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- The Club of Mt Isa Hotel Pty Ltd v Commissioner for Liquor and Gaming[2015] QCAT 384
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The Club of Mt Isa Hotel Pty Ltd v Commissioner for Liquor and Gaming[2015] QCAT 384
The Club of Mt Isa Hotel Pty Ltd v Commissioner for Liquor and Gaming[2015] QCAT 384
CITATION: | The Club of Mt Isa Hotel Pty Ltd v Commissioner for Liquor and Gaming [2015] QCAT 384 |
PARTIES: | The Club of Mt Isa Hotel Pty Ltd (Applicant) |
| v |
| Commissioner for Liquor and Gaming (Respondent) |
APPLICATION NUMBER: | GAR295-14 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 20 May 2015 |
HEARD AT: | Townsville |
DECISION OF: | Senior Member O'Callaghan |
DELIVERED ON: | 24 September 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | GENERAL ADMISTRATIVE REVIEW – LIQUOR AND GAMING - ADULT ENTERTAINMENT PERMIT – Where Commissioner refused application – Whether applicant a suitable person to receive a permit and whether permit would have an adverse impact on the amenity of the community - where decision to refuse application set aside – where permit granted on conditions. Liquor Act 1992 (Qld) s 33, s 103O, s 103N, s 103P, s 103Q, s 103R, s 107D, s 117 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 Fine Fidelity & Ors v Commissioner of Liquor and Gaming & LA Showgirls Pty Ltd [2014] QCAT 89 Hagan v Chief Executive, Liquor Licensing Division [2009] QCCTL 7 Hagan v Chief Executive Liquor Licensing Divison [2009] QCCTC Hagan v Chief Executive Liquor Licensing Division, Queensland Treasury [2008] QCCTL 19 |
APPEARANCES:
APPLICANT: | Mr Honchin of Counsel instructed by Rennick Lawyers Pty Ltd |
RESPONDENT: | Mr Lovrincevic, Acting Pirincpal Lawyer, Legal Advice and Advocacy, Department of Justice and Attorney General. |
REASONS FOR DECISION
- [1]The Club of Mt Isa Pty Ltd (‘the Club’) operates a bar, bistro, nightclub, and bottleshop out of premises in Mt Isa. Mr Hagan is a director of The Club. The Club has held a liquor license since 2004.
- [2]The Club had also previously held an adult entertainment (‘AEP’) from 2005 to 2008 pursuant to which adult entertainment was provided at the Club. On its expiry the Club made application for another AEP in 2009. This application was refused because the Chief Executive was not satisfied the Club was a suitable person to hold a permit. This decision was confirmed by the Commercial and Consumer Tribunal (‘CCT’) on review in May 2009. The Club applied again for an AEP in July 2013. The application was refused by the commissioner. The Club seeks a review of that decision.
- [3]The area in which The Club is situated is mostly commercial. The Australia Post depot adjoins one side and a commercial building that incorporates government offices and a medical centre is on the other side. The Club is situated about 300m from the Police station and 200m to the Mt Isa Base Hospital. The nearest brothel is situated approximately 2.5km away. A number of other licensed establishments are located in close proximity. A taxi rank is located outside the premises.
- [4]The Tribunal has jurisdiction to review the decision pursuant to the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the Liquor Act 1992 (Qld) (‘Liquor Act’).
- [5]
The Legislative Scheme
- [6]The AEP scheme was introduced in 1999 as part of the governments’ regulation of the sex industry.[3]
- [7]In introducing the legislation and in relation to the regulation of adult entertainment as part of the scheme the Minister commented[4] that the intention of the legislation was to distinguish legitimate adult entertainment from prostitution allowing both to be regulated separately.
- [8]The legislative scheme to regulate adult entertainment is found in Part 4A Division 6 of the Liquor Act. It relevantly provides:-
- A person is eligible to apply for or be granted, an adult entertainment permit only if the person is a licensee or the holder of a community liquor permit or restricted liquor permit;[5]
- The adult entertainment permit is subject to conditions prescribed under regulation or imposed by the commissioner;[6]
- The adult entertainment can only be provided in an area of the permittee’s premises approved by the commissioner[7] and the area must be fully enclosed in a way that prevents a person outside the area from seeing inside the area;[8]
- An AEP may not be granted for a term of more than three years, unless it is sooner surrendered, suspended or cancelled under this act;[9]
- Restrictions on the granting of an AEP are provided for. The commissioner may grant an AEP only if he is satisfied[10]
- (a)The applicant is a suitable person to provide adult entertainment in licensed premises;
- (b)The character of the locality will not be substantially affected because of the existence of other licensed brothels or adult entertainment venues;
- (c)The approved area conforms with the requirements with the act and an appropriate management plan was in place;[11]
- (a)
- In deciding whether an applicant is a suitable person to provide adult entertainment the commissioner is required to consider all relevant matters including:
- (a)The applicant’s reputation having regard to character, honesty and integrity;
- (b)Whether the applicant has been convicted of an indictable offence or an offence under the Prostitution Act 1999 (Qld) (‘Prostitution Act’);
- (c)Whether the applicant is an associate of a person who has been convicted of an indictable offence or an offence against the Prostitution Act;
- (d)Whether the applicant has been charged with any offence of a sexual nature that involves violence, intimidation, threats or children;
- (e)Whether the applicants business structure is sufficiently transparent to enable all associates of the applicant, whether individuals or bodies corporate to be readily identified;
- (f)Whether the applicant has the ability to control the noise and behaviour of the number of persons that could reasonably expected to be on and in the vicinity of the premises if the permit were granted;
- (a)
- The commissioner must have regard to the recommendation of the police district officer;[12] and to any objections of local council to grant the permit;[13]
- After considering the matters set out in s 121 the commissioner must decide whether to refuse or grant the application. Matters relevant to an AEP are objections made, comments from the council and police and impact on the amenity of the community.
- [9]In refusing the Club’s application the Respondent identified the following reasons for the decision:
- a)The applicant is not a suitable person to conduct adult entertainment pursuant to s 107D and s 107E; and
- b)The granting of the AEP would have an adverse impact on the amenity of the community.
- a)
- [10]The Respondent otherwise considered the Club was eligible to apply, the formal requirements of the application were met and the premises was suitable for adult entertainment.
Is the applicant a suitable person to provide adult entertainment?
- [11]The Respondent considered the Club not to be suitable for 3 main reasons:
- They were not satisfied the Club had the ability to control the noise and behaviour of the number of people expected to be present;
- The Clubs previous conduct in providing adult entertainment; and
- Mr Hagan’s conviction for weapon offences.
- (i)Ability to contain noise and behaviour.
- [12]The Respondent’s concerns were based on a report provided by the district officer of the northern region QPS in which the officer objected to the granting of the permit.[14]
- [13]The report was based on a review of statistics held by Mt Isa police station and a QPS reporting system as to incidents pertaining to the Club during the period 1 July 2012 and 15 September 2013. The report refers to 66 different calls for service received by Police in relation to matters at the Club.
- [14]The Club took issue with the assertion that all incidents referred to in the report were directly pertaining to the Club.
- [15]The Club says that this report suffers from the same errors as a report referred to by the Respondent in the CCT’s review of a decision not to grant extended trading hours and not to grant the AEP in 2009.
- [16]In those decisions the CCT found that a number of incidents which occurred outside the Club did not occur as a result of action or inaction on the Club, but rather resulted from patrons leaving other venues, being locked out of the Club and causing problems at the taxi rank outside the Club.
- [17]These problems apparently still exist. The Club says that despite its attempts to have problems with the taxi rank resolved, it has been unable to control the depositing of patrons from other venues at the taxi rank.
- [18]I agree with the sentiments of the CCT expressed in its decision relating to the extended hours application that incidents outside the Club ‘should not be taken into account in assessing the level of disturbance caused by the patrons of the Club, unless the problem originated inside the Club premises or directly involved members of its staff.’[15]
- [19]I also agree with the CCT’s comments in the AEP review that:
… evidence consisting of raw statistics and limited information about what happened gives little insight into whether it is a proper foundation to draw a firm conclusion that the behaviour demonstrates a lack of ability on the part of the permitee to control the noise and behaviour of the number of persons who could reasonably expected to be on and in the vicinity of the premises if the permit were granted.[16]
- [20]It is more relevant to examine the ‘individual incidents of significant concern’ referred to by the district officer in the report. [17]
- [21]
- [22]Incident 12 January 2013 – 3:04am.
- The report says a QPS officer was flagged down to attend to a male person unconscious outside the Club. The police reported that a witness said the person had been assaulted and was unconscious outside the club for five minutes prior to the police arrival.
- The Club responded[22] by referring to a Club diary entry and a secured register incident which noted that the assault involved two persons who knew each other and was the result of a personal gripe by the assailant against the victim unrelated to the Club or its service of alcohol.
- The Club says CCTV footage shows a security officer was present but had her back turned at the time of the assault. The security officer went inside to call an ambulance but QPS arrived and took control.
- They say the CCTV footage does not show ‘large numbers of intoxicated persons’ but rather a few patrons some of which assisted police and the victim.
- [23]Incident 26 July 2012
- The police report indicates they attended a disturbance at the Club. Four people (two of which were staff) were arrested for public nuisance.
- The police have recorded that there was no security from the club present. They said despite requests, the Club did not supply CCTV footage of the incident. Following that a warrant execution was issued where the footage was obtained which indicated the recording device was not functioning.
- The Club response was that the incident involved an attack by two patrons on two dancers of the Club. The Club said the allegations concerning the CCTV are baseless. It says on the night of the incident a police officer had recorded the incident from the CCTV using his mobile phone. Subsequent to the incident the DVD drive used with the CCTV had failed and the recorded material was unavailable when requested. Mr Hagan says he explained this to the police and advised that the DVD device was being repaired.
- [24]Incident 10 November 2012 – 2:25am
- The police were called to a large disturbance according to the report involving about 70 persons at the Club. The Club says it incident report indicates that at 2:10am there was a fight between two males inside the Club. The Club security ejected one male involved. Security then called a lockout and did not admit any more people. Some ten minutes later a fight took place outside the Club. The Club records show that there was only 10 people in the Club at that time and accordingly any persons involved in the fight were not Club patrons.
- [25]Incident 15 July 2013
- The report referred to another large disturbance on 15 July 2013.
- The Club had responded that the Club records of that night showed it closed at 2:30am because there were only eight to nine patrons left in the Club between 2:00 and 2:30am. As such, the people involved in the alleged incident could not have come from the Club.
- At the hearing the Respondent’s representative advised that the report (and subsequent material) in fact referred to the wrong date. It was meant to be 15 July 2012. As such, the Club had not been in a position to respond before the decision was made by the Respondent.
- [26]Further Incidents.
- The report states that on four separate occasions during the review period incidents of assault were of such a serious nature that they resulted in persons requiring hospitalisation. The report noted ‘gross intoxications of offender or victim was consistent on each occasion.’
- The Club rejects the allegations and says that it is difficult to respond in any meaningful way due to the general nature of the allegations.
- The report says that on five occasions Queensland Ambulance Service officers have contacted police to seek their assistance with matters at the Club. The officers indicated on three occasions they were fearful for their own safety and required police assistance before attending to the injured.
- The Club responded that the police records only indicate three incidents[23] one of which occurred during the day. The Club was not aware of the other incidents or why assistance was sought.
- [27]In relation to all of these incidents it is apparent that police records establish disturbances outside the Club involving staff and patrons on some occasions.
- [28]The evidence in the police report however is sketchy and on some occasions inconsistent with the Clubs written records of the particular incident.
- [29]I do not accept that this material from the district officer, when read with the consistent responses from the Club, is sufficient to lead to a conclusion that the Club lacks the ability to control the noise and behaviour of the number of people that could reasonably be expected to be on the premises if the permit were granted, such as to make the Club not suitable to provide adult entertainment.
- (ii)Mr Hagan’s (and therefore the Club’s) previous conduct concerning the provision of adult entertainment.
- [30]When the Club sought a permit in 2009 the Respondent refused it and the refusal was confirmed on review by the CCT.
- [31]The CCT found that Mr Hagan’s history of non-compliance and the absence of reasonable excuse justified the Chief Executive’s decision to refuse the permit.[24]
- [32]The CCT identified over seven breaches of Mr Hagan’s obligations under the permit and license conditions including failing to keep the area closed, absence of supervision and underqualified staff. The CCT found that an indifference towards compliance with obligations under the Act and the permit may, but not necessarily will, lead to an adverse inference from proven facts as to an applicant’s suitability to provide adult entertainment.
- [33]In the Club’s submissions in this application[25] Mr Hagan said he has acknowledged previous breaches of conditions. He said many of the breaches related to his ability to oversee and manage the Club within the prescribed conditions. He says he has learned from his failings and ‘is fully aware of the need to stay on top of issues and supervise his staff more closely.’
- [34]He says he is more fully aware of his responsibilities and has strategies in place to address the issues previously raised regarding his character.
- [35]Apart from previous breaches of conditions, the Respondent was also concerned about the Club’s previous provision of adult entertainment without a permit.
- [36]After the permit was refused in 2009 the Club did offer entertainment by females dressed only in a g-string providing lap dances to patrons.
- [37]The Club was issued with infringement notices in relation to conducting adult entertainment without a permit. In June 2013 police commenced court action against the Club and the Club pleaded guilty and stopped the entertainment.
- [38]The Club’s response was that this entertainment was provided between 2009 and 2013 because Mr Hagan understood it was not ‘adult entertainment’ which is referred to in the legislation as ‘an act of explicit sexual nature.’[26] He said he had received advice from various sources including the Respondent’s website that provided the genitalia of the performers remained covered it was not regarded as adult entertainment.
- [39]He also says[27] that during this period the Respondent’s representatives and police conducted compliance checks and were aware this entertainment was being provided.
- [40]He said when he was told that the legal position was clarified by a Magistrate’s decision that it was adult entertainment he immediately plead guilty to the charge and ceased the provision of this entertainment.
- (iii)Offences against the Weapons Act
- [41]The Respondent also took into account in refusing the application the fact that Mr Hagan was charged and convicted of unlawful possession of weapons in December 2013.
- [42]Mr Hagan says there was no criminality involved. He explains he had previously been a weapons instructor. He stopped doing this in 2003/04 when he started the club. He said he forgot to renew his license although he still had weapons that were locked in an approved gun safe. He said no ammunition was stored on the premises. He says the charges were reduced to possession of two restricted weapons. The charges were dealt with summarily, he pleaded guilty and was fined $800. No conviction was recorded.
- [43]I accept on the material before me that Mr Hagan (and the Club) do not have an unblemished record with respect to compliance with license conditions. Mr Hagan has tended to push the boundaries on compliance issues. That was the principal reason for the refusal of the grant of his permit in 2009.
- [44]I accept however that he has apparently gained insight and is no longer indifferent to compliance with regulation. He acknowledges that to be given the privilege of offering adult entertainment carries with it the responsibility to ensure the wellbeing of his staff and patrons.
- [45]On the material before me I find on balance there is insufficient material to conclude that the Club (and Mr Hagan) is not a suitable person to hold an adult entertainment permit.
Would the granting of the AEP have an adverse impact on the amenity of the community?
- [46]Apart from the suitability of the applicant, the Respondent has also based the refusal on his concerns that a grant of the AEP would increase the number of persons being attracted to the premises and increase the extent of the problems associated with the Club.
- [47]The Respondent formed the view that because of the history of violent incidents this could be exacerbated with the granting of a permit and have an adverse effect on the amenity of the community.
- [48]The Club says this concern is baseless. They point to the fact that the area in which they operate is mainly commercial. They say that neither the post office which is adjacent to the Club or its customers have lodged any objection to the permit. Neither has the medical practice next door. Further the nurses quarters and Mt Isa Base Hospital which are located nearby have neither complained nor objected. The Club also notes the AEP application was put to a meeting of the Mt Isa City Council and no objection was recorded.[28]
- [49]The Club also noted that in a previous QCAT review of the granting of an AEP[29] the Respondent made an inconsistent observation.
- [50]At paragraph [61] QCAT in that case said ‘… we accept the commissioners general experience has been that AEP premises tend to generate a lower number of violent incidents...’
- [51]The Respondent seeks to distinguish that observation from this case in suggesting that the experience is limited to ‘dedicated AEP premises’ where drinks are relatively expensive and patrons tend to save their money for the entertainment.[30]
- [52]I agree with the Club’s submissions[31] that there is no basis for the distinction. The Respondent has indicated no knowledge of the cost of drinks at the Club and there is no evidence as to the spending pattern of patrons who may frequent the Club.
- [53]It is only speculation on the part of Respondent that the provision of adult entertainment would lessen the amenity and good order of the community.
- [54]I do not consider the material establishes a legitimate concern about an adverse impact on the community such as to warrant a refusal of the application. This is particularly so where there is no objection from any persons who arguably would be adversely.
Findings
- [55]On balance, whilst accepting that because of past compliance issues there is some concerns the Club will not adhere to the strict requirements associated with the granting of the permit, I note the Club’s submissions around the acknowledgement of past failures and determination not to repeat the errors.
- [56]Where the Club was otherwise eligible for a permit I concluded that the decision to refuse the permit was not the correct and preferable decision.
- [57]I considered that any perceived risk could be addressed through appropriate conditions placed on the permit. As neither party had addressed that issue in submissions at the hearing I listed the matter for a directions hearing before delivering this decision.
- [58]I told the parties that I had decided to set aside the Respondent’s decision but intended to impose conditions particularly around ensuring appropriate supervision of the entertainment. I gave the parties the opportunity to provide submission on these points.
- [59]At the directions hearing the representative for the Respondent put to the Tribunal that there were three issues the Tribunal needed to consider:
- The length of the permit;
- The granting of the permit should be subject to an inspection by an OLGR officer to confirm that the proposed adult entertainment area still complied with s 103Q of the Liquor Act; and
- That the conditions which formed part of the recommendation to the executive director from the director of licensing dating 4 April 2014[32] should be imposed the permit.
- [60]The legal representative for the Club agreed with that proposal.
- [61]I find that the permit should be granted for three years subject to the following conditions:
- a)The issue of the permit is subject to a final inspection of the premises by an officer of the Office of Liquor and Gaming Regulation and for that officer to confirm that the proposed adult entertainment area complies with s 103P of the Liquor Act, and the completion of any further requirements of the Commissioner as a consequence of that final inspection;
- b)The permittee must comply with the management plan submitted to the Office of Liquor and Gaming Regulation;
- c)The permit does not authorise adult entertainment on Christmas Day or Good Friday;
- d)The permittee must ensure that spruiking or touting for business must not occur at, outside or in the proximity of the premises;
- e)Sufficient lighting must be provided to ensure controllers can properly supervise the entertainment and patron behaviour;
- f)The approved area must be fully enclosed in a way that prevents a person outside the area from seeing inside the area;
- g)The permittee must keep and maintain an up-to-date daily register of the name of each controller, with each controller’s starting and finishing time entered at the time of commencement and completion of duites at the premises as a controller respectively;
- h)When adult entertainment is being provided under the authority of an adult entertainment permit, a licensee, permittee or controller must be present at all times, in all rooms and/or areas where the adult entertainment is being conducted to ensure that it is provided in accordance with the Liquor Act and all conditions of the permit.
- a)
- [62]I order accordingly.
Footnotes
[1] QCAT Act s 20(2).
[2] Liquor Act s 33(1)(a).
[3] Statement of Reasons, para 1 referencing Hansard 10 November 1999, p 4828 – 4829.
[4] Ibid, p 4828.
[5] Liquor Act s 103O.
[6] Ibid s 103P(2).
[7] Ibid s 103P(1)(a).
[8] Ibid s 103Q(a).
[9] Ibid s 103R.
[10] Ibid s 107D.
[11] Ibid s 107D.
[12] Liquor Act s 107D(2).
[13] Ibid s 117.
[14] Exhibit 1, p 544 – 548.
[15]Hagan v Chief Executive Liquor Licensing Division, Queensland Treasury [2008] QCCTL 19, para [59].
[16]Hagan v Chief Executive, Liquor Licensing Division [2009] QCCTL 7 at para [55].
[17] Exhibit 1, p 545-546.
[18] Exhibit 1, p 331.
[19] Ibid, p 622 – 673.
[20] Ibid, p 1260.
[21] Exhibit 2, at [15].
[22] Exhibit 1, p 331.
[23] Exhibit 1, p 549.
[24]Hagan v Chief Executive Liquor Licensing Divison [2009] QCCTC 7 at para [57].
[25] Exhibit 2, para 24.
[26] Liquor Act s 103N(2).
[27] Exhibit 1, p 1260.
[28] Exhibit 1, p 286.
[29]Fine Fidelity & Ors v Commissioner of Liquor and Gaming & LA Showgirls Pty Ltd [2014] QCAT 89.
[30] Statement of Reasons, para [6].
[31] Exhibit 2, para [26].
[32] Exhibit 1, p 1094.