Hira and Hira [2000] NZLLA 1209 (24 October 2000)

Last Updated: 16 February 2012

Decision No. PH 1209 – 1210/2000

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by RAMESH HIRA and PUSHPA HIRA trading in partnership for an off-licence pursuant to s.29 of the Act in respect of premises situated at 284 Willis Street, Te Aro, Wellington, known as "City Foodmarket"

AND

IN THE MATTER of an application by RAMESH HIRA pursuant to s.118 of the Act for a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J P Gatley
Members: Mr R J S Munro
Mr J W Thompson

HEARING at WELLINGTON on 13 September 2000

APPEARANCES

Mr R Hira on behalf of applicant partnership and as applicant for a General Manager's Certificate
Sergeant G D Logan – NZ Police – in opposition
Mr R S Putze – Wellington District Licensing Agency Inspector – in opposition

DECISION

1. By application dated 11 January 2000, Ramesh Hira and Pushpa Hira, trading in partnership, seek an off-licence pursuant to s.29 of the Act in respect of premises situated at 284 Willis Street, Te Aro, Wellington, trading as "City Foodmarket".
   
2. In the application the subject premises were described as "a foodmarket". It follows that an off-licence could only be granted pursuant to s.36(1)(d)(ii) of the Act, i.e. in respect of any grocery store where the Licensing Authority is satisfied that the principal business of the store is the sale of main order household foodstuff requirements.
   
3. By application dated 6 February 2000 Ramesh Hira seeks a General Manager's Certificate.
   
4. Both applications were opposed in reports from the Police detailing Mr Hira's previous convictions and questioning his suitability to hold a licence or a General Manager's Certificate.
   
5. The grant of the application by the partnership for an off-licence was not recommended in a report from a Wellington District Licensing Agency Inspector, Mr Bruce Pool, dated 7 April 2000. The report mentioned that prior to April 2000 the "City Foodmarket" premises had in the window a large black sign with one foot high lettering indicating "Liquor Available Here" when the premises were not the subject of a liquor licence. The applicant refused to remove the sign after being spoken to by another Inspector Joanne Burt.
   
6. Mr Pool's report further commented that in both applications Mr Hira had failed to acknowledge previous criminal convictions. Mr Pool wrote:-
   

"It is my opinion as an Inspector that the applicant's dishonesty and refusal to undertake instructions given by the District Licensing Agency raises serious questions about his suitability."

7. Mr Pool recommended that the applications be dealt with by way of public hearing.
   
8. Notice of the public hearing to be held on 13 September 2000 included:-
   

"The applicant, objectors and all other interested parties SHOULD IN THE NORMAL COURSE PROVIDE FOUR COPIES OF A TYPEWRITTEN STATEMENT OF THE EVIDENCE AND SUBMISSIONS TO BE TENDERED AT THE HEARING for the exclusive use of the Authority. Additional copies are to be available for other parties."

Hearing on 13 September 2000

9. The complete files on both applications disclose that Mr Hira had had "DA Richards Associates NZ Ltd Liquor Licensing Specialists" act as his agent to submit both applications but Mr Hira said that he could not afford to have Mr Richards appear for him at the hearing.
   

10 For the Police Sergeant G D Logan detailed 12 criminal and traffic convictions not disclosed by Mr Hira. Convictions included excess breath alcohol (706 mgms of alcohol per litre of breath), two for breach of a non-molestation order, common assault, indecently assaulting a female over 16 and wilful damage. The Sergeant submitted that the convictions coupled with failure to disclose ”bring into question" Mr Hira's suitability to hold a licence or a General Manager's Certificate.

11 Mr Hira had no prepared submissions or evidence. At the conclusion of the hearing he was afforded an opportunity to submit evidence in support of his assertion that the business of "City Foodmarket" is that of a grocery.

12 The Authority took a view of "City Foodmarket" and from the small size of the premises (available shop area including "behind the counter" is 4.7 metres by 6 metres) and goods on display we found the premises to be more akin to a dairy than a grocery.

13 By letter to our Secretary dated 19 September 2000 Mr Hira wrote:-

"I am writing this letter in relation to the submissions put by retailers in my area, against City Foodmarket for it being granted a liquor licence for the sale of alcohol. This letter outlines the reasons why an application be granted.

I have been operating my business in this area for over 23 years so it can be seen it is a well established. My business has faced much competition over the years, and we have battled and are still here today in this competitive industry. This business has not only had to compete with 24-hour supermarkets and service stations, but these competitors are already to stocking liquor products. For us to stay competitive we must also sell these products or we will be left behind. Our business is already suffering declining sales and I feel that by stocking alcoholic products we may be able offer something new to our customers. We have also had a number of requests in from our regular customers as to whether they can purchase alcohol, so essentially there is a demand for it.

I hope you will consider these reasons above and the position my business is when reaching your decision."

Authority's Conclusion and Reasons

14. In D L Page v NZ Police and A C R Sullivan (H.C. Christchurch 24/7/98 AP 84/98) Panckhurst J said at page 9:-
    

"Section 13(1)(a) provides that the applicant for an on-licence must demonstrate his or her suitability. In other words what is required is a positive finding. That implies an onus upon the applicant to demonstrate suitability."

15. Those words apply equally to an applicant for an off-licence or for a General Manager's Certificate.
    
16. Mr Hira has not been able to produce any evidence that the principal business of "City Foodmarket" is the sale of main order household foodstuff requirements as required by s.36(1)(d)(ii) of the Act. He has also been unable to demonstrate to our satisfaction his suitability to hold a General Manager's Certificate.
    
17. Both applications are refused.
    

DATED at WELLINGTON this day of 2000

_____________________________
Judge J P Gatley
Chairman cityfoodmarket.doc(sh)