Bar By Day Is Bar By Night, Says S.M.

Press, Volume CIII, Issue 30469, 17 June 1964, Page 3

Bar By Day Is Bar By Night, Says S.M.

(New Zealand Press Association) WELLINGTON, June 16. A room that is used as a bar during the day remains a bar in the evening and cannot be changed to a dining-room, Mr R. D. Jamieson, S.M., has held in a reserved decision on charges under the Sale of Liquor Act, 1962, against the licensee of the Royal Oak Hotel.

In the initial Magistrate’s Court hearing last year the licensee, Johannes Wilhehnis Wendelimus Franssen, pleaded not guilty to three charges relating to the operation of the ?< Bistro” of the hotel.

The charges were that he unlawfully sold and supplied liquor when not authorised by his licence, and that being the licensee he allowed liquor to be consumed on the premises other than as part of a meal when the premises were required by law to be closed.

The charges were dismissed by the. Magistrate and the decision was appealed to the Supreme Court which granted leave to take the matter to the Court of Appeal. The question of whether the bistro, at the time of the offences, was “other than a bar” as required by the act was referred back to the Magistrate’s Court. by the Court of Appeal' for decision.

In his decision today the Magistrate said his. initial .finding £hat the liquor had been consumed as part ok a meal was accepted by the informant

He was now required to determine whether the room was other than a bar but in doing so he had to follow two directions given by the Court of Appeal. Directions Those directions were: That the word “bar” when applied to licensed premises had a primary meaning which was extended by the Statutory definition contained in the act. Only if he found that the room was not a bar according to the primary meaning did ' he need to consider the meaning of the statutory extension. That in applying the primary meaning he was to have regard to the room as it was used during the permitted hours for the sale of liquor on week-days. A corollary to that direction was that if he accepted that the room was a bar during those hours it remained a bar in the evening. The Magistrate said the first question to be considered was the meaning of the word “bar” when applied in the proper use of the word as accepted in New Zealand, r

to a room on licensed premises. The statute and common law did not tell him and recognised dictionaries to which he had referred were all published overseas and their definitions of the word were not conclusive as to its meaning in current use in New Zealand. 25 Times “The word *bar’ appears at least 25 times in the Sale of Liquor Act, 1962, and whatever the ‘ordinary* meaning is, it must, in my view, be the same wherever the word is used in the act,” he said. After considering various definitions which might apply, the Magistrate said the common coin of New Zealand speech expected a'room described as a bar to have a counter or comparable focal point and to be suitably equipped for the sale and dispensing of individual drinks for immediate consumption mainly within the room itself.

As a rule drinks might be consumed at the counter but he did not think that the fact that drinkers could, or were even required to, sonsume their drinks when seated dr buy their drinks

from waiters, ' affected the matter.

Turning to consideration of the bistro between 9 a.m. and 6 p.m., the Magistrate said he found it was. equipped with a large, prominent and well-equipped bar counter, visible to patrons of the room.

The room was readily accessible from the street and during permitted hours patrons could buy drinks from the counter and drink them there or sit at tables and drink them.

After 4 p.m. From 4 p.m. on, the room was almost entirely, devoted to the sale and consumption of liquor. Before 4 p.m. it might appear from the evidence that the sale and consumption of food and non-alcoholic beverages from the "kitchen” end of the rooin, opposite the bar counter, might be equally significant and perhaps, at times more significant than the sale and consumption of liquor. When seeking to. apply the ordinary meaning of the word “bar” the Magistrate said he felt it was sufficient that the use (the sale and supply of liquor) formed a substantial part of the activities carried on in the room.

“Although on the evidence I cannot say that , the use for the sale of liquor overshadows the use for the sale of food I also cannot say the opposite. “If it were necessary for that use to be the principal use 1 should be'unable to find that the defandant had shown.

that' the Bistro was “other than a bar,” he said. . The Magistrate said that as, under the act, the onus rested with the defendant to prove the room was “other than a bar” and he considered that, even on the basis of the ex tended meaning of the word contained in the act, he would have to hold against the defendant.

Entering a conviction on the charge of selling liquor, the Magistrate said he considered the charge of supplying as an alternative. There was no evidence that any liquor was supplied other than by way of sale and that charge was dismissed, he said.. Referring to the charge of permitting the consunlption of liquor, the Magistrate said he had already held that such liquor as was consumed was consumed as part of a meal and the information as accordingly dismissed. Minor Aspect

"As for penalty, counsel for the informant confirms my view, that this is of minor importance. I am satisfied that the defendant, in what be did, acted in good faith and in reliance upon responsible advice.

“He will accordingly, upon the information charging him with selling, be convicted and discharged. The con viction itself will sufficiently indicate the Court’s view" said the Magistrate. At an earlier hearing of legal submissions, Mr G. S Orr appeared for the police and Mr R. G. Collins for the defendant >