Mungavin Superette, re [2003] NZLLA 576 (19 August 2003)

Last Updated: 2 October 2010

Decision No. PH 576/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by KATIE MARY TEPANIA and MOHAMMED MUKHTAR ALI trading in partnership for an off-licence pursuant to s.31 of the Act in respect of premises situated at 14 Mungavin Avenue, Porirua, known as “Mungavin Superette”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin

Member: Mr J C Crookston

HEARING at WELLINGTON on 29 July 2003

APPEARANCES

Mr D A Richards – agent for applicants
Mrs D M Robertson - Porirua District Licensing Agency Inspector – to assist
Mr G D S Taylor - for Mazina Jalal – in opposition
Mrs M Hughes – in opposition
Mrs S Wetere – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application by Katie Mary Tepania and Mohammed Mukhtar Ali trading in partnership for an off-licence pursuant to s.31 of the Act for the premises known as “Mungavin Superette” situated at 14 Mungavin Avenue, Porirua. The premises is situated in the old Wellington Free Ambulance building which has been converted into a general grocery store. The superette is located in the Mungavin Avenue shopping centre. Of relevance is the municipal hall across the road. Because the business is new the applicant is unable to provide a breakdown of the grocery items to be sold.

[2] The applicants are already the holders of an off-licence issued on 18 December 2002 for premises known as the “Cannons Creek Superette”. Although that business has only been operating for a short time it has not attracted adverse attention from the enforcement agencies.

[3] Mr Ali is the current holder of General Manager’s Certificate which was issued on 13 December 2002.

[4] The proposed trading hours are:

Monday to Saturday 6.00 am to 11.00 pm

Sunday 6.00 am to 10.00 pm

[5] Neither the Police nor the Inspector oppose the application.

[6] Public notification of the application attracted three objections. One of the objectors submitted a petition consisting of 159 signatures. The objectors’ principal concerns were the possible adverse effect the applicant’s business will have on the Porirua East School, the availability of liquor to users of the nearby municipal public hall which might increase the alleged bad behaviour that already occurs at the hall, and a concern that there are already too many liquor outlets in the area.

Background

[7] Katie Mary Tepania said that she and her business partner, Mr Ali, were the successful tenderers for the old ambulance building at 14 Mungavin Avenue. She noted that Mrs Jalal and her husband had also tendered for the building, but had been unsuccessful. They initially planned to convert the building into a tavern, but they were prevented from doing so, because that use did not comply with the District Plan. They then decided to convert the building into a superette with rental accommodation at the rear.

[8] Ms Tepania alleged that since they purchased the building there has been considerable discontent between the partnership and Mrs Jalal, who is the proprietor of the nearby Four Square grocery store. Ms Tepania described the extent of the alleged discontent that included a number of allegations of harassment and interference by Mrs Jalal. She also alleged bullying of her tenants to the extent that one tenant left. The letter was hardly evidence of bullying. Ms Tepania submitted a letter from one of her tenants in support of the allegation. There were other incidents, whereby Mrs Jalal complained to Foodstuffs Limited that the partnership was selling goods in breach of its agreement with Foodstuffs Limited. Ms Tepania acknowledged that they had breached the agreement. On another occasion they received a visit from the Health Inspector following a complaint that they were transporting chilled goods between their shops in breach of the health regulations. It transpired that they had not breached the regulations. Ms Tepania said that in an apparent attempt to ruin their credibility, rumours were circulated in the community that the partnership was a front for the Mongrel Mob gang, and that they were employing criminals. Mrs Tepania said that these allegations were unfounded.

[9] Ms Tepania said that she has lived in the area since 1967, and had spent all that time working for the community. She has been looking after two elderly people who are both former Porirua mental health patients. They have lived with her for 23 years, and she has monitored their health, medication, finances, and daily routines. She produced two written references from her local doctor and Capital Coast Health that testified to her community work, and care of people with mental disorders.

[10] Mrs Tepania said that she showed Mrs Jalal’s letter of objection to her family. Her son took exception to its contents, and displayed it in the shop. She did not ask him to do it nor did she know that he had done it until some time later. What needs to be stated, is that at the time the letter was displayed, Mrs Tepania was working in Cannons Creek at the other business.

[11] Mazina Jalal lives at 18 Mungavin Avenue, in Porirua East. She and her husband own the Eastside Foodmarket which is a Four Square franchise shop situated at the same address. Opposite their shop is the community hall that is used for social gatherings and dances, principally by Pacific Island groups. In her view, the attendees bring alcohol to the hall, and they often go to Mr and Mrs Jalal’s shop, in a drunken state, to make purchases. They bring bottles and glasses of alcohol with them into the shop. Often the bottles and glasses get knocked over on the counter, and the Jalals have to clean up the mess as well as the bottles and cans that get left behind. Mr and Mrs Jalal do not drink alcohol, and they find such behaviour insulting and distasteful. They anticipate that if the application is granted the intoxicated people from the hall will come with greater frequency, not only to the applicant’s shop, but to theirs as well. They did not believe that a liquor licence should be granted in the vicinity of the hall.

[12] Mrs Jalal produced a map showing the location of the various liquor outlets in the area. She noted that the nearest liquor outlet was half a kilometre away from the applicants’ shop.

[13] Mrs Jalal expressed concern that a copy of the objection she sent to the District Licensing Agency was put in the window of the applicant’s shop. The objection referred specifically to the activity of Pacific Island people at the dances and socials at the hall. A relative of one of her staff members told her about it. She said that publication of the letter caused people to ask if she was racist, and she had two separate visits from two Polynesian males questioning her about it in an aggressive manner. She was frightened by their visits. She also received two bogus telephone calls as a result of the publication of her objection. She believed that the applicants had published her objection either to punish her, or to pressure her into withdrawing her objection. After a week she rang the Police, and she was told that her letter had been taken down. Consequently, she did not believe that the applicants were suitable people to hold a liquor licence.

[14] Margaret Hughes lives a short distance from the applicant’s shop. She was the contact person for a petition that opposed the application on the grounds that the applicants’ premises was too close to the Porirua East School and Mungavin Hall and Park. In her view, there were also too many liquor outlets in Porirua. The Inspector’s report notes that some of the signatures on the petition were from people that live 2 to 3 kilometres from the premises, two were from Auckland, and the rest lived in suburbs within Porirua City. Mrs Hughes referred to the effects caused by the consumption of alcohol. She said that a liquor outlet was not needed in the area.

[15] Mrs Sandi Wetere is the Chairperson of the Board of Trustees of Porirua East School. The school is located immediately behind the applicant’s premises. The Board’s concerns were that a liquor outlet next to the school would only increase the vandalism and rubbish left in the school grounds. She stated that they already had a problem with people abusing the privilege of having access to the school grounds. She also expressed concern about the possibility of broken glass being left on the school’s playing fields and playgrounds, and the health risk from people urinating in the doorways of the school. She said that if the off-licence is granted the school will have to put up fences and gates to deter people entering the grounds. The cost of doing that diverts money targeted for the children’s education. She noted that there were already other liquor outlets not far away, and she questioned whether another one was needed. Mrs Wetere made a powerful submission that was supported by the Kapiti Mana Netball Centre.

[16] Mr Taylor submitted that Mrs Jalal’s objection was on two grounds. Firstly, Mrs Jalal doubted that the applicant partnership would be able to ensure that liquor is not sold or supplied to prohibited persons pursuant to the requirements of s.35(1)(d). He noted that the applicants had not addressed in their application how they were going to deal with intoxicated persons coming onto their premises. He suggested that their failure to do so was significant.

[17] Secondly, the applicant’s had published the text of Mrs Jalal’s objection which was an abuse of the Authority’s process, and an attempt to punish her for objecting to the application. Alternatively, it was an attempt to pressure her into abandoning her objection.

[18] Mr Taylor referred to the provisions in the Act for disclosure of objections and reports to the applicant under the Act. He said that pattern is reflected in the limits imposed by the Authority on persons accessing its file. He drew parallels under the High Court and District Court Rules where access to a litigant’s file is restricted to parties and lawyers. He submitted that the Courts will not tolerate pressure being put on a litigant to punish or to withdraw their case. Such actions demonstrated that the applicants were not suitable persons to hold a liquor licence. We have expressed similar views in Hamish McLeod Linklater and Payao Chomkhunthod LLA PH 376/2001 where the applicants were annoyed by objections that caused delay to their licence being granted. They placed a notice in their window that blamed the objectors for that delay. We said at paragraph [8] of our decision:

“We were disappointed not to hear Mr Linklater express any contrition for his actions ... He showed a dismissive attitude to the objector bordering on contempt. He needs to understand that the Act specifically provides for rights of objection. Any interference with that process will automatically reflect on a person’s suitability to hold a licence.”

[19] Mr Richards submitted that neither the Police nor the Inspector had opposed the application, and even though the publication of the objection was reported to the Police, it did not cause them to investigate, or alter their opinion of the applicants.

[20] Mr Richards said that the applicants had a proven track record in the industry. He drew the Authority’s attention to Cayman Holdings Limited LLA PH 145/2001 where it was stated that apprehension of problems by objectors is insufficient if the application is supported by the Police and the Inspector.

Authority’s Conclusion and Reasons

[21] In considering any application for an off-licence, the Liquor Licensing Authority must have regard to the following matters pursuant to s.35 of the Act:

(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 matters dealt with in any report made under section 33 of this Act.

(2) The [Licensing Authority or District Licensing Agency, as the case may be, must] not take into account any prejudicial effect that the grant of the licence may have on the business conducted pursuant to any other licence.

In this case there were only two major issues, first, the suitability of the applicants, and secondly, 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”. In their application form the applicants have stated that they will not sell to persons “who are intoxicated/drunk.” To date that has not been an issue with their existing premises. They have a statutory duty not to sell to intoxicated persons. We would expect that if there is any evidence that they have been selling to intoxicated persons the enforcement authorities will make an application for suspension or cancellation of the applicant’s licence.

[22] Although Mrs Jalal has questioned the applicants’ suitability through her counsel there has been no direct evidence attacking the applicant’s suitability. The applicants are already the holders of a liquor licence, and significantly, neither the Police nor the Inspector has had cause to comment adversely about the applicants.

[23] We accept that Ms Tepania’s son, without the knowledge of the applicants, placed Mrs Jalal’s objection in the public domain. His independent actions do not necessarily reflect on the suitability of the applicants. The objector was unable to show that the document was put up with the consent or connivance of the applicants.

[24] The other objectors have expressed apprehension about potential problems that the outlet may cause, and that there are already enough liquor outlets in Porirua.

[25] The Sale of Liquor Act 1989 removed the previous restrictions under the 1962 Act. Parliament legislated for a “free market” for liquor outlets. Therefore, the number of other liquor outlets in the area is not a relevant consideration. Pursuant to s.35(2) of the Act, other licensed premises are prevented from opposing any new applications on the ground that they may be prejudicial to the objector’s business.

[26] The “free market” principle embodied in the Act also dictates that once the Authority is in receipt of a valid certificate under s.9(1)(e) of the Act that declares the site is suitable for the use of a liquor outlet, its principal concern is that the applicant is suitable and will uphold the law.

[27] In response to the objectors who expressed apprehension about the possible effect that the proposed premises will have on the locality we refer to the Authority’s decision in Cayman Holdings Limited (LLA 145/2001) where it was stated:

"Apprehension of problems alone is not sufficient to prevent a suitable applicant, particularly one supported by a District Licensing Agency Inspector and the Police, from exercising rights granted by the ... District Council. Such rights may be formally reviewed and varied by the Council."

[28] Mrs Robertson said that liquor may only be consumed at the hall when a special licence is granted. A special licence is only granted if a holder of a manager’s certificate is present. She was concerned to ensure that any future problems, regarding the running of dances and socials at the hall are reported to the council.

[29] It may be helpful if we point out to the objectors that a licence is granted initially for 12 months. If at the end of that time, the applicants seek renewal of their licence, the objectors concerns may be re-examined in light of the evidence then available.

[30] We do not accept the suggestion that the establishment of an off-licence will lead to an increase in liquor abuse or disorderly behaviour. We are satisfied that the applicants are responsible operators of licensed premises. Our experience is that there are very few examples of abuse of liquor from well run off-licences.

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

[32] The Inspector has reported that the trading hours requested by the applicants meets the criteria within the Porirua City Council’s “Sale of Liquor Policy”. The hours are similar to other licensed premises operating within the city.

[33] The hours for the premises will be:

Monday to Saturday 6.00 am to 11.00 pm

Sunday 6.00 am to 10.00 pm

[34] Pursuant to s.37(6) of the Act the applicants are authorised to sell wine, beer, and mead.

[35] 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.

[36] 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 19th day of August 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Mungavin Superette.doc(nl)