The Mall Sports Bar and Cafe, re [2002] NZLLA 532 (27 September 2002)

Last Updated: 2 October 2010

Decision No. PH 532/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by DIGITIZE LIMITED pursuant to s.9 of the Act for an on-licence in respect of premises situated at Shop 26, Mangere Town Centre, 93 Bader Drive, Mangere, Manukau City, to be known as "The Mall Sports Bar & Café"

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at AUCKLAND on 17 September 2002

APPEARANCES

Mr D G Scott – as agent - for applicant
Mr A Wilkinson – Manukau District Licensing Agency Inspector – to assist
Ms R M Leslie – objector and representing Mangere Citizens Advice Bureau – in opposition

ORAL DECISION OF THE AUTHORITY

The Application

[1] This is an opposed application by Digitize Limited pursuant to s.9 of the Act for an on-licence. The proposed premises are to be situated in an existing photo processing shop in the Mangere Town Centre. The shop itself is quite small and narrow. The Mangere Town Centre is a large and attractive retail mall, with substantial parking facilities. Opposite the mall on two sides are commercial offices, and sporting fields. The residential areas are a considerable distance away.

[2] The Chhima family has operated businesses in the mall for thirty years. They started with a fruit shop which they ran for five years. They then changed the operation to a lunch bar which traded for nine years. For the last fifteen years they have operated the photo shop from the existing site. That business is to be moved to another site in the mall. The Chhima family trust owns the premises.

[3] Digitize Limited is a family company. The directors are Damayanti Chhima, her husband, Ganesh Chhima, her daughter Harsha Hansa Chhima, and her son Manoj Manhur Chhima. Three members of the extended family have already received manager's certificates. A fourth member has made an application. There are no concerns about the suitability of the company.

[4] It is clear that the application has undergone a number of changes since the application was filed. As a consequence of the many objections received, and after careful consideration, the Chhima family has decided to operate a tavern providing sports entertainment and healthy food. The initial name was going to be "Roulette". In keeping with the name, a gaming machine alley was proposed.

[5] Since then, the emphasis has switched to the promotion of food, and sports entertainment. Included in the tavern will be internet access, big screen entertainment, and guest appearances by international sporting celebrities. There will be no karaoke or other forms of live entertainment. Taped or recorded music will be played by way of background only. What the Chhimas wish to achieve is a facility where people can have a quiet drink or alternatively a snack.

[6] The original trading hours applied for, were:

Monday to Sunday 7.00 am to 3.00 am the following day.

[7] As a result of the numerous objections (including an objection from New Zealand Police), the trading hours became more and more restricted. Prior to the hearing, the applicant company had agreed to reduce the trading hours from 9.00 am to 1.00 am the following day. However, at the hearing, Mrs Damayanti Chhima agreed to reduce the hours still further. The proposed hours are now:

Monday to Saturday 9.00 am to 9.00 pm

[8] These hours are in keeping with the opening hours of the Mall, and exclude Sunday trading. It has to be said that the hours are now very modest. As a consequence, it is our view that the venture is unlikely to attract any unruly elements.

[9] The food on offer will be samosas, spicy chicken drum sticks, various Indian snacks, pizzas and toasted sandwiches. The food will be brought in fresh each day, and reheated. The business has already commenced to sell food, and the Chhimas have noted that this has created considerable interest, and positive feedback from the community. We were disappointed to hear that there will only be plastic plates and cutlery. We understand that a coffee machine will be installed.

[10] Mrs Chhima stated that there might still be a presence of gaming machines, although it is expected that these will be the last items to be installed. She said that the company had made no preliminary plans, and she had no idea what rental might be paid. She undertook that there would be no more than nine machines. It is probable that given the space available, there will be less than nine. In accordance with recent decisions of the Authority, there will be no separate gaming room. We are satisfied that the machines will not play a significant part of the proposed business. If installed, the machines are destined to take up no more than 5% of the gross floor area.

[11] A final building compliance certificate dated 12 July 2002 was filed at the hearing.

[12] Public notification of the application attracted 43 objections. 31 of these objections were from shopowners and staff. 12 were from local residents. One was anonymous. However, only one person attended the hearing to support her objection. Ms J Khatri (Broadway Jewellers) was unable to be present because of an accident. As we have said in the past, if objections are going to have any probative or persuasive value, then it is important not only that the objectors exercise their right to object, but that their objection be subject to scrutiny at a public forum.

[13] It may well be that Mrs Chhima is right. She expressed the view that many of the objections had been stimulated by the work of one person, whose presence on the committee of the Mangere Town Centre Business Association has since been terminated. It may also be, that a significant number of objectors have been influenced by the letter dated 10 September last, explaining the company's basic philosophy. Furthermore, the agreement to reduce the hours of trading will have had a major impact on the objectors. The Mangere Town Centre Business Association wrote a letter dated 16 September last in which it stated:

"We have been assured that the business will be well run and controlled and therefore we withdraw our previous objections."

[14] Ms R M Leslie represented herself and the Mangere Citizens Advice Bureau. She was content to rely on the objections which had been filed in February 2002. Her main concern was vandalism in the Mall resulting from drunkenness. The Bureau had the same concerns. Having listened to the evidence, we have serious reservations that the business will attract the sort of people capable of committing the type of offences predicted by the objectors.

[15] The remaining objections raised a number of issues including potential disorderly conduct, potential increase in crime, hours of trading, loss of value, and community safety. Some objectors referred to the number of existing liquor outlets which already serve the community. The Sale of Liquor Act 1989 no longer requires an applicant to establish need. Parliament has essentially legislated for a ‘free market’ for liquor outlets. Other licensed premises are prevented from opposing any new applications (s.13(2) of the Act).

[16] Mr D G Scott referred to Cayman Holdings Limited LLA PH 145/2001 in which the Authority stated:

"The Authority's approach has been to satisfy itself that the applicant is suitable and will uphold the law. The Police or District Licensing Agency Inspector is empowered to apply to vary, suspend or cancel a licence pursuant to s.132 of the Act if problems arise. Apprehension of problems alone is not sufficient to prevent a suitable applicant, particularly one supported by a District Licensing Inspector and the Police from exercising rights granted by the Kawerau District Council."

[17] In other words, concerns by residents about increased criminal or anti-social behaviour, will not in themselves be sufficient to prevent the grant of a licence. In the majority of on-licence applications, the essential issues to be determined by the Authority will relate to the suitability of the applicant, and the days and hours of operation. The suitability test requires us to be confident that the applicant will obey the law and the conditions of the licence. The tailoring of conditions in each licence to meet each particular factual situation is the responsibility of the Liquor Licensing Authority, or if unopposed, the District Licensing Agency. In this case, the hours of trading have already been substantially trimmed.

[18] Both the applicant and the objectors need to be reminded that a liquor licence is granted in the first instance for twelve months. If renewal is sought, some of the community concerns can be re-examined in the light of evidence then available. In this way the applicant has a clear incentive to ensure that it complies with the resource management requirements of the Manukau City Council. During the year, the premises will be monitored by the District Licensing Agency Inspector to ensure that there are no deviations to the essential style of the operation, as depicted by Ms Chhima. If, for example, live music was being played, then the Inspector has the power to apply to have the licence suspended or cancelled.

Conclusion

[19] 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 proposes to engage, in –

(i) The sale or supply of any other goods besides liquor and food; or

(ii) The provision of any service other than those directly related to the sale and 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 section 11 of this Act.

[20] We are satisfied as to the matters to which we must have regard as set out in s.13(1) of the Act. Given that the applicant is suitable, and has an RMA certificate, then a liquor licence is appropriate. We grant the applicant an on-licence for the sale and supply of liquor for consumption on the premises, to any person present on the premises.

[21] The hours will be Monday to Saturday 9.00 am to 9.00 pm. The premises will be designated as supervised. A copy of the licence setting out the conditions to which the licence is subject will be attached to the decision.

[22] The licence will not issue until 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.

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

• [a] 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
  
• [b] A copy of the licence, and the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through the principal entrance.
  

DATED at WELLINGTON this 27th day of September 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

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