to the decibel readings obtained. Whilst on a few occasions he has recorded decibel readings in excess of acceptable limits, generally his observations do not assist Mrs Davey and her family. However, and significantly, in his evidence he noted that Mrs Davey lives approximately 70 metres from the premises whereas her mother lives approximately 43 metres away. He noted that the two properties most likely to be affected by noise emanating from “Dusty’s Bar” were those occupied by the Davey family and Mrs Davey’s mother.

Respondent’s Case

[10] Mrs Carol Stewart, one of the directors of the respondent, gave evidence. She impressed as a sincere representative of the licensee. It was clear that she and the respondent are concerned about noise complaints and she acknowledged that many of them were justified. The respondent has taken various measures over the years to reduce noise problems. They include:

• [a] Not long after becoming the licensee, the premises were re-configured so that the bar was re-positioned with its rear to Broadway and the off licence was moved into that part of the building closest to the residential area. This was done in an attempt to obviate noise problems. Unfortunately, it failed.
  
• [b] The respondent has obtained informal verbal advice from an out of area acoustics professional as to how to dampen the noise down and action has been taken in this regard.
  
• [c] The respondent has also required all disc jockeys working within the premises to sign an entertainment agreement which provides that the disc jockeys must keep the noise to an acceptable level. That acceptable level is defined in the noise management plan to the effect that if patrons cannot be heard at the bar then the noise is too loud. In addition the entertainment agreement states that if the respondent is fined as a result of excessive noise those fines are to be paid by the disc jockey. However, Ms Stewart recognised that on some occasions disc jockeys would let a situation get out of control. Indeed, on at least four occasions disc jockeys have been told that they will not be invited back to the premises because they refused to obey instructions of the management in respect of noise issues.
  
• [d] Appropriate efforts are made by management to monitor noise from outside the premises and action is taken if it is deemed to be too loud.
  
• [e] The respondent stated that live bands will not be engaged to perform at the premises.
  

The Authority’s Decision and Reasons

[11] To some extent the facts of this case are different from most of the cases coming before the Authority where noise has been held to be an example of bad management leading to liquor abuse (e.g. Paihia Saltwater (2001) Ltd (supra) and White Pepper Ltd v Auckland District Licensing Agency CIV-2008-404-1570). There can be a fine line between what constitutes a resource management problem and one that extends into a contravention of obligations under the Sale of Liquor Act. This is discussed in White Pepper Ltd. In this case, the Authority is satisfied that in general the day to day management practices operated by the respondent indicate a well managed operation designed to reduce liquor abuse. Indeed, Mrs Davey, save for the noise issue, had no complaint with the way the premises were managed. She was unaware of any liquor abuse issues associated with the premises. The Police and Licensing Inspector agreed.

[12] The real problem is the siting of a bar close to a residential area. This is compounded by the fact that the bar is situated in a former plant retail shop. It is not possible to have the disc jockey and his attendant equipment in any other position within the premises from where they currently play. In the circumstances it is inevitable that some noise coming from music played on the premises will escape and travel over the vacant land to reach 11 and 17 Sydney Street without interruption. This is a physical problem associated with the type of building in which the bar is situated and its location.

[13] With reference to the grounds set out in the application, the Authority is satisfied that there is no evidence that the licensed premises:

• [a] Have been conducted in breach of any of the provisions of the Act or the conditions attaching to the licence; or that
  
• [b] They have been conducted in an improper manner; or that
  
• [c] They have been used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public. (It accepts that the use of the licensed premises is obnoxious to the residents of 11 and 17 Sydney Street, Kaikohe. This is not the result of their being used in a disorderly manner).
  

[14] The issue is that contained in s.132 (3)(b) of the Act: is the conduct of the licensee such as to show that it is not suitable to hold the licence?

In this regard the Authority has the following concerns:

[a] It considers that the respondent should have obtained advice from an acoustic engineer (who should have visited the site) to have ascertained what more could be done to eliminate the noise problem. (The respondent has made some effort in this regard; but the Authority considers that the efforts made to date are inadequate. (The Authority recognises, however, that to take this extra step may well have been costly and have had the effect of making the entire operation uneconomic. Further, there is the obvious concern that expensive measures might have been recommended to obviate the problem);

[b] It also thinks that better communication with Mrs Davey and her family could have occurred to keep them advised as to what was being done to overcome the problem. There was some communication: it was inadequate;

[c] Most importantly, whilst the respondent had its reasons, nevertheless it breached the undertaking it gave which resulted in the objection to the application for renewal being withdrawn. As noted in paragraph [3] above, this was of concern to the Authority when it granted the application for renewal on the papers. If that objection had not been withdrawn, there would have been a public hearing of the application with the possibility of the renewal application being refused on excessive noise grounds (see White Pepper (supra) and the authorities reviewed in that decision).

[15] The Authority concludes that the applicant has established this ground of the application.

[16] The applicant requested that at this stage no action be taken in accordance with s.132(6) of the Act. Rather, he sought an adjournment of the application for sufficient time to enable the respondent to take such steps as are appropriate to obviate the excessive noise problem. Accordingly, the application is adjourned for six months. If the application is not then withdrawn, it will be scheduled for a further hearing.

DATED at WELLINGTON this 27TH day of April 2010

Judge J D Hole
Chairman

Dusty’s Place.doc(aw)