Eastern Foods Naenae Limited, re [2003] NZLLA 301 (1 May 2003)

New Zealand Liquor Licensing Authority

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Eastern Foods Naenae Limited, re [2003] NZLLA 301 (1 May 2003)

Last Updated: 14 March 2010

Decision No. PH 301-2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by EASTERN

FOODS NAENAE LIMITED pursuant to s.31 of the Act for an off-licence in respect of premises situated at 1 Hillary Court, Naenae, Lower Hutt, and known as “Naenae Liquor Shop”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 16 April 2003

APPEARANCES

Mr D A Richards – agent for the applicant
Mr J E Pepper – Hutt City District Licensing Agency Inspector – to assist
Mr N G Ursin - objector

RESERVED DECISION OF THE AUTHORITY

The Application

[1] This is an opposed application by Eastern Foods Naenae Limited for a new off- licence proposed to be sited at 1 Hillary Court, Naenae, in Lower Hutt. If the licence is granted, the premises will be known as the “Naenae Liquor Shop.” The type of premises in respect of which an off-licence is sought, is a "stand alone" bottle store pursuant to s.36(1)(c) of the Act. The principal business will be the sale of liquor.

[2] Mr Wedam Sami Latchman is the sole shareholder and director of the applicant company. He has owned and operated two licensed restaurants in Wellington, although the restaurants have since been sold. He has held a General Manager’s Certificate. For the last nine years he has also owned and operated a wholesale import business specialising in importing foodstuffs from India and the Pacific Rim. A branch of the business has been operating from premises at Hillary Court, Naenae for the last two years. When the next door shop became available for lease, Mr Latchman made the decision to set up a bottle store.

[3] Mr Latchman undertook certain building works aimed at ensuring that there would be no access between his grocery store and the proposed bottle store. There were problems about the issue of a building permit. Mr Latchman was apparently under a misapprehension that a building permit was not required. The problem has now been resolved, the work has been completed, and a compliance certificate has been issued. The issue about the permit not only caused delay with the project, but was one of the grounds specified by the objector as an indication of Mr Latchman’s unsuitability.

[4] The applicant company supplied a certificate pursuant to s.31(1)(e) of the Act, confirming that the proposed use of the premises for an off-licence met the requirements of the Resource Management Act 1991, and the building code to the extent provided for in Sections 7 and 8 of the Building Act 1991.

[5] The trading hours sought are:

Monday to Sunday 9.00 am to 11.00 pm

These hours are in keeping with the hours authorised for other premises of a like nature.

[6] The applicant asked that the whole of the premises be designated as "supervised". This would seem to suggest that the intending licensee’s obligations and responsibilities to the law, concerning potential sales to minors are being taken seriously. The request also accords with a recommendation we made in our last Annual Report to Parliament.

[7] There was no objection from the Police, or the District Licensing Agency Inspector. Public notification attracted one objection from Mr N G Ursin. In his original objection, Mr Ursin spoke about the lack of demand for such a facility, and the fact that the area was more than adequately served by other licensed premises. He also commented on the suitability of the applicant, and the hours of operation. He revised his objection when he became aware of the more restricted criteria to which the Authority must have regard when considering the application. However, at the hearing, he gave no evidence about the hours of operation.

[8] Mr Ursin barely meets the criteria set out in s.32(1) of the Act:

"Any person who has a greater interest in the application than the public generally may object to the grant of an off-licence."

[9] In Purification Technologies Ltd v Taupo District Council (Decisions W 10/95) [1995] NZRMA 197, an issue arose as to what was meant by “having an interest in the proceedings greater than the public generally” under s.274 of the Resource Management Act. Applying Australian authorities the Planning Tribunal held:

“... on the true interpretation of the section, the interest in the proceedings greater than that of the public generally which qualifies a person to appear and call evidence must be one of some advantage or disadvantage, such as that arising from a right in property directly affected, and which is not remote.”

[10] Mr Ursin lives half a kilometre away from the proposed premises. When pressed as to how he stood to be affected by the applicant’s application, Mr Ursin stated that he and his family used the underpass which is situated in front of the premises. Their safety might accordingly be compromised by the establishment of a bottle store nearby.

[11] In view of the objection, the matter was set down for a public hearing. At the hearing, Mr Ursin was present to support his objection. He expressed concerns that the applicant company had a limited liability of $100. He submitted two photographs showing a van parked on the footpath outside the premises. The van appeared to be a worker’s van. Although Mr Ursin was unable to establish who the driver was, he submitted that this showed a cavalier attitude by Mr Latchman to parking bylaws.

[12] Mr Ursin was concerned about the location of the premises as he stated that that the area was frequented by young and impressionable school children from two local schools. He argued that the nearby subway was regularly used by residents, and their safety would be compromised by the presence of a liquor store. His concerns were with the site of the proposed bottle store, and the underage drinking and the disorderly behaviour which is often associated with the over consumption of liquor.

Decision

[13] The criteria to which we must have regard when considering an application for an off-licence are contained in s.35(1) of the Act. These criteria are:

(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, 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) Whether the applicant is engaged, or proposes to engage , in –

(i) The sale or supply of any other goods besides liquor, or

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

and, if so, the nature of those goods or services:

(f) Any other matters dealt with in any report made under section 33 of this Act.

[14] As will be seen, the three criteria relevant to this application are:

(i) The suitability of the applicants,

(ii) The days and hours of proposed trading, and

(iii) 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 would be observed.

[15] In terms of suitability, Mr Ursin has failed to make his case. He referred to the van being parked illegally, the $100 company, the lack of a building permit, and a company office search in which Mr Latchman’s name had been recorded the wrong way round. We have no evidence who was driving the van or how long it was parked. By contrast Mr Latchman is clearly a successful businessman. He has held a manager’s certificate and two restaurant on-licences under the Act. There was no evidence that those licences had been conducted improperly. There are no relevant convictions and no concerns expressed by the Police or the District Licensing Agency Inspector. In our view, his company is a suitable entity to be granted an off- licence. This would not be the first time that a $100 company has been granted a licence. The share capital has little relevance to the capital outlay.

[16] We appreciate Mr Ursin’s concerns about potentially bad behaviour. It is important to point out that the licence only permits sales for consumption off the premises. We have very little evidence (anecdotal or otherwise) about any tendency for patrons of any off-licence to drink near the off-licence which supplied them with the liquor. It must be remembered that several 24 hour licences have been granted to supermarkets, and to date we have received no evidence of disorderly behaviour in the carparks. We are not prepared to accept the suggestion that the establishment of an off-licence will automatically lead to an increase in liquor abuse or disorderly behaviour. The Authority’s tendency has been to give less weight to "perceived" problems, on the basis that any licence can be removed with the same ease as it can be granted.

[17] In Cayman Holdings Limited LLA PH 145/2001 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 are 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 District Council.”

[18] Both the applicant and the objector are aware that a licence is granted in the first instance for twelve months. If renewal is sought some of the society’s 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 Act and the conditions of the licence.

[19] This decision is given against a background in which a recent controlled purchase operation in Wellington has revealed that no less than eight out of twenty-one off-licensed premises were prepared to sell liquor to minors without asking for identification. This is a very disappointing result, and we believe that the consequential suspension applications have had a serious impact on the industry. Such a result however, should not prevent Mr Latchman from having the opportunity to do better, particularly as he has asked for a supervised designation for the premises.

[20] We are satisfied as to the remaining matters to which we must have regard as set out in s.35(1) of the Act. Given that the applicant is suitable, and has a Resource Management certificate, then an off-licence is appropriate. We grant the applicant an off-licence for the sale or delivery of liquor on or from the premises described in the licence to any person for consumption off the premises.

[21] The hours will be:

Monday to Sunday 9.00 am to 11.00 pm

The premises will be supervised. A copy of the licence setting out the conditions to which the licence is subject is attached to this 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. The applicant is not entitled to sell liquor until the licence is issued.

[23] The applicant’s attention is drawn to s.48 of the Act obliging the holder of an off-licence to display:

(a) A sign attached to the exterior of the premises so as to be easily read by persons immediately 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 1st day of May 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

NaenaeLS.doc(nl)