NZLII Home | Databases | WorldLII | Search | Feedback

New Zealand Alcohol Regulatory and Licensing Authority
You are here:  NZLII >> Databases >> New Zealand Alcohol Regulatory and Licensing Authority >> 2023 >> [2023] NZARLA 25

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Wang v Palmerston North Licensing Inspector [2023] NZARLA 25 (24 March 2023)

Last Updated: 20 March 2024

IN THE ALCOHOL REGULATORY AND LICENSING AUTHORITY TE MANA WAETURE TAKE WAIPIRO


[2023] NZARLA 24-25

UNDER the Sale and Supply of Alcohol Act 2012 AND

IN THE MATTER of an appeal under s 154 of the Act

against decisions of the Palmerston North District Licensing Committee

BETWEEN HONG JIA LIMITED

First appellant

YANG (MARTIN) WANG

Second appellant

AND PALMERSTON NORTH DISTRICT LICENSING INSPECTOR

Respondent

Hearing: 9 November 2022


Authority:

Appearances:
Judge P R Connell Mr R S Miller

T Blake for the appellants N Jessen for the respondent
Judgment:
24 March 2023

DECISION OF THE AUTHORITY

Appeals against the decisions of the Palmerston North District Licensing Committee to refuse renewal and variation of conditions of an on-licence issued to Hong Jia Limited and renewal of a manager's certificate issued to Yang Wang.


HONG JIA LTD v WANG

Introduction


[1] The first appellant, Hong Jia Limited, owns and operates a tavern in Palmerston North, trading as "The Office". The second appellant, Mr Yang (Martin) Wang, is a director and shareholder of the first appellant.

[2] On 25 November 2021, the Palmerston North District Licensing Committee (“the DLC”) heard applications for renewal of:

[3] The DLC issued its decisions for both applications on 16 December 2021, refusing the on-licence and manager's certificate renewals, both with immediate effect.

[4] The current application is an appeal against those two decisions.

[5] The following sets out details of the premises, the relevant law, the position of the objectors and the reporting agencies, the DLC's decision on the on-licence renewal application, followed by its decision on the renewal of the manager's certificate, the grounds of appeal, the applicable legal principles, followed by assessments of the grounds of appeal and then a re-evaluation of the applications under the relevant provisions of the Act.

The premises


[6] The premises of The Office are located at 522 Main Street, Palmerston North.

[7] There is a front smoking area and a back garden area.

[8] The Office is located in proximity to 12 bars, of which five are close, and two are very close to The Office. With its high student population and a popular takeaway, the area outside The Office is a popular congregation area and attracts a lot of foot traffic.

1 Sale and Supply of Alcohol Act 2012.

[9] Up until the time of the hearing in November 2021, the first appellant has been operating under the management of the second appellant of some seven years. In that time, whilst there have been no prosecutions or negative holdings, there have been concerns which have been raised by the Police and the Licensing Inspector with the second appellant. These are addressed in the assessments below.

The relevant law


[10] The overarching object of the Act is that the sale and supply of alcohol should be undertaken safely and responsibly, and any alcohol related harm should be minimised.2

[11] The criteria for the renewal of the licence is set out under s 131 of the Act which states that:

2023_2500.jpg


(j) whether the a p p l i c a n t has appropriate systems, staff, and training to comply with the law:
(k) any matters dealt with in any report from the Police, an inspector, or a Medical Officer of Health made under section 103.

(b) whether (in its opinion) the amenity and good order of the locality would be likely to be increased, by more than a minor extent, by the effects of a refusal to renew the licence:

2 Sale and Supply of Alcohol Act 2012, s 4(1)(a) and (b) respectively.

(c) any matters dealt with in any report from the Police, an inspector, or a Medical Officer of Health made by virtue of section 129:
(d) the manner in which the applicant has sold (or, as the case may be, sold and supplied), displayed, advertised, or promoted alcohol.

[12] The Act further provides that:3

Objectors


[13] The application with regard to the renewal of the on-licence was initially opposed by two neighbouring business and a member of the public. The neighbouring businesses, who based their objections on issues with regard to noise, nuisance and vandalism, withdrew their opposition but Ms Clifford opposed the application expressing concerns about possible future levels of nuisance and vandalism under s 106 of the Act based on an incident involving damage to her car parked outside The Office following an altercation between two of its intoxicated patrons. Ms Clifford did not attend the hearing.

Reporting agencies


[14] The Medical Officer of Health did not oppose renewal of the on-licence.

[15] The Police initially opposed renewal of the on-licence but then withdrew their opposition before the hearing and did not appear at the hearing. A letter from the Police dated 17 February 2020 explains that they were satisfied with some of the processes and systems in place, significant attempts at improving management of the bar and entry of patrons, closing front bar area at 10 pm on Thursday, Friday and Saturday nights. The Police expressed that they believed that if these measures continue then it will have a major effect on the numbers and nature of early morning incidents "in the area around this premises, although we would like to point out that not all of these can be attributed to Mr Wang and the patrons leaving his bar."

3 Sale and Supply of Alcohol Act 2012, s 106(2).

[16] The Licensing Inspector did not oppose renewal of the on-licence initially. She filed a report with her final submissions emailed to the appellant later in the afternoon just the day before the hearing. She changed her stance and decided to oppose the applications at the hearing, upon listening to the evidence presented during the hearing. She cited two main concerns:

DLC's decision on renewal of the on-licence with variation of conditions


[17] The DLC considered that first it must have regard to whether (in its opinion) the amenity and good order of the locality would be likely to be reduced by more than a minor extent, by the effects of the issue of the licence. The DLC incorrectly cited s 105(a)(ii) of the Act, which in fact should be s 106(2) of the Act.

[18] It opined that in front of it was a real consideration around the impact upon the amenity and good order of the locality as a direct result of The Office's operations.

[19] The DLC relied on the police calls for service ('CFS') which was tabled evidence offered by the Licensing Inspector confirming that there had been 449 call outs lodged between 2 November 2018 and 26 September 2021. Of these, the DLC's analysis was that 105 calls or 23 per cent were "directly associated with The Office's address of 522 Main Street".4

[20] The DLC also relied upon the tabled evidence the Licensing Inspector being Safe City Reports from 27 August 2020 to 28 March 2021, in addition to reports for the period 5 August 2021 to 26 September 2021. Of the 273 incidents reported, it was clear to the DLC that 63 reports or 23% were "directly associated with, or next door to, The Office Bar premises".5

4 Re Hong Jia Ltd (On-Licence Renewal with Variation to Conditions) Palmerston North District Licensing Committee, 16 December 2021 at [60].

5 Re Hong Jia Ltd (On-Licence Renewal with Variation to Conditions) Palmerston North District Licensing Committee, 16 December 2021 at [61].

[21] The DLC made reference to the Licensing Inspector's tabled evidence comprising text messages, notes, emails, police reports and photos for the period 28 May 2019 to 15 July 2021.

[22] The DLC erroneously referred to s 31 of the Act which ought to have been s 231 of the Act,6 and considered the Licensing Inspector's evidence which indicated that on several occasions the appellant failed to notify staff changes for those that hold a manager's certificate. The evidence of the appellant was also referred to whereby he accepted that notifications have not always been met.

[23] The DLC also referred to s 214 of the Act and noted the Licensing Inspector's evidence that there was no duty manager onsite on 24 July 2021 and this was referenced with the Police number in support. This report noted that the appellant was the duty manager and that he could not be found so the Police had to close the bar. This was denied by the appellant and the DLC rejected his contention that the bar was not closed by the Police.

[24] In support of the view that the licensee did not meet the criteria, the DLC considered the following (reproduced exactly and then corrected as per the errors identified by the respondent in their submissions) table of evidence as particularly important:
17 January 2019
  • Duty Managers’ register not up to date. Duty Manager did
not have a certificate.
2 February 2019
  • The outdoor area at the rear of the building had doubled in size. The area was not licensed for this extension (refer to
previous DLC Hearing and decision in 2018).

6 Re Hong Jia Ltd (On-Licence Renewal with Variation to Conditions) Palmerston North District Licensing Committee, 16 December 2021 at [63].

25 February 2019
  • Reports of Security Staff drinking alcohol on duty.
  • Complaints from neighbouring building owner regarding broken bottles, drug paraphernalia and cigarette butts down the shared driveway.
  • Glass, vomit, urine, rubbish, cigarette butts and the Amenity
and Good Order around the premises impacted.
28 May 2019
  • Increased incidents in the outside front smoking area of the premises.
  • Intoxicated patrons on the premises.
  • CCTV footage of the Cobb's carpark where patrons from The Office could be seen fighting and suspected drug deals taking place.
25 July 2019
  • Security staff did not have the required qualification under the relevant Act.7
16 November 2019
  • No low alcohol drinks in fridge.
15 January 2020
  • People still congregating on the street. The appellant was asked by the Police to close the front smoking area from
10.00 pm on Thursday, Friday and Saturday nights. A four
week trial took place commencing on 16 January 2020.
15 January 2020
  • Issues with the front smoking area. The amenity and good order of the area impacted upon. (Replication, see the
incident relating to the same date above)
13 June 2020
  • Manager's register not updated.
8 July 2020
  • Two assaults at Bar. One involved The Office's Security team who head butted a patron. Concerns about cooperation
of getting CCTV footage.
21 July 2020
  • Issues with not being able to view The Office CCTV.
16 October 2020
  • Unqualified security staff being used.
13 January 2021
  • The Appellant was found intoxicated in his car after drinking at his premises on 9 November 2020 January 2021.
  • Police concerned that the Duty Manager allowed him to get into that state as the Police took the Appellant to the
hospital as he was unresponsive.
24 July 2021
  • No Duty Manager on for several hours. In breach of
Alcohol Licence.

[25] Whilst the DLC noted that the above evidence was via texts, notes, emails and police reports, it considered that it was not sufficiently challenged by the appellant during the hearing and therefore considered it appropriate to "give those concerns sufficient weight".8

7 Private Security Personnel and Private Investigators Act 2010.

8 Re Hong Jia Ltd (On-Licence Renewal with Variation to Conditions) Palmerston North District Licensing Committee, 16 December 2021 at [67].

[26] The DLC then considered the written evidence of one of the remaining objectors, Ms Clifford, which related to her experience of 29 May 2019 when she parked her vehicle on Main Street in the PNCC angle parks outside The Office. Upon returning to her car at

8.30 pm she found two men brawling on top of her vehicle. Both men were heavily intoxicated. It was alleged that they had been drinking outside the sitting area at The Office. Her attempts to contact the appellant to retrieve CCTV footage of the incidence to forward to the Police and the insurance company via phone and Facebook messages were ignored by the appellant.


[27] The DLC noted from paragraph 16 of the appellant's written evidence that while it took some time for him to respond to Ms Clifford, the incident happened right on the 2020 nationwide lockdown in response to the Covid-19 pandemic which had created a lot of certainty.

[28] Hence the DLC formed the view that there was inconsistency between the two accounts as the incident happened in May 2019 and the lockdown did not happen until March 2020. To this the DLC commented that "this is symptomatic of the reliability and credibility of the appellant's evidence".9

[29] The DLC further took into account that the appellant highlighted that the variation application was heard by the DLC in July 2018 which was declined, noting significant hurdles to overcome; the concerns around noise from the site and the non-compliance history of the appellant. Here the DLC commented that since noise was not an issue, any suggestions for such concerns were disregarded.

[30] Under the heading of 'Building Warrant of Fitness', the DLC stated that on 9 April 2019, there were concerns regarding the total number of patrons in the premises. The Licensing Inspector's evidence identified that "there was clearly in excess of 99 people on the premises." The appellant was the Duty Manager at the time and he was unaware of the maximum capacity permitted at the time subject to the Covid-19 rules. This, the DLC considered, pointed towards issues around suitability and expertise within a licensed premises managerial role.

9 Re Hong Jia Ltd (On-Licence Renewal with Variation to Conditions) Palmerston North District Licensing Committee, 16 December 2021 at [70].

[31] Under the heading of 'Site Visit', the DLC during its site visit noted that the monitor in the bar area was positioned in a small room off the bar. There was no clear line of sight to the CCTV monitors from some of the physical positions such as for bar personnel, bar staff and duty manager.

[32] The DLC concluded that there was clear evidence that there are many concerns about the impact of an on-licence renewal to The Office would have for the local community. "A significant concern is the impact upon the amenity and good order of the locality."10 The DLC considered that these cannot be mitigated by operational changes to The Office. Further, that the appellant has had opportunities to mitigate what "clearly are sustained breaches and conduct".11

[33] Whilst the DLC accepted that there are other licensed premises in the area, "the evidence clearly establishes a link between The Office as a focus and contributor to the significant reduction in amenity and good order of the locality".12

[34] The DLC also commented that since its last hearing, the appellant has missed the chance to prove that they could comply. The "evidence, individually and collectively, clearly establishes" that if the licence was renewed, it would not be consistent with the considerations under the Act. Hence the renewal of the on-licence with variation of conditions was declined.

DCL’s decision on renewal of the manager’s certificate


[35] The appellant submitted an application for the renewal of his manager's certificate on 17 September 2020, which was expiring on 23 September 2020.

[36] The Police's report dated 18 September 2020 did not oppose the application.

[37] The Licencing Officer's report dated 11 March 2021 recommended that both applications be considered at the same time.

10 Re Hong Jia Ltd (On-Licence Renewal with Variation to Conditions) Palmerston North District Licensing Committee, 16 December 2021 at [75].

11 Re Hong Jia Ltd (On-Licence Renewal with Variation to Conditions) Palmerston North District Licensing Committee, 16 December 2021 at [75].

12 Re Hong Jia Ltd (On-Licence Renewal with Variation to Conditions) Palmerston North District Licensing Committee, 16 December 2021 at [76].

[38] The DLC stated that this application was to be considered against the criteria set out in s 227 of the Act.

[39] Counsel for the appellant stated that he was not aware of any opposition to the application and that there was nothing new to add beyond what was discussed at the hearing for the licence application. Counsel further stated that the appellant indicated that he was open and committed to working on his obligations and improving wherever he could and to working regularly with the reporting agencies to do that.

[40] The Licensing Inspector confirmed the contents of her report and requested that the relevant points discussing during the hearing for the licence application be taken into consideration for this decision.

[41] In reply, Counsel for the appellant noted that there had been no opposition to this application and he confirmed that there had been no negative holdings or enforcement actions taken against the appellant in the time he held a manager's certificate, when there were grounds to do so. He reiterated the appellant's commitment to improve where necessary and deserved an opportunity to have that put to the test by the grant of the renewal of his manager's certificate. That the timeframe for which the renewal would be granted would give the enforcement agencies time to scrutinize the commitments the appellant has made to the DLC at the hearing, and to be reviewed and assessed as necessary.

[42] The DLC stated that there were no objections from either of the parties to having both the hearing of this application and Hong Jia Limited's on-licence renewal application on the same day. The DLC explained that that is the reason for the brevity of submissions made at the hearing by the appellant and the Licensing Inspector relative to the manager's certificate renewal for the appellant.

[43] It considered that the findings that were relevant for consideration of the appellant's suitability for the renewal of the manager's certificate had been canvassed and that many of the issues raised in the hearing for the on-licence renewal were relevant for this application.
[44] Furthermore, the DLC opined that the issues related to the appellant's suitability were adequately addressed in the first decision, which could be read in conjunction as it was appended to this decision.

[45] The bullet-pointed reasons which were considered "strong and evidence-based concerns about the appellant's suitability" were around:

[46] In this 16-paragraph decision, the DLC opined that "these concerns are significant and cannot be adequately mitigated by the imposition of conditions."13 Hence the application was declined.

The grounds of appeal


[47] The appeal is presented on three grounds:

[48] As for the ground that the DLC's decision is not supported by evidence, the appellant has submitted that the DLC erred in fact in its conclusions that:

13 Re Hong Jia Ltd (On-Licence Renewal with Variation to Conditions) Palmerston North District Licensing Committee, 16 December 2021 at [16].

(b) that the impact on the amenity and good order supports the decision to refuse the application for the on-licence renewal.

[49] On the second ground based on error of law, the appellant has submitted that the DLC erred by:

[50] As to the third ground of unreasonableness, the appellants have submitted that the DLC's decision to set an immediate expiry date for both the on-licence and the manager's certificate is unfair, unreasonable and not linked to any evidence including any identified immediate risk to public health and safety.

[51] The appellants seek orders for the grant of the applications. In the alternative, the appellants seek orders under s 135(2) of the Act setting the licence expiry date at three months from the date of the Authority's decision. In seeking these, the appellants rely on the Act, the DLC's decision, the evidence considered by it and any further evidence that the Authority permits the appellants to file.

Assessment of the decision to decline renewal of the on-licence


[52] The Appellant has cited paragraph [57] of the DLC's decision whereby it has taken into consideration the Licensing Inspector's two main concerns; suitability of the appellant (First appellant) and the amenity and good order of the locality. The following addresses the particular issues considered as significant in this regard.

Calls for Service


[53] The Licensing Inspector tabled a Police printout that listed 449 CFS between 2 November 2018 and 26 September 2021. The appellant has quoted the DLC where it states: "Our analysis of that data notes that 105 (23%) of those callouts were directly associated with The Office address of 522 Main Street."14 The DLC found this data significant. However, the appellant has questioned:

[54] The appellant has submitted that the Police withdrew their opposition to the application with knowledge of this data. That Police made no appearance at hearing so this data could not be examined under cross-examination. Further, that they were caught off-guard by how the Police data was relied upon by the Licensing Inspector at the hearing, and how and to what extent it was relied on by the DLC. The Appellant has pointed out that there was in fact no evidence that those 105 incidents were "directly" associated with The Office or that it was culpable.

14 Re Hong Jia Ltd (On-Licence Renewal with Variation to Conditions) Palmerston North District Licensing Committee, 16 December 2021 at [60].

[55] Further, the appellant has cited the email letter dated 17 February 2020 whereby the Police explained their withdrawal to opposition and expressed that the measures taken by The Office around putting processes and systems in place has given satisfaction that some significant attempts at improving management of the bar have taken place or are being put in place, including the way patrons are monitored and the closing of the outside smoking area at 10.00 pm Thursday to Saturday nights. That if continued, these will have a "major effect on the numbers and nature of early morning incidents in the area around this premises, although we would also point out that not all of these can be attributed to Mr Wang and the patrons leaving his bar."15

[56] The Appellant has also pointed out that the street area around The Office is part of a route taken by young people who are going into town, or going home, and it is also an area where they are a number of late-night venues and lots of parking spaces. So young people will congregate regardless of whether The Office is allowed to operate or not.

[57] The Authority accepts that there is no clear evidence of what portion of the CFS can be directly linked to The Office. Further, the Police in its letter indicating withdrawal of its opposition to the on-licence renewal have expressly stated that not all of the incidences can be attributed to the second appellant or its patrons. The Authority also accepts that given the nature of the area surrounding The Office, that blame cannot be attributed to The Office alone with any certainty given the absence of any further clarifying evidence from the Police.

[58] Having stated that, the Authority accepts the respondent's submissions, which rely on a number of authorities,16 to state that it is not necessary to have direct and specific evidence linking particular alcohol related harm with The Office. Whilst not directly attributable, as the respondent has submitted, it is safe to conclude that "some" of the harm can be attributed to The Office given its location in a problematic part of the town however this is not the same conclusion the DLC had reached in its assessment.

15 DLC File, Tab 5; Police email dated 17 February 2020 at [4].

16 Medical Officer of Health (Wellington Region) v lion Liquor Retail Ltd [2018) NZHC 1123 at [67-(68);

Auckland Medical Officer of Health v Birthcare Auckland Ltd [2015] NZHC 2689 at (113];

Sogi Trading Ltd v Licensing Inspector Auckland City Council [2020] NZARLA 96 at (130]; and

Capital liquor Ltd v Police (2019] NZHC 1846 at[25].

2023_2501.jpg

Safe City Reports


[59] The appellant has submitted that the DLC relied on Safe City Reports and stated that: "It is clear to us that this data shows that the Safe City Hosts reported 273 incidents of which 63 (23%) were directly associated with, or next door to, The Office..."17 The appellant submits this evidence appears to have been given weight by the DLC in reaching its conclusion about amenity and good order. The appellant has highlighted how some reports may have used The Office as a landmark point and that even if a handful of incidents are directly connected to The Office, none show blameworthy actions or omissions by the licensee and "few (if any)" show that The Office was contributing to the problems with amenity and good order of the locality or that the people involved were patrons of The Office.

[60] The appellant has also submitted that the DLC has drawn an adverse inference against The Office by including in the count, incidents reported by Safe City Hosts where it has refused entry to a person(s). Also held against it are that some Safe City incidents indicate that The Office staff have positively contributed to amenity and good order of the locality. It is also submitted that some were not serious incidents such as not wearing masks (24 September 2021), a verbal altercation (18 September 2021) and a male over the age of 18 years was allowed entry because the door staff knew that he was over 18 years old.

[61] The Respondent accepts the limits of such reports but submits that it demonstrates that it can be linked to the premises in consideration of some contribution to the amenity and good order of the locality.

[62] It is accepted by the Authority that the data does not establish evidence to say with confidence the extent to which the premises can actually be held accountable to the incidents around the outside area of the premises. There are 12 bars and heavy foot traffic, a student population, all of which makes it difficult to say with confidence that The Office should be denied a licence for "some" of its contribution to the incidents. It is significant that the Police were not present for cross-examination because this is one of the key matters in consideration of the amenity and good order of the locality being affected by The Office.

17 Re Hong Jia Ltd (On-Licence Renewal with Variation to Conditions) Palmerston North District Licensing Committee, 16 December 2021 at [61].

[63] The DLC gave weight to this evidence to the extent that the licence renewal was denied. Whilst there is material to suggest that The Office is a contributor to the problem, it does not strike the Authority to be at a level where it should be held solely accountable to the extent where the response is clearly punitive.

Table of Specific Issues:

Duty Manager's Register


[64] It is accepted by the Appellant that on 17 January 2019, the Duty Manager's Register was not fully up to date. However, it is submitted that this was not an ongoing issue as it had been almost two years as at the date of the hearing since it was rectified. Also, the appellant has engaged Mr Hince to ensure compliance issues (Duty Managers Certification and relevant records), every one to two months. This was elicited in evidence before the DLC and hence it is submitted that its decision to conclude otherwise was not supported by evidence.

[65] The respondent has submitted that the Licensing Inspector's nine inspections resulted in five non-compliances under ss 231 and 232 of the Act, each of which is a potential offence.

[66] If that is the case, the Authority considers it questionable as to why the application was not opposed by the Inspector in the first instance.

[67] Regardless, the Authority considers that the DLC was entitled to take these matters into account and give them sufficient weight to the extent they support a suspension or non- renewal of the licence, though a holistic approach is preferred. This would mean taking into account Mr Wang's willingness to rectify and sort this out through the engagement of Mr Hince.

Outdoor Area expanded


[68] The appellant has denied extending the outdoor garden area space and is unaware what this relates to. The appellant has claimed that it is not aware of any evidence that it has allowed this extra area to be used as a de facto extension of their garden bar. However,

the appellant applied for a variation of the licence conditions in 2018 to increase the outdoor area, which was declined by the DLC then.


[69] The respondent has submitted that this was an unlawful expansion in breach of the licence that had already been undertaken before an application to vary the licence conditions were made. These are based on factual findings made by the DLC in its 2018 decision.18

[70] Here, the Authority accepts that the respondent's submissions are accurate and the appellants' denial is problematic. Hence it considers that the DLC was entitled to view this evidence as going against the appellants' credibility.

Security Staff Drinking on Duty


[71] The appellant has submitted that it is not clear what evidence the DLC relied on here to reach this conclusion.

[72] As the respondent has submitted, this was covered by the Licensing Inspector in her report.

[73] The Authority notes from the report that it is a one sentence allegation and given that there is not much by way of detail and no action taken by the Inspector to address this, there is very little weight, if any, that can be attached to this. The Authority has clearly taken this into account in denying the licence renewal and given that the allegation is serious, more detail should have been provided.

Complaints from Neighbouring Building Owner - bottles, drug paraphernalia, cigarette butts etc


[74] There is a driveway next to The Office. It is submitted by the appellant that people who are "out on the town" sometimes abuse it. It is accepted that there are problems here with cigarette butts, vomit and urine or smoking of cannabis because it is discreet. However, it is submitted that this does not mean that they are patrons of The Office. It is further submitted that the appellants have put in place protocols to clean this area at the

18 Re Hong Jia Ltd (Variation to Conditions) Palmerston North District Licensing Committee, 19 July 2018.

beginning and at the end of each day and this was discussed in the "Text Notes" of the meeting of 14 February 2020 which was put before the DLC by the Licensing Inspector. Hence it is submitted that holding this against the appellants by the DLC is not supported by evidence.


[75] The respondent's view is that if the premises are a magnet for antisocial behaviour then it is axiomatic that the effect of a refusal to renew the licence will increase the amenity and good order of the locality.

[76] The Authority accepts that there is alcohol-related harm in the vicinity of The Office. However, it is notable that The Office had taken measures to address issues such as those relating to smoking in the front, cleaning around the vicinity and keeping the noise down. Hence the withdrawal of the other two objections as well as by the Police which is indicative that the harm reduction measures taken have been positively received.

[77] Thus, while the DLC was entitled to take these matters into account, the weight to be attached to them was to be undertaken against the withdrawal of the objections by the two neighbours as well as the withdrawal of opposition by the Police to achieve a balanced view.

Incidents in/at smoking area


[78] There is a smoking area at the front of The Office. It is accepted by the appellant that this sometimes led to undesirable exchanges between patrons and those on the street. This, it is submitted, was constructively discussed with the Police. These discussions are referred to in Police emails and "Text Notes" which were before the DLC. The agreed solution was to close this area at 10.00 pm Thursday to Saturday nights. Text notes between Police, Mr Wang and the Inspector dated 14 February 2020 shows that the "Police have noticed a big improvement in the number of incidents on the street during the trial period."19 Following this, the Police withdrew opposition to the on-licence in an email letter dated 17 February 2020. The appellant has submitted that there is no evidence that there was an issue after that and so the DLC's holding it against it was not supported by evidence.

19 DLC File, Tab 3; ‘Licensing Inspector’s Report (on-licence) – G’ Text Notes dated 14 February 2020, bullet- point 1.

[79] This was a positive measure taken by the appellants having discussed the trial period with the Police. It shows cooperation and willingness to address matters relating to amenity and good order of the locality and should have been attached due weight in the decision by the DLC.

Intoxicated patrons on premises


[80] The appellant has submitted that like other bars, The Office has sometimes experienced situations where patrons have showed signs of intoxication, and service of further alcohol had to be declined. Additionally, there has never been any prosecution of the appellants or their staff nor have they been subject to a negative holding for serving intoxicated patrons. The appellant submits that in consultation with the Police, they have protocols in place about monitoring and giving entry to patrons showing signs of intoxication.

[81] At the hearing, the second appellant emphasised his commitment to continue to improve standards and the appellants do not accept that they have a track record or systematic problem with accommodating seriously intoxicated patrons. The appellant further submits that a number of controlled purchases between 2017 and 2020 were unsuccessful as stated in the Licensing Inspector's report.

[82] It has been accepted by the Respondent that controlled purchases were unsuccessful but the respondent has pointed to the Inspector's notes and Police correspondence where the issue of intoxication was raised.

[83] The appellant has not denied that there have been intoxicated patrons and has made a commitment to improve standards to ensure that the intoxicated patrons are dealt with as per protocol. The way the matter was raised in the Inspector's notes and the Police's email do not suggest that this was a systematic issue especially with the Police offer to provide advice and assistance to enable the appellant to deal with it appropriately. This was not factored into the DLC's decision.

CCTV footage of fighting and drug deals in the Cobb carpark


[84] The appellant has submitted that no CCTV footage was shown at the hearing. There is no actual evidence of fighting or drug deals in the Cobb carpark either. Even if it did

occur, it is a matter for the Cobb, the Police and the District Licensing Inspector. If its patrons do purchase drugs outside the premises then, it is submitted, The Office should not be blamed for it.


[85] If no CCTV footage has been shown at the hearing, and no further evidence provided, then it is difficult to see how these matters could be attributed to The Office to have their licence not renewed.

Unqualified security staff


[86] The appellants are not clear what this refers to. They have employees acting as door- staff. They also have two employees who have certificates of approval by the Private Security Personnel Licensing Authority. They work as door security, walk arounds, check for intoxication and identification.

[87] The respondent has raised issues around using unqualified security staff as contrary to the appellants' assertion, bouncers (or staff fulfilling a similar role) are required to be appropriately licensed or certified as crowd controllers under the Private Security Personnel and Private Investigators Act 2010. That this seemed to be an ongoing issue having been raised by the Inspector with the appellant.

[88] The Authority considers this to be another compliance issue of which the appellant needs to be aware. The Authority notes the appellant's acceptance that they use employees as door staff, which is contrary to the requirements under the Private Security Personnel and Private Investigators Act 2010.20 It is clearly a matter which the DLC was entitled to take into account and place due weight upon.

People congregating in the street


[89] The appellants state that there has been at least one such incident. There is no evidence of the actual numbers out on the streets but it appeared to be well in excess of numbers permissible at The Office as per the Covid-19 rules. It was extrapolated that The Office must have exceeded the permissible number immediately beforehand which implies that all the people on the street must have been from The Office. The appellants submit that

20 Private Security Personnel and Private Investigators Act 2010, ss 11 and 23(1)(g).

this is speculative and unfair. There are five bars within reasonably close proximity and two within very close proximity and a very popular takeaway venue as well as a lot of foot traffic passing The Office and it being a popular place for congregation. The Inspector acknowledged that she had no actual knowledge where these people were from.


[90] The Authority considers that this clearly should not have been given much weight given the absence of evidence pointing towards The Office.

No low alcohol in the fridge


[91] The Office sold low alcohol beer and on tap. It is submitted that even if the low alcohol beer in the “front of house” fridge momentarily ran out as found by the Licensing Inspector during an inspection, The Office would still be in a position to sell low alcohol beer. The Appellants are of the view that the Medical Officer and the Police would have opposed if they did not have a reliable supply of low alcohol drinks to sell.

[92] The Authority accepts that this factor should not have been critical to the non-renewal of the licence unless evidence showed that there was no low alcohol on premises at all. Hence the DLC ought not to have taken this into account for denying the non-renewal of the licence.

Manager's register not updated


[93] The appellant accepts that there has been at least one occasion that the Duty Manager's register has not been updated but states that this has been rectified by appointing Mr Hince to regularly check for legal compliance.

[94] The respondent has pointed out that of the nine inspections at The Office, five recorded non-compliance with ss 231 and 232 of the Act. That despite repeated meetings and the Inspector's February 2021 Report, the first appellant was still not up to date with its s 231 notifications. Each failure could have constituted an offence under s 259(1)(a) of the Act.

[95] The DLC had noted non-compliance even on the day of the hearing. Given the extent of non-compliance with the law, the DLC was entitled to give due weight in considering the renewal of the licence.

Two assaults at The Bar


[96] The appellant accepts that the two incidents as they understood referred to in the DLC decision did occur. One where Mr Wang was punched by a member of the public unprovoked and the Police were called. The second incident would be where a person repeatedly tried to gain entry but was denied by the doorman, who had allegedly head- butted the person. The doorman was not charged and Mr Wang claims that he did not witness the incident. It is submitted that these incidents do not justify a decision to decline renewal of the licence.

[97] In relation to these incidents, the Authority considers that there was not enough evidence for the DLC to place much weight on its occurrence. The first does not attribute blame on The Office and the second one where the doorman was not charged for what appears to be a serious incident having regard to the injuries sustained from the head-butt, that is a split and a possible break to the nose of the victim.

Issues with CCTV footage


[98] The appellants have submitted that the CCTV system has been incrementally upgraded over the past seven years though there have been technical difficulties. The evidence before the DLC included a letter from Censor Alarms & Electrical Ltd referring to $6,190 plus GST to address technical issues. The second appellant gave evidence at the DLC hearing to having spent that amount.

[99] The DLC took into account the Inspector's concern that the CCTV footage could not be viewed of the incidents relating to 5 July 2020. The second appellant stated and provided evidence from a security systems company that the CCTV footage was presenting issues. The DLC did not however place weight on the money that the appellant had spent on rectifying this problem. This shows the appellant's willingness to address matters and ought to have been given due weight.

Appellant found intoxicated (and related concerns about OM)


[100] The one incident of Mr Wang becoming very intoxicated on 9 January 2021 is accepted. The second appellant's evidence is that he is not a drinker and in the last 10 years, it was the only time he got drunk. That is, he misjudged as to how much rum he

could take. He has claimed that it was only when he got into the car that he felt "attacked" by the alcohol. He was not on duty on that occasion and there is also no evidence of any unruly behaviour or an attempt to drive. It is submitted that the extent to which the duty manager and The Office have been blamed is somewhat unfair as it is unknown what the second appellant's alcohol tolerance is/was.


[101] The respondent has submitted that he drank to the state of extreme intoxication and it demonstrates profound lack of judgement and his inability to be a responsible seller of alcohol and duty manager. It is also a potential breach of the Act for allowing him to get intoxicated by the duty manager at the time.

[102] The fact that the second appellant got drunk, even whilst off duty, is a matter which relates to the renewal of his manager's certificate. The fact that he was allowed to get to that drunken state by having "large amounts of rum"21 relates to the issue of the renewal of the licence. It calls into question the responsibilities of the Duty Manager at the time who would most likely be in breach of the Act. The DLC was correct to take this into account and give it due weight in considering the renewal of the licence.

No duty manager for several hours


[103] There are notes in the Police materials of an occasion when they visited the Office and the second appellant was the Duty Manager on the night but for some time he could not be located by a security staff member who was looking for him and records suggest that he thought that the appellant had left the premises. The Licensing Inspector gave evidence that the Police, unable to locate him, sent him a text at 1.41 am and closed the premises. The Police advised the Inspector that the second appellant appeared after the bar was closed and said he was asleep upstairs. It is submitted by the appellant that this account is not accurate.

[104] The allegation appears to have come from a First Security Safe City note of what was said or observed by the Police Officers who attended. The unnamed author recorded that "apparently" the second appellant was upstairs in his office. Another record alleged that he had left the premises.

21 DLC File, Tab 13; ‘Inspector’s opening submissions, attachment Point 56 Duty Managers C’, statement of David Burrows at 18.

[105] The second appellant's evidence at the DLC hearing was that his walkie talkie had run out of power and his phone was not on him so staff could not reach him. He stated that he was monitoring the bar on the big monitor in his office as he usually does and when he saw the Police at the door, he came downstairs to speak to them. He stated that he was absent for about 10 minutes.22

[106] It is submitted that the second appellant appeared in the bar and spoke to the Police "a short time after they arrived" and that this corroborates his explanation that he was in his office monitoring the bar. It is not accepted that he was asleep or off-site and that there is insufficient evidence to rebut his testimony.

[107] The respondent has submitted that the second appellant was not locatable for at least one hour. The Police had to shut down the premises because there was no Duty Manager. Someone had won at the gaming machine but could not be paid and it is submitted that if the second appellant was watching the CCTV in his office then he would have noticed that there were indications that something was not in order or that someone would have knocked on his office door.

[108] The Authority agrees that the second appellant's account does not tally with the evidence which clearly records that the staff was looking for the second appellant for 20 minutes before the Police arrived and the Police had arrived approximately two hours after he was last seen. This, together with the evidence given by him with regards to the incidence relating to the objector's account (as addressed below), is sufficient to put a question mark over his credibility as the DLC had found.

Site visits and cameras


[109] The members of the DLC visited The Office following the DLC hearing. They were concerned that some parts of the bar were not covered by the CCTV cameras.

[110] The appellants claim that this is a technical issue and it should have been allowed time for an informed response.

22 Re Hong Jia Ltd (On-Licence Renewal with Variation to Conditions) Palmerston North District Licensing Committee, 16 December 2021 at [43].

[111] The respondent points out that this is not a technical issue but a matter of facing the camera in the right angle.

[112] The Authority accepts the respondents, submissions and considers that the DLC was correct to express their concern as there is no point in incurring so much expense and then not utilising the CCTV to achieve the best coverage possible especially when there have been concerns expressed by the Inspector of not being able to access CCTV footage.

Graphic evidence


[113] The Inspector included graphic Police photographs following a brawl allegedly between four patrons of The Office and two men from other bars.

[114] The appellants have submitted that this should not have been put forward as this is not clear evidence of any wrongdoing by the licensee that led to the brawl.

[115] It is unclear if the graphic evidence had been taken into account by the DLC but the Authority agrees that this evidence should not have been included as it is not evidence of any wrongdoing by The Office given that the facts indicate that the matter stems from something other than the fact that the four patrons who started the altercation happened to be at The Office just prior to the incidents.

Public objections


[116] There were three public objections. Two were by neighbouring businesses which were withdrawn, in the context of the appellants working with Police to address amenity and good order issues. The third one was by a member of the public whose vehicle door had been damaged as a result of an altercation between two men. They attributed some blame to The Office. She did not attend the hearing and hence it was not possible to cross- examine her evidence. The appellants claim that her complaint should have been put aside which was not.

[117] The respondent has submitted that it was not the objection which the DLC placed any great reliance on but the veracity of the appellant's responses to that objection that is, the incident occurred in May 2019 but Mr Wang in explaining his delayed responses to the objector, blamed the disruptive effects of the COVID lockdown in early 2020. The

respondent has cited legal authority to state that the DLC could place some weight rather than none at all as that is not the law.23


[118] Having regard to the cases cited, the Authority agrees with the respondent that the DLC is allowed to place due weight to an objector's complaints even when they do not appear at the hearing but that weight must be at the lower end given that the appellants were not able to cross examine them on their evidence.

[119] Having stated that, the Authority would like to point out that the DLC took this into account not necessarily based on what the complaint was about but the fact that it called the second appellant's credibility into question. This is because he claimed that he did not respond to the complainant because it happened during lockdown when in fact the incident happened 10 months prior to the lockdown. So this is the second incident which calls his credibility into question and the DLC was correct to note and attach due weight to that.

[120] Overall, the key concerns that stand out to this Authority which has bearing on the DLC's decisions were that there was:

23 See Karikari Charitable Trust Inc v ER Bellas Ltd [2020] NZARLA 106 at [200]; and Utikere v IS Dhillon and Sons Ltd [2014] NZHC 270 at [27].

24 Private Security Personnel and Private Investigators Act 2010, ss 11 and 23(1)(g).

[121] Against these factors, the DLC does not appear to have given recognition that there is limited weight that can be attached to the Safe City and CFS data. That the noise and fencing issues had been addressed to a large extent. That there had been cooperation with the Police by closing off the front smoking area despite the appellant not wanting to do so earlier, that efforts were being made to be compliant with the law, that the appellants have not incurred any infringement offences and that the Police opposition had been withdrawn and there was no opposition to the application from the Licensing Inspector until at the hearing with their final submissions reaching the appellants later in the afternoon just the day before the hearing.

[122] Further, a reading of both decisions, to deny both the renewals, feels rushed with no meaningful assessment presented in the decision to decline the renewal of the manager's certificate and a number of errors identified in the table as corrected by the respondent in their submissions.

[123] Further, the appellants should have had the opportunity to go through the Inspector's full report including all the evidence relied upon well before the hearing and to do so with knowledge that their application was being opposed to enable them to prepare for the hearing. The fact that the Police withdrew their opposition and were not available for examination at the hearing also ought to have been taken into account.

[124] Taking a holistic view of all the matters covered in this assessment, the Authority is of the view that the DLC's decisions to deny renewal of the on-licence and the manager's certificate with immediate effect was unduly harsh and hence do not represent the most balanced outcome in this case.

Applicable Legal Principles to this Appeal


[125] Section 157 of the Act provides that an appeal is by way of a rehearing. As this Authority has held earlier:25

On appeal the Authority is required to undertake its own assessment of the merits of the application. It is not sufficient for the Authority to simply decide that the DLC's decision was one which was open to it on the evidence. Instead,

25 Otago University Students' Association Starters Bar [2021] NZARLA 3 citing the approach set out by Davison J in Rainger v General Distributors Ltd [2019] NZHC 3483 (20 December 2019).

what the Authority is required to do is to independently assess the evidence and the merits of the application and to reach its own conclusion.


[126] The role of the Authority in considering the s 105 factors is an evaluative one, which requires the decision maker to make a merit-based assessment.26

[127] While Counsel for the appellant has cited that "the case law clearly indicates that rules as to onus of proof will be of little relevance",27 which was referred to in the context of an appeal regarding renewal in Mccutcheon v Level Eighteen Limited,28 the respondent is correct to qualify that in stating that "the onus is on the appellant before the Authority to satisfy the Authority that the decision in the original hearing before the DLC was wrong."29

Law as to the Renewal of the Licence


[128] Under s 131 of the Act,30 the Authority must take into account:

105 Criteria for issue of licences

(1) In deciding whether to renew a licence, the licensing authority or the licensing committee concerned must have regard to the following matters:

2023_2500.jpg


(j) whether the a p p l i c a n t has appropriate systems, staff, and training to comply

26 Christchurch Medical Officer of Health v J & G Vaudrey Ltd [2015] NZHC 2749; [2016] 2 NZLR 382, at [54]-(56].

27 Lower Hutt Liquor Mart Ltd v Shady Lady Lighting Ltd [2018] NZHC 3100 as per Churchman J.

28 Mccutcheon v Level Eighteen Limited [2021] NZARLA 26 as per Kelly J.

29 Selby v KIW-E Otaki Limited [2020] NZARLA 210 at (68].

30 Sale and Supply of Alcohol Act 2012, s 131(1)(a)-(c), respectively.

with the law:

(k) any matters dealt with in any report from the Police, an inspector, or a Medical Officer of Health made under section 103.

(b) whether (in its opinion) the amenity and good order of the locality would be likely to be increased, by more than a minor extent, by the effects of a refusal to renew the licence:

(c) any matters dealt with in any report from the Police, an inspector, or a Medical Officer of Health made by virtue of section 129:

(d) the manner in which the applicant has sold (or, as the case may be, sold and supplied), displayed, advertised, or promoted alcohol.

Re-Assessment of the Application for the Renewal of the Licence


[129] Counsel for the appellant has submitted that the licence should be renewed. The first appellant has been operating under the management of the second Appellant for approximately seven years up to the DLC hearing. There have been no prosecutions or any negative holdings of the appellants or any staff. As at the date of the hearing, the first appellant employed four qualified Duty Managers and two door staff with Crowd Control certificates approved by the Private Security Personnel Licensing Authority (#s 18-049411 and 20-076903).

[130] It is further submitted that the appellants had also entered into an agreement with Hince Hospitality Limited for it to provide ongoing training to staff, including duty managers and alcohol harm minimisation and for checks, audits and compliance including keeping Duty Manager records up to date.

[131] Policies were also in place to deal with issues around intoxication, entry of patrons, alcohol consumption and increase of prices post 1.00 am. Controlled purchases conducted at The Office between 2017 and 2020 resulted in zero sales to underage patrons. A substantial food and snacks menu was offered, with low and zero alcohol drinks available and promoted. Call a taxi services were also offered and advertised to patrons.

[132] It has been submitted that The Office had also incurred significant expense to install CCTV cameras, has resolved noise issues due to which one objection relating to noise was withdrawn and there had been no noise complaints since 2019. The Office had also

addressed the fencing issue which allowed people to jump the fence to enter into garden bar. The front smoking area was closed post 10.00 pm on Thursday, Friday and Saturday nights. This showed its willingness to work with the Police to address issues and concerns.


[133] The respondent has been more articulate in making submissions in accordance with the legal criteria for the renewal of the licence. In considering the suitability and the manner in which the first appellant has sold and supplied alcohol, the respondent has pointed out that of the nine inspections at The Office, five recorded non-compliance with ss 231 and 232 of the Act. That despite repeated meetings and the Inspector's February 2021 Report, the first appellant was still not up to date with his s 231 notifications. Each failure could have constituted an offence under s 259(1)(a) of the Act. Further that where a manager is not properly appointed, any sale or supply of alcohol is made without authority of the Act and is an offence under s 247 of the Act. Given the potential for alcohol-related harm from non-compliance, the Authority has treated such breaches seriously, having cancelled or suspended licenses.31

[134] The respondent has also referred to the first appellant's unlawful expansion of the outdoor premises. The Authority notes that the outdoor premises were already unlawfully expanded before it was investigated by the Inspector and made known to the Police. While an application for a variation of the licence was made post this discovery, the DLC declined the application on the basis that the prior expansion was in “blatant disregard for compliance".32 The use of an unlicensed premises would have been another offence under s 247 of the Act.

[135] The third ground in the respondent's submissions relates to the incident of 9 January 2021 when the second appellant became intoxicated whilst at The Office, having consumed "large amounts" of rum as per the Duty Manager's statement. The state of intoxication was that he was "transitioning in and out of consciousness" when the Police found him and he was unconscious by the time Police took him to the Hospital. Staff at The Office did not intervene until he was deeply affected by alcohol. This would constitute an offence against s 249 of the Act (allowing people to become intoxicated) which can lead to a summary suspension or cancellation of the licence concerned. It also demonstrates irresponsible

31 Miklos v Le Box Auckland Ltd [2017] NZARLA PH 89 {noting that other factors were also at play) and under the previous Act: Nelson v Enzo Entertainment Ltd LLA PH220/2003, 4 April 2003; and McLeod v Hoyts Cinemas (NZ) Ltd LLA PH466/2008, 27 March 2008.

32 Re Hong Jia Ltd (Variation to Conditions) Palmerston North District Licencing Committee, 19 July 2018 at[67].

behaviour by a licensee and one who does not appreciate the potential for alcohol- related harm from the rapid consumption of alcohol. It is submitted that this event undermines the positive claim of suitability by the first appellant when applying for the renewal of the licence.


[136] As for the issues relating to the amenity and good order of the locality, the respondent has relied on the Safe City reports and the Police CFS. The respondent has cited Sogi Trading Ltd where it stated that:33 “A licensee cannot seek to absolve itself of those matters because they happen outside the premises ... noise, nuisance and vandalism are themselves matters that go to the amenity and good order of the locality." The respondent accepts that not all the incidents referred to in the reports presented directly involve The Office and that whilst reliable, the conclusions that can be drawn are limited. Notwithstanding that, the respondent, relying on a number of authorities,34 has submitted that it is not necessary to have direct and specific evidence linking particular alcohol related harm with The Office as there can be no doubt that The Office contributes to "some" of the harm given its location in a problematic part of town. Such vulnerability requires that a licensee operate with particular care to avoid exacerbating alcohol related harm in that locality, to which a higher degree of scrutiny should be applied to its suitability.35 Hence a refusal to renew the licence in this instance will increase the amenity and good order of the locality.

[137] In terms of whether The Office has the staff, systems and training to comply with the law, the respondent has acknowledged the engagement of Mr Hince of Hince Hospitality Ltd to audit processes and to ensure compliance with the Act. However, the respondent has referred to the history of non-compliance and that it appears that Mr Hince has been involved with The Office since at least 2018. There are also issues around using unqualified security staff as contrary to the appellants' assertion, bouncers (or staff fulfilling a similar role) are required to be appropriately licensed or certified as crowd controllers under the Private Security Personnel and Private Investigators Act 2010.36

33 Sogi Trading Ltd v Licensing Inspector Auckland City Council [2020] NZARLA 96 at [265].

34 Medical Officer of Health (Wellington Region) v Lion Liquor Retail Ltd [2018] NZHC 1123 at [67-(68]; Auckland Medical Officer of Health v Birthcare Auckland Ltd [2015] NZHC 2689 at [113]; Sogi Trading Ltd v Licensing Inspector Auckland City Council [2020] NZARLA 96 at [130); and Capital Liquor Ltd v Police [2019] NZHC 1846 at [25].

35 Supported by the approach taken in Shady Lady Lighting Ltd v Lower Hutt Liquormart Ltd [2018] NZARLA 198 at [127]- [131] and upheld in Lower Hutt Liquormart Ltd v Shady Lady Lighting Ltd [2018] NZHC 3100.

36 Private Security Personnel and Private Investigators Act 2010.

[138] Taking into account these matters, together with all the evidence mentioned and provided by the Licensing Inspector, the respondent has submitted that the appellant does not meet the overarching object of the Act, which is the safe and responsible supply of alcohol and minimisation of alcohol- related harm. To this end, the respondent has cited the question posed by Heath J in Re Venus NZ Ltd:37 "Is the Authority satisfied, having considered all relevant factors, [including those] set out in s 105 ... that the grant of [the licence] is consistent with the object of the Act?”

[139] The Authority accepts that cumulatively, the history of the lack of compliance albeit with no offence recorded, disregard for the conditions of the licence to expand the garden area and the irresponsible supply of alcohol to the second appellant does call into question the suitability of the first appellant to be a licensee.

[140] The Authority also takes into account that there was still non-compliance with the law as at the date of the hearing with regards to its notification obligations under s 231 of the Act. The fact that the appellant has admitted to using general staff as door-keepers is yet another example of its lack of awareness with regards to its legal obligations under the Private Security Personnel and Private Investigators Act which requires that crowd controllers (or those screening entry to a place (other than simply ensuring that admission has been paid or that those entering have appropriate invitations or passes), keeping order and/or removing someone from a place) must be licenced.38

[141] Having stated that, there are aspects of the first appellant which does not justify cancellation of the licence at this stage. Namely, the acceptance of non-compliance with s 231 and its endeavours to address those matters, co-operation with the Police to the extent of closing the front smoking area at 10.00 pm Thursday to Saturday nights which the Police noted as having "big improvement" in the number of incidents out on the streets, incurring expenses to install more CCTV cameras, addressing the noise and fencing issues and taking responsibility to keep the amenity around The Office clean, and having policies in place to otherwise conduct itself in a manner which ensures the safe and responsible supply of alcohol to patrons.

37 Re Venus NZ Ltd [2015] NZHC 1346.

38 Private Security Personnel and Private Investigators Act 2010, ss 11(1) and 23(1)(g).

[142] The Authority considers it important to iterate that the reporting agencies also have a responsibility to ensure that the objects of the Act are met. Part of that are the provision of infringement offences. It is noted that in this instance, as pointed out by the respondent, there were potentially a number of offences which (may) have been committed by the first appellant. These were not actioned and to cancel one's licence without any strong message relayed beforehand, especially when none of the reporting agencies opposed the applications up to the day before the hearing, is not the most ideal way of dealing with such matters.

[143] Hence, in order to strike the right balance in the justice of this case, the Authority is of the view that to achieve the most appropriate result in this instance is to undertake its own assessment of the merits of the application and reach its own conclusions. That is a requirement of established law in any event.

Law as to the Renewal of the Manager's Certificate


[144] Section 227 of the Act provides that:

In considering an application for the renewal of a manager's certificate, the licensing authority or licensing committee concerned must have regard to the following matters:

(a) the applicant's suitability to be a manager:
(b) any convictions recorded against the applicant since the certificate was issued or last renewed:
(c) the manner in which the manager has managed the sale and supply of alcohol pursuant to the licence with the aim of contributing to the reduction of alcohol-related harm:
(d) any matters dealt with in any report made under section 225.

Re-Assessment of the Application for the Renewal of the Manager's Licence


[145] Counsel for the second appellant has submitted that the second appellant is not the same as the first appellant and that he meets the s 227 criteria and that his manager’s licence should be renewed.

[146] This is on the basis that he has been a Duty Manager for seven years and has never been prosecuted under the Act or has a negative holding. He is trained and qualified and is also committed to on-going training and upskilling as per its engagement with Hince Hospitality Limited. Apart from the one-off overindulgence with alcohol, it is submitted that he is a moderate drinker.
[147] It is further submitted that the second appellant has also shown leadership and an intention to comply by working with the Police and introducing alcohol harm minimisation and amenity and good order protocols into how The Office operates, leading the Police to withdraw their opposition to the first appellant's licence renewal.

[148] The second appellant has also disclosed economic difficulties due to him losing his certificate.

[149] Counsel for the respondent has submitted that the second appellant's actions are in large part were the first appellant's, being its General Manager. As such there is significant overlap in terms of conduct which is reflective of suitability. Hence consideration of matters applicable to the first appellant are directly applicable for consideration of Mr Wang's personal suitability as well.

[150] In considering the incidence of 24 July 2021 when Mr Wang could not be located at The Office between 12.00 midnight and 2.00 am, his explanation, that he was in his office upstairs and monitoring the security cameras, is not plausible. It is submitted that documentary records are consistent in stating that the staff had been looking for Mr Wang for at least an hour. The reason for the search was that a customer has won a large prize from a gaming machine and Mr Wang was needed to open the safe for a payout. It is submitted that it would defy belief that if he was indeed monitoring the security cameras in his office that no one knocked on his office door and he had missed multiple quests to locate him:

[151] The Police also sent him a text message at 1.41 am to inform him that he needed to be onsite as a Duty Manager and requested his return.

[152] The only logical explanation, it is submitted, is that he was either asleep or off-site which in either case would constitute a breach of s 214 of the Act; to remain "on duty at all times when alcohol is being sold" and enforce compliance with the Act. Alcohol sales

during this period would have been in violation of s 247 of the Act. As such, it is submitted, that the Authority can have no confidence that he is suitable to hold a manager's certificate.


[153] The respondent has also addressed the matters raised in the appellants' submissions. These are addressed individually under the headings of: Prejudicial effect, Status of evidence, Committee decision: Table of issues, Site visit and cameras and Financial considerations.

[154] The respondent's position is that any prejudicial effect arising from the surprise based on the timeliness of the Licensing Inspector's evidence and the change in position to opposing the application is cured on appeal to the Authority. The respondent has also submitted that it is an error of law to say that no weight should be given to an objection when the objector does not avail themselves at the hearing. This matter has been already addressed earlier in this decision.

[155] As per s 207(1) of the Act, the Committee or Authority is entitled to receive any evidence which would otherwise be inadmissible as hearsay in a court of law. It is submitted that there is no reason to suggest that the Safe City reports are inaccurate. That the evidence of the Inspector is largely documentary is accepted but much of the Appellants' submissions focus on formal evidential requirements as to what the evidence "does and does not prove",39 contrary to the warning in Lion Liquor Retail Ltd by constantly emphasising "what the evidence does not show or does not prove at the expense of what the evidence demonstrates”.40 Ultimately, it is submitted, the Authority is free to weigh the evidence before it as it sees fit, taking into account objections as well as limitations. Following that weighting, the Inspector's concerns are substantiated and the Committee's findings should accordingly be confirmed.

[156] As for the Committee's decision regarding the matters set out in the table of issues in determining whether the first appellant met the criteria under s 131 of the Act, the respondent has submitted that these are largely the observations from her inspections of The Office and notes of subsequent meetings. The two exceptions are the events related to the second appellant's intoxication on 9 January 2021 and his absence from the premises

39 Comparison, for example of submissions of Counsel for the Appellants (17 September 2022) at [18)-[22) with regarding evidence with statement of the law quoted at [79) from Lower Hutt Liquor Mart Ltd v Shady Lady Lighting Ltd [2018] NZHC 3100.

40 Medical Officer of Health (Wellington Region) v Lion Liquor Retail Ltd [2018] NZHC 1123 at [69].

on 24 July 2021. There have been a few transcription errors with events presented by the DLC in a summarised form which is accepted could potentially be the source of confusion, but not if the decision and the Inspector's evidence are read together.


[157] With regard to the issue of site visits and cameras, the respondent has quoted the DLC's decision that refers to the positioning of the monitor rather than technicalities of a CCTV system. That the DLC's comment was valid as it noted that the monitor in the bar area was positioned in a small room off the bar and there was no clear line of sight to the CCTV monitors from some of the physical positions that bar personnel would be serving from. This presented a concern as to the efficacy of the CCTV system if it were to serve as a harm reduction measure but only Mr Wang could access the live feed.

[158] As to Mr Wang's financial considerations, the respondent has cited Capital Liquor Ltd v Police,41 where this Authority iterated that an application for the renewal of a licence is an evaluation which requires assessment against the object of the Act and is not subordinate to concerns about the economic position of the appellant. The respondent has submitted that this approach applies equally to the renewal of a manager's certificate.

[159] The Authority is of the view that the prejudice arising from the late change in the Licensing Inspector’s position is not overcome by this appeal . The DLC took some matters into consideration unduly and without offering the appellants a proper opportunity to prepare for the hearing adequately. The decision was made with immediate effect.

[160] The respondent's submissions with regards to the weight that the Authority can attach to evidence is accepted as legally sound. Having stated that, as the Authority has pointed out under its assessment of the DLC's decisions, notes of evidence which lack detail with no opportunity to be tested at the hearing can only be attributed so much weight as there is a danger that even though evidence does not have to be directly linked to the appellant, it still has to be afforded weight to the extent it is fair to do so, having regard to the external factors which are present here namely that the appellant's management of The Office is not contributing to all the issues of amenity and good order of the locality such as brawls on the streets, congregation outside The Office, matters of nuisance and vandalism that have been identified in the alleyway and the adjacent carpark area. These have to be balanced against the evidence which has demonstrated that the appellant is capable and willing to

41 Capital Liquor Ltd v Police [2018] NZARLA 335 at [154].

work with the agencies to address the concerns raised namely by taking measures to address the non-compliance issues, installing extra CCTV monitors, and working with the Police to have policies and protocols in place to be able to sell alcohol in a safe and responsible manner. These are positive actions which do not justify the cancellation of the certificate at this stage.


[161] Hence, the Authority is of the view that the most appropriate result in this instance is to allow the appeals.

[162] As a final comment, the Authority stresses that this decision is not a victory for the appellants. It comes with a strong warning that up until now, there have been instances of non-compliance with the law which have been recorded in this judgment and the appellants must consider themselves put on notice that this decision represents a very short window of opportunity to address all the concerns highlighted in this judgment if the appellants want to continue to operate The Office.

Conclusions


[163] For the reasons provided, this Authority is satisfied that based on the evidence before it, it was unduly harsh for the DLC to deny the renewals of the on-licence and the manager's certificate with immediate effect.

[164] Hence the appeal is allowed and that, pursuant to s 158 of the Act, the decision of the DLC is reversed.

[165] The following order is made:

The Authority orders that the Secretary of the DLC renew the on-licence number 39/ON/005/2017, and the manager's certificates number 39/CERT/228/2014 respectively, for 12 months commencing 24-3-2023.

District Court Judge P R Connell Chairperson

Alcohol Regulatory and Licensing Authority

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZARLA/2023/25.html