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
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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:
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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)
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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.
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(2)
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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:
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(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)
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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.
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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.
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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.
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DATED at WHAKTANE this 29th day of May 2015
Russell Orr
Commissioner
For the WhakatāneDistrict Licensing Committee
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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
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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
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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.
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EXHIBIT C: Report for Sgt Craig Thorne NZ Police
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EXHIBIT D: Report of Medical Officer of Health
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