Brewery Cafe [2012] NZLLA 457 (7 May 2012)

Last Updated: 21 June 2012

[2012] NZLLA PH 457-458

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of applications by VALLEY BREWING COMPANY (2009) LIMITED for on and off-licences pursuant to ss.9 and 31 of the Act in respect of premises situated at 3 Gualter Road, Geraldine, known as “Brewery Cafe”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TIMARU on 20 April 2012

APPEARANCES

Mr N B Horn – on behalf of applicant
Sergeant N G Lord – NZ Police – to assist
Mrs B A Ensor – Timaru District Licensing Agency Inspector – to assist
Mr J L Wallace – for Mr and Mrs S Craigie, Mrs and Mrs R Griffiths, Mrs M Wallace and Mrs B Wilton – objectors
Mr and Mrs P R Ward-Smith – objectors
Mr J McG Simpson - objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Philip Olde-Olthof and his wife are the directors and shareholders of the applicant.

[2] The applicant has established a micro brewery at 3 Gualter Road, Gapes Valley, Geraldine. To date the applicant has sold product from the brewery to other retailers.

[3] The building in which the premises are situated is approximately 10 kilometres from Geraldine on the Geraldine – Fairlie Highway, South Canterbury.

[4] The applicant has applied for an off-licence to enable it to sell to the public beer brewed at the brewery. The area proposed for the off-licence is shown coloured pink on the plan attached to the applications.

[5] In addition, the applicant has applied for an on-licence in respect of that portion of the building shown marked green in the plan attached to the application.

[6] It is proposed that the bottle store will be designated as supervised.

[7] The proposed hours for the off-licence are 11.00 am to 9.00 pm each day. The bottle store will be separate from the proposed restaurant with an independent entrance and cash register.

[8] The nature of the on-licence proposed for the building is that of a restaurant. Its proposed hours are 11.00 am to 9.00 pm each day. The proposed licensed area includes an outdoor terrace and grassed area which is delineated by fencing. It is intended that the on-licensed area will be undesignated with a principal entrance from Gualter Road.

[9] The requisite resource management consent has been obtained subject to conditions. The proposed licences sought are conditional upon the issue of a building code compliance certificate.

[10] Because of its remote area, transport options are limited. The applicant intends to have a telephone available for alternative transport arrangements and is investigating the option of a courtesy coach for local patrons.

[11] Both Mr and Mrs Olde-Olthof have obtained their Licence Controller Qualifications. They have lodged applications for General Managers’ Certificates with the Timaru District Licensing Agency. Neither of them has experience in the liquor industry although Mrs Olde-Olthof has some historical experience at the “Kelvin Hotel” in Invercargill.

[12] Whilst the Inspector has indicated that the applications for General Manager’s Certificates will not be opposed by her, they will only be issued conditional upon a written undertaking that the certificates will not be used at premises other than those which are the subject of this application. Notwithstanding the Inspector’s assurance in this regard, the granting of a General Manager's Certificate to either of Mr or Mrs Olde-Olthof cannot be regarded as a foregone conclusion as neither of them has any relevant experience in the industry. To tie the General Managers’ Certificates to the proposed premises would be an exercise in futility given their lack of experience and other matters raised in this decision.

[13] The Timaru District Licensing Agency policy document provides for opening times of 7.00 am and closing times of 1.00 am each day for restaurant style on-licences. Whilst the Authority is obliged to have regard to that policy, nevertheless there will be situations when these guidelines are in appropriate. This is one of those cases.

[14] Whilst neither the Police nor the Inspector nor the Medical Officer of Health opposed the applications, nevertheless there are some obvious problems associated with them. These were raised by the objectors.

Objections

[15] Some of the objectors were concerned at the issue of the resource management consent. This is not a matter for the Authority.
[16] The application was objected to on grounds of lack of suitability, proposed opening hours, anticipated excessive noise issues, road safety issues and similar matters.

Decision of Authority and Reasons

[17] As is the case with any application, it is for the applicant to justify the grant of the application. It is not just a matter of the applicant satisfying objections.

[18] The relevant criteria to which the Authority must have regard are contained in ss.13 and 35 of the Act. These include the applicant’s suitability, the days and hours of the proposed operation, whether or not the premises are to be designated, steps proposed to be taken to ensure the requirements of the Act are observed and any matters dealt with in the Inspector’s report. When considering licence conditions (and in particular the days and hours during which liquor may be sold) the Authority is required pursuant to ss.14(7) and 37(5) of the Act to have regard to the site of the premises in relation to neighbouring land use.

Suitability

[19] Effectively, neither director of the applicant has any experience in the sale and supply of liquor to the public. Their lack of experience is directly relevant to the applicant’s suitability.

[20] The idea for the proposed bottle store and restaurant seems to have arisen as a result of the successful retailing of product made in the micro brewery. Apparently members of the local community have made enquiries seeking to purchase the local product: hence the application for the off-licence. That proposal grew into the application for the restaurant style on-licence: which is a logical extension of the whole development. As the ideas have grown, unfortunately, it seems that the directors of the applicant have not always kept members of the local community informed as to their latest proposals. To some extent, but not wholly, this is the reason for some of the objections.

[21] Principally, however, the objections as to the off-licence and on-licence per se have arisen from a perceived unsuitability of the applicant. To some extent this inexperience can be overcome by the employment of experienced personnel with General Managers’ Certificates. At the hearing Mr Olde-Olthof started to appreciate how the applicant’s inexperience was likely to inhibit the applications’ success and accordingly stated that the applicant would not open either the on-licensed premises or the off-licensed premises until such time as his wife has obtained her General Manager's Certificate or until the applicant employs two persons with General Managers’ Certificates. He appreciated that it would be necessary to employ two persons holding General Managers’ Certificates so that there would be a duty manager present in both the off-licensed premises and the on-licensed premises at all times that they are open for the sale and supply of liquor. He acknowledged that if a duty manager was not available for the off-licence then it would be closed.

[22] Notwithstanding these concessions made at the hearing, they did appear to have been made without them having been considered previously.

Liquor abuse potential

[23] Another factor which the Authority is required to take into account when considering both applications is whether or not liquor abuse is likely to occur (see s.4 of the Act). In this regard, there is potential for liquor abuse arising from the applications.

[24] The proposed premises are situated in a remote locality on the main highway between Timaru and the Mackenzie country. That road attracts many tourists. Some of the roads in the vicinity are relatively dangerous and alcohol impaired persons navigating them at night could well cause problems which could not be attended to as quickly as one would like.

[25] The proposed premises are situated in a quiet rural locality which means that any noise issues arising from them must be appropriately managed. (Noise emanating from licensed premises can be a sign of mismanagement).

[26] Mr Ward-Smith noted that young children board and alight from the school bus approximately 160 metres from the proposed site. School children leaving a bus on a busy road in a remote area always pose a problem. This would be accentuated if persons have drunk liquor at the proposed restaurant and then proceed to travel down the state highway when the school bus is discharging its passengers.

[27] The locality of the premises could also attract undesirables – particularly in the evening and at night. The inexperienced applicant and its directors do not have the ability or knowledge to deal with such patrons. The premises cannot be visited by the Police with alacrity and accordingly it would be easy for a situation to get out of control. This is a matter that does not seem to have occurred to either the Police or the Inspector but was very obvious to the objectors and the Authority.

Conclusion

[28] Problems which could occur in respect of these premises are similar to those described in a decision of the Authority in respect of an application by Olivia Lauren Joy Boote in respect of “Club 22” NZLLA [2012] PH 243. In that case the Authority refused an application for an on-licence upon the grounds that, in the context of operating a busy bar, the applicant lacked suitability as a result of her lack of experience. In Page v Police (unreported High Court, Christchurch AP84/98, 24 July 1998) Panckhurst J noted that an applicant for an on-licence is required to demonstrate his or her suitability. He pointed out that suitability is not established in a vacuum but in the context of the particular case.

[29] In this case, the applicant’s directors’ lack of experience and naivety coupled with the nature of the proposal does not mean the application should be refused. The problems identified in this decision can be overcome by the imposition of suitable conditions. Accordingly, the Authority concludes that the hours of operation should be severely restricted. A precautionary approach is required (as described in My Noodle Limited [2009] NZCA 564).

[30] Both applications are granted. It is a condition of the off-licence that liquor may be sold and supplied from 11.00 am to 6.00 pm each day (except on the sacrosanct days). The on-licence application is also granted. It is a condition of that licence that the premises may open for the sale and consumption of liquor from 11.00 am until 2.30 pm each day. These curtailed hours will give patrons the opportunity of having finished their drinks and having left the premises before the school bus arrives at approximately 3.20 pm each school day. They will be unattractive to the itinerant troublemakers, are unlikely to result in noise issues, and are unlikely to be the cause of alcohol impaired drivers. In summary, they are the sort of conditions which the applicant has the ability to manage.

[31] The licences 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.

[32] The applicant’s attention is drawn to ss.25, 48 and 115(3) of the Act obliging the holder of on and off-licences 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] Copies of the licences, and the conditions of the licences, 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 7th day of May 2012

B M Holmes
Secretary

Brewery Cafe.doc(aw)