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  4. Jade Buddha Pty Ltd v Commissioner of Liquor and Gaming Regulation - [2017] QCAT 458

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Jade Buddha Pty Ltd v Commissioner of Liquor and Gaming Regulation[2017] QCAT 458

Jade Buddha Pty Ltd v Commissioner of Liquor and Gaming Regulation[2017] QCAT 458

CITATION:

Jade Buddha Pty Ltd t/as Jade Buddha v Commissioner of Liquor and Gaming Regulation [2017] QCAT 458

PARTIES:

Jade Buddha Pty Ltd t/as Jade Buddha

(Applicant)

v

Commissioner of Liquor and Gaming Regulation

(Respondent)

APPLICATION NUMBER:

GAR216-17

MATTER TYPE:

General administrative review matters

HEARING DATE:

15 December 2017

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

21 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The Decision of the Commissioner of Liquor and Gaming Regulation made on 27 June 2017 not to endorse a condition on the licence declaring part of the premises not to be regulated premises for the purposes of ID scanning is confirmed.

CATCHWORDS:

GAMING AND LIQUOR – ADMINISTRATION-LIQUOR LICENSING – where an application was made to exempt part of premises holding a commercial hotel licence from ID scanning requirements – whether the main activity of the premises at the hours of concern was as a dining area or as a bar

Liquor Act 1992 (Qld) s 173EH(1), 173EH(b)

Safe Night out Legislation Amendment Act 2014 (Qld)

Hyde v Chief Executive, Office of Liquor and Gaming Regulation [2012] QCAT 13

Jimmy’s on the Mall Pty Ltd v Commissioner for Liquor and Gaming Regulation [2017] QCAT 282

The Gresham Bar and other licensed premises v Commissioner for Liquor and Gaming Regulation [2017] QCAT 419

REPRESENTATIVES:

APPLICANT:

Mr M Jones of Liquor and Gaming Specialists Pty Ltd

RESPONDENT:

Mr D Robinson of the Office of Legal Advice and Advocacy

REASONS FOR DECISION

  1. [1]
    Jade Buddha Pty Ltd (‘Jade Buddha’) operates premises trading as Jade Buddha at 1 Eagle Street in Brisbane, under a commercial hotel licence. The trading hours on the licence are 10am to 3am on 7 days a week.
  2. [2]
    The premises are located in the Brisbane CBD 3am safe night precinct, and are required to comply with ID scanning requirements for the whole of the premises from 10pm on each trading day on which it has approved extended trading hours after midnight.
  3. [3]
    Jade Buddha requested an ID scanner exemption for the Plaza Level part of the premises on 26 April 2017. On 27 June 2017 the Commissioner of Liquor and Gaming Regulation (‘the Commissioner’) made a decision not to endorse a condition on the licence declaring part of the premises not to  be regulated premises for the purposes of ID scanning.
  4. [4]
    Jade Buddha filed an application in the Tribunal on 28 July 2017 seeking a Review of that decision of the Commissioner. The application was heard on 15 December 2017 when I heard submissions from the parties, and conducted a view of the premises accompanied by them, and by the Hearing Support Officer. These are the Reasons in the Application.

The Premises and Applicable Principles

  1. [5]
    Jade Buddha is a large venue. It comprises two main areas. The Plaza Level has a central Bar and numerous tables and seating inside the building under cover, flowing outside to an open deck area which has more tables and seating and overlooks the Brisbane River.
  2. [6]
    The second area is upstairs above the Plaza Level, and is known as the Shadow Lounge. It is described as an upmarket cocktail lounge bar with ‘a seductive mix of innovative cocktails, lounge, function spaces with bar and wait services all in an intimate and stylish setting’. It is accepted that the Shadow Lounge should be subject to ID scanning.
  3. [7]
    Both the Plaza Level and the Shadow Lounge have separate entries at the front of the premises.
  4. [8]
    The application relates to exemption of the Plaza Level from the ID scanning requirements.
  5. [9]
    The ID scanning requirements are set out in Section 173EH(1) of the Liquor Act 1992 (‘the Act’) as follows:

173EH Scanning obligations of licensees for regulated premises

  1. (1)
    The licensee for regulated premises must ensure that, during the regulated hours for the premises, no person is allowed to enter the premises as a patron unless –
  1. (a)
    the person produces a photo ID; and
  1. (b)
    a staff member of the licensed premises scans the photo ID using an approved ID scanner linked to an approved ID scanning system; and
  1. (c)
    the scan of the photo ID indicates the person is not subject to a banning order for the premises.
  1. [10]
    Regulated hours are described in Section 173EH(9) as the period that is stated as a condition of the licence for the premises.
  2. [11]
    Section 173EH(b) provides for an exemption of part of the premises:
  1. (8)
    Also, this section does not apply to a person entering the premises –
  1. (b)
    to access a part of the premises if the licence for the premises is subject to a condition declaring the part not to be regulated premises for this division
  1. [12]
    Jade Buddha is not applying for an adjustment to the regulated hours. It suggested in submissions that I might consider granting an exemption which included a stated closing time. This suggestion was opposed by the Commissioner as being effectively an amended application, which would require further consideration by the Commissioner. In view of my Reasons, it is not necessary to consider that suggestion in any event.
  2. [13]
    The ID scanning provisions were introduced into legislation as a consequence of the State Government’s ‘Safe Night Strategy’ legislation introduced in 2014.[1] It was anticipated that exemptions could apply, and the Act provides for exemptions accordingly.
  3. [14]
    From 1 July 2017, licensees who are required to operate an ID scanner must not allow a person to enter their premises after 10pm unless their photo ID is scanned and the scan indicates that the person is not subject to a Queensland Police Service or court ordered ban.
  4. [15]
    In Jimmy’s on the Mall[2] Member Gordon considered that a balancing exercise was required in considering whether an exemption should be granted:

[66]  It is necessary to consider how far the aims and principles of the Act would be advanced by those steps (as to scanning). This can then be compared with the extent to which the aims and principles of the Act would be impeded if the exemption of the restaurant from the ID scanning obligations were to be granted.

  1. [16]
    Member Gordon in that case found that the balance favoured an exemption:

[73]  …Having regard to the very limited advancement of the aims and purposes of the Act from the steps, in my opinion the expense and inconvenience greatly outweighs any advancement.

  1. [17]
    The opinion of the Queensland Police Service was sought on the exemption request. It objected to an exemption being granted and noted:[3]

The installation and use of ID scanners at certain licensed premises is a key Government initiative aimed at minimising alcohol related harms and the removal of this requirement where not specifically legislated is not supported.

The application indicates the applicant holds a Commercial other, subsidiary on premise licence. Checks on COGS has identified the applicant holds a Commercial Hotel licence.

  1. [18]
    The Commissioner submitted that the status of the premises as a commercial hotel is significant:[4]

xi.  It is clear that commercial hotels be purposely a part of the mandatory ID scanner network. This is because commercial hotels play a substantial part in Brisbane’s night life and, therefore, their inclusion is imperative to achieve the overall purpose of the Act to minimise alcohol related harms. For example, in the Brisbane CBD SNP there are approximately 38 commercial hotel licences issued with extended trading hours past midnight. The concentration of high risk late trading venues in the SNP’s are particularly conducive to high risk of alcohol related harms, violence and public safety risks.

  1. [19]
    The Act provides for the publication of Guidelines.[5] In Hyde v Chief Executive, Office of Liquor and Gaming and Anor[6] Member Howard noted as to guidelines that:

Guidelines can be issued under section 42A of the Act by the chief executive. Guidelines are not legislation. They set out in effect the policy of the chief executive in relation to the matters they cover. Lawful ministerial policy will generally be followed in merits review proceedings unless there are cogent reasons to depart from it. A more guarded approach has been taken to departmental guidelines. However, if a policy is reasonable and sound, consistency in decision-making makes it desirable that it be followed provided the merits of the matter are considered, and provided that any policy requirements are in accordance with the relevant legislation.

  1. [20]
    The Commissioner issued Guideline 59[7] as to the declaration of licensed premises (or part of) as ‘not regulated for ID scanning’. It provides as to part of the premises that (emphasis in italics is mine):

The commissioner may approve a part of the premises for which the main purpose is not the on-premises consumption of alcohol. For example, a segregated gaming area or a dining area may be considered appropriate. These areas must be able to be accessed with out travelling through areas of the regulated premises.

The commissioner is unlikely to approve areas where the on-premises service of liquor is the main activity, such as beer gardens, entertainment areas and bar areas.

  1. [21]
    Member Gordon in The Gresham Bar and other licensed premises v Commissioner for Liquor and Gaming Regulation[8] expressed some dissatisfaction with Guideline 59, which he described as ‘very new’, and thought it seemed likely it would be revised.[9] He did not have particular regard to it in that matter.
  2. [22]
    The guideline does point to the types of considerations the Chief Executive will take into account. It is my view that the importance of the distinction drawn as to the main activity of an area as being either a dining area or a bar area, is consistent with the Act, which has a main purpose to  regulate the sale and supply of liquor in particular areas to minimise harm caused by alcohol abuse and misuse and associated violence[10], and does give guidance to the industry.
  3. [23]
    The central issue in this application is as to the proper designation of the Plaza Level premises at the hours of concern between 10pm and 3am – is the main activity as a dining area, or restaurant, that also has a bar facility; or is the main activity as a bar that also serves snacks and meals?
  4. [24]
    Jade Buddha submitted that the premises function as a restaurant and bar offering a mix of modern Australian-Asian food described as a ‘tranquil garden East-meets-West Fusion vibe’, and pointed to:
    1. the substantial meals available on the Menu which were produced in the associated commercial kitchen; and
    2. menus set on each table.
  5. [25]
    Jade Buddha submitted as to the main purpose of the area:[11]

The main purpose of the area for which the exemption is sought is not the on-premises consumption of alcohol. It is principally a dining area. The area is able to be accessed without travelling through other areas of the premises which would remain regulated.

In the proposed exempt area, the on-premises service of liquor is not the main activity. The area is not a beer garden, nor an entertainment or bar area, although it contains a bar.

  1. [26]
    The Commissioner submitted that the premises were essentially a Bar, and pointed to:
    1. the ordering process whereby patrons ordered at the bar, rather than having orders taken at the table;
    2. the vague description of the food Menu as being available ‘until late’, rather than being clearly available at all opening hours; and
    3. the lack of evidence as to the financial contribution of meals to the operation of the premises.
  2. [27]
    In Jimmy’s on the Mall, Member Gordon considered those premises as operating as a restaurant, and granted an exemption, noting that:

[68]  Most of the persons entering the restaurant would be intending to eat a meal there.

  1. [28]
    Due to the commercial hotel licence under which these premises operate, it is not necessary that patrons order a meal to be served alcohol, and there is no evidence that most persons do order a meal.
  2. [29]
    In my opinion, the test for characterisation as to whether the premises are primarily a restaurant would be whether it sets out to, and does, attract patrons specifically on the basis of its food menu and food service.
  3. [30]
    If the premises set out to, or do, attract patrons primarily on the basis of its service of alcohol, then it is more likely that it is properly characterised as a bar.
  4. [31]
    If the premises function primarily as a bar with the service of alcohol, no question of exemption would conceivably arise, as the Safe Night Out provisions are aimed at reducing the occurrence of alcohol related issues, and the ID scanner provisions are aimed specifically at identifying persons who have a history of alcohol-related bad behaviour and have been banned from attending premises.
  5. [32]
    The Jade Buddha is a large, well-known, and apparently successful inner city night venue, which has operated continuously for 13 years, since 2004, in the same format.
  6. [33]
    The menu for the Plaza Level was placed in evidence. It is headed ‘Please order at Bar’. It provides for various categories of food, with varying times of availability:
  • Something to Share (Avail 12 – Late)
  1. -
    This includes tapas and a tasting platter
  • Just Grazing (Avail 12 – Late)
  1. -
    This includes snacks such as fries, spring rolls, gyoza and chicken satay skewers
  • Lunch Specials (Avail 12 – 2pm every day)

(Must purchase drink. No alterations to lunch specials)

  1. -
    This includes burgers and fish and chips
  • Light meals (Avail 12 – 3pm & 6pm – Late)
  1. -
    This includes salads
  • Burgers (Avail 12 – late)
  1. -
    This includes burgers and steak sandwiches
  • Feed Me (Avail 12 – 3pm & 6pm – Late)
  1. -
    This includes steak, fish and chips, chicken and lamb dishes
  • Something Sweet (Avail 12 – late)
  1. -
    This includes pudding and ice-cream
  1. [34]
    No evidence was presented to show that the Plaza Level primarily seeks to attract its patrons on the basis of the quality and attractiveness of its food menu and food service.
  2. [35]
    The Commissioner submitted that the lack of table service to take orders is not consistent with operation of a restaurant. There may be many models of operation of a restaurant, and the mere ordering process may not be determinative, and may be subject to trends. The absence of attendance on patrons at their tables is however at variance with the traditional operation of a restaurant, and does raise a query as to the importance that is placed on meal service at the premises.
  3. [36]
    The importance of the provision of meals to the financial operation of the premises was not established. The failure of the menu to stipulate that meals are available at all times that the premises operate, serves to undermine the importance that is placed on food service, as opposed to service of alcohol.
  4. [37]
    Whilst substantial meals certainly are available to patrons over an extended period, there is no evidence that the premises are designed to operate, and do operate, between 10pm and 3am for the main activity of a dining area or restaurant which also has a bar facility.
  5. [38]
    None of the food items are expressed to necessarily be available during the whole of the hours of concern from 10pm to 3am. The expression ‘Late’ is used on numerous categories on the Menu. No definition is given as to when ‘Late’ is, and when food would cease being served.
  6. [39]
    These factors lead to a clear conclusion that the main activity of these premises between 10pm and 3am is not directed to food service and operation as a dining area or restaurant, but that its main activity is as a venue providing the service of alcohol late into the night and early morning.

Competitive considerations

  1. [40]
    Jade Buddha raised as an important consideration the competitive disadvantage that the ID scanner provisions place it at, as compared to nearby premises which operate under a restaurant licence, and which are able to be open until 1 am, and are not subject to the ID scanner requirements.
  2. [41]
    It was submitted by Jade Buddha that the ID scanner provisions cause extra cost in staffing to operate the scanners; and can cause queues to develop which may cause prospective patrons to turn away and go to the nearby premises which do not have a queue to enter.
  3. [42]
    An example was given of a nearby premises known as ‘Riverbar’ which it was submitted, operates in an almost identical manner to the Plaza Level of the Jade Buddha.
  4. [43]
    It is curious that those premises, with the word ‘bar’ in its very name, which operates until 1 am in the same precinct, under a similar business model, is not subject to the ID scanner provisions between 10pm and 1am.
  5. [44]
    In The Gresham Bar, Member Gordon considered submissions as to exemption of adult entertainment premises as a general proposition, but commented that would be a matter for legislation:

[79]  It would be wrong for the tribunal in effect to identify another class of licensed premises which ought to be excluded from the ID scanning obligations since having regard to the terms of the act, this is clearly the role of the legislature.

  1. [45]
    Similarly, it would be wrong for the Tribunal to create an exempt class of a restaurant/bar.
  2. [46]
    It may be that this line of argument as to competitive disparity leads to the conclusion that, rather than it being an argument for exempting restaurant/bar premises in the precinct as a category, it is an argument for the legislature to give consideration to broadening the scope of the ID scanner requirements in the precinct to include such premises, if that was seen as desirable.
  3. [47]
    The Act provides that persons, whose sole purpose for entering a premises subject to a commercial hotel licence is to eat a meal in a part of the premises ordinarily set aside for dining, whether or not liquor is sold and supplied to the person for consumption by the person in association with the eating of the meal, are exempt from ID scanning.[12]
  4. [48]
    Accordingly, the ID scanning regime does not impact upon a person entering with the sole intention of having a meal in any event, and causes no competitive disadvantage (except perhaps to the extent of having to join a queue that may have developed at the scanner, and satisfying the security staff as to their intentions).

Conclusion

  1. [49]
    Jade Buddha has not established that the main activity of the Plaza Level during the hours of concern is as a dining area or a restaurant.
  2. [50]
    I am satisfied that the balance between achieving the aims of the Act and the inconvenience and expense caused to the operator, falls as to application of the ID scanner provisions to achieve the aims of the Act, and that a proper basis for exemption of the Plaza Level has not been established.
  3. [51]
    I confirm the decision of the Commissioner of Liquor and Gaming Regulation made on 27 June 2017 not to endorse a condition on the licence declaring part of the premises not to be regulated premises for the purposes of ID scanning.

Footnotes

[1]Safe Night Out Legislation Amendment Act 2014 (Qld).

[2]Jimmy’s on the Mall Pty Ltd v Commissioner for Liquor and Gaming Regulation [2017] QCAT 282

[3]Email Snr. Const. Trattos to Liquor and Gaming Licensing 18 May 2017.

[4]Statement of Reasons, filed 23 August 2017, p 12.

[5]S 42A.

[6][2012] QCAT 13, [37].

[7]Update: 23 Jun 2016.

[8][2017] QCAT delivered 1 December 2017.

[9]Ibid, [69], [70].

[10]S 3(e).

[11]Submissions by the Applicant, filed 10 November 2017, p 7.

[12]S 173EH(7).

Close

Editorial Notes

  • Published Case Name:

    Jade Buddha Pty Ltd t/as Jade Buddha v Commissioner of Liquor and Gaming Regulation

  • Shortened Case Name:

    Jade Buddha Pty Ltd v Commissioner of Liquor and Gaming Regulation

  • MNC:

    [2017] QCAT 458

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    21 Dec 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Hyde v Chief Executive, Office of Liquor and Gaming and Anor [2012] QCAT 13
2 citations
Jump To
Cite 1 - [2012] QCAT 13
Cite 2 - [2012] QCAT 13
Jimmy's On the Mall Pty Ltd v Commissioner for Liquor and Gaming Regulation [2017] QCAT 282
2 citations
Jump To
Cite 1 - [2017] QCAT 282
Cite 2 - [2017] QCAT 282
The Gresham Bar v Commissioner for Liquor and Gaming Regulation [2017] QCAT 419
1 citation
Jump To
Cite 1 - [2017] QCAT 419

Cases Citing

Case NameFull CitationFrequency
Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202 1 citation
1

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