Homestore [2003] NZLLA 433 (18 June 2003)

Last Updated: 22 July 2010

Decision No. 433/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by THE HOMESTORE (NEWMARKET) LIMITED for an off-licence pursuant to s.29 of the Act in respect of premises situated at The Rialto Centre, 153-185 Broadway, Newmarket, Auckland, known as "The Homestore"

BEFORE THE LIQUOR LICENSING AUTHORITY

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

DECISION

This is an application by The Homestore (Newmarket) Limited for an off-licence in respect of premises situated at The Rialto Centre, 153-185 Broadway, Newmarket, Auckland, known as "The Homestore".

The application is in respect of premises in which the applicant contends that the sale of liquor would be an appropriate complement to the kinds of goods sold in the premises. The applicant sells high quality kitchenware, china and glassware, linen, furniture, coffee machines, ceramics, packaged deli food, gift-baskets and other assorted giftware.

The District Licensing Agency Inspector has opposed the application. The Agency Inspector argues that the grant of an off-licence in this case is precluded by s.36(4) of the Act, and cites the High Court decision of Lopdell v Deli Holdings Limited [2002] NZAR 227 as supporting his argument.

Section 36(4) provides that:

Nothing in subsection (2)(b) of this section shall authorise the grant of an off-licence in respect of any supermarket or grocery store, or any other premises on which the principal business is the sale of food or groceries.

In Lopdell v Deli Holdings Limited, Randerson J concluded that s.36(4) precludes the grant of a complementary style off-licence pursuant to s.36(2)(b) to premises on which the principal business is the sale of food or groceries “whether or not the business or premises are similar in nature to a supermarket or grocery store.” Subsequent decisions of the Authority have reflected this interpretation of s.36(4), which is narrower than that previously adopted by the Authority.

In the present case, the principal business is not the sale of food or groceries. The business specialises in high quality “homestyle” accessories. Therefore, s.36(4) does not apply and the Agency Inspector’s opposition cannot be sustained.

Public notification of the application has attracted an objection from a nearby business. The objection is based on the perceived potential for disorder and the number of liquor outlets in the area.

Apprehension of problems of the nature described are purely speculative; and we are precluded, in s.35(2) of the Act, from taking into account any prejudicial effect that the grant of the licence may have on any other business conducted under any other licence. In other words, the number of liquor outlets in the area is not a matter that the Authority can take into account. An on-licence has already been issued for the premises for use when cooking demonstrations and classes are taking place. We would have thought that there was greater cause for concern with an on-licence, rather than an off-licence.

We note that the applicant has restricted the hours of trading to 11.00 pm.

Having considered the application, we believe that the objection is based on grounds outside the scope of the Act in terms of s.106(2)(b). Accordingly, we deal with the matter on the papers.

In Wine & Spirit Merchants of NZ Inc v James Gilmour & Co Ltd [1997] NZAR 134 Tompkins J stated that the Authority had to decide in the context of the case whether the sale of liquor was an appropriate complement to the kind of goods sold. Each case having to be decided on its own facts. His Honour stated that an essential issue for consideration is subs. (4) of s.36.

The Authority has viewed the premises. It is accepted that the sale of wine would be an appropriate complement to many of the goods sold in the premises. In particular, there are a number of wine accessories including glasses, bottle openers and wine racks. In addition, there is a good range of olive oils, pestos and so on. The opportunity to purchase a bottle of wine as a gift would be an excellent complement to the range of many of the goods on display. The off-licence would only be appropriate in respect of the sale of wine. The applicant has accepted such a restriction. As stated above, there is no conflict with s.36(4) of the Act.

We are satisfied as to the matters to which we must have regard as set out in s.35 of the Act and we grant the applicant an off-licence pursuant to s.29.

The applicant's attention is drawn to s.48 of the Act obliging the holder of an off-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 18th day of June 2003

B M Holmes
Deputy Secretary

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