Singh v Papakura District Licensing Agency [2000] NZLLA 1298 (19 December 2000)

Last Updated: 15 February 2012

Decision No. PH 1298 – 1299/2000

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an appeal by SURRENDRA SINGH and PADMA WATI SINGH pursuant to s.137 of the Act against a decision of the Papakura District Licensing Agency refusing an application by Surrendra Singh and Padma Wati Singh for a temporary authority in respect of premises situated at 64a Walter Strevens Drive, Conifer Grove, Takanini, Papakura District, known as “Pistachios”

BETWEEN SURRENDRA SINGH and PADMA WATI SINGH

Appellant

AND PAPAKURA DISTRICT LICENSING AGENCY

Respondent

AND

IN THE MATTER of an application pursuant to s.132 of the Act for cancellation of on-licence number 009/ON/3/2000 issued to ROJACE ENTERPRISES LIMITED in respect of premises situated at 64a Walter Strevens Drive, Conifer Grove, Takanini, Papakura District, known as “Pistachios”

BETWEEN CORNELIUS KLUESSIEN (Police Officer of Papakura)

Applicant

AND ROJACE ENTERPRISES LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 8 December 2000

APPEARANCES

Mr D Singh – counsel for appellant and respondent
Mr F G Herbert – counsel for Papakura District Licensing Agency– to assist
Senior Sergeant R Hall – NZ Police – to assist

MINUTE OF ORAL DECISION

The following is a minute of the decision of the Authority delivered orally by the Chairman on 8 December 2000.

“We have before us two applications:-

An appeal by Mr and Mrs S Singh pursuant to s.137 of the Act against a decision of the Papakura District Licensing Agency refusing an application by them for a temporary authority in respect of premises at Walter Strevens Drive, Conifer Grove, Takanini, known as “Pistachios” and

Secondly, an application pursant to s.132 of the Act for cancellation of on-licence number 009/ON/3/2000 issued to Rojace Enterprises Limited in respect of the same premises.

The base on-licence dated 10 May 2000 authorises the sale of liquor to any person who is present on the premises and includes at condition (b):-

‘(b) Liquor may be sold only on the following days and during the following hours:

On such days and during such hours as the premises are being operated as a restaurant but not other than on the following days and hours:

Monday to Sunday 11.00 am to 1.00 am the following day.’

On 6 November 2000 the Papakura District Licensing Agency refused an application by Mr and Mrs Singh for a third temporary authority in respect of the subject premises on the following grounds:-

‘The Agency questioned the applicants’ suitability with regard to changing the use of the premises and the lengthy delay in applying for an on-licence. The evidence presented did not support that the premises were being operated as a licensed restaurant.’

Subsection 137 of the Act provides that every such appeal shall be by way of rehearing.

Evidence was given by two Police officers of the manner in which “Pistachios” was being operated on the nights of 31 August and 7 September 2000. Mr Singh acknowledged that on those dates he was operating the premises pursuant to a temporary authority dated 20 July 2000, on the terms and conditions of on-licence 009/ON/3/2000, including condition (b) only authorising the sale of liquor so long as the premises were being operated as a restaurant.

The evidence of the two Police officers is relatively brief, and we quote it in full.

Constable C L Stewart on Thursday 31 August 2000 following complaints from residents of Conifer Grove about the operation of “Pistachios”, made a covert visit to the premises. It was his evidence that he was at the premises for an hour from 9.00 pm to 10.00 pm:-

‘I observed the premises was in two halves, one side was set up as a restaurant with tables set for dining, the other side was set up with bar leaners. Both sides were divided by a folding door. I observed approximately 60 patrons consuming liquor at the bar leaners and the bar. There were two topless waitresses serving liquor. Throughout the duration of my visit no-one was served in the dining room. The dining room was in darkness. No food was served to any of the patrons. Outside was a sandwich board advertising the premises as a brasserie. I made a return visit the following Thursday 7 September 2000 from 8.30 pm to 10.00 pm and the premises were operating in the same manner. I was still at the premises when Senior Sergeant Kluessien and Sergeant O’Rourke visited in full uniform.’

Senior Sergeant Kluessien gave evidence of visiting the premises following the visit by Constable Stewart the previous week, on being made aware that the premises were not being operated as a restaurant and function centre in accordance with its licence. It was his evidence that on Thursday 7 September at 10.00 pm:-

‘I visited the premises in uniform with other Police officers. I found the premises was partitioned into a restaurant in one part, and the other part was set up as a bar with bar leaners. The restaurant part was in darkness with no customers and there were about 60 persons consuming liquor in the bar part. There were two topless waitresses. I made a video of the premises as I found them. I spoke to the licensee, Surrendra Singh, who explained to me that the kitchen was open but the chef had left at 8.00 pm, that he was available to cook food, and that his wife had turned the lights off to the restaurant as people may walk in there.’

Mr D Singh, as counsel for Mr and Mrs S Singh, suggested that the Police video viewed by the Authority showed the restaurant to be lit. We accept the evidence of Senior Sergeant Kluessien in response to questioning that the video camera operation tends to lighten the appearance of a scene that is in darkness when filmed. We also accept from photographs produced by Mr S Singh that what were described by Senior Sergeant Kluessien as ‘bar leaners’, could also be described as ‘stools at high tables’.

The definition of a restaurant in s.2 of the Act is of little assistance, but in Chef and Brewer Bar and Café Ltd v Police [1995] NZAR 158 at 169/170, Justice Blanchard said, after pointing out that the holding of a licence in respect of a restaurant was a privilege:-

‘It is incumbent on the licensee to see to it, other than in an exceptional situation, no patron drinks without dining.

...

Patrons may have a drink for a short period before dining and may drink for a similar short period after finishing their meal. Such drinking can be seen as directly connected to the process of dining.’

His Honour was there referring to a licence issued prior to 1 April 2000, including authorisation to sell liquor to persons present on the premises for the purpose of dining. That is not the case here, where the base on-licence authorises the sale of liquor to anyone present on the premises. Nevertheless, we find Justice Blanchard's words to be still relevant where a licence issued after 1 April 2000, when s.7 of the Act as amended by s.6 of the Sale of Liquor Amendment Act 1999 came into force, where such a licence includes a condition that liquor may be sold only on such days and during such hours as the premises are being operated as a restaurant.

The Authority’s decisions are normally based on the balance of probabilities. After viewing the Police video of the manner in which “Pistachios” was being operated on the night of 7 September 2000, we are satisfied beyond any reasonable doubt that the premises were being operated in breach of condition (b) of the licence in that they were not being operated as a restaurant. We are satisfied that the premises were being operated as a tavern.

The premises have a history, in that in 1986 the then Licensing Control Commission declined an application for a tavern on-licence on the site of the subject premises after having regard to the proximity of residential dwellings. In the following years a series of licensees have been issued on-licences for a restaurant. Following a public hearing in 1995 the Authority declined to authorise the sale of liquor to casual drinkers from restaurant premises on this site.

We are satisfied on the evidence adduced at today’s hearing, that the appellants, Mr and Mrs Singh, are not suitable persons to operate premises the subject of an on-licence, limited to trading as a restaurant on the subject site. It follows that the appeal against the decision of the Papakura District Licensing Agency refusing to grant a temporary authority, is dismissed.

Turning to the Police application for cancellation of on-licence 009/ON/3/2000 on the grounds that Mr and Mrs Singh have traded in breach of condition (b) of the on-licence in force, we have found that ground to have been established on the factual evidence adduced at the hearing. However, for somewhat unusual reasons based entirely on the present facts, we are not minded to make an order pursuant to subsection (6) of s.132 of the Act cancelling the on-licence.

In the course of the hearing brief evidence was given by a Mr Cec Cranch that his son, Jason, was the sole director and shareholder in Rojace Enterprises Limited, but that company had never operated the restaurant at 64a Walter Strevens Drive. It was Mr Cec Cranch’s evidence that he had operated the business without a licence as a consultant to his son, prior to the business being sold to the Singhs. If we were to cancel the on-licence that would preclude the Singhs, or any purchaser from them, who genuinely wishes to operate a restaurant on this site, from obtaining a temporary authority.

In deciding not to cancel the on-licence we are leaving it open to Mr Singh to change his business in such a way that he might be able to obtain a temporary authority at a later date from the Agency, or a new on-licence. Also, we do not want to preclude the possibility of Mr and Mrs Singh finding a purchaser for the business based on there being an on-licence in force.

We record that Mr Herbert, as counsel for the Agency, did not make submissions attempting to justify the Agency’s decision. In response to submissions by Mr R Singh, Mr Herbert accepted that the Agency delegates hearing the temporary authority application appealed against, may have erroneously left the impression that cross-examination by parties was not permitted. That is not the correct position. Subsection (6) of s.106 of the Act enables the applicant, counsel and certain others to call, examine or cross-examine witnesses.”

DATED at WELLINGTON this day of December 2000

_____________________________

Judge J P Gatley

Chairman

pistachios.doc(aw)