Mad Toms [2011] NZLLA 763 (28 July 2011)

Last Updated: 29 August 2011

[2011] NZLLA PH 763

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MAD TOMS LIMITED for an on-licence pursuant to s.9 of the Act in respect of premises situated at 16-18 Lower High Street, Marton known as “Mad Toms Function Centre”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Ms J D Moorhead

HEARING at PALMERSTON NORTH on 6 July 2011

APPEARANCES

Ms C V M Brookie – on behalf of applicant
Sergeant S Oram – NZ Police – in opposition
Mr S Costello – Rangitikei District Licensing Agency Inspector – to assist
Mrs J M Simpson – objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This application relates to premises at 16-18 Lower High Street, Marton. The applicant is presently operating its business at the premises pursuant to a temporary authority issued against an on-licence granted in 2009 to “Marton Club Bar and Eatery”. This licence may be invalid as “Marton Club Bar and Eatery” is not a legal entity.

[2] In the advertisement notifying the application for the on-licence, the applicant is stated as “Bryce Richard Tasker”. In fact the applicant is Mad Toms Limited. Mr Tasker is a director of Mad Toms Limited and a shareholder in Mad Toms Limited. The Authority is satisfied that no potential objector has been misled by the advertisement’s error. Likewise, it is satisfied that the mistake in the advertisement was not wilful. In these circumstances in accordance with s.111 of the Act a waiver is granted.

[3] Initially, the application was for a licence to operate the premises as a function centre and cafe bar. In addition it was this use that was described in the Local Authority’s s.9(1)(e) resource management certificate. As the case proceeded, it became evident that if the applicant intended to proceed with its proposal to operate a bar in the premises then a tavern style licence was required. The application had not been made upon the basis of a tavern style licence being necessary and had not been advertised in this fashion. In the circumstances, the applicant elected to proceed upon the basis that the proposed licence was to be for a function centre only.

[4] The hours sought in the application were as follows:

Sundays to Wednesday 9.00 am to 1.00 am

Thursdays 9.00 am to 2.00 am the following day

Fridays and Saturdays 9.00 am until 4.00 am the following day

At the hearing the hours sought for Fridays and Saturdays were amended to 9.00 am to 3.00 am the following day.

Criteria for on-licences

[5] Section 13 sets out the matters to which the Authority must have regard when considering an application for an on-licence. In this case, the following matters are at issue:

• [a] The applicant’s suitability;
  
• [b] The days on which and the hours during which the applicant proposes to sell liquor; and
  
• [c] The areas of the premises, if any, that the applicant proposes should be designated either as restricted areas or supervised areas.
  

[6] Section 14(7) of the Act requires the Authority, when considering conditions, to have regard to neighbouring land use. The Authority notes that the area in which the premises are situated is a mixed use commercial zone.

[7] Finally, the Authority is entitled to take into account anything which in terms of the Act as a whole appears to be relevant to licence conditions and the terms on which a licence may be granted: Walker v Police HC Wellington AP 87/01 31 May 2001 per Fisher J. This, of course, includes the object of the Act as set out in s. 4 involving the establishment of a reasonable system of control aimed at the reduction of liquor abuse: My Noodle Ltd v Queentown-Lakes District Council [2009] NZCA 564, [2010] NZAR 152. See also Wells Instruments & Electrical v Shree Sai Holdings Ltd HC NWP CIV 2001-443-050.

Objection

[8] The objection by Mrs J M Simpson marginally raised the issue of the applicant’s suitability. However, her objection was not directed at the applicant per se, but was made because of her concerns that the premises would generate excessive noise, drunkenness and rowdy behaviour. She commented in her evidence that this sort of behaviour emanated from a public alleyway located beside the premises. She accepted, however, that the behaviour to which she took exception did not necessarily come from patrons who had been attending the premises. She indicated that she would be happy if the premises closed at 2.00 am: However, she thought that 3.00 am closing was too late as the potential noise generated from the premises might keep her family and guests awake.

Police and Inspector

[9] Neither the Police nor the Inspector were concerned about the suitability of the applicant. The Police were anxious about the hours of operation and wanted the premises to close at 2.00 am on Saturdays and Sundays. This is when local hotels and taverns close in the Rangitikei area. They noted that the Marton Police Station is not a 24 hour station. After 2.00 am it has on call Police available should the need arise. The Police recognised that the Rangitikei District Council’s local alcohol policy provided for closing of licensed premises at 4.00 am. Nevertheless, the Police consider that the local alcohol policy was made without appropriate consultation and in error. If this is so then it is for the Rangitikei District Council to rectify the position.

[10] The Inspector noted that the premises had been trading under a temporary authority for about four months without complaint. According to the applicant’s evidence, this involved four to five functions.

Decision of Authority and reasons

[9] The proposal is that the function centre will supply liquor to invited guests only. The general public will not be able to purchase liquor at the premises unless invited to attend the function. The Authority accepts that in these circumstances there should be little difficulty in controlling the activities of those persons attending functions at the proposed premises. The Authority also accepts that some functions may well linger on until 3.00 am without creating problems. Simply because the taverns within the Rangitikei area close at 2.00 am does not necessarily mean that a function centre should close at the same time. There is no likelihood of drift from taverns to the function centre. The Authority notes the applicant’s undisputed evidence to the effect that an on-licence has been granted to other premises in the Rangitikei area with a closing time of 3.00 am. The applicant’s director has experience in the liquor industry and there are no concerns as to his suitability or ability to conduct the function centre as required by the Act.

[10] The Authority recognises the concerns of the objector. However, the noise and disorder problems she mentioned were not proven to have come from these premises. Likewise, if the premises are properly managed as a function centre, as from the evidence the Authority expects they will be, there should be little or no noise coming from the premises after 2.00 am.

[11] Given the nature of what is proposed in the premises, there seems to be no necessity to designate any portion of the premises either as a restricted area or a supervised area.

[12] The application is granted subject to the following conditions:

[a] The licence is issued upon the basis that the premises are used solely as a function centre;

[b] The days on which and the hours during which liquor may be sold are as follows:

Sundays to Wednesday 9.00 am to 1.00 am

Thursdays 9.00 am to 2.00 am the following day

Fridays and Saturdays 9.00 am until 3.00 am the following day

[11] The licence will not issue until the expiry of 20 working days from the date of this decision. That period is the time provided by s.140 of the Act for the lodging of a notice of appeal.

[12] The applicant’s attention is drawn to ss.25 and 115(3) of the Act obliging the holder of an on-licence to display:

• [a] A sign attached to the exterior of the premises so as to be easily read by persons outside each principal entrance, stating the ordinary hours of business during which the premises will be open for the sale of liquor; and
  
• [b] A copy of the licence, and the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through the principal entrance; and
  
• [c] The name of the duty manager placed inside the premises so as to be easily read by persons using the premises.
  

DATED at WELLINGTON this 28th day of July 2011

M Langworthy
Deputy Secretary

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