Lee, re [2003] NZLLA 127 (12 March 2003)

Last Updated: 21 February 2010

Decision No. 127/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by JONG-HO LEE pursuant to s.9 of the Act for an on-licence in respect of premises situated at 6/50 High Street, Auckland City known as “Oriental Delight”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 3 March 2003

APPEARANCES

Mr J H Lee – applicant
Mr G S Whittle – Auckland District Licensing Agency Inspector – in opposition
Ms J Shin – Korean interpreter – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an opposed application for an on-licence pursuant to s.7 of the Act. The premises are situated at Shop 6/50 High Street, in the Auckland Central Business District. It is similar to many Korean restaurants in the city. The premises have been the subject of a liquor licence since 9 October 2001. The application for a new on-licence has been brought about following a change of ownership of the business.

[2] The premises are zoned Commercial 8C under the Auckland City 1991 Transitional District Plan and are in the Queen Street Valley Precinct under the Auckland City Proposed District Plan Central Area Section. The proposed use as a restaurant with food and beverage is a permitted activity.

[3] The applicant, Jong-Ho Lee, is Korean by birth. He has been residing in New Zealand since September 2001. His ability to speak and understand the English language is limited and an interpreter was required. Mr Lee is entitled to work as a self-employed person. Mr Lee’s son, See-Hyung Lee has been in New Zealand since April 2001. Apparently, he can speak English fluently.

[4] The nature of the proposed business is a restaurant called "Oriental Delight". Mr Lee operated under a temporary authority between 29 April 2002 and 28 July 2002. However, Mr Lee neglected to apply to renew the temporary authority. He has been operating as an unlicensed restaurant since September 2002. The application for the on-licence was filed on 27 August 2002.

The Application

[5] Mr Lee represented himself at the hearing. He was not well prepared to present his case, but with the help of the interpreter was able to answer all questions put to him. He took over the restaurant in March 2002. The manager of the restaurant is his son, See-Hyung Lee. According to Mr Lee, his son has a General Manager’s Certificate.

[6] Mr Lee had a basic understanding of the requirements of the Sale of Liquor Act 1989. He acknowledged that his son would be responsible for compliance with the Act and the conditions of the licence. He stated that two thirds of his customers are Korean. The other third comprise Japanese, Chinese and New Zealanders. The majority of liquor which is sold comprises Soju and beer. There will be no designation.

[7] The hours sought by the applicant are:

Sunday to Friday 10.00 am to 10.30 pm

[8] In summary, this is a modest operation. However, the District Licensing Agency Inspector had concerns about Mr Lee’s suitability to hold an on-licence. His concerns arose from Mr Lee’s failure to renew his temporary authority, the selling of liquor illegally, and Mr Lee’s lack of co-operation during the interview process. Accordingly an adverse report was filed and the matter set down for a public hearing. Had Mr Lee taken advice and called to see the Inspector we have no doubt that the outstanding issues could have been resolved by the parties.

The District Licensing Agency

[9] Mr G S Whittle is an Inspector employed by the Auckland District Licensing Agency. Mr Whittle visited the premises on 9 September 2002. He noticed that liquor was being exposed for sale in a fridge on the premises. The fridge was large enough to hold two or three dozen cans and some Soju. Mr Whittle suggested that it was a reasonable inference to draw that liquor had been sold between the time the temporary authority had expired, and his visit, a period of five weeks. He asked a staff member to remove the liquor and this was done. An equally reasonable inference can be drawn that since that time (six months) no liquor has been sold at the premises.

[10] Mr Whittle had difficulty in communicating with Mr Lee, and had to do so through a staff member. Mr Lee gave evidence at the hearing that the staff member was Chinese and while the staff member could understand what Mr Whittle was saying, Mr Lee could not understand what the staff member was saying to him. He therefore decided to return to his food preparation. Mr Whittle interpreted such actions as lacking in co-operation. However, it seems that there a language barrier which prevented dialogue between the two.

[11] From the evidence given by Mr Lee it seems that initially he assumed that once he began operating, he could sell liquor. This assumption was based on his knowledge on Korean licensing laws. He said that once one opens a restaurant in Korea, the ability to sell liquor is automatic. He did not realise that his temporary authority was to expire. He had placed some faith in the previous owner but that faith had been misplaced.

Conclusion

[12] 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.

[13] In this case, the only issue to be determined by the Authority is the suitability of the applicant. There was no opposition from the Police. The sale and supply of liquor in the restaurant will be very limited. Because English is his second language, Mr Lee has difficulty in understanding the nuances of the Act, although he had a basic understanding of the need to decline service to prohibited persons. Mr Lee has explained why there was a lack of co-operation with the Inspector.

[14] In Nanette Carole Seear LLA PH 49/2002 we were confronted by a similar problem. The owner of the premises had little experience in the conduct of licensed premises, and her knowledge of the Act was limited. Encouraged by the Christchurch High Court in Waimakariri Tavern & Restaurant Limited 11 October 2001 AP 32/01, we determined that an undertaking would have to be signed to ensure that the licensing standards would not be compromised. We intend to do the same in this case.

[15] Before a licence can be granted, Mr Lee will be required to sign the following undertaking:

(i) That See-Hyung Lee will be retained as a manager of the premises for at least twelve months from the grant of the licence, with the additional duties of giving supervision, training and advice to Jong-Ho Lee on matters of host responsibility and the management and commercial techniques involved in the running of a licensed restaurant.

(ii) That at all times as required by the Sale of Liquor Act properly certificated English speaking managers will be in attendance on the premises.

[16] Any grant of an on-licence will be conditional upon confirmation that See-Hyung Lee is the holder of a General Manager’s Certificate, and the signing of this undertaking. Mr Lee needs to know that any breach of the undertaking will be viewed as an example of lack of suitability to hold a licence.

[17] There are a number of safeguards built into the Act. Any new on-licence is issued for a period of one year. This gives the authorities the opportunity to monitor the business to see whether their concerns are realised. The Authority has the power to refuse to renew the licence.

[18] The Act requires us to be satisfied that the applicant is suitable and will uphold the law. We are satisfied as to the matters to which we must have regard as set out in s.13(1) of the Act. We grant the applicant an on-licence for the sale and supply of iquor for consumption on the premises to any person present on the premises. Liquor may only be served when the premises are being operated as a restaurant. A copy of the licence setting out the conditions to which the licence is subject is attached to this decision.

[19] The hours for the on-licence will be

Sunday to Friday 10.00 am to 10.30 pm

[20] The licence will not issue until:

(a) 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.

(b) The applicant has signed an undertaking in terms of paragraph 15 above, and the Inspector has confirmed that Mr S H Lee is the holder of a current General Manager’s Certificate.

[21] 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 12th day of March 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Oriental Delight.doc(nl)