Universal Liquor Limited and Badger Debt Collection Limited [2003] NZLLA 806 (29 October 2003)

Last Updated: 23 January 2012

Decision No. PH 806/2003 –
PH 807/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an appeal by UNIVERSAL LIQUOR LIMITED pursuant to s.137 of the Act against a decision of the Queenstown Lakes District Licensing Agency refusing an application for a special licence in respect of premises situated at 33 Ardmore Street, Wanaka, known as “Betty’s Liquor Store Wanaka”

AND

IN THE MATTER of an appeal by BADGER DEBT COLLECTION LIMITED pursuant to s.137 of the Act against a decision of the Queenstown Lakes District Licensing Agency refusing an application for a special licence in respect of premises situated at Eureka Arcade, 11 The Mall, Queenstown known as “Bardeaux”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at QUEENSTOWN on 16 October 2003

APPEARANCES

Mr S Stamers-Smith – for appellants
Sergeant P R Stratford – NZ Police – in opposition
Ms T J Surrey – Queenstown Lakes District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] On 10 March 2003, Universal Liquor Limited made application to the Queenstown Lakes District Licensing Agency for a special licence pursuant to s.73 of the Act. The occasion or event was described as “Good Friday and Easter Sunday”. The event or occasion was to occur on 18 April and 21 April 2003, and the hours that the company intended to sell liquor were from 8.00 am to midnight. The name and address of the proposed licensed premises was given as “Betty’s Liquor Store Wanaka” at 33 Ardmore Street, Wanaka. The premises in question trade with an off-licence.

[2] The application was opposed by the Police and the District Licensing Agency Inspector. It was therefore considered by the Queenstown Lakes District Licensing Agency on 1 April 2003. At the hearing, Mr Alistair Spary spoke on behalf of the applicant company. He argued that off-licensees were being treated differently to the holders of on-licences in respect of the “Easter Celebrations”. In a written decision dated 15 April 2003, the application was declined by the Agency. The Chairperson stated:

“In the view of the majority, the application does not fit within Section 73 of the Act. The Agency acknowledged the unique situation of the Queenstown Lakes District as a tourist destination. However, it is the view of the Agency that a special licence cannot be granted in respect of a bottle store, as there is difficulty in applying the special licence provisions of the Act to a bottle store situation.”

[3] The appellant exercised its right to appeal against the decision. The appeal was conducted by way of a rehearing.

[4] On 10 March 2003, Badger Debt Collection Limited made application to the Queenstown Lakes District Licensing Agency for a special licence pursuant to s.73 of the Act. The occasion or event was described as “Easter Celebration and Anzac Day”. Such events or occasions were to occur on 18 April, 20 April and 25 April 2003. The hours originally sought by the company were for 24 hours for 18 and 20 April 2003, and from midnight to 5.00 am on Anzac Day, 25 April 2003. The name and address of the proposed licensed premises was given as “Bardeaux” at Eureka Arcade, Queenstown.

[5] The application was opposed by the Police and District Licensing Agency Inspector. It was therefore considered by the Queenstown Lakes District Licensing Agency on 1 April 2003. The Agency issued separate decisions in respect of the Easter and Anzac Day occasions. It declined the application in respect of Anzac Day. There is no appeal from that decision. At the hearing involving the application for a special licence to trade over the “Easter Celebrations”, the proposed hours of operation were reduced. The hours requested were from midnight to 5.00 am. At the hearing, Mr Alistair Spary spoke on behalf of the company. He questioned the Agency’s earlier decisions to allow trading for on-licences up to 2.30 am to celebrate Easter, but not later.

[6] In a written decision dated 17 April 2003, the Agency refused the application. However, it allowed the status quo to remain. In other words, the company was granted a special licence to allow Easter to be celebrated from midnight to 2.30 am on Good Friday 18 April 2003, and Easter Sunday 20 April 2003. The appellant exercised its right to appeal against the decision. The appeal was conducted by way of a rehearing.

The Rehearing

[7] At the hearing before the Authority, the two appeals were heard together. Mr Alistair James Spary is a director and shareholder of both appellant companies. Although he did not specifically address the issues contained in s.79(1) of the Act, he made a plea that Queenstown was unique to New Zealand, and deserved special consideration. He described it as the “Adventure Capital of New Zealand.”

[8] Mr Spary suggested that it was part of the “special Kiwi lifestyle” for New Zealanders to come to Queenstown or Wanaka at Easter, with family and friends. He argued that the number of visitors was inevitably boosted by a large number of tourists who were also drawn to the area. Mr Spary contended that he contributed to the drive to encourage people to come to Queenstown, and wanted to participate in the “redistribution of wealth” resulting from the influx of the visitors. He submitted that overseas visitors were bemused or astonished at the restrictions. He argued that staff would be facing reduced hours of employment because of the law. He considered that the bulk of the income for bars in Queenstown came after 2.30 am.

[9] Mr Spary suggested that for all licensed premises to close at 2.30 am was counter-productive in terms of public disorder. He argued that he had not attempted to “window dress” the application, and that if he wanted to, he could require his patrons to purchase food in order to comply with the law. The latter argument misinterprets the provisions of s.14 of the Act as the only people who can be present during the three and a half “sacroscant” days must be there “for the purpose of dining.” To require patrons to purchase food to enable them to drink is not in keeping with the law.

[10] Mr Spary questioned the Agency’s policy on the granting of special licences. According to the report issued by the District Licensing Agency Inspector, dated 24 March 2003, the Agency has previously taken the view that because of Queenstown’s uniqueness as a tourist attraction, the “Celebration of Easter Weekend” is a legitimate occasion or event, or series of occasions or events. Accordingly, the Agency has issued special licences in the past in respect of on-licensed premises. The Agency has however insisted that drinks may not be served after 2.30 am. Effectively all premises must be closed by 3.00 am. There is an association between the Agency’s policy, and Queenstown’s exemption from the provisions of the Shop Trading Hours Repeal Act 1990, as Queenstown is recognised as a tourist destination.

[11] Sergeant Andrew John Horne has as part of his duties, the liquor licensing portfolio. He carries the responsibility of ensuring that licensed premises comply with the Act. He also maintains a line of communication with local licensees and the agencies, in particular the District Licensing Agency Inspector, Public Health South, Queenstown Safer Communities, and occasionally HANZ. In conjunction with the Sergeant from Wanaka, the Police have established certain guidelines including the Easter policy for special licences referred to above. He believes that the policy which has been instituted and accepted, is both fair and reasonable to the community and the licensees.

[12] Mr Spary argued that if it was accepted that Easter was an occasion or event, why should 2.30 am be the cut off point. Why not 4.00 am? With regard to the off-licence in Wanaka, he did not accept that people were not inclined to stock up beforehand in anticipation of being unable to do so on Good Friday and Easter Sunday. Mr Spary noted that off-licences in Wanaka had previously been allowed to open over Easter because of the “Warbirds over Wanaka” and “Race for the Sky” events. Mr Spary gave his personal opinion that Anzac Day and Christmas Day were still sacroscant, and that special licences (of the general nature requested by him) were not acceptable or appropriate for those days. Nevertheless, he questioned the Agency’s decision to allow certain local wineries with off-licences to remain open.

Decision

[13] Both “Betty’s” and “Bardeaux” are governed by the provisions of s.14(2) of the Act.

It is a condition of every on-licence granted in respect of a hotel or tavern that no liquor is to be sold or supplied on Good Friday, Easter Sunday, Christmas Day, or before 1pm on Anzac Day to any person other than –

(a) Any person who is for the time being living on the premises, whether as a lodger or an employee of the hotel, or otherwise; or

(b) Any person who is present on the premises for the purpose of dining.

[14] As recently as 1 December 1999, Parliament has determined that Christmas Day is to be one of the few days in the year when taverns and hotels are required to be closed, unless patrons are present for the purpose of dining.

[15] Nevertheless, the Act specifically makes provision for an exemption from these provisions. Section 14(3) of the Act reads:

Nothing in subsection (2) of this section shall affect the sale or supply of liquor pursuant to and in accordance with any special licence granted in respect of the hotel or tavern.

[16] Pursuant to s.73 of the Act, a special licence authorises the holder of the licence to sell and supply liquor, on the premises or conveyance described in the licence, to any person attending any occasion or event or series of occasions or events described in the licence. The emphasis is ours.

[17] Pursuant to s.79(1) of the Act, in considering any application for a special licence, the District Licensing Agency shall have regard to a number of matters. We propose to consider them in the context of the appeals.

(a) The Nature of the Particular Occasion or Event or Series of Occasions in Respect of which the Licence is Sought

[18] If Good Friday or Easter Sunday or Christmas Day or before 1 pm on Anzac Day were regarded as occasions or events, there would be little point in having a provision that hotels and taverns be closed at these times. According to Mr Spary’s applications, there would be no difference in the style of trading in respect of either premises. It would be business as usual. If the law requires that taverns and hotels to be closed on certain days because of the nature of those days, why should we grant the right to be open because the days are regarded as an occasion?

[19] The effect of the special licence is to extend the hours of consumption and purchase into a restricted day. What is the justification in these applications? Even in an increasingly secular state, the law regards these days as “holy days” or “family days” particularly Christmas Day and Good Friday. The morning of Anzac Day also has a semi-sacred status which appears to be strengthening in terms of importance to younger New Zealanders.

[20] The fact that Mr Spary has made no attempt to create anything different to his establishments means that his argument has even less merit. The only possible excuse for allowing the law to be compromised in this way would be Queenstown’s position as a tourist mecca. On that basis we would be slow to interfere with the Agency’s robust interpretation of the Act to suit local conditions, especially as the policy has the support of the Police and others. However, in this case, we are asked to extend (hypothetically) “Bardeaux’s” hours of trade from 2.30 am to 4.00 am, and to allow “Betty’s” to trade normally, on Good Friday and Easter Sunday.

[21] On the one hand there is the law which currently requires certain premises to be closed on certain very special days. On the other hand there are these two companies which wish to trade on two of the sacroscant days, in order to be able to capture some of the available market. It is not as if they are offering anything other than normal service. In our view there is no contest. In other cases, the Authority and Agencies look at the occasions or events to see whether they have been contrived, so as to allow the applicants to extend their hours of trading, and gain a commercial advantage over their competitors. In these cases there is not even an attempt to portray what is being offered as anything other than business as usual.

[22] If a person walked into “Betty’s Liquor Store Wanaka” on Good Friday, a legitimate question might be to ask what occasion or event the person was attending. In The Loaded Hog Group Limited and The Onetangi Beach Hotel Limited LLA PH 323-324/2001, we held that “attending” an occasion or event, was akin to being present at the occasion or event. We accept that there may be a gloss on that interpretation relating to the televising of occasions or events. Nevertheless it is quite clear that a standalone bottle store such as “Betty’s Liquor Store Wanaka” would not qualify for a special licence based on the arguments submitted by Mr Spary.

(b) The Suitability of the Applicant

[23] Suitability is not an issue.

(c) The Days on Which and the Hours During Which the Applicant Proposes to sell Liquor

[24] What Mr Spary has to appreciate is that it is the Agency which fixes the hours of trading. In doing so, the Agency is more likely to take into account such matters as potential disorder, than an applicant’s wish to profit from the occasion. The structure of the Act is not based on the issue of need. It is our view that with the right to dine and drink, overseas visitors have an opportunity to consume liquor or they may visit other types of licensed premises such as restaurants, nightclubs or entertainment centres. Otherwise they must respect our law.

[25] In this case, the Agency has made a special dispensation for on-licences in Queenstown because of Queenstown’s importance to New Zealand’s tourist industry. Mr Spary should be thankful that the Agency allowed him to trade to 2.30am. He may be interested to know that in its 2002 Annual Report to Parliament, the Authority recommended that taverns and hotels close at 3.00 am on the morning of the three and a half sacroscant days.

(d) The Areas of the Premises or Conveyance, if any, that the Applicant Proposes should be Designated as Restricted Areas or Supervised Areas

[26] Were we to grant the appeals, then this aspect may have some importance. It is not compulsory for standalone bottle store to have a designation.

(e) 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

[27] The issue of whether the premises known as “Bardeaux” in particular, would only admit patrons who were eighteen years of age or older, and who were sober, was not an issue raised by the Police.

(f) The Applicant’s Proposals Relating to –

(i) The sale and supply of non-alcoholic refreshments and food; and

(ii) The sale and supply of low alcoholic beverages; and

(iii) The provision of assistance with any information about alternative forms of transport from the licensed premises

[28] We accept that the bar will have its normal amenities such as food, a range of non-alcoholic drinks, and facilities enabling patrons to call a taxi. Once again the reference highlights the impracticability of an off-licence being granted a special licence.

(g) Any Reports made under Section 78 of this Act

[29] These reports are normally submitted by the Police and the Inspector. Sergeant A J Horne noted that “Easter 2003” had been quieter than in the past, and less stressful on resources. Although not an issue in this case, experience suggests that the potential for liquor abuse is reflective of the hours of trading. The greater the hours of trading, the greater the potential for liquor abuse.

[30] In summary, it is our view that the applications are merely attempts to continue normal trading. To grant the appeals would in our opinion render the law otiose.

[31] An example of an Agency adopting a broad and liberal approach can be found in David Alan Thomson LLA 1287/97. In that case, application was made for a special licence under s.74 of the Act to stay open on Christmas Eve 24 December 1996 from midnight to 2.00 am on Christmas Day. The social gathering was described as “allowing the general public to celebrate the Christmas season”. The District Licensing Agency granted the application but only until 1.00 am. On the appeal brought by the Police, the Authority was not prepared to interfere with the exercise of the Agency’s discretion.

[32] In Alan Robert Christie v Invercargill Licensing Trust PH 1225/2000, the Authority determined at paragraph [16], that the principal issue to be determined, was whether or not persons attending a series of occasions or events at the “Sugar Shack”, were attending a series of occasions or events in terms of s.79(1)(a) of the Act, or attending a contrived series of events or occasions, contrived solely for the purpose of enabling a tavern to trade at a time when the legislation otherwise required the premises to be closed. In other words, if the Authority comes to the view that the event or occasion has been contrived in order to circumvent the restrictions of s.14(2) of the Act, then the application ought properly to be refused.

[33] Bond Street Inn Limited [1997] NZAR 9 was determined prior to the amendment in 1999 when the word “particular” was removed to describe the event or occasion. Despite the amendment, we believe that the statement made at that time is as relevant today as it was then. The Authority stated:

“ ... We have a firm view as to what the special licence is not intended to cover. It is not intended to be a means for hotels and taverns to obtain extended trading hours, at times when the premises would otherwise be required to be closed ... “.

[34] When looked at in the light of the above comments, and the criteria in s.79(1)(a) of the Act, the application has little to commend it. If the appeals were granted by this Authority, then because of the generic nature of the applications, the same principles for such events or occasions would apply to all taverns (and off-licences) in Queenstown and Wanaka. If all taverns (and off-licences) had the right to trade through Easter then in our view the law restraining trading during that time would inevitably be brought into disrepute. Having a law that has no effect may not physically lead to liquor abuse, but could certainly encourage the public to treat the Act with contempt and disrespect. This in turn would in our view, undermine any serious attempts to reduce the abuse of liquor.

[35] For all these reasons, we have little hesitation in declining the appeals. As with the District Licensing Agency, we have no doubt that the applications were primarily geared towards patrons extending their hours of consumption and purchase into restricted days. The decisions under appeal are hereby confirmed.

DATED at WELLINGTON this 29th day of October 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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