NZLII Home | Databases | WorldLII | Search | Feedback

New Zealand Liquor Licensing Authority
You are here:  NZLII >> Databases >> New Zealand Liquor Licensing Authority >> 2005 >> [2005] NZLLA 26

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Loye v Waitakere Licensing Trust [2005] NZLLA 26 (27 January 2005)

Last Updated: 16 February 2010

Decision No. PH 26/2005 -

PH 35/2005

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for variation of off-licence numbers 006/OFF/32/2001, 006/OFF/31/2001, 006/OFF/33/2001, 006/OFF/30/2001, 006/OFF/29/2001, 006/OFF/23/2001, 006/OFF/26/2001, 006/OFF/27/2001, 006/OFF/24/2001, issued to WAITAKERE LICENSING TRUST in respect of premises situated at 396E Don Buck Road, Massey, Waitakere City, known as “Don Buck Liquor Store”, 286 Swanson Road, Waitakere City, known as “King Dicks Westside”, 1/709 Swanson Road, Waitakere City known as “Swanson Liquor Store”, Royal Heights Shopping Centre, Royal Road, Massey, Waitakere City, known as “Royal Heights Liquor Store”, 118 Hobsonville Road, Whenuapai, Waitakere City, known as “West Harbour Wines and Spirits”, 111 Lincoln Road, Henderson, Waitakere City, known as “King Dicks Lincoln”, 4/288 Te Atatu Road, Te Atatu South, Waitakere City, known as “All Seasons Liquor Store”, 45 Henderson Valley Road, Henderson, Waitakere City, known as “Valley Road Liquor Store”, 126 Railside Avenue, Henderson, Waitakere City, known as “Railside Liquor”

BETWEEN JASON PETER LOYE

(Police Officer of Waitakere City)

Applicant

AND WAITAKERE LICENSING TRUST

Respondent

AND

IN THE MATTER of applications by WAITAKERE LICENSING TRUST pursuant to s.18 of the Act for the renewal of off-licences in respect of premises situated at 396E Don Buck Road, Massey, Waitakere City, known as “Don Buck Liquor Store”, 286 Swanson Road, Waitakere City, known as “Don Buck Liquor Store”, 286 Swanson Road, Waitakere City, known as “King Dicks Westside”, 1/709 Swanson Road, Waitakere City known as “Swanson Liquor Store”, Royal Heights Shopping Centre, Royal Road, Massey, Waitakere City, known as “Royal Heights Liquor Store”, 118 Hobsonville Road, Whenuapai, Waitakere City, known as “West Harbour Wines and Spirits”, 111 Lincoln Road, Henderson, Waitakere City, known as “King Dicks Lincoln”, 4/288 Te Atatu Road, Te Atatu South, Waitakere City, known as “All Seasons Liquor Store”, 45 Henderson Valley Road, Henderson, Waitakere City, known as “Valley Road Liquor Store”, 126 Railside Avenue, Henderson, Waitakere City, known as “Railside Liquor”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 25 November 2004

APPEARANCES

Senior Constable J P Loye - NZ Police – applicant for variation and in opposition to applications for renewal of off-licences
Mr E R Price - for respondent and applicant for renewal of off-licences
Mrs J W Edwards - Waitakere District Licensing Agency Inspector - to assist


RESERVED DECISION OF THE AUTHORITY


Introduction


[1] There are two matters before the Authority for determination. The first is an application by the Police pursuant to s.132 of the Act for variation to the off-licences for the nine premises owned and operated by Waitakere Licensing Trust (the Trust), and known variously as “Don Buck Liquor Store”, “King Dicks Westside”, “Swanson Liquor Store”, “Royal Heights Liquor Store”, “West Harbour Wines and Spirits”, “King Dicks Lincoln”, “All Seasons Liquor Store”, “Valley Road Liquor Store” and “Railside Liquor”.

[2] The second matter relates to applications by the Trust for renewal of those nine off-licences. The applications were opposed by the Police based on similar grounds to the application for variation.

[3] Both matters arose from a Police report opposing the applications for renewal. The opposition was subject to the District Licensing Agency imposing a “supervised” designation on each of the nine premises, and the Trust accepting the designation. The report then stated that if the applicant accepted the variation, the Police would not oppose renewal of the Trust’s nine off-licences. All of the Trust’s off-licence premises are currently undesignated.

[4] The reason for that proposal, as disclosed in the Police report, was that:

“The applicant’s principal purpose of business is the sale of liquor, and as such, to best prevent the sale and supply of liquor to minors, such a condition should apply to this premise.

The Authority has previously broached this issue by way of requesting an amendment to section 37 of the Sale of Liquor Act in its 2002 Annual report.”


[5] The Trust did not accept the opposition to the renewals and the proposed compromise, and the Police then filed the present application pursuant to s.132 of the Act seeking a variation to condition (c) of those off-licences to vary the designation of the premises from “undesignated” to “The whole of the premises is designated as a supervised area.”

[6] The only ground for the application for variation was: “That the licensed premises have been conducted in an improper manner.”

[7] In support of the application, the following allegations are set out in full:

Information had been received by Police of minors obtaining alcohol from premises without being asked for identification. This information came from numerous sources, including Police Operations, and the Auckland Pseudo Patrons Project. This project was run by the Centre for Social and Health Outcomes Research and Evaluation (SHORE), formally (sic) known as Alcohol and Public Health Research Unit (APHRU). This project was run in 2002, 2003, and 2004.

The Auckland Pseudo Patrons Survey investigated the age verification practices of off-licence premises across the greater Auckland Region. The studies involved 18 year old ‘pseudo patrons visiting approximately 250 randomly selected off-licences. Each premise was visited twice, once by a male and once by a female. The pseudo patrons attempted to purchase alcohol without providing age identification.

In 2004, alcohol was able to be purchased by 18 year olds without ID for the majority (56%) of visits made to off-licence premises in the Auckland Region. This proportion has shown a significant increase from 46% in 2003. While some areas have shown improvement, the results indicate that the current age verification practices continue to be inadequate in the Auckland region.

The proportion of sales made without ID in Waitakere City was 39% in 2004, compared with 36% in 2003 and 40% in 2002.

Over recent times minors obtaining access to alcohol has caused numerous problems in the area with youth getting intoxicated and causing problems for the Police and residents of the general area.”


[8] Before stating the actual ground of the application pursuant to s.132 of the Act the applicant made a number statements which were included under the heading “Grounds of Application”. They were however, not grounds as provided in s.132 of the Act, but were in the nature of introductory statements, and can be briefly stated as follows:

“6.12 There is at present a requirement contained in s.14(4) of the Act for the Authority or District Licensing Agency to designate the whole or one or more parts of hotel or tavern premises as a supervised or restricted area. If it is accepted, that it is the intent of the legislation, for designations to be imposed where the sale, supply or consumption of liquor is the principal activity undertaken, (typically the bar areas of hotel and tavern premises), then bottle stores too, should have the same rationale applied. There could then be no suggestion that minors were permitted in bottle stores.


6.13 It is therefore recommended that there be an amendment to s.37 of the Act requiring that:

On granting an application for an off-licence in respect of a premises in which the sale of liquor is the principal business, the licensing Authority, or the District Licensing Agency, as the case may be, must designate the whole or one or more parts of the premises as restricted areas or supervised areas.”


Police Evidence


[9] Taisia Bridget Huckle is employed by the Centre for Social and Health Outcome Research and Evaluation (SHORE) of Massey University as a researcher. SHORE conducts “public good research of relevance to the Health and Social sectors”. Ms Huckle has been involved in conducting the 2002 and 2003 Auckland Pseudo Patrons Survey and had overseen the data collection for the 2004 survey. Ms Huckle produced in evidence a copy of the 2004 survey.

[10] Ms Huckle said that to date this is the largest survey of its kind conducted in New Zealand. Ms Huckle repeated the facts and statistics referred to in paragraph [7] above. She noted that because Waitakere City operates under the control of the Waitakere and Portage Licensing Trusts no supermarkets or grocery outlets were included in the survey.

[11] Ms Huckle observed that there were occasions where pseudo patrons were asked for identification upon entry before they were able to select an item for purchase. She applauded those particular premises because their actions showed that they were taking their responsibilities seriously. It was her view that a supervised designation imposed upon stand-alone bottle stores may go further towards prohibiting under-age liquor sales.

Trust Submissions and Evidence


[12] Without detracting in any way from the Police case, the respondent’s evidence and submissions were very thoughtful and persuasive. Mr Price argued that the issue was whether or not preventing minors being on premises will prevent them being sold or supplied liquor. He referred to the Police argument that designation of off-licensed premises would have the effect of “contributing to the reduction of liquor abuse”. He submitted that the consumption of alcohol was the abuse to be prevented. It was not clear what evidence was available to show that entry to a bottle store would have any liquor abuse consequences at all. He argued potential abuse was in selling liquor to under-age persons, and that access to a bottle store was becoming confused with access to liquor for consumption.

[13] Mr Price submitted that the intent of the designation is to shift the point of decision from the till, where the purchase is made, to the door where the potential patron seeks entry to the premises. He submitted that if the Police wish to move the control point then there must be evidence to support that approach.

[14] He said the Trust’s evidence was that shifting the point of decision involved a significant increase in staffing numbers with consequential costs. He noted that “a reasonable system of control” was an integral element in s.4 of the Act which lay between a lax system of control and an authoritarian or draconian system of control which was unreasonable.

[15] Mr Price invited the Authority to assess whether the “proposed control” was reasonable. In that respect he cited the Court of Appeal in Meads Brothers Limited v Rotorua District Licensing Agency [2001] NZCA 386; [2002] NZAR 308 where the Court said:

“The stated object envisages that the licensing system should be reasonable. This indicates the intention that the controls that are imposed under it should be neither excessive nor oppressive. The object also reflects a legislative perception that controls provided by the licensing system have the capacity to contribute to the reduction of abuse of alcohol in the community but that there are limits to that limited capacity. Section 4 also requires the agencies involved in the Act’s administration as well as the Courts on appeal from their decisions, to exercise their powers to promote the object.”


[16] He said that if the Trust had a good reason to accept that the designation sought would contribute to the reduction of liquor abuse in its area it would not have been at the present hearing. He then referred to the systems that the Trust has in place to prevent sale and supply of liquor to minors.

[17] Mr Price observed that the 1989 Act allowed for widespread availability but consequential sanctions on those who abuse the privilege.

[18] He noted that the object of the Act provided that it has the aim of contributing to the reduction of liquor abuse “so far as that can be achieved by legislative means.” (emphasis added). He referred to “Sale of Liquor” Dormer Sherriff and Crookston at paragraph 4.8 where it is stated:

“It is apparent that many licensing agencies, health authorities, and others considering this section overlook the last clause ‘so far as that can be achieved by legislative means’. They mistakenly see the law as having the intention of controlling liquor sales, ie revisiting the availability theory, and as a means to reduce liquor abuse. This point was well made by McGrath J in delivering the Court of Appeal’s decision in Meads Brothers Limited v Rotorua District Licensing Agency [2001] NZCA 386; [2002] NZAR 308, 317:


[19] “[24] In marked contrast with its predecessor, the Act does not provide the general economic regulation of the liquor industry as an aspect of the licensing system. The notion that if the availability of licences to sell and supply liquor is restricted the abuse of liquor will be diminished has been at the heart of the licensing systems in New Zealand since 1881 ... it was reflected, for example, in restrictions on authorising new licences for hotels and taverns in accordance with the requirement that they were “necessary and desirable” that appeared in ss.74 and 75 of the Sale of Liquor Act 1962. This barrier and others like it were dismantled by the 1989 Act. The previous provisions had given certain existing licensees economic protection, an intention which is clearly excluded from the current licensing regime, as indicated by the prohibition against taking into account, on the grant of a new licence, any prejudicial effect that grant may have on the business conducted pursuant to any other licence (ss 13(2) and 35(2)).”

[20] Mr Price observed that the power to impose a restricted or supervised designation has always been in the legislation in s.37(4)(b), but it has seldom been used. In that section the power is discretionary whereas in s.14(4) the Authority or District Licensing Agency in granting an on-licence for an hotel or tavern must designate the whole or one or more parts of the premises. Hence, as Mr Price submitted there is a clear statutory distinction between the two different forms of licence.

[21] Mr Price noted that the Authority’s recommendation in its Annual Report regarding s.37(4) has yet to find legislative favour. Although the Police application had sought support from a Private Member’s Bill that had adopted the Authority’s recommendation he submitted the views of one Member of Parliament were not indicative of the House as a whole.

[22] He referred to the Authority’s decision in Harold Gordon Lockwood and Marion Wilma Lockwood LLA PH 328/03 where the Authority designated the off-licensed premises as “supervised”. The factors he identified that contributed to the designation being imposed were that the premises was near a school, it was in a shopping centre frequented by high school students, and even the applicants had imposed an unofficial designation by banning minors from their premises. Mr Price submitted that the banning of the minors amounted to an implied suggestion within s.35(1) of the Act that a designation be imposed.

[23] He said that the Trust was not making any such concession. There are nine applications before the Authority. If proximity to schools was a relevant factor to the applications, then the assessment criteria for each application may be different, and should be determined separately. He noted that the Police had not taken that approach.

[24] Mr Price asked whether, if it is inappropriate for minors to be in a bottle store, there is a conclusive difference between the area of a supermarket devoted to liquor sales and a bottle shop. It may be that the only difference is that a minor could be in a supermarket for any number of reasons apart from buying liquor, but the only reason for entering a stand-alone bottle store is to purchase liquor. On the other hand, the presence of a minor in the wine and beer section of a supermarket is no different to the presence of a minor in a bottle store.

[25] Mr Price submitted that the Auckland District Licensing Agency was seeking to enforce the legislation as if it had been amended in accordance with the Authority’s 2002 Annual Report. He commented; “Officials are surely required to enforce the law as they find it, not as they would want it to be.” He said the Auckland District Licensing Agency describes its “policy” as being enforced in all cases to the point that almost all off-licences have a supervised designation. However, he argued that applicants were given a stark choice. Either they accepted the designation or a full hearing before the Authority would be required. He also submitted that the “policy” was not one that could be the subject of a s.96 statement issued by the Authority because it would be in conflict with s.96(2) in seeking to impose a condition that may be a ground for an appeal.

[26] He noted that s.163 of the Act provides an offence for minors found in any restricted or supervised areas. He suggested that when the Inspectors warned minors found on premises where no sale was made instead of prosecuting them, such leniency made nonsense of the “policy”. Mr Price said that the Trust did not wish to be involved in conducting its business on the basis of a discretionary decision by either the Police or Inspectors.

[27] Mr Price submitted that the application for variation purports to rely on subs(3)(a) of s.132 of the Act “that the licensed premises have been conducted ... otherwise in an improper manner ...” That allegation was purportedly supported by the Auckland Pseudo Patrons Survey. The form of the application referred to nine licensed premises. Therefore, the Police were required to prove that each separate licence had been conducted in an improper manner in not having a designation. He said, expressed that way, the proposition was unsustainable.

[28] In respect of the application for renewal, Mr Price submitted that there was an evidentiary burden on the Police to show a basis on which the condition of the licence could be changed. However, the overall burden rested on the applicant to satisfy the Authority that it is appropriate to renew the licence within the criteria in s.45 of the Act. In other words there is an onus on the Police to establish a factual basis upon which a change of designation appeared to be justified.

[29] Mr Price contended that the Court of Appeal in Meads Brothers Limited v Rotorua District Licensing Agency [2000] NZAR 597 at 606 admitted the possibility at paragraph 53 that economic effects on a business could be considered. The Court said:

“The proposition that the economic impact of particular restrictions on a liquor outlet will never be relevant to the terms of renewal of its licence is too great a generalisation. It is to be remembered that the statutory object is to establish a reasonable system of control. This envisages that at a certain point, at the extreme end of the scale, the administration of the licensing system may become unreasonable in its pursuit in the aim of reducing liquor abuse. Evidence that there would be such an extreme situation if additional restrictions were imposed may be relevant, not as a general rule, but to demonstrate that a particular case is exceptional in this way.”

He submitted that financial considerations were a factor in considering whether a particular control was reasonable.


[30] Mr Price concluded by saying that the Police were clearly seeking a blanket decision by the Authority applicable to all off-licensed premises as though the provisions of s.14(4) were transposed into s.37 of the Act.

[31] He submitted that this approach was not justified by the legislation as it presently stands. It requires a discretionary decision in relation to each individual application, and evidence would need to be adduced on that basis. In support of that argument, he referred to paragraph [37] in Meads Brothers Limited v Rotorua District Licensing Agency [2001] NZCA 386; [2002] NZAR 308 where the Court of Appeal said:

“We therefore think that although the Authority cannot, on a renewal, simply revisit the terms of the grant on the basis that it may have originally erred, it must be able to modify conditions to meet the objectives of the Act in the light of a licensee’s actual operation of a licence, including the effect of that operation on others such as neighbours.”


[32] Murray James Spearman is the Chief Executive of West Auckland Trust Services Limited responsible for the operations of the Portage and Waitakere Licensing Trusts. He is responsible for 24 off-licensed premises which can be sub-divided into three separate categories. The first group is under the “King Dicks” label. These are large premises with a supermarket type format more akin to the “wholesale” premises of the past. The second category is the “Local Liquor” outlets. These cover smaller stores within suburban shopping centres with a more limited stock and more akin to a retail shop than the “wholesale” premises under the “King Dicks” label. The third category is the specialty shops at Titirangi, Owairaka and West Harbour. These shops are between the size of the other two categories and have special stock and layout requirements because of the suburbs in which they are located.

[33] It was a surprise to Mr Spearman that the Police had treated all the renewal applications on the same basis. He said the premises were dissimilar in size, presentation, layout, patronage, profile, commercial location, and sales mix. The only common thread was that they have off-licences.

[34] He said he was responsible for a number of on-licence outlets. In all cases, the designations are enforced either with their own staff or by contracted security personnel. It was his view that if a designation was to be applied to off-licensed premises the same provision would need to be made. He did not consider it practical for inside staff serving customers to be also verifying the age of patrons seeking to enter the premises. By way of example, he referred to the manager of one of the “Local Liquor” outlets who served a minor in a controlled purchase operation earlier this year. At the time she was completing a sale every two minutes. She would not have been able to enforce a designation at the same time.

[35] Mr Spearman referred to the Trust’s underage policy where any patron appearing to be under the age of 25 was asked to verify their age. That policy was emphasised through staff training.

[36] In addition, the Trust had recently installed software that requires the operator to specifically check the date in the age verification document against the date on the screen. A sale cannot proceed until the operator has specifically confirmed that the proof of age is “ok”. There is also a banner across the top of the screen saying, “Don’t serve alcohol to minors”.

[37] He said that all employees were aware that a breach of the Sale of Liquor Act was “serious misconduct” which justified dismissal. Two managers involved in suspension applications before the Authority for selling to minors were both dismissed.

[38] Mr Spearman said that he had recently instituted “controlled purchase” visits with “an appointed patron over the age of 18, but under 24”. He said in spite of the measures referred to above, four of the 24 employees involved in the operation failed to seek age verification which was a failure rate of just over 16%. He said the Trust would continue to use such operations to ensure that minors could not buy liquor at Trust outlets.

[39] Mr Spearman submitted that the intention of the present application for variation was to impose another level of control by installing “a gatekeeper at the door”. He said although it was alleged that designating the premises would reduce the number of sales to underage patrons, it was his view that this would not be achieved by depriving them of access to the premises. If there was any improvement it would be because a second employee or security guard was at the door insisting on proof of age documentation. He said that imposing a designation on the premises operated by the Trust would change the present single check system to a double check. In some cases it could potentially require a triple check of patrons although he did not explain what those circumstances were. He was not sure what the consequences of that procedure would have on patrons.

[40] Mr Spearman said from inquiries he had made with HANZ and an Auckland District Licensing Agency Inspector, he was advised that the Auckland Metropolitan approach to the designation of off-licensed premises is confined only to Auckland.

[41] The Auckland position is:

[a] All off-licences are required to have a supervised designation.

[b] That applies to all new licences and renewals.

[c] That had been the position for almost three years and almost all of Auckland City off-licences now carry a designation.


[42] He referred to the reasons for the approach. They are:

[43] The approach to prosecutions is:

[a] Potential patrons who appear to be under age should be challenged as they enter the outlet.

[b] If they are in the outlet but a sale is refused then no action would be taken.

[c] No prosecutions have been initiated for a breach of the designation. However, prosecutions for sales and/or applications for suspension or cancellation have been initiated where there has been a sale.


[44] Mr Spearman said that although Auckland had a policy of requiring all off-licensed premises to have a supervised designation, he would have expected the designation to be stringently enforced if it was thought that it would reduce underage drinking. He said that although there was a separate offence under the Act for allowing minors in restricted or supervised areas there had been no prosecution for a breach of that provision. In comparison there had been applications for suspension or cancellation of a licence where sales had been made to a minor. Mr Spearman took the view that if the proposed policy had the effect of reducing liquor abuse by minors, it should be rigidly enforced.

[45] Mr Spearman made several points in respect of the survey results. He suggested that the results for Waitakere City were reasonably consistent, that is, 40% in 2002, 36% in 2003, and 39% in 2004. He referred to the survey report and noted, that in spite of a rigid designation policy in Auckland City, an increase in the proportion of sales made without identification had occurred.

[46] Mr Spearman said that it needed to be emphasised that individuals who were legally qualified to purchase liquor made all purchases in the course of the survey. He suggested that the age verification practices for males and females differed because young women nowadays appeared substantially older than they were.

[47] Mr Spearman instructed his Human Resources Manager to try to calculate the cost of enforcing either restricted or supervised designation at each of the Trust’s licensed premises. He referred to a memorandum, which set out the basis of the calculations. It was accompanied by schedules setting out the hours and the financial consequences for each of the off-licensed premises. Mr Spearman said using Trust staff to enforce the designation the annual payment was $883,030 on current costs. If the Trust utilised contracted security for the same purchase the annual cost was $981,145. He said that he was aware of decisions which essentially suggest that if a licensee was not prepared to pay for the cost of a privilege then the licensee should not take up the opportunity. However, Mr Spearman questioned whether it was reasonable to require an organisation to take on additional compliance costs approaching one million dollars, unless there were very compelling reasons to do so. He suggested that it would be obvious to the Authority from the weekly figures given for each outlet that the additional cost was significant.

[48] Mr Spearman observed that reducing the hours when a security person was on duty at the door could obviously reduce the cost. However, that involved a risk of breach of a designation, and he had no confidence that the Waitakere authorities would take the same lenient view of the situation, as was apparently the case in Auckland. By way of example, he referred to a letter from the Safe Waitakere Alcohol Project Leader announcing the introduction of the “Pub Right Card” coupled with the recent news item in the Western Leader of Friday 19 November 2004 at page 41 announcing the appointment of nine Police dedicated to alcohol enforcement in Waitakere City. Mr Spearman stated that the Trusts do not do business on the basis that compliance with the law is arbitrary.

[49] Mr Spearman compared the effects of enforcing a supervised designation as opposed to a restricted designation. He said in West Auckland generally, a large proportion of the population was extended families where traditionally grandparents were responsible for childcare. The strict legal interpretation of “parent or guardian” made the supervised designation difficult because grandparents looking after children did not qualify.

[50] Mr Spearman therefore reluctantly suggested that if a designation should be imposed on the Trust’s premises he would prefer it to be “restricted”. The decision was clear-cut because a minor is not permitted on the premises at all. Decisions as to whether a person accompanying a minor was a parent or guardian became irrelevant.

[51] Another aspect of imposing a designation on off-licensed premises was the time that people spent on the premises. He noted that in respect of on-licences patrons intended to be there for some time either for drinks or a meal, and therefore the time spent at the door sorting out age issues could be justified. He said the same could not be said for a patron calling at an off-licence for a single order, and expecting to be in and out of the premises inside five minutes. That patron obviously does not expect to spend the same amount of time resolving proof of age issues.

[52] Mr Spearman observed that there had never been any suggestion that supermarkets should also have a designation. An Auckland Inspector had said to him that “it would stop kids buying lunch etc”. Mr Spearman said that as supermarkets have liquor supplies in particular areas of the store, and the whole store is subdivided into product categories with an index on each bay, therefore, he could see no reason in principle why appropriate parts of supermarket premises could not be designated on a “supervised” basis. He suggested that not to designate supermarket premises was to concede that it was not the proximity of minors to liquor which was the issue, but the fact that they obtain and consume it. That was an entirely different issue.

[53] Mr Spearman advised the Authority that designating off-licensed premises had implications for employment relations. The introduction of designated areas for off-licence premises would mean a change in responsibility for managers. It would impose responsibility for control of designated areas, and thereby liability for an offence under s.164 of the Act. He said that the Trust’s employment contract does not refer to specific offences. It simply stipulates that a breach of any of the penal provisions of the Sale of Liquor Act will be regarded as “serious misconduct” and could lead to dismissal. It could also lead to a personal grievance claim as had happened in one case.

[54] Another factor is that although a manager is required to ask for proof of age, the new proposal goes a step further. He said it was not easy for a manager to tell a youth twice her size and weight and substantially taller, that he or she is not allowed inside the shop. Mr Spearman said that verbal abuse is one thing, but physical threats are quite another. He referred to a previous occasion when he appeared before the Authority when a patron had threatened to get a gun and “deal to” the manager. Subsequently, the manager was beaten, and is still on Accident Compensation and receiving medical treatment.

[55] Mr Spearman submitted that the new policy needed to be assessed in light of the effects of its imposition. While he did not accept the Authority’s current policy position on designated areas, he assured the Authority that if designations were imposed, he would do his utmost to ensure that they were observed.

Police Submissions


[56] Senior Constable Loye acknowledged that there were no concerns regarding the suitability of the licensee or its nominated executives. There was no objection to the renewal of the licences per se.

[57] Senior Constable Loye submitted that undesignated off-licensed premises have been found to be instrumental in minors being able to gain access to liquor. He contended that when minors are found on undesignated premises they are unable to be charged. Minors generally accompany their of-age associates to place an order and then leave or wait in the general vicinity. However, no evidence was lead to support those submissions. He contended that the staff of off-licensed premises do not have the ability to remove these persons from the premises or restrict entry. He argued that the minors tend to know this and it causes problems for staff. We do not necessarily accept that submission. Licensees and managers are “occupiers” for the purposes of the Trespass Act 1980. They can apply its provisions and this frequently occurs in respect of intoxicated patrons found on licensed premises.

[58] Senior Constable Loye said that over recent times minors obtaining access to liquor and becoming intoxicated had caused numerous problems for Police, local businesses and residents. He said it was a common factor that staff of off-licensed premises had to struggle with refusing service to an 18 year old person even if it likely that the liquor is going to be shared with minors who are accompanying them.

[59] Senior Constable Loye said that he had been advised by District Licensing Agencies and interested parties within the liquor licensing industry that designating stand-alone bottle stores was now seen as a general practice throughout the country. Until the present hearing he had not been aware of any other licensee refusing to accept a “restricted” or “supervised” designation as a condition being placed on their licence. He noted that the majority of stand-alone bottle stores in Auckland City, North Shore City and Rodney District now had a “supervised” designation. Two operators in Rodney had commented to Senior Constable Loye that it is better to have a “supervised” designation because they can now identify customers at the door. He stated that the Invercargill City Council liquor policy was amended in 2003 to include the clause “that areas used for off-licences be designated restricted or supervised.” When that amendment was made there was no objection from licensees including the Invercargill Licensing Trust or the public.

[60] Senior Constable Loye referred to letters of support for the proposal from the Medical Officer of Health for the Auckland District Health Board, the Alcohol Advisory Council of New Zealand (ALAC) and Alcohol Health Promotion Adviser. Mr Price had objected to the admission of those letters because he had seen them for the first time on the morning of the hearing and the authors were not available for cross-examination. However, the issue is really one of principle based on the law. There is no doubting the sincerity behind the writing of such letters. We agree that the proposal has merit when considering youth access to liquor. The issue is whether it is reasonable.

[61] Senior Constable Loye contended that there was no reasonable argument for a licensee to allow people under 18 years of age on to any premises where the principal purpose of the business was to sell and supply liquor whether or not it was an on or off-licensed premises.

[62] Senior Constable Loye also noted that the Authority in its Annual Reports for the years ended 30 June 2002, and repeated in 2003 and 2004 had asked for a designation to be imposed in respect of stand-alone off-licence premises. He also referred to a Private Member’s Bill entitled the “Sale of Liquor (Youth Alcohol Harm Reduction) Amendment” awaiting selection for debate before the House. That Bill seeks to add the following proposed provision to s. 164 of the Act:

2AA For the purposes of this section, all bottle store off-licence premises are to be deemed to be restricted or supervised areas.

He submitted that that proposed Amendment was in accord with the Authority’s request in its Annual Reports, and that there appeared to be a groundswell of opinion for such a designation for stand alone off-licence premises. He commented that responsible licensees saw such a designation as assisting them to comply with the Act.


[63] Senior Constable Loye referred to the Authority’s decision in Eastern Foods Naenae Limited LLA PH 301/2003 where at paragraph [6] the Authority commented:

“The applicant asked that the whole of the premises be designated as “supervised”. This would seem to suggest that the intending licensee’s obligations and responsibilities to the law, concerning potential sales to minors are being taken seriously. The request also accords with a recommendation we made in our last Annual Report to Parliament.”


[64] Senior Constable Loye also referred to paragraph 20 of Harold Gordon and Marion Wilma Lockwood (supra) where the Authority said:

“We are not convinced that the premises should not be designated. A very small part of the premises is devoted to non-liquor items. Why should a premise such as this, devoted almost solely to the sale and supply of liquor, not be designated? We do not think it is appropriate for unaccompanied minors to be on such premises.” [Senior Constable Loye’s emphasis]


[65] While Senior Constable Loye accepted that such a provision would not stop all minors gaining access to liquor he suggested it was a move in the right direction. He also suggested it gave the authorities the ability to deal with minors who continually saw the situation as a game with no consequences, and entered bottle stores to “try on” the staff.

[66] Senior Constable Loye was aware through visiting the Trust’s premises that a number already have appointed security staff to prevent entry by minors. He considered that imposing a “supervised” designation on the premises would assist with promoting the object of the Act.

Authority’s Conclusion and Reasons


[67] Senior Constable Loye made a strong case for the designation of off-licence premises. However, his arguments were based on perception and principle. There were very few facts advanced to show that by installing a gatekeeper at the door of a bottlestore, liquor abuse by minors would be reduced.

[68] The first issue relates to the application under s. 132 of the Act. The question is whether the Authority should vary condition (c) of the off-licences from undesignated to “supervised”. Section 37(4) of the Act provides:

(a) On granting an application for an off-licence, the Licensing Authority or District Licensing Agency as the case may be may impose conditions relating to the following matters:

(b) The designation of the whole or any part or parts of the premises as a restricted area:

[69] That provision is clearly discretionary. In exercising our discretion we are required to do it in a way which promotes the object of the Act in s. 4(2) which provides:

(2) The Licensing Authority, every District Licensing Agency, and any Court hearing any appeal against any decision of the Licensing Authority, shall exercise its jurisdiction, powers, and discretions under this Act in the manner that is most likely to promote the object of this Act.

However, in enforcement applications the exercise of any discretion is limited.


[70] In Kim Ashton Williams LLA 2291/96 an application was made for an on-licence for a massage parlour. A request was made not to designate the premises as “restricted”. The Authority stated:

“The purpose in designating the premises “restricted” is to assist the intention of the legislature that liquor not be sold to persons under the age of 20.”


[71] There was no evidence in the present case that any of the premises were admitting minors to the premises, and therefore required a designation. The only Police evidence was from Ms Huckle, regarding the Pseudo Patrons Survey. Although part of her evidence related to the Survey’s findings in Waitakere City that evidence was also general, and did not relate to particular premises. Section 132(6) of the Act provides:

If the licensing authority is satisfied that any of the grounds specified in subsection (3) of this section is established and that it is desirable to make an order under this section, it may, by order -

(a) Vary or revoke any condition of the licence imposed by the licensing authority or a District Licensing Agency


[72] The ground relied on in the application in subs(3) of s.132 of the Act is:

[73] Clearly each application has to be considered on its merits. There has been no evidence that any of the nine premises have been conducted in an improper manner and consequently, there has not been any evidence that Mr Price could test by way of cross-examination.

[74] The Court of Appeal in Meads Brothers Limited v Rotorua District Licensing Agency (supra) said that the controls imposed under the Act “should be neither excessive nor oppressive.” The evidence from Mr Spearman was that the imposition of a designation would have a significant cost for the Trust that would be excessive and unnecessary in the absence of any proven need for such designation. We agree. In other words, there was no evidence that persuaded us that a designation would contribute to the reduction of liquor abuse. In that respect, our comments at paragraph [28] of an application by the Portage Licensing Trust LLA PH 357/2004 in respect of one of the premises in the present applications have not been changed by this hearing, and have some relevance:

“There is no suggestion that the Trust is unsuitable. We have had a number of dealings with the management company, and have been impressed by its attitude not only to the philosophy of the Act, but to its obligation to reduce the abuse of liquor in trust districts. We believe that the Trust will do its utmost to ensure that its employees obey the law. Its systems and controls, and its management practices give us confidence that prohibited persons will not be permitted to purchase liquor during the proposed extended hours.”


[75] While it may be appropriate to impose a designation on some off-licensed premises, there will always be cases where a designation may be inappropriate. Each application should be examined in light of the evidence and the merits of the case.

[76] Mr Price drew our attention to Meads Brothers Limited v Rotorua District Licensing Agency [2002] NZAR 597 at 608 where the Court of Appeal indicated that there may be exceptional cases where it is appropriate for the Authority to consider the economic impacts on a business as being relevant. He submitted that financial considerations were a factor in considering whether a particular control was reasonable.

[77] Another concern is that the pseudo patrons were of the age of 18 years. While licensed premises should be encouraged to check a young person’s age it may have been possible that at least some of the premises that were surveyed and did not ask for evidence of age may have correctly assessed that the pseudo patron was of the age of 18 years. Therefore, in the absence of any other evidence, that evidence was not appropriate upon which to alter the conditions of the licences particularly in the absence of any specific wrongdoing by the licensee and managers.

[78] In this case there is no evidence that the premises had been conducted in an improper manner. Accordingly, the application must be declined.

[79] In respect of the applications for renewal of the off-licences the Police have expressly stated that the suitability of the applicant is not in question. The only reason for the Police opposition to the renewal of the off-licences was the application to vary condition (c) of the off-licence.

[80] Section 46 of the Act provides that:

46. Decision on application for renewal---(1) After considering an application for the renewal of an off-licence, the Licensing Authority shall—

(a) Renew the licence on the conditions presently attaching to it; or

(b) Renew the licence on such different conditions (relating to any matters specified in section 37(4) of this Act) as the Licensing Authority thinks fit; or

(c) Refuse to renew the licence.

(2) The Licensing Authority shall not exercise its powers under paragraph (b) or paragraph (c) of subsection (1) of this section except in response to—

(a) An objection duly made under section 42 of this Act; or

(b) A report duly submitted under section 43 of this Act; or

(c) A request by the applicant.

(3) On renewing an off-licence, the Licensing Authority shall specify a date (being no later than 3 years after the date on which the renewal takes effect) on which the licence shall expire unless it is again renewed under this section.


[81] As is apparent from comments made in our Annual Reports, that we have maintained the view that the designation of all stand-alone off-licences was a worthy objective and in keeping with the object of the Act. As a matter of logic, it seems to us that the proposed condition is more likely than not to have some impact on the incidence of youth liquor abuse. In light of the arguments presented by the Waitakere Licensing Trust, we have a number of reservations about such a proposal.

[82] These reservations relate to the extra cost, which will be imposed on licensees if the condition is to be enforced. We also accept the argument that if bottle stores are to be designated, then there is no reason why parts of a supermarket should not have the same restrictions and responsibilities.

[83] We agree with Mr Spearman that compliance with the law should not be a discretionary issue. The lack of enforcement of such a condition is not an argument that can be used to support its imposition.

[84] Reluctantly, we have come to the conclusion that although acceptance of such a condition shows a responsible attitude by a licensee, there can be equally compelling arguments not to do so.

[85] In cases for renewal we have come to the view that to impose a blanket designation would be unreasonable. There is no evidence that such a condition would reduce liquor abuse by minors, and the cost that would be imposed on the applicant is out of proportion to the perceived benefits.

[86] Finally, there is no evidence that the conduct of the premises in question has been anything less than exemplary. So long as the legislation stays in its present form, then the test for imposing such conditions will be (a) whether the condition is reasonable and (b) whether it will assist in reducing liquor abuse.

[87] In light of the foregoing, and that there are no other issues concerning the criteria in s.45 of the Act, the applications for renewal of the off-licences will be granted without imposing the requested condition. We therefore make the following orders:

DATED at WELLINGTON this 27th day of January 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

Waitakere Licensing Trust.doc

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZLLA/2005/26.html