Birch Carrol & Coyle Limited v Chief Executive, Office of Liquor and Gaming Regulation (No 2) [2011] QCAT 631

CITATION: Birch Carrol & Coyle Limited v Chief Executive, Office of Liquor and Gaming Regulation (No 2) [2011] QCAT 631 PARTIES: Birch Carrol & Coyle Limited trading as Event Cinemas (Applicant) v Chief Executive, Office of Liquor and Gaming Regulation (Respondent) APPLICATION NUMBER: GAR414-10 MATTER TYPE: General administrative review matters HEARING DATE: 10 November 2011 HEARD AT: Brisbane DECISION OF: Michelle Howard, Member DELIVERED ON: 5 December 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. That the decision to refuse the change application is set aside; 2. That Licence No 94191 be changed to include the V-Max Auditorium in the licensed area; 3. That Licence No 94191 is to be endorsed to include conditions to the following effect: (i) A minimum of one security check will be undertaken by staff during each 30 minute period or part thereof during each movie session in the V-Max auditorium; (ii) Adult patrons may carry one alcoholic drink through into the V-Max auditorium from the café area; (iii) Staff will check the identification of all patrons who may be a minor when purchasing alcohol; (iv) Staff will check identification of all patrons who may be a minor when purchasing movie tickets for movie sessions rated MA15+ -- 1 of 17 -- 2 or R18+, in accordance with normal RSA principles for the sale of liquor; (v) That CCTV be installed at all public entry points to the V-Max auditorium and recordings made commencing from immediately before patrons are able to enter the auditorium before each movie session in the V-Max auditorium commences until all patrons have exited the V-Max auditorium after a movie session has concluded which clearly records all patrons entering and exiting the auditorium at all times during the session; (vi) The licensee and managers must ensure that CCTV recordings required by these conditions are kept in a secure place for a minimum of 28 days, or when an incident occurs in the V-Max auditorium or a person is injured in the V-Max auditorium, for a minimum of 365 days; (vii) Any such CCTV recordings must be produced immediately upon request of an investigator appointed under the Liquor Act 1992 or a Queensland police officer; (viii) That all staff working at the premises complete RSA training; (ix) That all duty managers at the premises complete RMLV training; (x) That no glass containers be taken into the V-Max auditorium; (xi) That signage be displayed at all times in the café area where alcoholic beverages are sold for consumption in the V-Max setting out the offences provided for in section 155A and 156 of the Act and warning that contraventions will not be tolerated; (xii) That before the commencement of each movie presentation in the V-max auditorium that a notice or patron information -- 2 of 17 -- 3 presentation be screened onto the V-Max screen setting out those matters referred to in (xi) above; (xiii) That unaccompanied minors may be present in the V-Max auditorium for the purposes of cinematographic presentations and consuming non-alcoholic drinks and food only. 4. That both parties have liberty to apply in relation to clarification if required of the conditions set out in these orders on the giving of 2 days notice to the other party and within 14 days of these orders. CATCHWORDS: LIQUOR LICENSING – where application for change in licensed area for commercial subsidiary on-premises licence – where principle business is cinematographic presentations LIQUOR LICENSING – NON-EXEMPT MINORS – where proposed that minors attend the licensed premises for purposes of cinematographic presentations and purchasing and consuming food and non- alcoholic beverages – where no history of incidents in other licensed cinemas in Queensland or other Australian states – where conditions proposed to minimise risk of harm from alcohol Liquor Act 1992 Queensland Civil and Administrative Tribunal Act 2009 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr PJ Flanagan, SC and Mr DM Favell of Counsel, instructed by Mullins Lawyers RESPONDENT: Mr AAJ Horneman-Wren SC, and Mr SA McLeod of Counsel, instructed by the Chief Executive, Office of Liquor and Gaming Regulation REASONS FOR DECISION [1] By virtue of a Commercial other (subsidiary on-premises) licence, Licence Number 94191, granted on 29 May 2009, Birch Carrol and Coyle Limited -- 3 of 17 -- 4 trading as Event Cinemas (Birch) holds a licence under the Liquor Act 1992 (the Act) for the Gold Class cinemas and adjoining bar area and café area for a cinema complex known as Event Cinemas, Robina located at Robina Town Centre. [2] On 26 June 2009, Birch made a change application under the Act seeking approval for a change in a licensed area to include its 400 seat V-Max auditorium in the Robina complex. [3] A decision on the change application had not been made by the Chief Executive, Office of Liquor and Gaming Regulation (OLGR) by 14 December 2010. At that stage, Birch filed an application in the tribunal for review of the deemed refusal of the application. [4] Section 31 provides for circumstances in which deemed refusal of an application occurs. The tribunal has previously determined that a deemed refusal occurred on 1 August 2010.1 By virtue of section 31(2), the chief executive is taken to have given the applicant notice of a decision to refuse the application at the time of the deemed refusal. Under section 21 of the Act, the tribunal has power to review certain decisions of the chief executive, including a decision to grant or refuse an authorisation under the Act. [5] The tribunal must decide a review application in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and the enabling Act under which the decision was made.2 For exercising its review jurisdiction, the tribunal has all of the functions of the decision-maker for the decision being reviewed.3 The purpose of the review is to produce the correct and preferable decision.4 [6] Under section 33 of the Act, the tribunal must hear and decide the review by way of reconsideration of the evidence before the chief executive when the decision was made; and decide it according to the law which applied when the decision was made. Unless otherwise indicated, references to the Act, are references to the provisions of the Act as they appear in Reprint 9F, which was the law effective when the decision was made. [7] Section 34 provides that the tribunal may grant leave for the presentation of new evidence. At the hearing, joint application was made for leave, and leave was granted under section 34 of the Act, to present new evidence, namely those pages of the File of evidence and other material (the File documents) filed by OLGR which post-dated the deemed refusal date, namely documents 15 to 41 in that bundle of documents. OLGR effectively waived its right to an adjournment which is provided for by section 34(2). [8] OLGR’s submissions include a copy of the decision of the South Australian Liquor and Gambling Commission of 13 December 2010 and the Licensing 1 Birch Carrol and Coyle v Chief Executive, Office of Liquor and Gaming Regulation [2011] QCAT 244, [33]. 2 QCAT Act, s 19(a). 3 QCAT Act, s 19(c). 4 QCAT Act, s 20(1). -- 4 of 17 -- 5 Court of South Australia dated 18 June 2011 regarding a V-Max Cinema at Oaklands Park, South Australia. These documents post-date the application for review of the decision. Leave was not sought for the material to be presented and relied upon by either party. However, both parties referred to the South Australian decision in their submissions. There is clearly no objection by either party to that material being before me, although it seems by oversight application for leave under section 34 of the Act was not made. In the circumstances, I also give leave for this new evidence to be presented. [9] In addition to the File documents, the tribunal had a Supplementary list of evidence and other material (the Supplementary documents) filed by OLGR containing the documents relied upon by it to grant Licence 94191. [10] Both parties provided written submissions to the tribunal and made oral submissions at the hearing. The issues raised by OLGR about the change application relate to the risks of minors being supplied with liquor inside the V-Max cinema in contravention of the Act and safety. The Evidence [11] According to the evidence, Birch is the largest cinema operator in Australia, Germany and New Zealand.5 [12] Initially, Birch made application for a licence for the entire 11 cinema complex at Robina Town Centre. Robina Town Centre also contains a large shopping complex. Event Cinemas is separated from the rest of the Centre and accessible only by lift or escalator directly into the foyer of Event Cinemas.6 A standard community impact statement (CIS)7 and a Risk Assessed Management Plan (RAMP)8 were provided to OLGR by Birch. [13] The application was advertised for the proposed licence for the entire complex.9 There were no public objections.10 The local authority had no objections.11 In response to notification of the application from OLGR, the Queensland Police Service (QPS) raised some objections.12 The issues raised include possible negative impact on the community, through increased alcohol related crime, violence and anti-social behaviour within the premises and in the surrounding area.13 A conference was held between the QPS and Birch. Birch then amended its application, to cover the Gold Class cinemas and bar area, the 400-seat V-Max cinema, and the café area.14 5 File documents 43, 8.1. 6 Supplementary documents 44. 7 Supplementary documents 43-52. 8 Supplementary documents 107-112. 9 Supplementary documents 279-285. 10 Supplementary documents 307. 11 Supplementary documents 287. 12 Supplementary documents 179-246. 13 Supplementary documents 276. 14 Supplementary documents 299. -- 5 of 17 -- 6 [14] The QPS advised OLGR that at the conference, ‘agreement’ was reached regarding the areas to be licensed to include ‘The area identified as V-Max where table/wait person service to patrons is permitted.’15 More recently, QPS wrote to OLGR advising that it had no objection to the inclusion of the V-Max cinema provided that the supply of liquor to V-max patrons was by table service; a house policy was displayed and implemented concerning withholding of liquor supply, security and fire safety arrangements for staff and patrons; the licensees/managers and staff have RSA training; Closed Circuit Television (CCTV) be installed at each public entrance and exit.16 [15] Queensland Fire and Rescue Service confirmed that the premises met their requirements.17 [16] As the application progressed, the construction work was not completed in all areas of the complex as the planned opening approached. On 28 May 2009, Birch decided to excise the V-Max cinema and seek the licence for the Gold Class and bar and café areas, and then to make application for further approval at a later time regarding the V-Max cinema.18 At the time the decision to excise the V-Max cinema was made, Birch understood from OLGR representatives that approval would be granted for the V-Max area subject to its completion.19 Birch indicated that it would seek further consideration of this area in the near future. [17] The change application seeking to have the V-Max cinema included in the licensed area was then made on 26 June 2009. OLGR waived advertising of the change application,20 but requested a new RAMP,21 which was provided.22 The OLGR raised several issues regarding the application: namely, safety issues regarding service of liquor in the dark; close density of persons consuming liquor; difficulties for staff and security personnel to control incidents that may occur; and the presence of non-exempt minors in the licensed area.23 [18] The V-Max auditorium has some 400 seats,24 a large screen and larger seats than in regular cinema theatres, and tables.25 It is marketed by Birch as an upmarket option compared to regular cinemas.26 Birch says it wishes to add to the premium experience by licensing of the V-Max auditorium, allowing patrons to purchase alcoholic drinks from the licensed café/bar area and take them into the V-max auditorium for consumption during movie presentations.27 15 Supplementary documents 290. 16 File documents 138. 17 Supplementary documents 357. 18 Supplementary documents 356. 19 Supplementary documents 310. 20 File documents. 21 File documents 7-8. 22 File documents 51-68. 23 File documents 7-8. 24 File documents 40. 25 File documents 37, [3]. 26 File documents 37, [3.2]. 27 File documents 37, [3.3]. -- 6 of 17 -- 7 [19] Birch proposes that generally minors be permitted to attend the V-Max auditorium without adult supervision.28 Further, Birch proposes that liquor will be available for purchase from outside the auditorium from the café area which is well-lit. It proposes that staff will be trained in the responsible service of liquor (RSA) and liquor will not be supplied to minors.29 It is proposed that cinema staff will monitor patrons during cinema inspections, including, to ensure that minors are not consuming alcohol.30 [20] A graphic illustration of ticket sale types for the V-max auditorium show a higher proportion of ticket sales to adults and students compared with regular cinemas, and a lower proportion of sales to children.31 Estimating the percentages represented in the graph, in the V-Max cinema about 58% of ticket sales are to adults; about 18% to students; and about 13% to children. Seniors, concessions holders, complementary ticket holders and groups make up the balance. In regular cinemas, this compares to about 53% adults; about 17% to students; and about 18% to children.32 [21] Birch proposes that the change application be granted on conditions as follows: a) staff will undertake a minimum of 3 security checks of the V-Max auditorium during each movie screening; b) staff will check identification of all patrons who may be a minor when purchasing liquor in accordance with normal RSA principles; c) staff will check identification of all patrons who may be a minor when purchasing movie tickets for movie sessions rated MA15+ or R18+, in accordance with normal RSA principles for the sale of liquor; d) Birch will install CCTV systems at the entry to the V-Max auditorium; e) all staff working at the premises will complete RSA training; f) all duty managers will have completed RMLV training; g) there will be a limit of 2 alcoholic drinks per person per order; and h) no glass containers will be taken into the V-Max auditorium; and i) unaccompanied minors be permitted to be present in the licensed area for purposes of viewing cinematographic presentations. [22] Birch has other licences in Queensland for Gold Class cinemas and associated areas at Chermside, Indooroopilly, Garden City and Australia Fair.33 Gold Class cinemas have 40 recliner seats. The provision of alcohol in these cinemas has been incident free.34 [23] In Queensland, OLGR has licensed at least six other cinema operators with approval for alcohol to be consumed in auditoriums of non-Gold Class style cinemas, including the Dendy Portside and Palace Cinemas, The 28 File documents 42, [7.4]. 29 File documents 42, [7.5]. 30 File documents 42, [7.6]. 31 File documents 42, [7.7]. 32 File documents 42, [7.7 Figure 1]. 33 File documents 44. 34 File documents 43-44; 82-83. -- 7 of 17 -- 8 Barracks.35 The evidence does not disclose the seating capacity of these cinema auditoriums, but according to OLGR, they are much larger than Gold Class cinemas.36 [24] Birch has licenses for V-Max cinemas in NSW, at three locations, and South Australia, at one location.37 In NSW, two of the V-Max cinemas may also be attended by unaccompanied minors. At one of the three, in George Street, Sydney, a condition imposed on the licence requires that minors be accompanied.38 [25] OLGR’s internal CIS notes some reservations about the V-Max theatre because of its seating capacity.39 However, OLGR made enquiries and could find no evidence of any problems with the existing licensed cinemas in Queensland.40 Enquiries were also made with their NSW counter-parts, who also reported no problems since allowing alcohol consumption in auditoriums since 2008.41 The Licensing Officer preparing the CIS expressed the view that far more research would be required to obtain evidence to refuse the application.42 [26] Objections were made by the local authority and the police to the licensing of the V-max auditorium in South Australia. The conditions on that licence provide that only one standard glass of wine or beer may be taken into the theatre; Birch must have supervision of at least one responsible person in place for the entire film presentation; and liquor may not be taken after 30 minutes has elapsed from commencement of the session.43 The legislative scheme under the Liquor Act 1992 [27] The objects of the Act are set out in section 3. They include regulating the liquor industry in a way compatible with minimising harm caused by alcohol abuse and misuse, as well as, facilitating and regulating the optimum development of the tourist, liquor and hospitality industries having regard to the welfare, needs and interests of the community.44 [28] Part 4 of the Act provides for licences of various types, including in section 67, a Subsidiary on-premises licence, as has been granted to Birch. This type of licence may be granted when the sale of liquor is subsidiary to the principal activity of the business. [29] Part 5 of the Act sets out provisions in relation to the grant, variation and transfer of licences, including matters the chief executive must have regard to in deciding whether to grant an application. It sets out requirements for applications for or relating to a licence or permit for any purpose under the 35 File documents 45, 10.2. 36 File documents 82. 37 File documents 45. 38 File documents 64-65. 39 File documents 83. 40 File documents 83. 41 File documents 83. 42 File documents 83. 43 Respondent’s submissions received 21 October 2011, page 8. 44 Section 3(a) and 3(b). -- 8 of 17 -- 9 Act and for some applications, documents which must accompany the application.45 The chief executive may require further information or documents.46 [30] Under Part 5, in certain circumstances, the local government authority and, although it does not apply in this proceeding because it relates to applications for extended trading hours and adult entertainment permits, the assistant police commissioner47 are to be advised and invited to provide comments about an application.48 Advertising is required in some specified circumstances and otherwise if the chief executive requires advertisement.49 The chief executive may also waive or vary advertising requirements, including on the basis of special circumstances.50 [31] The chief executive may impose conditions on licenses, among other reasons, to ensure appropriate compliance with the Act; to minimise harm caused by alcohol abuse and associated violence; or to minimise alcohol- related disturbances, or public disorder, in a locality.51 [32] Section 121 sets out the matters to which the chief executive must have regard in deciding whether to grant an application. These relevantly include objections made to the grant of the application; comments made from the local government for the area to which the application relates; and the impact on the amenity of the community concerned.52 Comments from the assistant police commissioner are required to be considered in respect of some applications only, none of these is relevant in respect of this change application.53 [33] Part 6 of the Act is entitled ‘Obligatory provisions and offences’. In Part 6 Division 1, section 148A imposes obligations on licensees in the conduct of business on licensed premises to maintain a safe environment for patrons and staff in and around the premises and ensure liquor is served and supplied in a way that is compatible with minimising harm from the use of liquor and preserving peace and good order of the neighbourhood of the premises. It provides for offences and penalties for breach of the requirements specified. [34] Section 154, in Part 6 Division 1 provides that a licensee must not without the chief executive’s approval, alter, change or increase the area of the licensed premises.54 In giving an approval, the chief executive must have regard to the business that is the principal activity conducted under the 45 Section 105. The Liquor Regulation 2002 section 21 also included requirements regarding change applications under s 154. 46 Section 105(2), (3). 47 This requirement only applies if the application is for extended trading hours approval or an adult entertainment permit: s 117(1)(b). 48 Section 117. 49 Section 118. 50 Section 118(3). 51 Section 107C. 52 Section 121(b), 121(c) and 121(f). 53 Section 121(d). 54 Section 154(1). -- 9 of 17 -- 10 licence.55 A management plan may be requested by the chief executive relating to the proposed alteration, change or increase.56 [35] Also in Part 6 Division 1, section 155 relates to minors on licensed premises. It provides that a licensee must ensure that a minor is not on licensed premises, unless the minor is an exempt minor.57 Exempt minors are provided for in section 155(4): an exempt minor includes a minor on the premises for a purpose, and in circumstances, approved by the chief executive or stated in a condition of the licence; and a minor who is accompanied by a responsible adult who is responsibly supervising the minor. Section 5 provides that responsible adults for a minor include a parent, step-parent or guardian of the minor and an adult with parental rights and responsibilities. [36] Part 6 Division 2, includes prohibitions and offences relating to the sale of liquor to a minor,58 as well as supplying liquor to, or permitting liquor to be supplied to or consumed by a minor on premises to which a licence relates.59 The Submissions [37] Birch points to its compliance with the requirements of the Act in making its application and providing documents which were required under the Act or requested by the OLGR in its discretion under the Act. It relies upon the CIS and the RAMP. It also relies upon there having been no public objections, no objections from the local authority and, it says, no objections from the QPS. Other than with respect to the extent of the QPS concessions regarding the V-Max cinema, OLGR raises no issues regarding these submissions. [38] OLGR submits that if the change application is granted, providing a minor with liquor already inside the cinema would be made easier and virtually undetectable. It suggests that allowing minors into the V-Max cinema without a responsible adult is not consistent with section 155 or the object of the Act to minimise harm from alcohol misuse. [39] It submits that although exemptions have been allowed for cinemas including The Barracks and Dendy Portside, these premises are very different in nature to Birch’s Event Cinemas Robina. It argues that they are much smaller venues than the V-Max auditorium; that they are located within dining/entertainment precincts; and feature films that can be of the art-house or world cinema variety which predominantly attracts an adult patronage. Event Cinemas, Robina, it asserts is located in a popular shopping destination in central Gold Coast where a large proportion of minors would be expected to attend and patron the cinemas. 55 Section 154(2). 56 Section 154(3), 154(4) and 155(5). 57 Section 155(1), 155(2). 58 Section 155A. 59 Section 156. -- 10 of 17 -- 11 [40] OLGR also submits that the conditions proposed by Birch would not be satisfactory, because they would not ensure the provision of alcohol in the V-Max auditorium would be conducted safely and are not compatible with minimising harm caused by alcohol abuse and misuse. It suggests that the conditions imposed on V-Max auditoriums in New South Wales and South Australia are more stringent than those proposed. [41] It argues that although having staff check identification is likely to prevent minors from purchasing liquor, three routine security checks during the screening of cinema presentations would not sufficiently mitigate the potential for alcohol-related incidents occurring, or liquor being supplied to minors within the V-Max auditorium. This risk is said to be exacerbated by the large seating capacity of the V-max cinema. It is submitted that such a large and darkened environment would make it extremely difficult for staff to adequately supervise minors in the auditorium and ensure compliance with section 156(1) of the Act. A possible scenario was developed by OLGR in submissions, regarding a 16 year old girl with an 18 year old boyfriend. If the V-Max cinema is licensed, the young man may legitimately buy a beer for himself and a mixer drink, with the intention that the 16 year old girl will drink the mixer once inside the cinema. OLGR argues that this would be difficult to detect under the conditions proposed by Birch. [42] Checking of patron identification for MA15+ and R18+ movies is likewise argued by OLGR to be insufficient to protect minors from the risks of being exposed to alcohol or alcohol-related incidents. It suggests that CCTV will only show who carries alcoholic drinks into the cinema, rather than who consumes them, and can only assist with investigation after an incident as opposed to ensuring compliance with section 156. [43] OLGR submits that two alcoholic drinks per order is above the carriage limit imposed in South Australia, where there is a carriage limit of one alcoholic drink; restrictions on liquor being taken into the cinema after 30 minutes of commencement of the movie; and supervision is required in the cinema at all times. OLGR did concede that a carriage limit of one alcoholic drink would reduce the risks of alcohol-related incidents or minors consuming alcohol. [44] It concedes that banning glass from the cinema would substantially mitigate the risk of patron injury during an alcohol related incident. However, it submits that the identified potential for incident should lead to the refusal of the change application. [45] OLGR suggests that granting exemption for minors to be present in the cinema setting is different to the restaurant scenario where wait staff can observe who is drinking alcohol. This is different to the situation in a darkened cinema with a 400 seat capacity where three staff visits per movie are proposed. [46] OLGR points to the short period for which non-Gold Class cinemas have been licensed, and says that although there is no history of incidents,60 that 60 File documents 45, 82-82. -- 11 of 17 -- 12 must be viewed in light of the short period concerned given that the earliest of the licences was granted in about 2009 and the most recent submissions about it are dated February 2010. However, the CIS internally prepared by OLGR is dated July 2010 and also refers to the incident-free history. It also argues that QPS has not given unqualified support to licensing of V-Max cinema on the basis that the QPS refer to there being table/wait service in the V-Max cinema, when there is not. [47] Birch submits that there is no evidence to indicate that minors attend cinema complexes with the intention of consuming alcohol or will do so if they are allowed to attend the V-max cinema if it is included in the licensed area. [48] It submits that there are factors which tend to indicate the opposite, including the limited length of films provide limited time for minors to consume any significant amount of alcohol. It argues that the conditions proposed by Birch make the prospect of minors drinking alcohol during a film screening even less likely. Further, it submits that Birch’s expertise in operating movie theatres, including those allowing alcohol consumption in the presence of unaccompanied minors, also minimises the possibility. [49] Regarding unaccompanied minors, Birch acknowledges that the exercise of discretion is needed under section 155 to allow their presence in the V-Max if it forms part of the licensed area, but submits that the position of the cinema is no different to restaurants. It points to its experience as a provider of cinematography, and to the incident free history of operating licensed premises. In particular, it also points to the lack of incident in V- Max cinemas which are licensed in NSW and South Australia. Further, the evidence is that other cinemas which are licensed in Queensland including at The Barracks and Portside Cinemas have no history of incidents either. It also says, that contrary to the OLGR's assertions in their own CIS that those cinemas are smaller and show more world or arthouse films and are therefore somehow less attractive to minors, that there is no evidence of the size of these cinemas and no evidence about the differentiated type of film or any consequences. [50] It points to the special conditions imposed on the licence in South Australia as done in the face of objections from council and police and that is not the case here. Regarding the documentation about the QPS objection and concession, Birch says that QPS comments that no objection to V-Max where wait staff should be viewed as a mistake by QPS as there has been no suggestion of table service in V-Max and nor could there be with 400 seats, and that this particular issue was not taken up anywhere or by the OLGR. Also, it submits that the tribunal is not bound by objections. [51] It says that there is no good reason not to grant the approval. Discussion and Decision [52] No issue has been raised at hearing by OLGR regarding any deficiency in the formal requirements for the application and supporting documentation under the Act, and nor do I discern any. Of course, the usual advertising -- 12 of 17 -- 13 was not done. However, it was waived, in my view appropriately by OLGR, in view of the earlier advertising undertaken for the original application which related to the entire cinema complex. [53] The objects of the Act include regulating the liquor industry in a way compatible with minimising harm caused by alcohol abuse and misuse, and these objects guide decision-making under the Act in a broad sense. Sections 121 and 154 each refer to particular matters to which I must have regard in making the decision. [54] Section 121 relevantly requires that I have regard to objections made to the grant of the application; comments from the local authority; and the impact on the amenity of the community. In this case, there were no objections from members of the public when advertising was done for the entire complex. Similarly, the local authority had no comments to make in respect of the proposal to licence the entire complex. [55] Under section 121(d), comments from QPS must be considered in respect of an application for an adult entertainment permit or application relating to a restricted area, neither of which is relevant. Nevertheless, notice was given to QPS which did then raise objections in respect of licensing of the entire complex. [56] QPS had some concerns about the licensing of the entire complex and its original objection was framed to address the cinemas other than the Gold Class cinemas, which it discussed separately.61 The issues raised include possible negative impact on the community, through increased alcohol related crime, violence and anti-social behaviour within the premises and in the surrounding area.62 [57] A conference between QPS and Birch representatives resulted in a revision of both Birch’s application and the QPS’ objections. In respect of the V-Max theatre, the QPS subsequent comments refer to having no objection regarding the V-max cinema where table service is available, which is not the case. Birch submits that QPS no longer objects and the reference to table service is simply a misunderstanding. OLGR suggests that there is no misunderstanding evident on the face of the material available, rather that the QPS position is not unqualified. [58] The precise nature of any concerns held by QPS, about the proposal to include the V-Max cinema in the licensed area is not apparent. It is apparent that following the conference, the QPS had a change of view about the V-Max auditorium being included in the licensed area. However, the QPS comments are ultimately unhelpful, given their reference to table/wait service since this is not available in V-Max. Given that I must make my decision by way of reconsideration on the evidence before me, I place no weight upon the QPS concession about the V-Max as it is not possible to determine what the QPS intended to say, or whether they misunderstood the nature of the proposal. 61 Supplementary documents 267-276. 62 Supplementary documents 276. -- 13 of 17 -- 14 [59] Under section 121(f), I must have regard to the amenity of the community concerned. Birch argues that it is difficult to envisage how expanding the area to include the V-Max cinema could impact the amenity of the community. [60] The original QPS objection includes concerns about possible negative impact on amenity. The QPS objection does not include reference to any evidence to support the opinion of the author of the objection that licensing of a cinema may increase crime rates and alcohol-related violence and other anti-social behaviour. [61] The available evidence is that there have not been incidents in Birch’s Queensland licensed Gold Class cinemas, nor its interstate licensed V-Max auditoriums. Similarly, there have not been issues in the six licensed cinemas throughout Queensland which are not Birch-operated cinemas and which are not Gold Class style cinemas, including Dendy Portside and Palace Cinemas, The Barracks. [62] OLGR raises issues regarding safety and the risk of alcohol related incidents and points to the relatively brief period that the non-Gold Class cinemas have had licensing approval and says that the incident-free operation of the cinemas should be viewed in light of this limitation. However, the evidence is that a range of cinemas in various locations both in Queensland and interstate were the subject of OLGR’s enquiries and there is no evidence of any problems at any of them. So, although the time frame is relatively short, there is information available concerning multiple premises. Moreover, from the evidence available there is nothing to suggest that issues have arisen in the localities affected by the granting of licences allowing alcohol in other cinema complexes, along the lines of the QPS concerns raised about the possible affect on amenity at Robina Town Centre. [63] OLGR submits that for example Dendy Portside and The Barracks are smaller venues which attract adult patronage. However, as Birch identifies, there is no evidence about the size of the venues or the nature of their business to support this submission. [64] Under section 154, the chief executive, and therefore the tribunal when it stands in the shoes of the chief executive, must have regard to the business that is the principal activity conducted under the license, in this case, a subsidiary on-premises license. This type of licence is provided for where the principal activity of the business is the provision of an activity to which the sale of liquor is subsidiary. In this case, Birch’s principle business is cinematographic presentations. [65] As I understand OLGRs position, the major issue raised in opposition to the application by OLGR relates to the proposed presence of unaccompanied minors in the V-Max auditorium. Essentially, OLGR is concerned with what happens with alcohol purchased by an adult once patrons are inside the auditorium. Particularly, the concern is that providing a minor with alcohol once inside the cinema will be virtually undetectable given the dark -- 14 of 17 -- 15 environment of a cinematographic presentation in an auditorium which seats about 400 patrons and that this facilitates the commission of offences under the Act. This, it submits, renders it impossible to allow the application while meeting the objects of the Act. [66] The evidence is that more adults and students are patrons in V-Max than in regular cinemas. The ages of the students are not available: a proportion of them might reasonably be expected to be under 18 years, although some might reasonably be expected to be over 18. However, there is a lesser proportion of children’s tickets sold for the V-max auditorium than regular cinemas. [67] In my view, the evidence demonstrates that the V-Max cinema attracts a different demographic than Birch’s regular cinemas in that more adult and older patrons attend the cinema and less children. However, it is also apparent that a significant number of persons aged under 18 attend cinematographic presentation in the V-max cinema. [68] Birch says that the conditions proposed by it minimise the risk that minors will drink alcohol once inside the cinema. In my view undertaking three security checks in a cinema seating up to 400 patrons, is unlikely to uncover all breaches of section 156(1) of the Act regarding the supply of alcohol to minors on licensed premises by persons accompanying them although it may uncover some. It is not apparent how a person undertaking the security checks could reasonably identify all circumstances when a minor has been supplied an alcoholic drink by an adult patron. The suggestion that it could makes no logical sense unless the security checks are extensive and protracted. The terminology suggests that it is a relatively brief check. The evidence does not suggest otherwise. [69] The prohibition on glass containers proposed by Birch would assist to minimise the risk of harm in the event of an alcohol- related incident. [70] CCTV at the entrance to the cinema can show only who carries alcoholic drinks into the V-Max cinema and who exits the cinema and when, not who consumes the alcoholic drinks taken in. However, it could assist any investigation in the event of contraventions or incidents. [71] Some of the other proposed conditions, in my view, go to preventing the sale of alcohol to underage persons, not the supply of alcohol to minors inside the cinema. [72] However, although it could not entirely eliminate the risk, a carriage limit of one alcoholic drink for each adult entering the cinema would significantly reduce the possibility of supply of alcohol to minors inside the cinema. An adult would be left without their own alcoholic drink if they gave their alcoholic drink to a minor. [73] However, in my view some residual risk of supply of alcohol to a minor can not be entirely eliminated in respect of any licensed premises where minors are permitted as contemplated under the Act. In a licensed restaurant when minors may be permitted to be present, wait staff are moving around. -- 15 of 17 -- 16 OLGR argued they may more readily discern adult patrons supplying alcohol to minors who are with them. However, in that scenario there may be a significantly greater quantity of alcohol being ordered and served and sometimes over an extended period of time. If a patron has several wine glasses on their table, a different wine being poured for them with each course of a meal, there is a risk that a minor sitting at the table may be provided some of the wine without busy wait staff noticing. The risks are different but nevertheless present that minors will be supplied with alcohol in this setting. [74] However, the Act provides a wide discretion to impose conditions to ensure appropriate compliance with the Act; to minimise harm caused by alcohol abuse and associated violence; or to minimise alcohol-related disturbances, or public disorder, in a locality. [75] A carriage limit of one alcoholic drink per adult would assist as conceded by OLGR. [76] Although security checks will not eliminate the risk of underage consumption of alcohol in the V-Max auditorium, the regular presence of Birch staff in the auditorium is likely to have significant deterrent effect against adults supplying alcohol to minors and minors consuming them if combined with notice about relevant offences under the Act and consequences for contravention. [77] Regular and observable entry into and movement around the cinema by Birch staff could assist. It seems to me that this is arguably more effective than mere presence of a Birch staff member throughout the presentation, which may merely involve the staff member passively sitting through the presentation. In my view, to provide an observable presence, a security check at least once during each 30 minutes or part thereof of each movie session would be required. [78] Further, signage could be displayed in the café area where alcohol is sold for consumption in the V-max cinema, which clearly notifies patrons of the terms of offences provided for in sections 155A and 156 of the Act regarding the sale and provision of alcohol to minors on licensed premises and warning that contraventions will not be tolerated. Also, before commencement of each movie presentation a notice or message from management could be screened again reminding patrons of the offences and that contraventions will not be tolerated. [79] Other than as indicated, the conditions proposed by Birch would be generally appropriate, although with some additional detail. For example, in relation to CCTV, conditions should specify the period of time for which recordings must be kept. Also, it is appropriate to provide that copies of recordings be made available on request to authorised OLGR representatives and QPS officers. [80] I am satisfied that if these conditions are imposed that the correct and preferable decision is to grant the change application, as well as authorise unaccompanied minors to be present in the cinema for the purposes of -- 16 of 17 -- 17 viewing cinematographic presentations and purchasing and consuming non-alcoholic beverages and food only. [81] In the circumstances, I make orders setting aside the refusal, and allowing the application subject to conditions imposed on the licence as discussed above and set out more fully in my orders. I order that either party may seek clarification about the conditions on the giving of two days notice, within 14 days of these orders. -- 17 of 17 --