Victorian Civil and Administrative Tribunal|2007-09-07

Palace Cinema Nominee Pty Ltd v Director of Liquor Licensing (Occupational & Business Regulation) [2007] VCAT 1829 (7 September 2007)

Palace Cinema Nominees Pty Ltd v Director of Liquor

Licensing (Occupational & Business Regulation) [2007] VCAT 1829

2. The Licence No. 32284040 issued to the applicant for the premises at Westgarth Cinemas, 89 High Street, Northcote is varied, as follows:**

(a) The licensed area is extended as set out on the plan accompanying the application for variation of Licence No. 43242A02, including all of the cinema auditoria, and the approval of an underage authority under s 120 of the Liquor Control Reform Act 1998 is extended to have effect for the whole of the extended licensed premises.

(b) The following conditions are to be added to the licence:

(i) Signage which informs patrons that it is an offence for a minor to purchase liquor, or for liquor to be supplied to a minor, shall be displayed at all liquor service areas and at the entry to each of the cinema auditoria.

(ii) At all times that films are being shown in a cinema auditorium where unaccompanied minors are present, at least one staff member who is over 18 years of age and who has completed a Responsible Serving of Alcohol program approved by the Director, will be present in the auditorium or check the auditorium at intervals of not less than 15 minutes duration, to ensure that liquor is not supplied to or consumed by a minor.

(iii) All staff involved in the supply of liquor will be required to have completed an approved Responsible Serving of Alcohol program.

(iv) Prior to the screening of any feature film a notice shall be displayed on the screen stating that both the purchase and consumption of liquor by patrons under the age of 18 is prohibited on the premises.

Mr Lloyd Bryant of counsel. Mr Bryant called the following witnesses:

Benjamin Zeccola, director, Palace Cinema Nominees Pty Ltd.
Robert Steane, liquor licensing consultant
Michael Smith, operator of Yarraville Cinema.

Mr Stephen Devlin, solicitor, appeared on behalf of the Director of Liquor Licensing. Mr Delvin called the following witness:

Inspector Gerald Zammit, Darebin Police Service Area Manager.

**1. The applicant, Palace Cinema Nominees Pty Ltd, seeks a review of the decision of the Director of Liquor Licensing (the Director) under the Liquor Control Reform Act 1998 (the Act) to refuse an application for a variation to the existing licence for the Westgarth Cinemas in Northcote.

2. The hearing before me focused on the objective of "harm minimisation" in the context of cinema patrons consuming alcohol whilst watching a film, and whether a licence variation to facilitate this would be conducive to or encourage the misuse or abuse of alcohol, particularly by youth, or otherwise contribute adversely to the problem of underage drinking in the community.

3. The existing on-premises licence for the Westgarth Cinemas allows for the supply and consumption of liquor on part of the ground floor and part of the mezzanine. The licence also contains a s 120 approval allowing minors to be present in these areas, until 11.00pm, other than in the company of a responsible adult.

4. The variation seeks to extend the licensed area for the whole of the ground floor and mezzanine, and the three cinema auditoria, and to extend the s 120 approval to these areas. The variation therefore essentially seeks to extend the licensed area to enable adult cinema patrons to consume alcohol in the cinema auditoria whilst watching a film.

5. The Chief Commissioner of Police and the Licensing Inspector both objected to the variation - primarily on the basis that the granting of the variation "would be conducive to or encourage the misuse or abuse of alcohol"[1]. The underlying basis of the objection was one of "harm minimisation" in the potential misuse or abuse of alcohol by or in the presence of minors.

6. A Panel recommended in favour of the variation, subject to conditions. However, the Director on 4 April 2007 determined to refuse the variation on grounds that the grant of the application:

• would detract from or be detrimental to the amenity of the area in which the proposed licensed premises are situated; and

• would be conducive to or encourage the misuse and abuse of alcohol, particularly by youth.

In a subsequent statement of reasons dated 26 April 2007, the Director relied only on the second of these grounds. Mr Devlin, who appeared before me on behalf of the Director, also sought to rely only on this second ground of refusal.

7. I note that Darebin City Council had not objected to the variation of the licence, and had indeed granted a planning permit that allowed for the consumption of liquor for the whole premises, including the cinema auditoria. There were no community objections. To the extent the matter before me is a hearing de novo of the application, there is no evidence to justify a refusal on amenity grounds and it was proper for the Director not to pursue such a ground before me.

8. Mr Devlin took me carefully to the objects of the Act, reinforced by the Liquor Control Reform (Underage Drinking and Enhanced Enforcement) Act 2004. He outlined the increasing community concern with the abuse and misuse of alcohol by youth, and the prevalence of underage drinking problems exacerbated by the relative ease with which some young people appear to be able to access liquor. I was informed of the Director's view that the "amenity of community life"[2], and/or the reflection of community expectations resulting from these factors, was such that alcohol need not be present in every aspect of social interaction.

9. Mr Devlin essentially argued that it was unnecessary for alcohol to be part of the ordinary cinema experience, and that the Director had struck the right balance by licensing the bar area at the Westgarth Cinemas, but refusing to licence the cinema auditoria. It was contended that the Director's decision properly responded to the risk of alcohol being passed to and consumed by underage persons in a darkened cinema.

10. Mr Devlin called Inspector Gerald Zammit who generally echoed these sentiments and concerns. Inspector Zammit also expressed a concern that a young person might be induced to purchase alcohol elsewhere and bring it into a cinema for consumption in a darkened auditorium He noted the resourcefulness of young people in obtaining liquor, and considered it 'probable' that alcohol would be passed to underage drinkers at the cinema if the auditoria were licensed.

11. Mr Bryant for the applicant attempted to put these more general concerns of Mr Devlin and Inspector Zammit into perspective. He argued that the Director appeared to be taking a philosophical position against the licensing of cinemas and cinema auditoria generally, not specific to Westgarth Cinemas. Mr Bryant referred me to case law including the decision in Black and Cooke v Liquor Licensing Victoria[3] where the Tribunal had noted that:**

Whilst there is indeed a problem in the community at large with underage drinking, it cannot be automatically accepted that every grant of a licence will actively promote this - an applicant is entitled to the benefit of an assumption that it will comply with the law.
'Harm minimisation' as an objective of the Act cannot be relied upon in a general sense only, to defeat any application for a liquor licence. If this were so, it may well be arguable that few licences of any description could ever be granted in the future.
It is necessary to demonstrate that the objective of harm minimisation stands out as being poorly served in a particular application because of particular local, social, demographic or geographic circumstances.

**12. The decision in Black has been endorsed in subsequent decisions such as Avery v Director of Liquor Licensing[4] and Nardi v Director of Liquor Licensing[5]. In the latter decision, the Tribunal noted that, whilst a cautious approach to liquor licensing applications might be warranted in some circumstances, this did not mean licences should be refused generally at the slightest doubt or misgiving. The particular circumstances, site and premises need to be dealt with in a specific context to establish the necessary connecting links from the material that, in turn, provide a proper foundation to justify whether a particular application ought to be refused.

13. Mr Devlin did at least attempt to particularise the objection to the specific circumstances of the Westgarth Cinemas (and this is dealt with further, below). However, I agree with Mr Bryant that much of the submission put on behalf of the Director in this case, and the evidence of Inspector Zammit, was of a very general nature relating to the licensing of cinema auditoria generally. In response to this:

• there was no submission from Mr Devlin or evidence from Inspector Zammit that indicated any issue with underage drinking at any existing licensed cinema or cinema auditorium in Victoria, including those operated by the applicant. Indeed, there was evidence in relation to other licensed cinemas in the Palace group that there had been no issue of alcohol misuse or abuse, nor had an empty can or container ever been found indicating alcohol has ever been brought into a cinema from outside of the premises;

• whilst the ingenuity of some underage people in obtaining liquor is clearly recognised, it is difficult to accept as 'probable' that they would choose to consume it at additional cost in a supervised art-house cinema frequented by mature adults, just because the cinema auditorium provides a darkened space;

• it is difficult to foresee a risk of excessive or 'binge' drinking in a cinema context. Alcohol is purchased on-premises at cinema/bar prices, most often by the glass, from staff trained in the 'Responsible Serving of Alcohol'. Whilst some patrons may utilise the opportunity to take a drink into the cinema auditorium, it is unlikely that many (if any) will want to leave the auditorium to replenish a drink once the film has started, or will want to drink too much and have to miss a part of the film to go to the toilet.

• common sense suggests there will be a degree of self-regulation in alcohol use at a cinema, particularly given the supervision and surveillance by cinema staff and the likelihood that other patrons will complain if their cinema experience is interrupted.

14. Mr Bryant's submissions were corroborated variously in the evidence he called from Benjamin Zeccola (a director of Palace Cinemas), Robert Steane (a liquor licensing consultant), and Michael Smith (the operator of the licensed Yarraville Cinema). I agree with Mr Steane that Inspector Zammit's belief of the 'probability' of underage drinking by the bringing of alcohol into the cinemas is unfounded, and it is at most a low risk possibility. If alcohol could be so easily smuggled by underage people from outside the premises into cinemas, and a cinema auditorium was considered a good venue to unlawfully consume alcohol in this way, I suspect the problem would already be evident at Westgarth or in other cinemas. I also suspect that the same ingenuity that some underage people appear to demonstrate in the obtaining of liquor, would be put to good use in finding a less supervised and more expedient environment within which to consume it.

15. There can be no doubt that there is a problem with underage drinking in the Victorian community, and it is proper for the Director to take a somewhat cautious and conservative approach to the objective of harm minimisation. However, the licensing regime in Victoria involves the application of balance and discretion in the circumstances of a particular application, and there is nothing in the current regulatory framework that provides any objective basis for a more general restriction on the licensing of cinema auditoria targeted at an adult art-house cinema market. If the Tribunal were to be asked to determine cases based on a broader philosophical view that alcohol cannot or should not be part of an ordinary cinema experience, or in any circumstance where minors may be present, then the regulatory framework would need to provide a clear direction on this. Certainly, no such direction is evident in the material before me.

16. I therefore endorse the principles in the Black decision and agree with Mr Bryant that the objective of 'harm minimisation' cannot be relied upon in a general sense only. In the absence of a demonstrable case for particular concern, the objective of 'harm minimisation' cannot be used in isolation to defeat the application for licence variation in this case.

The specific circumstances of the Westgarth Cinemas

17. Mr Devlin's secondary argument was that the Tribunal should not be swayed by evidence of licensing that already exists for other cinema auditoria, nor the lack of any problems emanating from those already licensed cinema premises. (This argument is perhaps a little at odds with the general nature of much of his other submissions). However, in looking at the specific circumstances of the Westgarth Cinemas, neither Mr Devlin nor Inspector Zammit really provided anything material to suggest a specific local, social, demographic or geographic circumstance prevailing at Westgarth that warranted a refusal of the licensed variation sought by the applicant in this case. Mr Devlin also confirmed that there was no suggestion that the applicant, Palace Cinema Nominees Pty Ltd, was not a fit and proper person to hold the licence.

18. The only 'evidence' specific to the Westgarth Cinemas was an allegation by Mr Devlin in submissions that the Westgarth Cinemas "targeted a youth audience" and the risk of alcohol misuse or abuse was therefore greater. I was provided by him with a flyer and newspaper advertisement showing a "School's Out" and "Kid's Film Festival" program that included the showing of some 'mainstream' films. However, even this material (whilst indicating particular film viewing times for Westgarth) also covered other cinemas in the Palace group, including those with licensed auditoria.

19. Based on the evidence of Mr Zeccola, I am not persuaded in any event that Westgarth Cinemas generally targets a youth audience. I am satisfied that the Palace group, including Westgarth, more commonly targets a mature adult audience with a generally art-house cinema offering. Surveys by the Palace group provided to me, and uncontested, also show that Westgarth Cinema patrons have an average age of 49, with less than 6% of patrons being minors and less than 1% being unaccompanied minors.

20. The Westgarth Cinemas occasionally show some selected 'mainstream' films during school holiday periods, and the flyer and newspaper advertisement provided to me relate to such periods. However, even then, the mainstream film offering is not necessarily targeted at what might be considered an 'older teenager' audience (i.e. in the same age demographic as might comprise likely underage drinkers). Films during holiday periods are often targeted at younger children likely to be accompanied by parents, and the film offering is commonly distinguished from the film offering of the major cinema chains that more clearly target an older teenager and young adult market.

21. I do not consider the particular circumstances at Westgarth Cinema differ materially, at least not in relation to matters relevant to the licence variation application, to the Palace group's other Melbourne cinemas (for example Como, The George, Balwyn, Brighton Bay and Dendy Brighton), several of which already have licensed cinema auditoria. No evidence was provided on behalf of the Director, nor by Inspector Zammit, to indicate a particular social or demographic issue at Westgarth warranting a different view.

22. Mr Steane also noted that the Westgarth Cinemas are not situated in a retail complex with amusement machines or other attractions that might target an older teenager or youth market and thus give rise to a greater risk or concern of potential alcohol misuse or abuse. Even the Jam Factory in South Yarra, which I might consider to be in an area with such facilities and likely to be frequented more by youth than Westgarth, has several licensed cinema auditoria catering for its art-house and 'Gold' cinema patrons and without any apparent problem.

23. Mr Devlin suggested at the end of his submissions that I might consider licensing only two of the cinema auditoria at Westgarth, or prohibiting the consumption of liquor inside an auditorium during a G or PG rated film. A similar licence condition prevails at the Palace group's Dendy Brighton cinema, although Mr Bryant indicated the applicant was taken a little by surprise by this belated proposal for Westgarth.

24. The evidence from Mr Zeccola was that the Dendy Brighton condition created confusion for cinema patrons, depending on the auditorium within which a particular film was being shown or its rating, and generated occasional complaints. The Palace group was considering seeking a variation. Mr Smith, the operator at Yarraville Cinemas, also indicated that such a condition would be administratively difficult to implement. Some films are shown in different cinema auditoria at different times of day or for different periods during their showing season. Moreover, a film rating is not necessarily indicative of a potential underage alcohol risk. G and PG films shown in holiday periods might commonly attract parents with younger children where the consumption of alcohol might be less of an issue. A supposed 'children's film' such as the current Harry Potter movie has an M rating where the condition would not apply. A restriction for G or PG rated films would not have any effect in M or MA 15+ rated films where an older teenager or young adult audience might be expected in higher numbers. I am not therefore convinced that a liquor licensing condition linked to a film rating will really achieve its intended purpose.

25. In the circumstances, I am not satisfied that a condition limiting the licence variation to one or two of the three auditoria at Westgarth, or to films other than those with a P or PG rating, is warranted. It seems to me to be arbitrary and reflective of a more general philosophical concern with the licensing of cinema auditoria, rather than responding to any particular social or demographic problem at Westgarth.

26. From the survey material presented to me, it is also apparent to me that the Palace group well understands its market and its target audience. It is in the business of getting high patronage at its cinemas from this target audience, and common sense suggests that it is not going to take action that threatens this. In a competitive market, it is looking to ways to enhance the cinema experience for its patrons, and it believes that the ability for its adult patrons to consume alcohol in a supervised environment whilst watching a film is part of this enhanced experience. The cinemas already have a staff-training regime, and there is regular 15-minute interval surveillance in the cinema auditoria during the showing of films. Electronic surveillance is also being introduced. With the licensing of some cinemas, the staff training also now includes 'Responsible Serving of Alcohol' training. This already occurs for the licensed areas at Westgarth and is proposed for the Westgarth cinema auditoria if the variation is granted. Mr Zeccola's evidence was that it would be possible to detect any alcohol abuse through regular surveillance techniques, even in a darkened cinema.

27. The survey information on the age profile of Westgarth Cinema patrons, and the relatively low levels of accompanied and unaccompanied minors, is also instructive in considering the extension of the s 120 authority to the cinema auditoria. I do not believe that the presence of minors (including young children) at some films in some auditoria, will lead to the abuse of alcohol by adults in the presence of those minors, nor the misuse or abuse of alcohol by unaccompanied minors. I accept Mr Zeccola's evidence that there will also be a degree of self-regulation where the average adult patron would not tolerate alcohol consumption by minors in their presence, nor unruly behaviour generally resulting from the misuse of alcohol during a film showing, and will complain quickly to cinema staff if any disruption occurs.

28. Overall, I do not believe that the licensing of the cinema auditoria at the Westgarth Cinemas and the extension of the s 120 authority in this area is at all likely to be conducive to the abuse or misuse of alcohol generally, or more particularly by youth. As indicated earlier, the issue is ultimately a matter of balance. Based on all of the submissions and evidence, I agree with Mr Bryant's conclusion that there is no objective basis for believing that the concerns alleged by Mr Devlin on behalf of the Director, or by Inspector Zammit, would result from or be exacerbated by the licensing of the cinema auditoria at Westgarth Cinemas. There is nothing specific - indeed, in my view, nothing at all - to connect the broader community concerns with underage drinking to the specific operations of the Westgarth Cinemas.

29. I am therefore satisfied, with the conditions imposed, that the variation of the licence should be granted.**

[1] An available ground for refusal by the Director under s 44(2)(b)(ii) and s 47(2) of the Act.

[3] [2000] VCAT 459 per the then President Kellam J. and Member Angell.

[5] [2005] VCAT 323 per Vice (and currently Acting) President Bowman J.

Control Reform Act 1998

Liquor Control Reform (Underage Drinking and Enhanced Enforcement) Act 2004

Palace Cinema Nominee Pty Ltd v Director of Liquor Licensing

At a glance

Court

Decision date

Source

Judgment (53 paragraphs)

Palace Cinema Nominee Pty Ltd v Director of Liquor Licensing (Occupational & Business Regulation) [2007] VCAT 1829 (7 September 2007)

Parties

Legislation Cited (2)