Improper, Though Innocent

NZ Truth, Issue 1018, 30 May 1925, Page 6

Improper, Though Innocent

Letter Re A License Hotel Closed— Was Committee SoSeiy Motived by Its Legal Reason? Redistribution Will Come, But Not Through the Oblique Tactics of the Committees When local licensing committees were created, it was never intended that they should have power, either directly or indirectly, to reduce the number of licenses m a district. Looking at the liquor traffic from a public policy point of view, it is true that some places would be better off with fewer licenses; it is also true>that some places would be better served v/ith more licenses. But to reduce, or to increase, or to redistribute licenses, on the plea of better service of the public, is not within the proper functions of a licensing committee. It is, of course, well within the functions of a licensing committee to refuse a license on the ground that the licensed premises are not m repair; but if it should, be found that a committee, while refusing a license on that sound ground, was als,o holding strongly the view that the district would be better served by one hotel than by two, an impartial observer might be pardoned for wondering whether the committee was m reality standing on one leg or two. . If a committee is entitled to refuse for lack of repair, but not for redundancy of service, committees should confine themselves single-mindedly to their legitimate ground. But whan the impartial observer notes that an hotel-owner m one place is allowed repeated adjournments to cover his repairs, and an hotel-ov/ner m another place is refused after one three-monthly adjournment (the licensing committee meanwhile making plain its view that only one hotel is needed) — the impartial observer wonders! His wonderment is increased when he discovers that a member of the licensing committee had been writing to one of the hotel-owners suggesting that both owners pool; and that the same owner had received from the licensing committee itself an assurance — surely beyond the power\of a committee to give!; — that "m the event of the absorption of one of the hotels by the , other, no second license would be granted to any other applicant for a house m that locality."

In comiection with the Patea Licensing Committee's refusal of a license for the Railway Hotel, Waitotara, and m connection with some subsequent proceedings m the Supreme Court at New Plymouth, certain important issues of public policy arise. "Truth" has hitherto • refrained from dealing with the matter, because there appeared to be a possibility of an appeal from the decision of Mr. Justice Ostler at New . Plymouth. But as a long time has elapsed since the date of the judgment (February 27) without indication of appeal, and as it is understood that such proceedings are unlikely, "Truth" ventures to refer to

the matter from a public policy point of view. > Events Leading to Refusal. The short facts appear to be that when the renewal of the license of the Railway Hotel was applied for at the annual meeting, of the Patea Licensing j Committee on June 5, 1924, the committee adjourned the application till September 4 to enable the premises to be put into repair satisfactory to the committee. The sum of £330 was then expended m repairs, but when the committee met on September 4 the chairman (Mr. J. S. Barton, S.M.), announced that the latter had made a finding of facts, whichi. finding was that the hotel was out of. repair. At the same time the committee reserved its decision on the application for renewal, and .adjourned its meeting till September 18. Between these two dates (September 4-1S) the owner of the freehold of the hotel, Mr. P. A. Zohrab, sold it to Mr. James Stellin; and when the committee resumed its adjourned meeting on September 18 Stellin wished to "give evidence, but the committee said. it had all the evidence it required; and (after a retirement) announced that, following on its finding of. facts on September 4, it refused the application for renewal of the license. It appears that if Stellin, the new owner, had been allowed to give evidence, he would have offered to "expend immediately any sum necessary to put the hotel premises' into repair to the satisfaction of the committee or its nominee or architect" ; and such offer was m fact conveyed to the committee at its meeting on September 18 by Stellin's legal representative. ' . • At this stage m the recital of the facts, "Truth" pauses to refer to the legal position immediately arising. Dealing with this part 'of the appeal against the committee's refusal of license, Mr. Justice Ostler held that it was not necessary for a licensing committee to grant any period of grace, and therefore it "was not necessary for it to take notice of the- .promise by Stellin to have the premises put m repair. As to Zohrab's ..expenditure of £330, the point the committee had to decide was whether, on the day the committee met, the building was out of repair. The . committee had decided that it was; and the Court could not interfere on thaf^ground. Inconsistent Treatment. A matter of interest to public policy —as "Truth" views the subject — is the implication that a licensing committee may please itself as to whether it gives a long or,, a short time-allowance to hotel-owners who are called on to put premises m repair. Some committees give long- adjournments, some short; some give the hotel-owner every latitude, some give very little. Assuming that this, differential treatment is within the law, is it good. policy that ..licensing committees should • be allowed/ so much discrimination? No doubt some elasticity-is required m. the

administration of this, branch of the licensing law, but are licensing committees the sort of bodies that can always be entrusted, safely, with the power to ' discriminate between one hotel -owner and another? And that question leads up to another important branch of the same case.. It appears, that Waitotara contained two hotels — the one at issue (the Railway) and the Waitotara. Before the refusal of the Railway Hotel license (but after the committee's annual meeting) the Waitotara Hotel was burned down. Thereupon (if not before) the idea suggested itself that one license, instead of two, would be

enough for Waitotara; and that if the owners of the Railway Hotel (with its criticised building-) and of the burned down Waitotara . Hotel could come to some arrangement, the result might be one license and one good house, which would be better for the public service, and for the private profit of the owners. Among those impressed by that id?a was H. Graves, land agent, hotel broker, and for sixteen years a member of the Patea Licensing Committee. A Remarkable Letter. Mr. Graves wrote to the owners of the burned Waitotara hotel (T. and W. Young, of Wellington) the following letter: I "Is it congratulations or commiserations on the demise of the hotel? Anyhow, I thought I would write and suggest to you, if you have not already thought of it, that you and Zohi % ab (then owner of the freehold of the Railway Hotel) should concoct a basis whereby you should pool one license- m Waitotara and erect a new hotel on your site and do away with one license. It would, I feel sure, pay both of you, and it would stand as a monument of goodwill to the prohibition party, such a voluntary sacrifice on your part. Against that is, of course, the. pity and awful waste of a good license whenj for all one knows, m the near future, a redistribution of licenses may take place, m which case one at Waitotara would be sure to go, and possibly be compensated or given a license elsewhere. "This is intended merely as a friendly letter, although I am still on the licensing bench and have been so for 16 years; it was just my signing the temporary permit this morning to Mills that made me think of you. If I can be of service at any time do not hesitate to write me." How Many Hotels? The Taranaki "Daily News," from the columns of which^the above letter is taken, goes on to say (February 23): "T. and W. Young replied thanking Graves for the friendly tone m which he had written, and stated that before the fire Zohrab had suggested that they should buy his hotel and close •their own. The principal difficulty they could foresee was that if they closed up one hotel, someone' else might build another house and apply for. a license. If they could get an assurance from the licensing Bench that m the event of their closing one house' they would not grant a license to anyone else, the matter would be worthy of serious consideration.' They were sure that it would be much better to. have one house there instead of two, as there was hardly trade enough for two houses. One house would do well. After stating that Graves could be of . considerable service tfo them if he could obtain such an assurance, the letter proceeded to discuss the possibility oft a poll on the licensing question and the chances of someone

else acquiring the license if the two hotels were amalgamated.

"Six days later the clerk of the licensing committee advised T. and W. Young that Graves had handed m at a meeting of the committee Young's letter, and that he was instructed by the committee to assure them that m the event of the absorption of one of the Waitotara hotels by the. other no second license would be granted to any other applicant for a house m that locality.

"Subsequently the clerk of the committee advised Messrs. O,'Dea and Bayley, m response to «their request for a copy of these letters, that two improprieties had been committed m * the course of the proceedings relating to the Waitotara hotels. The first was that a member of the committee had written to T. and W. Young on a matter concerning the Waitotara hotel and had received a reply. Graves had reported the matter to the committee, and the chairman (Mr. J. S. Barton, S.M.) had informed him that it was a most improper proceeding. 'It did not influence the bench m their deliberations at all,' the letter added. The second impropriety, was m reference to the actions of Zohrab, who had called on some of the members of the committee to discuss the matter of the application for a renewal and to put his views before them privately.".

Readers of "Truth" will see that the impropriety of the action of Mr. Graves is not denied. iMr, Justice Ostler agreed, with Magistrate Barton that the conduct of Graves was improper. The candour of Graves and his showing to the committee the letter of T. and W. Young, led Mr. Justice Ostler to remark that Graves had not appreciated that he was doing anything improper. Also, "his Honor did not think the conduct of Graves' ,was such as would lead reasonable men to say that there was bias on his part." There remains the question of the conduct of the committee as a whole, m assuring one of the two hotelowners (T. and W. Young) that m the event of the absorption of one of the Waitotara hotels by the other, no second license would be granted to any other applicant for a hotel m that locality, - Mr. JTustice Ostler is reported as saying that he could see nothing improper m the assurance given by the committee. Too Much "Assurance." That exhausts the main points as related to public policy. "Truth"' is not concerned with the result' of the appeal (by which the refusal 'of the license stands), but is concerned m raising the question whether the wide powers of the many licensing committees m the country are properly exercised. It is demonstrated that a member of a licensing committee may correspond with an hotel-owner jin terms which are improper, though perhaps not amounting- to such legal "bias" as will invalidate his .committee's decision. While this is thus; are the wide discretionary powers of a licensing committee certain to be used judicially? Again, a licensing committee apparently gives an assurance to A and B that, if they will reduce their two licenses to one, the committee will not grant a license to C or to anybody else m the alphabet. Kven if this is acceptable m law, is it not objectionable to public policy? "Truth" has not before it the exact terras oC the assurance, but if the summary published above (taken from the columns of the Taranaki "Daily News") is correct, such assurances seem to assume too much. Have they, no limits of time and area? If so, what are those limits? Would the assurance be binding on a new licensing committee? If it is not, tit Is misleading. If it is binding, when on earth would a, developing district get rid of it? f ' The problem o£ redistribution of licenses, is forcing itself to the front, it is not a. problem to be dealt with by - haphazard methods. And the methods applied at Waitotara aro distinctly haphazard. Worse still, there was present an element of impropriety, though the Court holds that it did not amount to legal bias. Redistribution oC licenses will have to come if prohibition docs not come. And it will have to be dealt with by better means than licensing committees. Redistribution of electoral boundaries is carried out by commissioners on a system that leaves but little opening for impropriety or bias. And as the two things arc m some aspects similar— at any rate where they im^ pingc on the liquor issue — it follows that when redistribution of licenses is taken m hand, that highly complicated task must not be "left to the caprice of licensing committees alone.