Club 22 [2012] NZLLA 243 (12 March 2012)

Last Updated: 20 March 2012

[2012] NZLLA PH 243

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by OLIVIA LAUREN JOY BOOTE pursuant to s.9 of the Act for an on-licence in respect of premises situated at 22 Harewood Road, Papanui, Christchurch, known as “Club 22”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Dr J Horn

HEARING at CHRISTCHURCH on 9 February 2012

APPEARANCES

Mr P M James – for applicant
Sergeant A J Lawn – NZ Police – in opposition
Mr M Ferguson – Christchurch District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] The applicant was born on 21 August 1990. She has held a General Manager's Certificate since 30 November 2011.

[2] Before leaving school she assisted her mother working part time at a bar. After leaving school she worked at that bar for one year. She says that in total her bar experience amounts to four years. During that time she has assisted with staff, helped to manage the bar and got to know the hospitality business.

[3] Her partner, Surya Venkataiah, is a bar manager with eight years' experience in the industry. Both the applicant and her partner are managers of the business known as “Club 22”.

[4] “Club 22” is situated at 22 Harewood Road, Papanui, Christchurch. The application is for a tavern licence although the applicant prefers to describe the business as a “club”. The premises occupied by the applicant are subject to a lease from Kiwione Investment Trust. Kiwione Investment Trust is a family trust set up by the applicant’s father for the benefit of the applicant and her younger brother.

[5] Before “Club 22” was set up, the building in which the “club” is situated was run as the “Papanui Tavern”.

[6] The hours sought in the application are from 7.00 am until 2.00 am the following day.

[7] The “club” employs approximately 20 staff including eight bar staff. Whilst the application seeks hours from 7.00 am to 2.00 am the following day, in practise the “club” has been open from 8.00 pm to 2.00 am the following day.

[8] The applicant advises that bar staff had been educated in compliance with the Act. Steps had been taken to ensure that staff are able to recognise intoxicated people to ensure that they are not served. Generally, the applicant endeavours to employ certificated managers or at least persons who have previous bar experience. She sees this as reducing the need for their training. Training appears to be conducted in a haphazard manner.

[9] To improve security three floodlights have been installed to illuminate the carpark. In addition, the applicant has employed a car park attendant to ensure that the area around the bar is kept clean, and to assist with ensuring that patrons are not rowdy or causing problems in the car park area. In addition up to six security staff are employed partly to ensure that the surrounding neighbourhood is not adversely affected by unruly patrons. These processes were put in place in response to Police concerns.

[10] The premises can be used as proposed in terms of the Resource Management Act 1991.

[11] A full range of non alcoholic beverages is available for sale. It is not intended to sell cheap liquor. Drinks available for purchase range in price from $8 to $16 as a rule.

[12] There is a host responsibility policy in place.

[13] Food is provided on a regular basis. Between 12.30 am and 1.20 am approximately 100 free meals are made available to patrons. At other times food can be purchased at prices of between $5 and $10 per dish.

[14] Since its opening, the “club” has attracted some complaints concerning noise. Considerable efforts have been made by the applicant to eliminate noise problems. It is clear that more effort is required in this regard.

[15] In order to enter the premises patrons sometimes are obliged to queue. The queue can consist of about 100 persons, who can be in the queue for up to two hours. The applicant and her staff patrol the queue to ensure that unruly behaviour does not occur.

[16] Despite all the efforts made by the applicant, there have been:

• [a] Noise complaints;
  
• [b] Many occasions when patrons have left the premises and subsequently committed offences;
  
• [c] Unruly behaviour by the patrons (generally in the 18 to 24 age group) which has caused frequent visitations by the Police.
  

[17] The applicant obtained her Licence Controller Qualification in June 2011. On two occasions before then, she purported to act as a duty manager when her partner (who did hold a General Manager's Certificate) was absent. In these circumstances a breach of s.165 of the Act (unauthorised sale or supply) occurred. It seems that the offences were committed by the applicant as a result of ignorance rather than wilfully.

Authority’s Decision and Reasons

[18] The two criteria in s.13 of the Act requiring consideration are the suitability of the applicant and the days and hours when the applicant proposes to sell liquor. In this case the Authority is not satisfied as to the applicant’s suitability and does not believe that her lack of suitability can be cured by altering the proposed days and hours of operation. In this regard, the applicant seeks to stop liquor sales at 2.00 am each morning. It was mooted during the hearing that some of the problems arising from the premises could be mitigated by an earlier closing time coupled with a one way door policy. Upon analysis, the finding of lack of suitability arises from the applicant’s lack of experience. The Authority doubts that altering the hours of operation would overcome the fundamental adverse suitability finding. A more detailed consideration of the reasons for reaching its conclusion as to suitability reveals why an alteration in hours is unlikely to resolve the problem.

[19] In Page v Police (unreported High Court Christchurch, AP 84/98, 24 July 1998) Panckhurst J commented on suitability as follows:

“Section 13(1)(a) provides that the applicant for an on-licence must demonstrate his or her suitability. In other words what is required is a positive finding. That implies an onus on the applicant to demonstrate suitability. Such suitability is not established in a vacuum but in the context of the particular case: for example, the place, the intended business (here in a difficult central city location), the nature of the business itself, the hours of operation and the intended activities, provide the basis for the assessment of the individual.”

[20] The applicant is aged 21. Her experience in the licensed industry is limited; although, since the inception of “Club 22” she has had to learn a great deal. Her business has been funded by her father and her father’s family trust. Her father has no experience in the licensed industry. The applicant’s mother has employed the applicant previously in a bar owned by her but has no involvement in “Club 22”. The applicant is supported in the day to day activities of “Club 22” by her partner Surya Venkataiah who is aged 28 and has had eight years’ experience in the industry. He has a General Manager's Certificate.

[21] The “club” commenced operating on or about 1 April 2011. At that stage the premises were empty. The centre of Christchurch City had been devastated by earthquakes and there was a significant migration of people seeking entertainment to premises in the suburbs. “Club 22” benefitted from this migration. Thus, what seems to have started as a relatively small “club” has burgeoned into a very busy operation.

[22] Since the inception of “Club 22” there have been teething problems. There has been inadvertent non-compliance with the Act. Various noise issues have emerged. The Police have been required to patrol the premises on a regular basis and the Alcolink data support physical evidence of intoxicated persons on the premises on some occasions.

[23] The Alcolink data supplied by the Police indicate that these premises rank amongst the highest in Christchurch in terms of patrons subsequently committing offences. Whilst this information is some evidence of poor management, it can also indicate very busy licensed premises. Further evidence in support of the scale of the operation is that on an average Saturday night the applicant employs about 20 staff. These include eight bar staff, two glassies, the applicant and her partner as managers, a disc jockey, a coat check girl, six security staff and the car park attendant. At closing approximately 270 patrons leave the premises.

[24] When one considers the nature of “Club 22”, it is disconcerting to see that its owner and proposed licensee is a young woman with limited experience in the liquor industry. To some extent, to date it seems that she has experienced a charmed existence in that no major Sale of Liquor Act problems have arisen. Her lack of experience and industry knowledge has caused her to commit some procedural breaches of the Act and to react to problems when they have arisen rather than pre-empt them. If the Act is to be complied with in all respects and the object of the Act adhered to, then strong and experienced pro-active management will be required. Pro-active management occurs as a result of experience. The various problems which are apparent at present will not go away of their own accord and indeed, given the existing Christchurch demographic changes will require even more sophisticated management.

[25] In this regard, the applicant is a sole trader. Certainly, she has the financial and business support of her father. However, he has no experience in the liquor industry. The only support that she has from anyone experienced in the liquor industry is from her employee partner (who is not in any way financially interested in the business).

[26] The Authority commends the applicant for her vision and courage in setting up “Club 22”. It concludes however, that she would be a very vulnerable licensee in all these circumstances. An effective licensee cannot simply rely on taking advice once a problem arises. By then it is often too late. The Authority does not accept that on her own the applicant has the ability to foresee and manage the multifarious problems that inevitably will continue to emerge with a highly successful but challenging on-licence. At the very least she would need hands on assistance from an experienced manager who has an interest in the business; and who cannot leave her in the lurch at any time at a crucial stage.

[27] The Authority notes the positive report by the very experienced Inspector. Nevertheless, whilst the Inspector has recorded the significant progress made by the applicant, the Authority is not convinced that the applicant, without appropriate support, is yet able to adequately manage the business so that all aspects of the Act are complied with.

[28] In the circumstances the application is refused.

DATED at WELLINGTON this 12th day of March 2012

B M Holmes
Secretary

Club 22.doc(aw)