Foon [2000] NZLLA 968 (5 July 2000)

Last Updated: 16 February 2012

Decision No. PH 968/2000

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by an application by MENG FOON for an on-licence pursuant to s.7 of the Act in respect of premises situated at Kaiti Mall, Jackson Street, Gisborne, known as "Meng's Place"

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Mr R J S Munro
Mr J W Thompson

HEARING at GISBORNE on 7 June 2000

APPEARANCES

Mr M Foon – applicant
Dr B Duncan - as agent of Medical Officer of Health – in opposition
Mr M S Caddie – objector on behalf of self and Kaiti Resident's Association
Mr A Cameron – objector
Mrs G N Bradford – Gisborne District Licensing Agency Inspector – to assist
Sergeant M W Stewart – NZ Police – to assist

DECISION

This is an application by Mr Meng Foon for an on-licence pursuant to s.7 of the Act in respect of premises situated at Kaiti Mall, Jackson Street, Gisborne, known as "Meng's Place". The application was opposed by a Medical Officer of Health and other objections were also received. It was then set down for public hearing.

Mr Foon appeared for himself. He told the Authority he has lived in Gisborne all his life and is an elected councillor of the Gisborne District Council. He seeks an on-licence to sell and supply liquor in conjunction with the operations of a TAB (a franchise), sports betting, food, and gaming.

The hours sought for trading are:

Monday to Sunday 10.00 am to 10.00 pm

A restricted designation is sought.

Mr Foon said the existing TAB on the premises had operated since 1989. Mr Foon also held an off-licence at nearby premises from 1992 to 1994 trading as "Kaiti Mall Liquor". He said no problems with these premises had been expressed by the Police, or any Gisborne District Licensing Agency Inspector. He has attended a training course on the Sale of Liquor Act, and has also paid for 4 others to receive training so that they may act as a General Manager when he is not present. Mr Foon already holds a General Manager's Certificate.

He produced a reference from a former Senior Sergeant of the Police who had been Officer in Charge of Kaiti policing when the off-licence was in operation. Mr A G Davidson said:

"Mr Foon operated the business in a competitive and professional manner, and from my recollection, the Police have no concerns in relation to the day to day operation of Kaiti Mall Liquor."

In answer to a question from Mr Caddie, Mr Foon agreed he had said he would not be selling liquor when seeking a resource consent from the Gisborne District Council. In answer to a similar question from Mr Cameron, he said it was not his intention at the time but in the light of subsequent advice, he had changed his mind. Mr Foon told the Authority that he needs an on-licence under the Sale of Liquor Act before he could be granted a gaming licence by officers of the Department of Internal Affairs.

As supporting witnesses he called Mr C Rickard, a friend who has known Mr Foon for over 20 years, Mr S Babington who works for Mr Foon, and Mrs J Pohatu who originally objected to the application but now supports it.

Mrs G Bradford, Gisborne District Licensing Agency Inspector, emphasised that she reports independently on each application. She referred to her report of 14 January 2000 and supported the application, recommending the premises be designated as "restricted".

Sergeant M W Stewart for the Police did not oppose the application.

Opposition/Objectors

Dr B M Duncan, a Public Health Specialist and Clinical Director of the Public Health Unit in Gisborne, appeared on behalf of the Medical Officer of Health, Dr D Hood. He objected because of the "considerable community opposition to the granting of the licence" and because of the applicant's public statement seeking an on-licence:

"to enable him to operate gaming machines",

and:

"lastly, given that the applicant has publicly stated his intention to use a liquor licence to circumvent other legislation, it places the suitability of the applicant in question."

Mr A Cameron told the Authority that he opposed the application. He said that because site suitability was not able to be considered by the Authority (we indicated in opening the hearing that site suitability was not a matter within our jurisdiction), he now had difficulty presenting evidence. Mr Cameron produced documents relating to the resource consent application by Mr Foon and highlighted a statement by Mr Foon to the Commissioner that he did not intend to sell alcohol from the premises.
Mr M Caddie also appeared as an objector. Mr Caddie's home is opposite Kaiti Mall. He is a registered teacher and qualified youth worker. In opposing the grant of an on-licence he referred particularly to s.13(1)(f), requiring the Authority to have regard (among other matters) to:

"(f) Whether the applicant is engaged, or proposes to engage, in –
(i) the sale or supply of any other goods beside liquor and food; or

(ii) the provision of any services other than those directly related to the sale or supply of liquor and food,

- and, if so, the nature of those goods or services."

Mr Caddie submitted that the Authority should consider all s.13(1) matters "equally" and that although suitability is listed in s.13(1) first, it is not the only matter for the Authority to consider.

Mr Caddie noted:

"The applicant has made public claims in official statements in the process of resource consent application that he will not be selling any alcohol from the premises."

”Considering this admission I believe that under s.13(1)(f) we must take full consideration of the overwhelming social cost associated with the proposed activities, namely the operation of gaming machines."

Mr Caddie sought, and by consent was granted the right to call individuals to further support his objection. They were Mr R Ackroyd, Ms S Kuia, Mr G H Cole, Mr S Tokemo, Mrs M Taukamo and Mrs J Ashwell. All spoke strongly in opposition to the application. Each person referred to problems if the on-licence was granted. They included issues under the Treaty of Waitangi, problems of gambling, drugs and alcohol, and low incomes in the area. None questioned the suitability or character of Mr Foon. Indeed, Mr Tokemo spoke of his respect for the character of Mr Foon.

The Authority then adjourned the hearing and subsequently issued a minute:-

MINUTE OF AUTHORITY

"The Authority heard submissions and evidence relating to this application in Gisborne yesterday. Certain evidence related to both site suitability (which is not a matter within the jurisdiction of the Authority) as well as other matters.

The evidence included a statement from the applicant during a resource consent hearing on 8 December 1999 before a Commissioner of the Gisborne District Council that:

'I don't have any intentions of selling beer or spirits to my customers at all as stated in the Officer's report 10.3. So hopefully this will lessen the concerns of those who have made submissions regarding alcohol abuse, noise, disorderly behaviour, and separatism.'

The resource consent was subsequently granted. Mr Foon has now changed his mind for reasons relating to a separate application for a gaming licence.

In view of the concerns raised by a number of objectors, opposition by the Medical Officer of Health, and the change in stance by Mr Foon who now seeks to sell and supply liquor from the premises, we seek to clarify the position under the Resource Management Act 1991.

We invite the Principal Administrative Officer of the Gisborne District Council (who is also the Secretary of the District Licensing Agency) to confirm or otherwise its decision to grant resource consent and subsequently issue a s.9(1)(e) Certificate in respect of this application.

In doing so, we record that on the evidence presently before the Authority, Mr Foon is a suitable person to hold the on-licence. Once we have that further information and a supplementary report from the Inspector (served on all parties) we would anticipate that our decision would issue promptly.

The hearing is adjourned accordingly."

Under cover of a supplementary report from a Gisborne District Liquor Licensing Inspector, our Secretary has received a letter dated 12 June 2000 from Mr R D R Elliott, the Chief Executive of the Gisborne District Council. It reads:

"MENG'S PLACE – CONFIRMATION OF BUILDING ACT
AND RESOURCE MANAGEMENT ACT
COMPLIANCE CERTIFICATE

"The above certificate issued by Council on 20 January 2000 was subsequent to a decision on application PN 199078 by an independent hearing commissioner acting under delegated authority to hear and decide on the aforementioned resource consent. The resource consent to 'operate a premises for the purpose of providing gambling and licensed bar facilities' was granted on 22 December 1999.

The compliance certificate issued for this premise was valid at the time of issue and remains so ..." (the emphasis is our own).

Authority Conclusion and Reasons

In considering an application for an on-licence the Authority is directed by s.13(1) to have regard to the following matters:

"(a) The suitability of the applicant:

(b) The days on which and the hours during which the applicant proposes to sell liquor:
(c) The areas of the premises or conveyance, if any, that the applicant proposes should be designated as restricted areas or supervised areas:
(d) The steps proposed to be taken by the applicant to ensure that the requirements of this Act in relation to the sale of liquor to prohibited persons are observed:
(e) The applicant's proposals relating to:

(i) The sale and supply of non-alcoholic refreshments and food; and
(ii) The sale and supply of low-alcohol beverages; and

(iii) The provision of assistance with or information about alternative forms of transport from the licensed premises:

(f) Whether the applicant is engaged or proposed to engage, in –
(i) The sale or supply of any other goods besides liquor and food; or

(ii) The provision of any services other than those directly related to the sale or supply of liquor and food, -

and, if so, the nature of those goods or services:
(g) Any matters dealt with in any report made under s.11 of this Act."

As already indicated when we adjourned the application, we find the applicant to be suitable to hold the on-licence.

In relation to the sale and supply of other goods and provision of other services [s.13(1)(f)], we find that the nature of those goods or services is compatible with the holding of an on-licence. Throughout New Zealand in other situations, similar on–licences have already been granted. A variety of statutory controls under other legislation may also apply on the premises.

We are also satisfied with the other matters in s.13(1) to which we must have regard.

Wider Concerns

In this application we are dealing solely with the question of a liquor on-licence. Since 1 April 1990, an applicant for a liquor licence does not need to demonstrate any "need" for it in the area. Prior to this date hearings on this question were conducted by the Licensing Control Commission. Under current law the suitability of the applicant and related questions are determined by this Authority. Locational and environmental effects are considered in the first instance by the local authority, in this case the Gisborne District Council, and subsequently on appeal or reference by the Environment Court.

The potential difficulties paraded before us relating to this application are multifaceted. The thrust of Mr Caddie's objection has been directed largely against the installation and operation of gaming machines. The grant or refusal of such licences is determined by the Minister of Internal Affairs or a delegate pursuant to the Gaming and Lotteries Act 1977.

We are not empowered to consider those matters and decline to consider such evidence.

This Authority has no jurisdiction to re-examine the merits of the certificate issued by the local authority under the Resource Management Act 1991. What is or is not permitted on any particular site within Gisborne is determined by the operative Plan.

An Independent Commissioner, after considering evidence, found that "the proposal does not run contrary to the objectives and policies" of either the Transitional Gisborne District Plan (City Section) or the Proposed Combined Gisborne Regional and District Plan, and granted the application subject to conditions.

In granting the resource consent, the overall application was considered as a non-complying activity, but the on-licence application was termed a discretionary activity. The Commissioner commented:

"The resource consent process is not a mechanism for the regulation of the sale of liquor or the licensing of gambling facilities in a manner as raised by a number of the submitters opposing the application. These issues are controlled under separate legislation and in terms of the Resource Management Act considerations, it is noted that the council has not acted to deem such activities prohibited in the zones within the district planning documents." (our emphasis).

Any change to the Gisborne planning documents, in the first instance is a matter for the Gisborne District Council. Any change to s.13 or other criteria for on-licences is a matter for Parliament to consider. In two recent annual reports to the Minister of Justice tabled in Parliament, we have formally commented on what we perceive as a 'gap' in legislation between the Resource Management Act 1991 and the Sale of Liquor Act 1989. The 1999 amendments did not address our concerns.

The Result

We are satisfied as to the matters to which we must have regard set out in s.13 of the Act and we grant the applicant an on-licence authorising the sale and supply of liquor to any person present on the premises for consumption on the premises and to allow the consumption of liquor on the premises.

The licence shall not issue until:-

1. The expiry of 20 working days from the date of this decision; that period is the time provided by s.140 of the Act for the lodging of a notice of appeal.
   

2. The Authority has received confirmation from the District Licensing Agency that all relevant clearances have been obtained.

A copy of the proposed licence is attached to this decision.

The applicant’s attention is drawn to s.25 of the Act obliging the holder of an on-licence to display:-

1. A sign attached to the exterior of the premises, so as to be easily read by persons outside each principal entrance, stating the ordinary hours of business during which the premises will be open for the sale of liquor AND
   

2. A copy of the licence, and of the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through each principal entrance.

DATED at WELLINGTON this day of July 2000

__________________________ _____________________________
R J S Munro J W Thompson
Member Member

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