Alicetown Superette, re [2003] NZLLA 575 (18 August 2003)

Last Updated: 2 October 2010

Decision No. 575/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by ALICETOWN FOODMARKET (1977) LIMITED for an off-licence pursuant to s.31 of the Act in respect of premises situated at 53 Victoria Street, Alicetown, Lower Hutt, known as “Alicetown 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 D B Bentley – Hutt City District Licensing Agency Inspector – in opposition
Sergeant A F Cappleman – NZ Police – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an opposed application for an off-licence. The issue is whether the applicant has established that its premises can accurately be described as a grocery store and not a dairy, with its principal business being the sale of main order household foodstuff requirements.

[2] Mr D A Richards as agent for the applicant contended that “Alicetown Superette” was not a dairy within the meaning of s.36(3)(b) of the Act. It was his submission that in terms of the Act, the business was a grocery, having for sale most of the product lines that one could find in a supermarket. One of the main drawbacks to the application, was the size of the business.

The Background to the Application

[3] The applicant company is owned and operated by Mr Champak Patel and his wife. They are the directors of the company. They started trading as “Alicetown Foodmarket” as far back as 1977. The business was originally opened as a foodmarket, and has traded in this way ever since. Furthermore, the premises have always been registered by the council as a grocery shop, although it is shown in the “Yellow Pages” as a dairy.

[4] The Patels still have a few customers for whom they provide home deliveries. They acknowledged that with the introduction of supermarkets, they have had to diversify their product lines, and their business is now better described as a convenience store. Most of the grocery lines are discounted. They have never sold or displayed cone ice creams or milk shakes.

[5] They open the shop at 7.30 am and generally trade until 9.30 pm each day, although on Sundays the opening time is 9.00 am. They had no real intention to sell liquor but finally gave in to pressure from their customers. The proposed hours of trading are as above.

Monday to Saturday 7.30 am to 9.30 pm

Sundays 9.00 am to 9.30 pm

[6] Suitability is not an issue in this case. The Patels are to install a camera surveillance system. In addition, they have a diary and an incident book. Mr Patel has undertaken a course of training with D A Richards & Associates. We are confident that the Patels will obey the law regarding the sale of liquor to prohibited persons.

[7] The Patels have recently re-designed the layout of the shop to place greater emphasis on the main order household foodstuffs. They presented a petition signed by 180 persons supporting the application for an off-licence. This petition from the neighbours was a powerful statement in terms of the suitability of the applicant company. Mr Patel stated that the majority of customers were adult.

[8] The premises are located in the business area of Alicetown. The floor area is only 90 square metres. Mr Patel produced figures which showed that the majority of the goods which were sold fell into the category of main order household foodstuff requirements. The categories which were included were:

1. Prepared meals

2. Baked Goods

3. Tinned Food

4. Meat

5. Dry Goods

6. Milk Products

7. Condiments

8. Coffee and cocoa

9. Fruit and Vegetables

10. Nuts

11. Water/Syrup and cordials

12. Eggs

[9] Accordingly, Mr Richards submitted that by applying the two stage process propounded in Caltex New Zealand Limited LLA PH 167/2001, the business could not be defined as a dairy, and the figures showed that the principal business at the store was the sale of main order household items. The Inspector accepted that the figures tended to indicate that the shop was a grocery store.

The Opposition

[10] Sergeant A F Cappleman visited the store. He thought that it was cluttered because of the limited floor area. He noted that there was only room for one person to walk between the food stands, and that there were no trolleys available. Mr Patel said that these were available if requested.

[11] Mr Dean Bentley is the District Licensing Agency Inspector for Hutt City. He noted that the signage indicated that the shop was a foodmarket. He thought a wide range of household foodstuffs were available. On the other hand there was a large advertisement for “Paradiso”, which gave the impression of a dairy. He noted the Authority’s decision in Every Mart Limited and Aie Ran Park and Jee Young Park LLA PH 406-407/2002. In those cases, the Authority had suggested that any shop with a floor area of less than 100 square metres would be unlikely to avoid being classified as a dairy. He thought that at that time, the quantity of main order household requirements was less than he would have expected to find in any dairy in Auckland.

Conclusion

[12] The issue in this case is what is the principal, or main, or predominant, business being conducted at 53 Victoria Street, Alicetown, Lower Hutt. Even if the premises is a grocery/convenience store, the applicant must then prove that the principal or main business is the sale of main order household foodstuff requirements.

[13] In Jay and H Company Limited LLA PH 155/2001 the Authority stated:

“In determining the ‘principal business’ of any store we endeavour to apply a broad common sense approach. 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.”

[14] We apply the J and H Company Limited criteria to the present case.

The turnover percentages

[15] On the figures provided, the applicants have established that main order household foodstuffs are the main items sold. The fact that the Patels have never used the premises to sell ice creams in the cone or milk shakes supports this view.

Number and range of items

[16] Even the Inspector agreed that the shop displayed a wide range of household foodstuffs which one might expect to find in a grocery store. The fact that such items are all represented in the turnover figures, shows that the items are not just on display in order to obtain a licence. They are a very real part of the business.

Size of the premises

[17] We have said before that in terms of the supervision of licensed premises, and compliance with the Act and the off-licence, it is important that there is plenty of space, not only for the appropriate display of the liquor, but for monitoring the public as well. In a small crowded shop without designation, we believe that an off-licence would be inappropriate.

[18] We have said in relation to other licence applications, that the way in which the sale of liquor is portrayed to the public is an important factor in preserving the integrity of the Act. While we accept that in every application for an off-licence, we are bound to consider the criteria set out in the Act, there are other matters which may be brought into the equation. We will be slow to exercise our discretion in respect of premises that are clearly inappropriate because of size or other factors. In any small shop an applicant will be more limited in attempting to detect prohibited persons.

[19] In this case the size of the premises is a very limiting factor but because of all the other positive aspects we do not accept that such a limiting factor can prevent the issue of the licence.

The layout of the premises

[20] It is accepted that the layout is a direct result of the available space. By painting the window with an advertisement, more space has been made available. The layout in not much different to a central city convenience store many of which have been granted an off-licence.

The view of the premises

[21] A member of the Authority took a view of these premises. He considered that the shop was reasonably spacious in comparison with other premises visited. Although, there was a small display of loose vegetables and fruit, he took the view that the premises were best described as a superette. He was satisfied that the premises were not a dairy.

[22] In this case, the Authority is governed by s.36 of the Act. This section describes the types of premises in respect of which off-licences may be granted. The relevant parts of the section read:

(1) Except as provided in subsections (2) and (5) of this section, an off-licence shall be granted only –

(a) To the holder of an on-licence in respect of a hotel or tavern, in respect of the premises conducted pursuant to that licence; or

(b) To the holder of a club licence, being a club that is entitled under paragraph (i) or paragraph (j) of section 30(1) of this Act to hold an off-licence, in respect of the premises conducted pursuant to that licence; or

(c) In respect of premises in which the principal business is the manufacture or sale of liquor; or

(d) In respect of –

(i) Any supermarket having a floor area of at least 1000 square metres (including any separate departments set aside for such foodstuffs as fresh meat, fresh fruit and vegetables, and delicatessen items); or

(ii) Any grocery store, where the Licensing Authority is satisfied that the principal business of the store is the sale of main order household foodstuff requirements.

(3) Nothing in subsection (1) or subsection (2) of this section shall authorise the grant of an off-licence in respect of –

(a) Any service station or other premises in which the principal business is the sale of petrol or other automotive fuels; or

(b) Any shop of a kind commonly known as a dairy.

[23] For the reasons expressed, the applicant has satisfied us that it meets the criteria, and that the premises are not a dairy. An off-licence will be granted for the sale or delivery of liquor on or from the premises described in the licence to any person for consumption off the premises.

[24] The hours of trading will be:

Monday to Saturday 7.30 am to 9.30 pm

Sunday 9.00 am to 9.30 pm

[25] 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 company is not allowed to sell liquor until the licence is issued. A copy of the licence setting out the conditions is attached to this decision.

[26] The applicant’s attention is drawn to s.48 of the Act obliging the holder of the off-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 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 August 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Alicetown.doc(nl)