The Met Brisbane Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation
[2012] QCAT 423
•7 September 2012
| CITATION: | The Met Brisbane Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation [2012] QCAT 423 |
| PARTIES: | The Met Brisbane Pty Ltd trading as The Met (Applicant/Appellant) |
| v | |
| Chief Executive, Office of Liquor and Gaming Regulation (Respondent) |
| APPLICATION NUMBER: | GAR116-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Acting Senior Member |
| DELIVERED ON: | 7 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the decision of the Chief Executive, Office of Liquor and Gaming Regulation is set aside. 2. It is ordered that: (a) The Met pay the Department the amount of $2,500 for Ground One and the amount of $2,500 for Ground Two, to a total of $5,000; and (b) Condition LL300 be removed from the Licence and the Licence is varied by stating in the Licence the following condition to which it is subject: "… (i) The licensee and approved manager/s must ensure crowd controllers licensed under the Security Providers Act 1993 are employed in the following ratios, during the trading period, from at least 1 hour before the time the premises is open for business until one hour after the premises ceases to supply liquor: A. A minimum of 2 for the first 100 patrons; B. A minimum of 3 for between 101 and 160 patrons; C. A minimum of 4 for between 161 and 250 patrons; and D. One crowd controller for each additional 100 patrons or part thereof. …” (c) Condition LL306 is removed from the Licence and the Licence is varied by stating in the Licence the following conditions to which it is subject: "… (i) The licensee and approved manager/s must ensure closed-circuit television (CCTV) equipment is operating and clearly recording in the following areas of the premises – A. Bamboo Room (ground floor) – at the top centre of the north eastern wall facing in a south westerly direction (electronic equipment for viewing this camera is located in the exterior office on Wickham Street); B. Bamboo Room (mezzanine 1) – at the top of the stairs leading from the lower mezzanine room facing in a westerly direction; C. Bamboo Room (mezzanine 2) – at the top centre of the south western wall facing in a north easterly direction; D. Dragon Room (ground floor) – at the top of the northern corner facing in a southerly direction; E. Smoking Deck 1 (mezzanine veranda) – at the top of the north eastern end wall facing in a south westerly direction; F. Smoking Deck 2 (mezzanine veranda) – at the top of the south western end wall facing in a north easterly direction; G. Spy Bar 1 (mezzanine level inside rear) – at the top of the southern corner facing in a northerly direction; H. Spy Bar 2 (mezzanine level inside rear) – at the top of the wall located at the northern end of the bar facing in a southerly direction; I. The Met Bar (ground floor) – at the top of the eastern corner facing in a westerly direction; J. The Playground (ground floor) – at the top western corner facing in an easterly direction; K. Upper Dance Floor 1 (lower ground) – under the playground mezzanine floor on the south eastern wall facing in a westerly direction; L. Upper Dance Floor 2 (lower ground) – at the top of the northern corner facing in a southerly direction; M. Lower Dance Floor (lower ground) – at the top of the southern corner facing in a northerly direction; N. Met Mezzanine 1 (overlooking dance floor) – on scaffolding on the north western side of the dance floor area facing in a southerly direction; O. Met Mezzanine 2 (overlooking dance floor) – on scaffolding on the north western side of the dance floor area facing in a easterly direction; P. Met Mezzanine 3 (overlooking dance floor) – on scaffolding on the south eastern side of the dance floor area facing in a westerly direction; Q. Met Mezzanine 4 (overlooking dance floor) – on scaffolding on the south eastern side of the dance floor area facing in a northerly direction; R. Tea Room (basement level) – at the top of the northern corner facing in a southerly direction; S. Coco Booths Entry 1 (basement level) – at the top of the wall, at the end of the corridor in the western corner facing in a south easterly direction; T. Coco Booths Entry 2 (basement level) – at the centre and top of the north western wall facing in a south easterly direction; U. Coco Booths Entry 3 (basement level) – at the centre and top of the north western wall facing in an easterly direction; V. Coco Booths Dance Floor 1 (basement level) – at the top of the southern corner facing in a northerly direction; W. Coco Booths Dance Floor 2 (basement level) – at the top of the south western wall, above the DJ box, facing in a north easterly direction; X. Coco Booths Dance Floor 3 (basement level) – at the top of the eastern corner, near secondary bar) facing in a western direction; Y. Coco Booths Main Bar 1 (basement level) – at the top of the eastern corner(near the main bar) facing in westerly direction; Z. Coco Booths Main Bar 2 (basement level) – at the top of the western corner facing in an easterly direction; AA. Coco Booths Main Bar 3 (basement level) – at top of the south eastern wall (behind the bar) facing in a north westerly direction. (d) the Licence is varied by stating in the Licence the following conditions to which it is to be subject: …” (i) The minimum requirements for closed-circuit television equipment are: A. the equipment must be maintained in a way that: clearly records all patron activities as recorded by cameras referred to in condition [#insert licence condition number for CCTV camera locations#]; and B. clearly records interactions between patrons and crowd controllers or staff of the premises as recorded by cameras referred to in condition [#insert licence condition number for CCTV camera locations#]; and C. the equipment must be operational from at least 1 hour before the time the premises is open for business until close of business (including grace period); and D. each recording made by the equipment must display on the recording the correct time and date of the recording. (ii) The licensee and approved manager must ensure that closed-circuit television recording equipment is inspected at least twice from at least 1 hour before the time the premises is open for business to ensure that the equipment is operational at least 1 hour before the time the premises is open for business in a trading period in which the premises are open for business and ending at least 1 hour after the premises close for business during or at the end of the trading period. (iii) The Licensee and Approved Manager must keep a register of inspections of closed-circuit television recording equipment. The register must be made available immediately when requested by an investigator or a Police Officer under the Liquor Act 1992. The register must contain the following information: A. The date and time of the inspection; and B. The name and signature of the person performing the inspection. (iv) The Licensee and Approved Manager must ensure that a counter is utilised to record all patrons entering and exiting the premises during trading hours and maintain a register to record, on an hourly basis, the total number patrons inside the premises at each hour interval. The register must be made available immediately when requested by an investigator or a Police Officer under the Liquor Act 1992. (v) The sale and supply of liquor in jugs is prohibited. (vi) Liquor is to be served in non-glass receptacles at all times on the premises with the exception of: A. The VIP area (Spy Bar); and B. Those areas of the premise where a private function or corporate function is being conducted (glass containers must not be removed from any private or corporate function area). 3. Both parties have liberty to apply within 7 days regarding the wording of the variations to the license conditions set out in order 2. |
| CATCHWORDS: | DISCIPLINARY PROCEEDING – LIQUOR LICENCEE – whether grounds for disciplinary action – sanction – where improvements made by licensee before disciplinary action taken – where substantially the same grounds for two grounds of action Liquor Act 1992, ss 3, 4, 33, s136, s148A |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The Met Brisbane Pty Ltd trading as The Met filed an application to review a decision of the Chief Executive, Office of Liquor and Gaming Regulation (OLGR) dated 7 April 2011. The decision was about disciplinary action.
The decision is a lengthy one of some some 35 pages. In essence, OLGR found two grounds to exist for the taking of disciplinary action against The Met, which is the holder of a commercial hotel licence. Ground 1 related to The Met allegedly failing to comply with the Liquor Act 1992 (the Act) as required by section 136(1)(a)(i), and in particular, section 148A(4) of the the Act which requires the licensee to provide and maintain a safe environment in and around the licenced premises. Ground 2 related to The Met allegedly failing to comply with section 136(1)(h)(ii) of the Act that in that the use of the licensed premises, or the behaviour of persons entering or leaving the licensed premises, is causing disorderly conduct in, or in the neighborhood of the licensed premises.
In relation to Grounds 1 and 2, the numerous incidents relied upon occurred on numerous dates between about September 2007 and August 2010. For example, they include a glassing assault by one female patron on another female patron; a patron escorted from the premises after being found unconcious and intoxicated on the lounge; an intoxicated male patron falling down the stairs in the premises and sustaining injury; an incident involving the arrest of 4 male patrons following the striking of another male patron with a bottle to the head; and removal of numerous patrons from the premises by security guards following physical altercations between intoxicated patrons. Police were called to numerous incidents involving persons said to be heavily affected by alcohol.
OLGR decided to take disciplinary action including a payment to be made by The Met of $5,000 in respect of each Ground and removing several licence conditions and varying the licence to include others relating to the ratio of crowd controllers to be employed; installation, maintenance and register of inspections of closed circuit television (CCTV) equipment; prohibiting the sale of liquor in jugs; and the sale of liquor only in non-glass receptacles.
The decision refers to improvements having been made in relation to the conduct of persons using and entering the premises, and in the provision and maintenance of a safe environment, but that ‘there has been no elimination of such disorderly’ conduct, nor provision of a ‘sufficiently safe environment’, as to ‘warrant a complete abandonment’ of the disciplinary action.
The parties have submitted an agreed statement of facts and joint submissions in relation to the review, requesting that orders be made in agreed terms.
The application is brought in the Tribunal’s review jurisdiction. The purpose of the Tribunal’s review is to produce the correct and preferable decision,[1] having regard to the evidence and according to law. Under the Act, the review must be decided by way of reconsideration of the evidence before OLGR when the decision was made, and in accordance with the same law which applied to the making of the original decision.[2]
[1] QCAT Act, s 20(1).
[2] Section 33(1).
Disciplinary proceedings are protective of the public.[3] Under the Act, their aim is to protect the public from liquor-related harm and disturbance.[4] Despite the agreement of the parties about the proposed outcome, the Tribunal must be satisfied that grounds exist for taking of disciplinary action and that the sanction proposed by the parties is appropriate.
[3]Filippini v Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development [2008] QCA 96 (Keane JA). Section 3 of the Liquor Act 1992.
[4] Liquor Act 1992, s 3.
Agreed Facts
It is agreed by The Met and OLGR, in summary, that in the period from September 8, 2007 through and including August 1, 2010 there were a total of 140 incidents:
(a)138 incidents were relied upon in relation to Ground 1 of the disciplinary action; and
(b)140 incidents were relied upon in relation to Ground 2 of the disciplinary action.
The Joint Submissions
14. The Met and OLGR jointly submit that it is appropriate in all of the circumstances of this matter for the Tribunal to amend the decision pursuant to section 24(1) of the QCAT Act, and to make orders imposing the following conditions and penalties on the Applicant:
(a) Licensee to pay the Department the amount of $2,500 for Ground One and the amount of $2,500 for Ground Two, to a total of $5,000; and
(b) Remove condition LL300 from the Licence and vary the Licence by stating in the Licence the following condition to which it is subject:
"…
(i) The licensee and approved manager/s must ensure crowd controllers licensed under the Security Providers Act 1993 are employed in the following ratios, during the trading period, from at least 1 hour before the time the premises is open for business until one hour after the premises ceases to supply liquor:
A.A minimum of 2 for the first 100 patrons;
B. A minimum of 3 for between 101 and 160 patrons;
C. A minimum of 4 for between 161 and 250 patrons; and
D. One crowd controller for each additional 100 patrons or part thereof.
…”
(c) Remove condition LL306 from the Licence and vary the Licence by stating in the Licence the following conditions to which it is subject:
"…
(i) The licensee and approved manager/s must ensure closed-circuit television (CCTV) equipment is operating and clearly recording in the following areas of the premises –
A. Bamboo Room (ground floor) – at the top centre of the north eastern wall facing in a south westerly direction (electronic equipment for viewing this camera is located in the exterior office on Wickham Street);
B. Bamboo Room (mezzanine 1) – at the top of the stairs leading from the lower mezzanine room facing in a westerly direction;
C. Bamboo Room (mezzanine 2) – at the top centre of the south western wall facing in a north easterly direction;
D. Dragon Room (ground floor) – at the top of the northern corner facing in a southerly direction;
E. Smoking Deck 1 (mezzanine veranda) – at the top of the north eastern end wall facing in a south westerly direction;
F. Smoking Deck 2 (mezzanine veranda) – at the top of the south western end wall facing in a north easterly direction;
G. Spy Bar 1 (mezzanine level inside rear) – at the top of the southern corner facing in a northerly direction;
H. Spy Bar 2 (mezzanine level inside rear) – at the top of the wall located at the northern end of the bar facing in a southerly direction;
I. The Met Bar (ground floor) – at the top of the eastern corner facing in a westerly direction;
J. The Playground (ground floor) – at the top western corner facing in an easterly direction;
K. Upper Dance Floor 1 (lower ground) – under the playground mezzanine floor on the south eastern wall facing in a westerly direction;
L. Upper Dance Floor 2 (lower ground) – at the top of the northern corner facing in a southerly direction;
M. Lower Dance Floor (lower ground) – at the top of the southern corner facing in a northerly direction;
N. Met Mezzanine 1 (overlooking dance floor) – on scaffolding on the north western side of the dance floor area facing in a southerly direction;
O. Met Mezzanine 2 (overlooking dance floor) – on scaffolding on the north western side of the dance floor area facing in a easterly direction;
P. Met Mezzanine 3 (overlooking dance floor) – on scaffolding on the south eastern side of the dance floor area facing in a westerly direction;
Q. Met Mezzanine 4 (overlooking dance floor) – on scaffolding on the south eastern side of the dance floor area facing in a northerly direction;
R. Tea Room (basement level) – at the top of the northern corner facing in a southerly direction;
S. Coco Booths Entry 1 (basement level) – at the top of the wall, at the end of the corridor in the western corner facing in a south easterly direction;
T. Coco Booths Entry 2 (basement level) – at the centre and top of the north western wall facing in a south easterly direction;
U. Coco Booths Entry 3 (basement level) – at the centre and top of the north western wall facing in an easterly direction;
V. Coco Booths Dance Floor 1 (basement level) – at the top of the southern corner facing in a northerly direction;
W. Coco Booths Dance Floor 2 (basement level) – at the top of the south western wall, above the DJ box, facing in a north easterly direction;
X. Coco Booths Dance Floor 3 (basement level) – at the top of the eastern corner, near secondary bar) facing in a western direction;
Y. Coco Booths Main Bar 1 (basement level) – at the top of the eastern corner (near the main bar) facing in westerly direction;
Z.Coco Booths Main Bar 2 (basement level) – at the top of the western corner facing in an easterly direction;
AA. Coco Booths Main Bar 3 (basement level) – at top of the south eastern wall (behind the bar) facing in a north westerly direction.
(d) vary the Licence by stating in the Licence the following conditions to which it is to be subject:
…”
(i) The minimum requirements for closed-circuit television equipment are:
A. the equipment must be maintained in a way that: clearly records all patron activities as recorded by cameras referred to in condition [#insert licence condition number for CCTV camera locations#]; and
B. clearly records interactions between patrons and crowd controllers or staff of the premises as recorded by cameras referred to in condition [#insert licence condition number for CCTV camera locations#]; and
C. the equipment must be operational from at least 1 hour before the time the premises is open for business until close of business (including grace period); and
D. each recording made by the equipment must display on the recording the correct time and date of the recording.
(ii) The licensee and approved manager must ensure that closed-circuit television recording equipment is inspected at least twice from at least 1 hour before the time the premises is open for business to ensure that the equipment is operational at least 1 hour before the time the premises is open for business in a trading period in which the premises are open for business and ending at least 1 hour after the premises close for business during or at the end of the trading period.
(iii) The Licensee and Approved Manager must keep a register of inspections of closed-circuit television recording equipment. The register must be made available immediately when requested by an investigator or a Police Officer under the Liquor Act 1992. The register must contain the following information:
A. The date and time of the inspection; and
B. The name and signature of the person performing the inspection.
(iv) The Licensee and Approved Manager must ensure that a counter is utilised to record all patrons entering and exiting the premises during trading hours and maintain a register to record, on an hourly basis, the total number patrons inside the premises at each hour interval. The register must be made available immediately when requested by an investigator or a Police Officer under the Liquor Act 1992.
(v) The sale and supply of liquor in jugs is prohibited.
(vi) Liquor is to be served in non-glass receptacles at all times on the premises with the exception of:
A. The VIP area (Spy Bar); and
B. Those areas of the premise where a private function or corporate function is being conducted (glass containers must not be removed from any private or corporate function area). ...”
The parties both submit that the amended disciplinary action outlined is appropriate in the circumstances, taking into account the grounds of disciplinary action and the incidents which establish those grounds.
Discussion and decision
Part 5 Subdivision 3 of the Act, sets out provisions for ‘Disciplinary action relating to licenses’, including the grounds for disciplinary action in section 136. The grounds include the grounds that that the licensee has failed to comply with the Act[5] and that use of the premises, or the behaviour of persons entering or leaving is causing disorderly conduct in, or in the neighborhood of, the premises.[6]
[5] Section 136(1)(a)(i).
[6] Section 136(1)(h)(ii).
The Act imposes obligations on licensees, including an obligation to provide and maintain a safe environment in and around the premises.[7]
[7] Section 148A(4).
In conducting the review, I must firstly consider whether grounds exist for taking disciplinary action, and if so, whether the action proposed is appropriate. No issues are raised by the parties regarding the formal requirments under the Act for taking action, and nor do I discern any.
The facts relied upon by the parties in the agreed statement of facts are devoid of detail. However, The Met makes admissions about incidents occurring and they are consistent with the material provided to the tribunal by OLGR, as required by section 21(2) of the QCAT Act, being the evidence which was before OLGR when the decision was made. I am satisfied on that basis that grounds exist for the taking of disciplinary action under section 136(1)(a)(i) and 136(1)(h)(ii).
In relation to disciplinary action, possible action includes, requiring the licensee to pay an amount of not more than $10,000 for each ground and varying licence conditions.[8]
[8] Liquor Act 1992, s 4, ‘disciplinary action’.
I have not been provided with submissions regarding mitigating and aggravating factors. Nor have I received references to comparative decisions by the parties.
That said, the parties propose that an amount be payable by The Met of $2,500 in respect of each the grounds. I do note that in the background provided by the parties jointly as part of the document embodying the Joint Submissions and Agreed Facts, that the Met asserts that OLGR’s decision results in a double penalty in some respects. I understand this to be a reference to the reliance on many of the same incidents in support of the two separate grounds for disciplinary action.
Also, disciplinary action was not taken until April 2011, despite the last incident relied upon in support of the grounds of action having occurred in August 2010, and despite the acknowledgment by OLGR in the decision it made that apparently significant improvements had been made, although OLGR did not consider it appropriate to abandon the disciplinary action.
The variations to the license conditions proposed by the parties are more detailed than the OLGR decision regarding the location of CCTV equipment, which suggests a co-operative approach by The Met to achieving a result in the interests of minimising alcohol related harm and disturbance having regard to the issues which have been raised. This approach is also consistent with The Met’s admissions made in the proceeding.
I am satisfied that the amount payable, as proposed by the parties per ground of action of $2,500, is appropriate in these circumstances, namely that the incidents relied upon in respect of both grounds are substantially the same; where substantial improvements were acknowledged by OLGR as having been made before the taking of the disciplinary action; and in view of the co-operative approach of the Met to the issues raised.
Further, I am satisfied that the variations proposed by the parties to the conditions on the licence are appropriate having regard to the nature of the incidents which led to the taking of the disciplinary action and the aim of the Act of minimising alcohol-related harm and disturbance.
Accordingly, I make orders in the terms sought by the parties.
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