Vintel Glen Road Superette, re [2003] NZLLA 573 (18 August 2003)

Last Updated: 2 October 2010

Decision No. PH 573/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by CHARITRA GANDHI (CHINTU) and DIVYA GANDHI trading in partnership pursuant to s.31 of the Act for an off-licence in respect of premises situated at 45 Glen Road, Stokes Valley, Lower Hutt known as “Vintel Glen Road Superette”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 30 July 2003

APPEARANCES

Mr D A Richards – agent for applicant

Mr J E Pepper – Hutt City District Licensing Agency Inspector – in opposition
Sergeant A F Cappleman – NZ Police - in opposition

RESERVED DECISION OF THE AUTHORITY

The Application

[1] This is an opposed application for an off-licence pursuant to s.31 of the Act by Charita Gandhi (Chintu) and Divya Gandhi trading in partnership as “Vintel Glen Road Superette” for an off-licence in respect of premises situated at 45 Glen Road, Stokes Valley, Lower Hutt. The issue is whether the applicants have established that their premises can accurately be described as a grocery store, with its principal business being the sale of main order household foodstuff requirements.

[2] The premises is one of three shops in a small shopping complex in a residential area. The applicants’ shop has a total floor area of 114 square metres but a retail area of 63 square metres. The premises had been trading previously under the name of “Vintel Glen Road Dairy”. The applicants changed the trading name of the premises in September 2002 to “Vintel Glen Road Superette”. Goods sold from the premises include tobacco products, newspapers, magazines, dairy foods, soft drinks, and a very limited range of grocery lines.

[3] The proposed trading hours are Monday to Sunday 7.00 am to 10.00 pm.

[4] Both the Police and the Inspector opposed the application on the ground that the premises is not a grocery shop but a dairy. The suitability of the applicants is not in question.

Background

[5] Mrs Divya Gandhi and her husband Charitra Gandhi have operated the premises at 45 Glen Road, Stokes Valley for almost four years. When it was purchased it was originally known as the “Glen Road Dairy”. They had previously managed another shop in Upper Hutt. Mr and Mrs Gandhi and their family have operated a superette in Newlands trading under the name of “Vintel One Stop Super Shop”. In addition, Mr and Mrs Gandhi and Mr Gandhi’s father are the holders of General Manager’s Certificates. Mrs Gandhi’s brother-in-law is also shortly going to attend a training course to obtain his General Manager’s Certificate.

[6] Mrs Gandhi said that they have recently overhauled the shop by increasing the product lines, and talking to customers about what products they would like to see stocked in the shop. She said she and her husband believed that it was a well-stocked superette. They had not considered changing the name of the premises until Mr Richards suggested it to them.

[7] Mrs Gandhi said that most of their customers are middle-aged people with grown-up families. There are a small number of teenagers that use the shop. The teenagers have no chance of obtaining either cigarettes or liquor from Mr and Mrs Gandhi because they have proven their ability to refuse such sales when they have been tested in a number of controlled purchase operations.

[8] Mrs Gandhi said that they have continually been asked to stock liquor so they decided to apply for a liquor licence. Mr Gandhi submitted a petition of over seventy names supporting their application for a liquor licence. They expect liquor to account for no more than 4 to 5% of turnover.

[9] Teresa Joy Search is a former bar manager and holder of a General Manager’s Certificate. She has lived in Stokes Valley for 32 years, and has known Mr and Mrs Gandhi personally for four years. She shops at their store daily. She spends $85 per week on “bits and pieces”, and she goes out of the Valley to purchase her meat and vegetables. She has never heard a negative comment about them. She considered that the grant of a liquor licence to Mr and Mrs Gandhi would be an “awesome asset” for the community. She considered that they had the maturity to meet all the requirements of the Sale of Liquor Act.

[10] Mr Garry Simpson has lived in Stokes Valley for 40 years. He is a regular customer of Mr and Mrs Gandhi. He chooses to shop there because of its convenience, and the excellent customer service. He does not purchase all his household foodstuffs there. He said that Mr and Mrs Gandhi had proven themselves responsible in the sale of cigarettes, and would be equally responsible in respect of the sale of liquor. He said it was the ultimate compliment to Mr and Mrs Gandhi that so many residents supported their application, particularly as most residential neighbours feared the intrusion of a liquor outlet.

[11] John Pepper is a Hutt City District Licensing Agency Inspector. He objected to the application because the premises is operating as a dairy. He based his assessment on the limited floor area of the premises, stock levels, range of goods available, and the past trading name of the premises. He referred to previous decisions of the Authority (B A Gilmore Limited LLA 405/93 and Caltex NZ Limited LLA PH 167/01) where the question of whether a premises was a dairy or a grocery store was considered.

To assist the Authority he referred to:

• Main order household foodstuffs represented 56% of gross turnover for October 2002.
• The total floor area of the premises is approximately 60 square metres.
• Stock levels are consistent with a dairy.
• Health registration records confirmed that for a number of years the premises traded under the name of “Glen Road Dairy”. The current owners changed the name to “Vintel Glen Road Superette” in September 2002.
  

[12] Sergeant A F Cappleman is the Officer In Charge of the Naenae Police Station. He is the Licensing Sergeant for Lower Hutt. He considered the premises was a dairy because:

• It has limited floor space.
• It supplies school lunches (pies).
• It has no trolleys or shopping baskets.
• The area between the shelves is limited.
• To introduce liquor would reduce the goods within the shop.
• It has an area out the back that could increase the overall area of the shop to 100 square metres.
• It sells milkshakes and cone ice creams, and therefore is an attraction to children.
• It has limited parking space out front.
  

He considered that the public would see it as a dairy.

[13] Mr Richards submitted that the applicants have run a successful business for 26 years. It is an isolated shop in a residential area. There is no suggestion that the grant of an off-licence would lead to an increase in liquor abuse, or that it would be at odds with the object of he Act.

Authority’s Conclusion and Reasons

[14] In Caltex New Zealand Limited LLA PH 167/2001 the Authority said at paragraphs [37], [38] and [39]:

“[37] Applying s.36, it is clear that a two-stage process is required. First the Authority must satisfy itself as to whether or not the absolute prohibition on the grant of an off-licence to a dairy is infringed. If it is, the application can proceed no further. In a series of applications since 1 April 1990 when the Act came into effect, we have determined on a case by case basis as a matter of fact whether premises are a dairy.

[38] Secondly, if the application surmounts that hurdle, the Authority must be satisfied that that the “principal business is the sale of main order household foodstuff requirements.”

[39] We summarised the position relating to a dairy in Jay & H Company Limited LLA PH 155/2001 in this way:

"Our earlier much repeated statement that whether any shop is a ‘dairy’ in terms of s.36(3)(b) is a matter of fact for the Authority to determine case by case remains. In determining the 'principal business' of any store we endeavour to apply a broad common sense approach: see Hunt (LLA PH 2098/99).

Consideration includes-

(1) The turnover percentages produced in accordance with Regulation 8(2)(j).

(2) The number and range of the items available. The greater the number and depth of foodstuff items available, the more likely the premise is to be a grocery store in terms of s.36(1)(d)(ii).

(3) The size of the premises. Larger premises are less likely to be categorised as a dairy.

(4) The layout of the premises. The presence of trolleys in multiple rows of goods assist categorisation as a grocery store.

(5) A view of the premises. The evidential weight given by the Authority to a view is usually considerable."

[15] Following the hearing, an Authority member made an inspection of the premises. He reported that the premises represented what a member of the public would consider a dairy. Of all the premises that the presently constituted Authority has inspected, this would be the most clear-cut example of a dairy. It makes no pretence of being a food market or grocery store. The signage on all the windows advertises ice-cream. The other exterior signs advertise the availability of milk, pies, and “Cookie Bear” biscuits. On entering the premises the predominant impression is the availability of sweets, milk, ice-cream, flavoured drinks, and cigarettes. The availability of main order household foodstuffs is relatively insignificant. In a case such as this a detailed and certified analysis would be a prerequisite to any grant of an off-licence.

[16] The applicants submitted a breakdown of the percentages of the various items sold in the shop to show that 56% of the items were main order household foodstuffs. That breakdown of revenue was inconclusive because the figures have not been certified by an accountant as required by Reg. 8(2)(j) of the Sale of Liquor Regulations 1990.

[17] On the basis of the evidence and those items listed above, particularly items (1), (2), and (5), we are not satisfied that the premises is a grocery store where the principal business of the store is the sale of main order household foodstuff requirements.

[18] In Taral Patel and Taruna Patel LLA PH 544/2002 we said:

“[17] In this case, the view which we took was very important in reaching a decision. Having been to the premises we were left in a position of uncertainty as to whether the business was a dairy or not. It seems to us that the Patels must carry the onus of establishing that the premises is not a shop ‘of a kind commonly known as a dairy’.

[18] We have therefore decided to adjourn the application for three months so that the Patels may come to a decision in the light of the forgoing comments. If they wish to proceed with the application we will require certified figures clearly categorising the items. We will then take a second view of the premises, and make a final decision. On the other hand if the Patels wish to retain the current character and style of the premises, then either they can withdraw the application, or it will be refused.”

[19] We took the same approach in Ramesh Hira and Pushpa Hira LLA PH 485/2003.

[20] Accordingly, we propose to adjourn the application for three months to give the applicants an opportunity to decide whether they want to proceed with the application, and to make the necessary changes to the premises so that it may be categorised as a grocery store. We will require certified figures to establish that the changes have been made. If the Inspector then reports that the premises can be categorised as a grocery store we will issue a decision on the papers. If the applicants do not want to make the necessary changes then they can withdraw the application, or it will be refused.

DATED at WELLINGTON this 18th day of August 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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