McMahon, re [2004] NZLLA 156 (10 March 2004)

Last Updated: 27 January 2010

Decision No. 156/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by KIM LAUREN McMAHON for an on-licence pursuant to s.9 of the Act in respect of premises situated at Shop 12, 153 Ocean View Road, Oneroa, Waiheke Island, known as "Sandbar"

BEFORE THE LIQUOR LICENSING AUTHORITY

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

DECISION

This is an application by Kim Lauren McMahon for an on-licence in respect of premises situated at Shop 12, !53 Ocean View Road, Oneroa, Waiheke Island, known as "Sandbar".

The general nature of the business to be undertaken is that of a tavern. The applicant seeks hours to trade between 11.00 am and 1.00 am the following day, throughout the week.

Public notification of the application attracted three letters of objection, but they were datestamped by the Auckland District Licensing Agency as having been received after the final date for lodgement prescribed by s.10(2) of the Act, and are, therefore, deemed to be out of time.

In fairness to the objectors we propose to address the matters raised. Two of the objectors have expressed concern in relation to the inappropriate location of the proposed premises.

It is a requirement of s.(9)(1)(e) of the Act that every application for an on-licence be accompanied by a certificate from the Local Authority, which confirms that the proposed use of the premises meets the requirements of the Resource Management Act 1991. Such a certificate is included in the papers accompanying this application.

We are not empowered to look beyond that document; the suitability of location of licensed premises is not a matter to which we are able to have regard.

Two of the objectors refer to the trading hours, although one of them has not identified the proposed span of hours correctly. These misgivings arise because of fears that the operation of the business may create disturbance caused by excessive noise emanating from the premises.

We have commented in earlier decisions that apprehension of problems is not, in itself, likely to persuade us that a licence should not be granted. Furthermore, the lack of opposition from the Police, District Licensing Agency Inspector and the Medical Officer of Health shows that the suitability of the applicant is not an issue. Accordingly we propose to deal with this matter on the papers.

In doing so we point out that any new liquor licence is only valid for twelve months. This is seen as a probationary period during which a licensee has an opportunity to demonstrate an ability and willingness to operate the business in an appropriate fashion.

At the end of that period the licensee is required to make application to renew the licence. That application must be publicly notified. If trading patterns have revealed any deficiencies in the manner of operation there is scope for further public input.

In the interim, should the manner of operation of the premises bring it to the notice of the enforcement authorities, we would expect from them an application, pursuant to s.132 of the Act for variation, suspension or cancellation of the licence.

We are satisfied as to the matters to which we must have regard as set out in s.13 of the Act and we grant the applicant an on-licence authorising the sale and supply of liquor, for consumption on the premises, to any person who is present on the premises.

The licence will not issue until all relevant clearances have been obtained. The applicant is not entitled to sell liquor until the licence issues. Unlicensed sales can result in imprisonment for up to three months or a fine of $40,000 (ss.114(2), 151 and 152 of the Act refer).

The applicant's attention is drawn to ss.25 and 115(2) of the Act obliging the holder of an on-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 ready by persons entering through each principal entrance AND
   
3. A sign prominently displayed inside the premises, which identifies by name the manager for the time being on duty.
   

The entrance from Ocean View Road is designated as the principal entrance.

The licence will be subject to the following conditions:

(a) The licensee must have available for consumption on the premises, at all times when the premises are open for the sale of liquor, a reasonable range of non-alcoholic refreshments and low-alcohol beverages:

(b) No liquor is to be sold or supplied on Good Friday, Easter Sunday, Christmas Day or before 1.00 pm on Anzac Day to any person other than persons who are present on the premises for the purpose of dining.

(c) Liquor may be sold only on the following days and during the following hours:

Monday to Sunday 11.00 am to 1.00 am the following day; EXCEPT THAT on the Thursday before Good Friday; and on Easter Saturday; and on Christmas Eve; and on the day before Anzac Day, liquor may only be sold between 11.00 am and 12.00 midnight

(d) Food must be available for consumption on the premises as follows:

At all times when the premises are authorised to be open for the sale of liquor, food of a range and style similar to that shown on any menu submitted or a range of snack foods in the nature of pies, sandwiches, filled rolls, pizzas and the like, must be conveniently available for all patrons and the availability of those foodstuffs must be notified to them by appropriate notices throughout the premises.

(e) The whole of the premises is designated as a supervised area.

(f) The licensee must ensure that signs are prominently displayed within the licensed premises detailing information regarding alternative forms of transport from the premises.

(g) The licensee must implement and maintain the steps proposed in the application for the licence aimed at promoting the responsible consumption of liquor.

(h) The licensee must ensure that the provisions of the Act relating to the sale and supply of liquor to prohibited persons are observed and must display appropriate signs adjacent to every point of sale detailing the statutory restriction on the supply of liquor to minors and the complete prohibition on sales to intoxicated persons.

THE LICENSED PREMISES

In terms of Reg. 7 of the Sale of Liquor Regulations 1990 the sale or supply or consumption of liquor is authorised in the whole of the premises. The premises, situated at Shop 12, 153 Ocean View Road, Oneroa, Waiheke Island are more precisely identified in a plan date stamped as received by the Liquor Licensing Authority on 16 February 2004.

DATED at WELLINGTON this 10th day of March 2004

__________________
B M Holmes
Deputy Secretary

Sandbar.doc(ab)