Daikoku Restaurant (N.Z.) Limited [2004] NZLLA 889 (14 December 2004)

Last Updated: 25 January 2012

Decision No. PH 889/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by DAIKOKU RESTAURANT (N.Z.) LIMITED pursuant to s.9 of the Act for an on-licence in respect of premises situated at 39 Elliott Street, Auckland City known as “Daikoku on Elliott”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 9 December 2004

APPEARANCES

Mr D G Scott – agent for applicant
Mr D W Sara – Auckland District Licensing Agency Inspector – in opposition

ORAL DECISION OF THE AUTHORITY

[1] Daikoku Restaurant (N.Z.) Limited is a private company which three directors. These directors are Yoshiji Narita, Kazunari Kuroda and Tashio Oishi. All three directors are shareholders, and there is a fourth shareholder resident in Queenstown, Yoshihiro Sato. The company has held a restaurant style on-licence since 9 March 1993, and over the last 11 years, it has operated a Japanese restaurant on the site at 39 Elliott Street, Auckland.

[2] Mr Narita seems to have the overall control of the company’s businesses. The company operates no less than six other licensed restaurants, four of which are in the Auckland greater area, one in Takapuna, and one in Queenstown. It appears that in March 2003, Mr Narita went back to Japan. He generally has a manager in charge of each of the restaurants. The managers would appear to report to him about such matters as the renewal of licences. In any event, the licence was not renewed. Technically speaking, from 9 March 2003, the business now known as “Daikoku on Elliott” was an unlicensed Japanese restaurant.

[3] The evidence before the Authority is that on 9 September 2004, an application for a new on-licence was received. The request was for a restaurant style licence; the restaurant being the primary purpose of the business. The requested hours of trading were at any time on any day. As a consequence of the application, two Districting Licensing Agency Inspectors visited the premises on 29 September 2004. Both men had a meal, and one ordered a glass of wine which was provided at a cost of $8 and consumed. Following the meal, one of the Inspectors spoke with the person who appeared to the manager. A photograph was taken of a very well-stocked bar behind the counter.

[4] Subsequently on 27 October 2004, one of the Inspectors revisited the premises to ascertain whether the warnings which had been given earlier had resulted in the liquor being removed, and the sales of wine and spirits being stopped. On 27 October 2004 at about 2.00pm, there were still bottles of red wine on the shelf behind the counter. Two of the bottles had been opened and had corks in. There were eight people sitting at a table; and two others at another table. There was a bottle of beer on this table. Mr Donald William Sara, the Inspector, left his card, and when he returned approximately a week ago, all liquor had been removed.

[5] The Authority has heard evidence from Mr Narita, and there is little that he can say. It was his evidence that following the first visit, he advised his staff that no liquor was to be sold, but apparently, they took no notice of his advice. He gave evidence that following the second visit in late October, he made certain that all liquor was removed, and it has been absent ever since. He stated that the business sells only Japanese food, but to a variety of Japanese people, tourists and Europeans. The restaurant is generally open for two hours in the middle of the day for lunch, and from 6-10.00 pm at night for dinner, seven days a week. He indicated that steps had been taken to ensure that this matter does not happen again. Both he and Mr Scott stressed that in the 11 years of trading for all seven licensed premises, there have never been cause for complaint about breaches of the Act, or concerns raised by the Police.

[6] The issue then is the suitability of the applicant company. Mr Scott submitted that had an application been brought from the suspension of the licence, then a period of approximately one month may have been imposed. We do not share his optimism. As pointed out by the Inspector, selling liquor without a licence is one of the most serious offences in the Act. It carries a maximum penalty of $40,000. Furthermore, failing to renew an on-licence has been stated in the past by the Authority, and certainly by the Working Party on Liquor, as raising doubts as to the suitability of the licensee. It is out view that Mr Sara is right when he suggests that although this licence lapsed in March 2003, the business has effectively and apparently traded for approximately 18 months until late October of this year.

[7] On the other hand, it is our experience that the sale of liquor does not play a major part in the conduct of restaurants of this nature. This was confirmed to some extent by Mr Narita. In his view, the sale of liquor represents approximately 15-20% of total revenue. As indicated, we believe that a period of suspension of three months would have been more appropriate given the sustained breach of the Act. We have taken the view that because of the history of the operation of this and the other restaurants, that to decline the application based on suitability could be seen as unreasonable. Our attitude is that a licence can be granted with hours as previously granted from 9.00 am – 1.00 am the following day. However, the grant of a licence will be subject to the normal provisions of appeal. This means that the licence cannot issue until 20 working days have expired. In accordance with the Act, a working day means any day, except any day in the period commencing with 20 December in any year and ending with 15 January in the following year. It seems to us, therefore, that no licence can be issued until late January 2005. This is over a period of time when most restaurateurs would expect business to be more profitable than at other times of the year. We think that is appropriate.

[8] We need to give a warning. No liquor can be sold until the on-licence issues, notwithstanding this decision.

[9] The application will be granted on those terms.

DATED at WELLINGTON this 14th day of December 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Daikoku on Elliott.doc(ac)