Fisherman`s Wharf Cafe-FINAL-signed
Transcription
Fisherman`s Wharf Cafe-FINAL-signed
WhakatāneDistrict Licensing Committee Decision No. 25A/ON/20126/2015 IN THE MATTER of the Sale and Supply of Alcohol Act 2012 AND IN THE MATTER of an application by THOMAS FRANCIS MAGUIRE for a new On licence pursuant to s.14 of the Act in respect of premises situated atShed 5, 340 Harbour Road, Ōhope and known as “Fisherman's Wharf Cafe“ BEFORE THE WHAKATĀNE DISTRICT LICENSING COMMITTEE Commissioner: Russell Orr Committee: Michelle Campbell Jenny Mahoney Secretary: Lori Dale HEARING at Whakatāne on 29 May 2015 APPEARANCES -Thomas Francis Maguire – applicant -Roger Joseph McQuilkan – Liquor Licensing Inspector -Sergeant Craig A Thorne – NZ Police RESERVED DECISION OF THE COMMITTEE Introduction 1 By an application dated 06 November 2014the applicant, Thomas Maguire, sought the grant of an On licence for a restaurant at Shed 5, 340 Harbour Road,Ōhope. The application was duly advertised and reported on by the agencies. 2 The proposed restaurant is situated on Fisherman’s Wharf in premises that last traded as the Pancake Parlour, and prior to that the Sea Thai Restaurant. The premise sits adjacent to light industrial premises and shares an off-road carpark with those premises. 3 The Ōhope Wharf is a public waterfront site and is subject to a Whakatāne District Council bylaw prohibiting the consumption of alcohol on the wharf. This Bylaw does not apply to licensed premises. The neighbourhood is predominantly urban. 4 The reporting agencies - Police, Medical Office of Health (MoH) and Liquor Licensing Inspector - did not raise any matters in opposition to the application. Applicant’s evidence 5 Mr Thomas Francis Maguire appeared as the applicant. He submitted a copy of the application for an On licence, dated 06 November 2014, to be received as evidence. (Received as EXHIBIT A) 6 Mr Maguire was asked if he had anything to add to the application and he advised he did not. 7 It was noted a BYO endorsement had been requested but, when it was explained this was not required for an On licence, Mr Maguire advised he no longer requested the endorsement. 8 It was further noted Mr Maguire had asked for the front porch to be designated restricted and the back of the restaurant to be designated as supervised. Mr Maguire explained he did not serve alcohol on the back porch as he sold takeaway fish-and-chips there and thought the area should be restricted. It was explained that, as the Fisherman’s Wharf restaurant was not a tavern or hotel, there was no requirement for the restaurant to be designated. Mr Maguire agreed the restaurant, including the back porch, should be designated neither supervised, nor restricted (that is, the whole premise would be undesignated). 9 Mr Maguire was asked if he was the only person on the premise with a manager certificate. It was pointed out the restaurant was to be open from 10am to 2am the following day, considered a long time for one person to manage the sale and supply of alcohol. He advised he lived on the premises and was always at hand. In addition, a staff member had recently completed her LCQ test and would be applying for a manager certificate soon. He would also likely be employing another certified manager as wait-staff over the busy summer and holiday season. 10 The closing time sought on the application was 2am. Mr Maguire said he seldom stayed open this late but had sought the later closing time as the restaurant was occasionally used for functions on public celebratory holidays, or for weddings in summer. The later closing option gave guests the opportunity for their special occasions to last longer. Liquor Licensing Inspector evidence 11 The Liquor Licensing Inspector, Mr Roger Joseph McQuilkan, spoke to his Brief of Evidence. (Received as EXHIBIT B). He reported the application was lodged on 06 November 2014 and that the applicant had supplied all the necessary supporting documentation. The proposed 2 of 2 activity would fit within Section 14 as a type of premises that is permitted to hold an On licence. 12 He told the Committee the premise was located adjacent to the Port Ōhope wharf, and was formerly known as the Sea Thai Restaurant and held an On licence in that name. 13 It was noted Mr Maguire had also applied for a Temporary Authority in the name of the Fisherman’s Wharf Cafe and the restaurant had been operating on a Temporary Authority for some months. 14 The Inspector advised the owner had publicly notified the application, as required in the Act, and three objections had been received. Two of the objectors – one living in Edgecumbe and one living in Ōhope had withdrawn their objections. The remaining objection (dated 10 November 2014) was received from Ōhope resident Mrs Barr on 14 November 2014 within the allowable time-frame. 15 Bearing in mind Mrs Barr’s concerns, the Inspector visited the area in question in excess of 50 times. He states he did not see any of the behaviour Mrs Barr has voiced concerns about. 16 The Inspector noted the Ōhope Wharf area was subject to a Whakatāne District Council bylaw, prohibiting the consumption of alcohol on public areas of the wharf for the following days and times: Thursdays: Fridays: Saturdays: Sundays: 17 9pm to 6am the following day 9pm to 6am the following day 9pm to 6am the following day 9pm to 12am midnight. Inspector McQuilkan noted the liquor ban changed with the seasons. There was a 24 hour liquor ban around the Christmas period. Police evidence 18 Whakatāne Police Sergeant Craig A Thorne handed up his report dated 24 November 2014. (Received as EXHIBIT C). Further to his report, Sgt Thorne stated youths had been found drinking on the Ōhope Wharf at Christmas time. But all were found to have come from the nearby campground. Medical Office of Health evidence 19 The Medical Officer of Health had no opposition to the grant of the licence. The MoH report was handed up with the agreement of the applicant and received as evidence. (Received as EXHIBIT D) 3 of 3 Objector’s evidence 20 Ms Rachel Barr (who did not appear at the hearing) submitted a letter in objection to the application dated 10 November 2014 in which she objected to the issue of the Licence because the Ōhope wharf was an area where children were present and she had seen persons with alcohol there last summer. The Committee was not able to ascertain whether these persons had come from the restaurant, were intoxicated or disorderly, or were in breach of the liquor ban, because some 20 minutes before the commencement of the hearing Ms Barr contacted the Committee to advise she was unable to attend. She asked that her letter of objection be handed in and accepted as evidence. 21 The applicant Mr Maguire was asked if he would accept the letter of objection from Ms Barr as evidence. He declined to accept the letter as, to do so, gave him no opportunity to crossexamine Ms Barr in person. 22 Given Ms Barr did not appear, and given her letter of objection was not accepted as evidence by the applicant, her objection cannot be given much weight by the Committee. The reason for this is that the validity of an objection needs to be tested by way of cross examination. See, for example, Liquor World Limited, PH 1189/2009. 23 Accordingly, the objection of Ms Barr was given little weight. Relevant Legislation 24 25 Section 3 of the Sale and Supply of Alcohol Act 2012 (the Act) states the purpose of the Act as follows: (1) The purpose of Parts 1 and 3 and the schedules of this Act is, for the benefit of the community as a whole, – (a) to put in place a new system of control over the sale and supply of alcohol, with the characteristics stated in subsection (2); and (b) to reform more generally the law relating to the sale, supply, and consumption of alcohol so that its effect and administration help to achieve the object of this Act. (2) The characteristics of the new system are that, – (a) it is reasonable; and (b) its administration helps to achieve the object of this Act. Section 4 states the object of the Act as follows: (1) The object of this Act is that, – (a) the sale, supply, and consumption of alcohol should be undertaken safely and responsibly; and (b) the harm caused by excessive or inappropriate consumption of alcohol should be minimised. 4 of 4 (2) 26 27 For the purposes of subsection (1) the harm caused by excessive or inappropriate consumption of alcohol includes, – (a) any crime, damage, death, disease, disorderly behaviour, illness or injury, directly or indirectly caused, or directly or indirectly contributed to by the excessive or inappropriate consumption of alcohol; and (b) any harm to society generally or the community, directly or indirectly caused, or directly or indirectly contributed to, by any crime, damage, death, disease, disorderly behaviour, illness or injury of a kind described in paragraph (a). 105 Criteria for issue of licenses (1) In deciding whether to issue a licence, the licensing authority or licensing committee concerned, must have regard to the following matters, – (a) the object of this Act: (b) the suitability of the applicant: (c) any relevant local alcohol policy: (d) the days on which, and the hours during which, the applicant proposes to sell alcohol: (e) the design and layout of any proposed premises: (f) whether the applicant is engaged in, or proposes on the premises to engage in, the sale of goods other than alcohol, low-alcohol refreshments, nonalcoholic refreshments, and food, and if so, which goods: (g) whether the applicant is engaged in, or proposes on the premises to engage in, the provision of services other than those directly relate to the sale of alcohol, low-alcohol refreshments, non-alcoholic refreshments, and food, and if so, which services: (h) whether (in its opinion) the amenity and good order of the locality would be likely to be reduced, to more than a minor extent, by the effects of the issue of the licence: (i) whether (in its opinion) the amenity and good order of the locality are already so badly affected by the effects of the issue of existing licenses that, – (i) they would be unlikely to be reduced further (or would be likely to be reduced further to only a minor extent) by the effects of the issue of the licence; but (ii) it is nevertheless desirable not to issue any further licenses: (j) whether the applicant has appropriate systems, staff, and training to comply with the law: (k) any matters dealt with in any report from the Police, an Inspector, or a Medical Officer of Health made under section 103. (2) The authority or committee must not take into account any prejudicial effect that the issue of the licence may have on the business conducted pursuant to any other licence. 106 Considering effects of issue of licence or renewal of licence on amenity and good order of locality: 5 of 5 (1) In forming for the purposes of section 105(1)(h) and opinion on whether the amenity and good order of a locality would be likely to be reduced, by more than a minor extent, by the effects of the issue of a licence, the licensing authority or a licensing committee must have regard to, – (a) thefollowing matters (as they relate to the locality): (i) current, and possible future, noise levels: (ii) current, and possible future, levels of nuisance and vandalism: (iii) the number of premises for which licenses of the kind concerned are already held; and (b) 28 theextent to which the following purposes are compatible: (i) the purposes for which land near the premises concerned is used: (ii) the purposes for which those premises will be used if the licence is issued: Accordingly, each of the criteria is considered in the paragraphs following. COMMITTEE’S DECISION AND REASONS Sections 105and 106 of the Act sets out the criteria we must have regard to: Section 105(1)(a) the object of this Act 29 An On-licensed operator is legally responsible to manage the supply and consumption of alcohol on their premises. 30 The Object goes on to say that the Committee must consider in their decision-making the likelihood of harm to society generally or the community. Section 105(1)(b) the suitability of the applicant 31 Mr Thomas Francis Maguire has been operating the Fisherman’s Wharf Cafe under a Temporary Authority for almost 5 months. In this time there have not been any adverse reports noted from Police or other reporting agencies. 32 Mr Maguire is a certified manager and appears fully aware of his obligations under the Act around the sale and supply of alcohol. Section 105(1)(c) any relevant local alcohol policy 33 In respect of section 105(1)(c) of the Act: there is no relevant local alcohol policy in existence at this stage. There is nothing to consider except to note the hours and days sought are consistent with the proposed local alcohol policy. 6 of 6 Section 105(1)(d) the days on which, and the hours during which, the applicant proposes to sell alcohol: 34 The proposed operating hours are Monday to Sunday 10am to 2am the following day. These hours are within the national default hours for On licenses. Section 105(1)(e) the design and layout of any proposed premises 35 A floor plan has been provided with the application and this clearly shows the layout and design of the premises. Section 105(1)(f) whether the applicant is engaged in, or proposes on the premises to engage in, the sale of goods other than alcohol, low-alcohol refreshments, non-alcoholic refreshments, and food, and if so, which goods 36 No other services are intended to be offered. Section 105(1)(g) whether the applicant is engaged in, or proposes on the premises to engage in, the provision of services other than those directly relate to the sale of alcohol, low-alcohol refreshments, non-alcoholic refreshments, and food, and if so, which services 37 No other services are intended to be offered. Section 105(1)(h) whether, in its opinion, the amenity and good order of the locality would be likely to be reduced, to more than a minor extent, by the effects of the issue of this licence 38 We are directed to have regard for the parameters of section 106(1) and to have regard to a series of matters as they relate to locality. We have heard no evidence to suggest the amenity and good order of the locality would be likely to be reduced, to more than a minor extent by: a rise in current and possible future noise levels a rise in current and possible future levels of nuisance and vandalism the number of premises for which licenses of the kind concerned are already held the purposes for which land near the premises is used the purposes for which those premises will be used if the licence is issued Section 105(1)(i) Whether (in its opinion) the amenity and good order of the locality are already so badly affected by the issue of existing licences that, – (i) they would be unlikely to be reduced further (or would be likely to be reduced further to only a minor extent) by the effects of the issue of the licence; but (ii) it is nevertheless desirable not to issue any further licenses: 39 There is no evidence or suggestion that the amenity and good order of the locality are already so badly affected by the issue of existing licences another licence would not reduce it further. 7 of 7 Section 105(1)(j) whether the applicant has appropriate systems, staff, and training to comply with the law 40 Mr Maguire holds a manager certificate and has encouraged wait-staff to sit the LCQ requirement of the Act and will encourage them to attain full manager certification. Host responsibility criteria are on prominent display within the premises. It is unlikely staff would sell alcohol directly to minors or intoxicated persons. Section 105(1)(k) any matters dealt with in any report from the Police, an Inspector, or a Medical Officer of Health made under section 103. 41 The reports from all agencies are complete. None of the reports gave rise for concern that granting of the On licence would cause the amenity and good order of the locality to be reduced, to more than a minor extent. CONCLUSION 42 In any application for a licence, the applicant is obliged to make their case. There must be a positive finding in the applicant’s favour. 43 The applicant Thomas Francis Maguire has satisfied the District Licensing Committee that his application should be granted 44 The On licence will be issued without a BYO endorsement as there is no need for one for a restaurant On licence. 45 The conditions will not record any designation for the premises. 46 The hours shall be as requested from 10am to 2am the following day. 47 The licence will be issued for 1 year and must be renewed in 12 months’ time. Should problems emerge as to the way in which the premises are operated then those problems can be taken into account by the District Licensing Committee when determining the application for the renewal of the licence. 48 The applicant is advised it is his responsibility to apply for a renewal of the licence before the expiry date. 49 Potentially, persons who objected to the issue of the new On licence, will in future object to the renewal application. The Committee records their disappointment that people who lodge objections are not prepared to exercise their right to object responsibly by attending hearings into applications to which they have objected. 50 The application for an On licence for Fisherman’s Wharf Cafe is duly granted. 8 of 8 DATED at WHAKTANE this 29th day of May 2015 Russell Orr Commissioner For the WhakatāneDistrict Licensing Committee 9 of 9 LIST OF EXHIBITS: EXHIBIT A Application submitted by applicant Thomas Francis Maguire for an On licence for Fisherman’s Wharf Cafe, Shed 5, 340 Harbour Road, Ōhope, Whakatāne EXHIBIT B Brief of Evidence for Liquor Licensing Inspector Roger McQuilkan EXHIBIT C Report from Police EXHIBIT D Report from Medical Officer of Health 10 of 10 EXHIBIT A:Application submitted by applicant Thomas Francis Maguire for an On licence for Fisherman’s Wharf Cafe, Shed 5, 340 Harbour Road, Ōhope, Whakatāne 11 of 11 12 of 12 13 of 13 14 of 14 15 of 15 16 of 16 17 of 17 18 of 18 19 of 19 20 of 20 21 of 21 22 of 22 23 of 23 24 of 24 25 of 25 26 of 26 27 of 27 28 of 28 29 of 29 30 of 30 31 of 31 32 of 32 33 of 33 EXHIBIT B: Brief of Evidence - Liquor Licensing Inspector Roger McQuilkan My full name is Roger Joseph McQuilkan, I am the Liquor Licensing Inspector employed by the Whakatāne District Council and hold a warrant issued under Section 197 of The Sale and Supply of Alcohol Act 2012. On the 6th November 2014, I received an application made by Thomas Francis McGuire for an On licence to be issued in relation to an existing Restaurant / Café situated on the wharf at Port Ōhope officially known as 340 Harbour Road Harbour Road shed 5 Ōhope to be known as The Fisherman’s Wharf. The premises was formerly known as the Sea Thai Restaurant and held an On Licence in that name. Mr Maguire had also applied for a Temporary Authority in the name of the Fisherman’s Wharf. This Temporary Authority is to allow the new owner to carry on trading off the back of the existing licence until a new substantive licence is issued in the name of the new identity and are normally issued for an initial period of three months. Part of the required process as set out in the Act is for the new owner to publicly notify in a locally circulated newspaper his intentions as to the type of licence he is applying for, the days and hours sought and how he intends to operate his licence. The applicant conformed with the requirement and publication appeared in the Beacon on the 7th and 14th of November 2014. This exposure resulted in three objections being submitted with one of the submitters living in Edgecumbe on two living in the Ōhope area. The objector from Edgecumbe and one other from Ōhope decided to withdraw their objections leaving this current objector Mrs BARR. Legislation dictates that objectors have 15 working days in which to lodge their submissions from the date of the first newspaper publication. I received Mrs BARRS objection on the 14th November and well within the required time frame. I have spoken with Mrs BARR and read her concerns. With this is mind I have visited the area in question in excess of 50 times and I have never seen any of the behaviour that Mrs BARR has voiced her concerns over. I have further spoken with the Alcohol Harm Reduction Officer and he advises me that the Police have not been called to either the premises or the wharf area in relation for the Fisherman’s Wharf licence. He did advise me that the Police have been called to the actual wharf but only in relation to behaviour from people staying at the nearby camping ground. 34 of 34 EXHIBIT C: Report for Sgt Craig Thorne NZ Police 35 of 35 EXHIBIT D: Report of Medical Officer of Health 36 of 36 37 of 37