Snafu Bar and Restaurant [2012] NZLLA 1354 (6 December 2012)

Last Updated: 18 December 2012

[2012] NZLLA PH 1354

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by RICHWEAZ LIMITED for an on-licence pursuant to s.9 of the Act in respect of premises situated at 7 Chalmers Street, Christchurch, known as “Snafu Bar and Restaurant”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Mr D E Major

HEARING at CHRISTCHURCH on 26 November 2012

APPEARANCES

Mr B R D Burke – for applicant
Sergeant A J Lawn – NZ Police – in opposition
Mr M Ferguson – Christchurch District Licensing Agency Inspector – to assist
Mr P J Tweed – on behalf of Medical Officer of Health – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Section 13 of the Act sets out the criteria to which the Authority must have regard when considering an application for an on-licence. These include:

• [a] The suitability of the applicant;
  
• [b] The days on which and the hours during which the applicant proposes to sell liquor;
  
• [c] The steps proposed to be taken by the applicant to ensure that the requirements of this Act in relation to the sale of liquor.
  

[2] Section 14(5) of the Act states that on granting an application for an on-licence, the Authority may impose conditions relating to various matters including “(e) Any other matter aimed at promoting the responsible consumption of liquor”.

[3] The applicant owns premises known as the “Snafu Bar and Restaurant” situated at 7 Chalmers Street, Hornby, Christchurch. It previously owned and operated the “Hornby Tavern” which is situated a short distance from the premises. According to Inspector Malcolm Johnson, the Police Area Commander for the Southern Canterbury Police District, the applicant’s operation of the “Hornby Tavern” caused no problems.

[4] Unfortunately, immediately “Snafu Bar and Restaurant” opened, according to Inspector Johnson, its operation featured prominently “on his radar” as problem premises.

[5] Because of the Christchurch earthquakes, the applicant’s lease of the “Hornby Tavern” was terminated. The applicant acquired new premises and started “Snafu Bar and Restaurant”. The intention was to recreate the type of operation previously conducted at the “Hornby Tavern”.

[6] The premises are currently trading under a temporary authority in respect of an on-licence previously issued to Finn’s Bar and Bistro Limited. Operation commenced on 10 October 2011 and the hours sought are the same as those applying under the temporary authority, namely from Monday to Sunday 9.00 am to 3.00 am the following day.

[7] Neither the Inspector nor the Medical Officer of Health have opposed the application. However, the Medical Officer of Health has suggested that the hours of trade be aligned to those of other licensed premises in the vicinity.

[8] The Police did not oppose the grant of the licence but did oppose the proposed hours. This is because of disorder incidents which have occurred in the area surrounding the premises and because on a number of occasions since the premises commenced operation intoxicated persons have been found on the premises. On one occasion an intoxicated person purchased liquor in the premises. Accordingly, the Police have reservations about the suitability of the applicant.

The Undertaking

[9] There is no necessity to detail extensively the allegations giving rise to the Police concerns. Generally, the incidents were admitted. However, on the Police evidence, the operation of the premises has improved significantly during the last three or four months. The evidence of the licensee’s general manager, Lynley Anne Foster, confirmed the improvement although she thought that it had been more gradual over a longer period.

[10] Ms Foster impressed the Authority as a person who had a good knowledge of what is required in terms of the Act to manage licensed premises. Her evidence indicated that when problems have arisen in the premises she has been prepared to act proactively to deal with the problem. Sometimes this has proved successful but on other occasions she has needed the assistance of the Police.

[11] There is no doubt that the clientele which includes a diverse racial group of people can prove difficult to manage. Some of the ethnic groupings are well known as indulging in liquor abuse. Problems associated with premises such as “Snafu Bar and Restaurant” have become exacerbated as a result of the destruction of the intense grouping of licensed premises within the central business district of Christchurch. Businesses such as “Snafu Bar and Restaurant” have cropped up around the periphery of the city. This has created difficulties for enforcement agencies such as the Police.

[12] In recognition of managerial inadequacies still occurring within the premises the licensee undertook to implement and continue a training regime for training of staff including Ms Foster and Mr Dear (the sole director of the applicant). The training will include study of appropriate manuals and policies relative to host responsibility requirements, best practice and compliance with the Act. The training is to be to the reasonable satisfaction of the Police Alcohol Harm Reduction Officer for Canterbury.

[13] Assuming that this undertaking is adhered to, there is reason to believe that the progress which has become apparent particularly over the last three months in the way in which the premises are operated will continue. It will be an ongoing process.

One Way Door Policy and Hours of Operation

[14] The premises currently close at 3.00 am each day. A one way door policy which prevents persons from entering the premises after 2.00 am has been in place since the premises commenced operation. The nearest on-licence premise to “Snafu Bar and Restaurant” is “Temps Bar” approximately one kilometre from “Snafu Bar and Restaurant”. “Temps Bar” closes at 1.00 am. The “Equestrian Bar” is located in the vicinity and it closes at 2.00 am. At one stage, the “Equestrian” operated a dance venue similar to that operated by “Snafu Bar and Restaurant” although the clientele was different. Apparently the dance venue is not presently operating. The “Islington Tavern” is located approximately six kilometres from “Snafu Bar and Restaurant” and it closes at 2.00 am each day. It has a mixed clientele and some of its patrons are inclined to migrate to “Snafu Bar and Restaurant”.

[15] The most significant problem the Police identified in relation to this application is that the area in which “Snafu Bar and Restaurant” is situated attracts, during the early morning hours, persons who may be regarded as troublemakers or potential troublemakers. Many of these people are intoxicated. Sometimes they have been drinking in the bars within the area: often, however, they have been drinking in cars or in their own homes. They come into the area not only because of the presence of licensed premises in the area but also to obtain food from “McDonalds” or “KFC”. In addition, in an adjoining park underaged persons congregate and drink liquor. The entire area poses problems for the Police with alcohol fuelled crime being a significant feature. The evidence established that it is not so much the migration of people into the area which creates a problem as people simply milling around in that area.

[16] As far as “Snafu Bar and Restaurant” is concerned, it cannot be held to be responsible for the phenomenon described in the preceding paragraph although that phenomenon does require appropriate managerial techniques. Those techniques are applicable not only within the licensed premises themselves but also in the surrounding area where disturbances can occur. This as the Authority noted in New Light Tailor Limited NZLLA PH 176/2009 at paragraph [38]:

“We did not think that the company took seriously the issue of how to control the patrons outside the premises. We accept that there will be times when a licensee cannot prevent a patron from exhibiting general exuberance in the street. However, if this happens on a regular basis causing a nuisance to others (as in this case), then the trading hours may well have to be reviewed. A measure such as clawing back the closing time will either stop or at least mitigate the consequences of patron migration, as well as a tendency by patrons to loiter around late night premises.”

[17] The decision noted that when considering a renewal the conditions of the licence must be considered and that the applicant carries the onus of showing that the conditions should not be altered. The fact that an applicant obtains revenue from longer hours is not the issue.

[18] The Court of Appeal in My Noodle Ltd [2009] NZCA 564 noted that when considering conditions attaching to a licence a precautionary approach is applicable. It said:

“In our view, the Authority is not required to be sure that particular conditions will reduce liquor abuse. It is entitled to apply the equivalent of the precautionary principle in environmental law. If there is a possibility of meeting the statutory objective (as the Authority found there was in this case), then it is entitled to test whether that policy is a reality. In this case, it clearly intended to test its hypothesis and keep the matter under review.”

[19] In this case, the Police argued for a closing time of 2.00 am with a one way door policy operating from 1.00 am.

[20] With the “Equestrian Bar” and the “Islington Tavern” both closing at 2.00 am, the Authority considers that there are some dangers in “Snafu Bar and Restaurant” closing at the same time. Whilst Sergeant Lawn (consistent with usual Authority policy as expressed in such decisions as Clarendon Karamea Waverley Albion & Waitotora Hotels [1992] NZAR 488) thought that it was desirable that there be consistency in closing times, the other evidence indicated that for too many premises to close in this area at the same time would exacerbate the problems which the Police already experience in relation to the crowds loitering in the area of “McDonalds” and “KFC”. There seems to be virtue in this case of staggered closing times which might reduce those crowds.

[21] On the other hand, if the one way door policy were to commence at 1.30 am rather than 2.00 am (as suggested by the applicant) then this would mean that those patrons who wish to enter “Snafu Bar and Restaurant” and who have come from other premises closing at 1.00 am would be obliged to move quickly to gain entry. This would prevent them from loitering in the problem area and accordingly being involved in troublemaking activities.

Authority’s Decision and Reasons

[22] For the reasons set out in paragraphs [20 and [21], the Authority considers that in this case a condition should be imposed pursuant to s.14(5)(e) of the Act requiring that a one way door policy preventing persons from entering the premises after 1.30 am be implemented and continued at all times that the premises are open for the sale of liquor.

[23] With such a condition in place, the Authority is satisfied that a closing time of 3.00 am each day is appropriate.

[24] The application is granted upon the basis set forth in paragraphs [22] and [23].

[25] 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.

DATED at WELLINGTON this 6th day of December 2012

B M Holmes
Secretary

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