Family Qld Pty Ltd as trustee for Beaumont Entertainment v Liquor & Gaming Commission [2012] QCAT 598

CITATION: Family Qld Pty Ltd as trustee for Beaumont Entertainment v Liquor & Gaming Commission [2012] QCAT 598 PARTIES: Family Qld Pty Ltd as trustee for Beaumont Entertainment trading as The Family Nightclub (Applicant) v Liquor and Gaming Commission (Respondent) APPLICATION NUMBER: GAR291-12 MATTER TYPE: General administrative review matters HEARING DATE: 5 October 2012 HEARD AT: Brisbane DECISION OF: Michelle Howard, Acting Senior Member DELIVERED ON: 5 October 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Unless otherwise ordered, the decision made by the Queensland Liquor and Gaming Commission on 24 July 2012 is stayed until the review is determined. CATCHWORDS: STAY APPLICATION – whether detriment to applicant outweighs public interest factors – where condition prohibiting use of regular glass bottles imposed – where management practices had previously removed glass bottles other than beer bottles from sale – where only previous incident involving a bottle was over two years ago and did not involve a beer bottle – where significant drop in patron spend since condition operative – where reputation of licensee likely to be detrimentally affected Queensland Civil and Administrative Tribunal Act 2009, s 22 Elliott v QBSA [201] QCAT 180 Music Kafe v OLGR [2012] QCAT 217 The Hideaway Café Bar Pty Ltd v OLGR [2012] -- 1 of 7 -- 2 QCAT 46 Harley v Department of Justice & Attorney- General [2012] QCAT 390 APPEARANCES and REPRESENTATION (if any): APPLICANT: Family Qld Pty Ltd as trustee for Beaumont Entertainment trading as The Family Nightclub represented by Mr M Madsen of Mullins Lawyers RESPONDENT: Liquor and Gaming Commission represented by Ms J Droguet of Office of General Counsel, Department of Justice & Attorney-General REASONS FOR DECISION [1] The Family Nightclub is a venue which hosts local and international musical performances. A liquor licence is held for the premises by Family Qld Pty Ltd as trustee for Beaumont Entertainment (Family). [2] The Liquor and Gaming Commission (LGC) recently made a decision to impose a condition on the licence prohibiting use of regular glass (as opposed to tempered or toughened glass) for any bottles, including wine bottles, stubbies, mixers and ready to drink (RTDs) bottles during trading hours. This effectively prohibits sale of any liquor in bottles which are made from regular glass. It must be decanted into another container. [3] Family filed an application in the Tribunal to review the decision. It has also filed an application seeking an order staying the operation of the decision. [4] I listed the stay application for an oral hearing. Mr Raphael Bickle, a director of Family, filed an affidavit in support of the stay application. I also heard oral evidence from him today. [5] Mr Bickle gave evidence that the Bickle family has considerable experience in the hospitality industry. It currently operates 6 venues, including The Family Nightclub. Mr Bickle has personally been involved in management of the Bickle family interests for more than 20 years. He considers that they have a good working relationship with Police and community members, and a good reputation in the industry. He told the Tribunal that they had won many industry awards over the years and have not had any infringements. [6] Since the condition was implemented, sales of what may be described as fashionable beers, usually sold in their bottles, have dropped. Corona beer sales, previously the most popular beer at the venue, have dropped by some 75%, while sales of other beers have dropped by about 50%. Once customers realise that the beer must be decanted, many elect to purchase something else. In Mr Bickle’s view, based on his experience -- 2 of 7 -- 3 and observations that draft beer on tap has been historically unpopular in late-night venues, this is because the choice of beer is image-related. He says that if it cannot be purchased in its bottle, it no longer holds the same attraction for patrons. [7] Corresponding with the drop in beer sales, has been a marked increase in sale of spirits, especially vodka. Before the condition took effect, Mr Bickle explained, male customers tended to start drinking beer which has a lower alcohol content, and change to spirits later in the night. In his experience, most beer is sold before 1am and most spirits after 1am. Now patrons are arriving, on average, later. He believes that this is related to not being able to get their preferred drink in a bottle, although he acknowledges that the period since implementation has been relatively brief and the change in patron behaviour could also be related to the particular acts at the club during that period. [8] The overall financial effect has been a drop in the average ‘spend’ per customer of some $3, resulting in a decrease of revenue of $12,000 per week. Before the implementation of the condition, it was anticipated that significant additional front-of-house staff would be required to absorb the additional time required to pour the bottled drinks into non-regular glass containers. Mr Bickle explained that experience suggests that delays in service would likely invite pressure points which can trigger violent behaviour. For several weeks, additional bar staff were put in place. However, given the trends which have resulted from the change, only additional back-of-house staff, to attend to tasks related to cleaning of the additional glasses being used to serve spirits are required. The cost is approximately an additional $500 per week. [9] There are two contractual arrangements in place with suppliers, by virtue of which the venue must stock products including Coronas and other beers, which require a certain percentage of fridge space to be maintained for those products. Given the significant drop in sales since the condition has been in place, Mr Bickle considers that the condition affects the viability of meeting these arrangements which are applicable until about February and April 2013 respectively. [10] He considers that the condition affects the reputation of the Bickle family’s interests in the industry. He suggested that having this type of condition indicated to those in the industry that the licensee could not operate a venue effectively. He said that other venues which have had conditions imposed relating to glass had experienced a significant drop in patronage and sales. [11] He is aware of only one incident at The Family Nightclub which involved a bottle made of regular glass. It occurred over 2 years ago when a female patron tried to strike another female patron with a Smirnoff Black bottle. Family submits that the licensee had taken steps of its own volition not to sell RTDs and to remove regular glass from the premises except bottles. It adopted a non-regular glass policy more than 2 years ago in respect of drinking receptacles, apart from glass bottles the subject of the -- 3 of 7 -- 4 application. RTDs which have a high alcohol content. The policy is said to be at considerable cost to the business, for the purpose of safety. [12] Various references were provided in support of the good reputation and practices of the Bickle family group, from persons including Rev Lance Merguard of ChaplainWatch Inc, Fortitude Valley, which operates overnight in the Valley Entertainment Precinct, which focuses on public safety in public spaces and is often the first response to intoxicated persons. He considers the Bickle family have had a significant role in harm minimisation within their venues, which has had a positive trickle down effect on other venues. He considers they operate ‘well thought-of’ venues. [13] LGC refers to 12 alleged incidents involving alcohol misuse at the Family Nightclub from 4 April 2010 to 17 October 2011 in making the decision to impose the condition. Of these, in its decision, it does not rely upon 4 of these for various reasons, including that in 2 of them, it found that the Family staff acted to minimise harm from alcohol misuse. In the other 7, it concluded that the licensee’s arrangements were not effective to minimise harm caused by violence at the premises. Although it had insufficient information to conclude whether alcohol misuse was a factor in all but 2 of the incidents, it concluded that alcohol was likely to have been a factor. In 4 of them, this conclusion was made on the basis that the violence occurred in the early hours of the morning where alcohol was served. Family calculates that during this period, the 12 incidents represents a ratio of 1 incident per every 23,436 patrons. [14] LGC says that since that time there have been another 7 incidents at the premises between 17 March 2012 and 19 August 2012. It submits that 2 of these involve the use of drink receptacles. During this period, the Family calculates that this represents 1 incident per every 30,000 patrons. Mr Bickle gave evidence that there have been no incidents at all at the premises since the condition has been operative. [15] Family, while acknowledging that the objects of the Act include minimising harm and the potential for harm associated with alcohol abuse and misuse, submits that having regard to the history of the declining risk demonstrated by the falling numbers of incidents, the real risk of harm to the public has decreased over time. It says its management of the venue achieves this aim, including the policy not to sell RTDs. Further, it argues that the detriment to it in terms of decreased revenue and reputational harm is significant. Further, it says the damage to reputation may be irreparable. Therefore, it argues that a stay which effects a status quo of the situation as it existed prior to the imposition of the condition is desirable and should be granted pending hearing of the review application. [16] LGC does not dispute that of the incidents identified, only the 1 incident identified by Mr Bickle involved a bottle made of regular glass. While acknowledging that there is always some risk to public safety at licensed premises, it argues that neither Family’s own management procedures -- 4 of 7 -- 5 and protocols, nor its submissions adequately address the violence at the premises. It argues that the incidents at the premises indicate a level of patron behaviour and the inability of the licensee to prevent risks, to the extent that the potential for risk involving glass led to a requirement for the condition imposed to ensure harm minimisation. There is, it argues, some risk of harm from regular glass at the premises, which it says the condition seeks to minimise further. [17] LGC submits that risk to patrons is a public interest consideration which outweighs the detriment to the Family. Further, it argues that the financial detriment referred to involves, in part, a management decision to employ additional staff. Further, it says that the patron safety objectives of the condition outweigh the hardship to the Family. Should a stay order be granted? [18] Section 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) provides that the Tribunal may make an order staying the operation of a reviewable decision pending hearing. It may only do so if it considers a stay order is desirable after having regard to the interests of any person whose interests may be affected; any submissions of the decision-maker; and the public interest: s 22(4). In exercising its discretion,1 the Tribunal must form a positive view that making a stay order is desirable. [19] The Tribunal may also consider other matters in addition to those specified in section 22(4), including whether there are real issues for determination; and whether the balance of convenience favours the granting of the stay.2 [20] It is not controversial that there are real issues for determination on the review hearing. Accordingly I accept that the Family has an arguable case to present, but it is not my role on the stay application to determine the merits of the review. [21] I accept that as a result of the condition which is the subject of the application, The Family Nightclub has experienced a decrease in revenue, and additional staffing costs, although the latter are somewhat less significant than had been anticipated before implementation. Also, I accept Mr Bickle’s evidence about the likely effect of the condition on the reputation of the licensee and the venue, which was based on his experience in the industry and his knowledge of the consequences for other licensees and venues upon whom/which such conditions have been imposed. [22] It is not controversial that for some considerable time, before the condition was imposed, the only regular glass receptacles available on the 1 Elliott v QBSA [201] QCAT 180. 2 Music Kafe v OLGR [2012] QCAT 217; The Hideaway Café Bar Pty Ltd v OLGR [2012] QCAT 46; Harley v Department of Justice & Attorney-General [2012] QCAT 390. -- 5 of 7 -- 6 premises, as a result of the licensee’s management decisions, were beer bottles. In my view, in considering the stay application, it is significant that beer bottle/s have not been involved in any incident/s at the premises. Further, I consider Mr Bickle’s evidence that beer, which has lower alcohol content than RTDs or spirits, is largely sold earlier in the night before 1am, is significant. As I will explain, on the evidence before me, it seems that the risks involving RTD bottles and beer bottles at the venue may be different. [23] It is in the public interest to minimise harm from alcohol, including alcohol- related violence. The objects of the Act reflect this interest. Of course, a violent incident can occur at any time and in any place, for example due to a dispute between persons or as a result of anti-social actions by a person, whether or not alcohol has been consumed by any of the participants. Any number of usually harmless items can be used as weapons by a person: indeed, one incident at The Family Nightclub allegedly involved a patron using her high heeled shoe as a weapon. [24] Alcohol-related incidents, by definition, occur after patrons have been drinking alcohol for some time, sufficient for alcohol to affect the patron/s involved. This is likely to occur later in the night in nightclubs, such as The Family Nightclub. Mr Bickle gave evidence that most beer, which is lower in alcohol than RTDs and spirits, consumed in nightclubs is consumed earlier in the evening before male patrons move to higher alcohol drinks, namely spirits. This may explain why beer bottles have not been used in violent incidents at the Family Nightclub, especially if they are promptly removed by staff after the beer is consumed. That is, beer may not commonly be the drink of choice by the time alcohol-related incidents are more likely to occur. [25] If that is not the reason, then for some other reason, beer bottles have not been used in incidents at the venue. Management practices may be the reason. Given the work of Rev Merguard in the Valley precinct, it appears he is in a good position to understand what is happening at venues and see the effects of good and poor management. He speaks highly of the manner in which the Bickle family minimises harm in the venues they run. However, it is not for me to form any definitive conclusions on the stay application about this. That is a matter for the review hearing. [26] However, what is clear is that there have been no incidents involving the use of beer bottles at the venue and there is no evidence that the risk is likely to be different during the period until hearing. Of course, some residual, although on the material before me it is apparently very small, risk remains that a beer bottle/s may be used in a violent incident/s resulting from alcohol use or misuse. As both parties acknowledge, potential for harm can not be eliminated. Indeed the objects of the Act include its minimisation, rather than elimination of harm. [27] There is financial and reputational detriment to Family if a stay is not granted. In the absence of any recent violent incidents involving use of bottles by patrons, and in particular, any incidents involving use of a beer -- 6 of 7 -- 7 bottle/s (being the only regular glass which the licensee has allowed for sale for some time before the condition was imposed), there is no basis to conclude that the public interest requires, pending the hearing of the review, that the condition, which is the subject of the review, remain in effect. [28] I am satisfied that the balance of convenience favours granting the stay application and that it is desirable to do so to preserve the interests of Family pending determination of the review application. [29] I make orders accordingly. -- 7 of 7 --