Ocean Company Limited [2006] NZLLA 742 (20 September 2006)

Last Updated: 22 January 2012

Decision No: PH 742/2006

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by OCEAN COMPANY LIMITED pursuant to s.9 of the Act for an on-licence endorsed pursuant to s.28 of the Act in respect of premises situated at 138 Main South Road, Christchurch, known as “Golden Boat Restaurant”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms P A Ballard

HEARING at CHRISTCHURCH on 24 August 2006

APPEARANCES

Mr R J Davidson – for applicant

Mr M Ferguson – Christchurch District Licensing Agency Inspector – in opposition

Mr P N Shaw – for Medical Officer of Health – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an opposed application by Ocean Company Limited (hereafter called the company) for an on-licence (BYO) in respect of premises situated at 138 Main South Road, Sockburn, Christchurch known as “Golden Boat Restaurant”. The sole shareholder and director of the company is Mr Yue Hing (Simon) Chan. Mr Chan’s company operates a number of food outlets in Christchurch including the “Chinatown Seafood Restaurant”. Mr Chan has owned the “Golden Boat Restaurant” for three years.

[2] Mr Chan has entrusted the management of the restaurant entirely to Mr Pak Kwan Chan. Mr P K Chan is the sole charge manager. He is responsible for the employment of staff and the day to day running of the restaurant. Mr P K Chan is a qualified chef of Chinese food and has been engaged in this activity for some 27 years. He reports to Mr Simon Chan on a regular basis. Mr P K Chan arrived in New Zealand from Hong Kong in 2000. Neither Mr Simon Chan nor Mr P K Chan were able to converse freely in the English language, and both were unable to read their briefs which had been prepared in English. They required the services of a Cantonese interpreter when they gave evidence at the hearing.

[3] It was this lack of ability to communicate in the English language which not only resulted in a breakdown in communication leading to delays concerning the processing of the application, but also caused major concerns for the monitoring agencies based on the suitability of the company to hold a licence.

[4] The application for an on-licence (BYO) was first received by the Agency on 16 June 2005. The Certificate of Compliance, confirming that the proposed use of the premises was for the consumption of liquor, was issued in August 2003, nearly two years previously.

[5] The “Golden Boat Restaurant” is a smallish restaurant situated on the main State Highway south of Christchurch. It caters for takeaway sales and offers dining facilities. The company sought a licence to allow the consumption of liquor between 7.00 am and 11.00 pm daily. At the hearing we were advised that the hours now being sought were from 12.00 midday to 11.00 pm.

[6] The first problem arose when a District Licensing Agency Inspector visited the premises in May 2005 prior to the application being filed. He went there because he had been told that liquor was being sold without a licence. He was shown two types of beer kept in a fridge behind the counter. The visit resulted in a letter to Mr Simon Chan requiring him to stop selling liquor immediately, and ensure that no liquor was displayed.

[7] There was no repetition of this behaviour. Although Mr R J Davidson objected to the hearsay nature of the evidence, there was no formal rebuttal on behalf of the company. The incident has been included primarily as an indication of the type of problem which can arise when there is a lack of communication based on an inability to understand the language of the country where a business enterprise is being conducted.

[8] The application attracted an adverse report from the Medical Officer of Health. The initial report was supplemented later with a full report written in October 2005. The concerns related to Mr P K Chan’s inability to communicate in the English language. Reference was also made to three requisitions issued under the Food Hygiene Regulations 1974 in 2003, 2004 and 21 September 2005. All the requisitions required a thorough cleaning of the kitchen and other preventative measures. There was no objection from the Police.

[9] Mr M Ferguson, the District Licensing Agency Inspector, visited the premises in September 2005. He spoke with Mr P K Chan but an interpreter was required. He did not believe that his concerns had been properly understood. He wrote a letter in October 2005 pointing out the problems which the company had and asked whether Mr Chan was still intending to proceed with the application. He received no response to his letter until he was contacted in May 2006 by a Mr Pui Mou (Michael) Keung. Mr Keung can speak English well. He has owned a number of restaurants himself.

[10] Mr Keung is a friend of Mr P K Chan’s. He had visited the premises frequently. He approached the District Licensing Agency Inspector on Mr Chan’s behalf. He arranged a meeting with the Inspector and Mr Chan. He offered to attend the premises when liquor was being sold. It was suggested that Mr Chan’s teenage children could also assist after school.

[11] Although Mr Ferguson had little concern about the issue of liquor abuse, he believed that an English speaking person should be on the premises at all times when liquor was being consumed. He therefore suggested that the matter be determined by the Authority. Accordingly, the matter was scheduled for a public hearing.

The Hearing

[12] The company had instructed Mr R J Davidson and he had helpfully arranged for briefs to be prepared. At the hearing Mr Simon Chan was specifically asked who would take responsibility for the operation of the endorsed on-licence. He initially stated that it would be himself and after some prompting seemed unsure whether it would be Mr P K Chan or Mr P M Keung. Even with the service of an interpreter it was difficult to obtain a consistent level of understanding.

[13] Mr P K Chan stated that on each occasion the restaurant received a requisition the work was carried out and the restaurant was allowed to trade. He confirmed that his friend, Mr P M Keung, had recently retired and had agreed to work in the restaurant during the hours of the liquor licence. When Mr Keung gave evidence he stated that he was only prepared to be on site from midday to 3.30 pm when Mr Chan’s children would be home from school. He also gave evidence that he lived very close to the restaurant and he could be rung to come down at short notice to deal with any language issues.

[14] Mr P K Chan confirmed that the kitchen is now cleaned daily and he did not anticipate any further problems. He stated that about 10% of his customers were of European descent.

[15] Mr Davidson submitted that the restaurant had never been required to cease trading. He argued that the language problem had been remedied by the appointment of Mr P M Keung.

[16] On the other hand Mr Ferguson submitted that there was no guarantee that Mr Keung would be available so often. Furthermore, in a telephone conversation with a representative of the Medical Officer of Health, Mr Keung had displayed an unwillingness to co-operate and a lack of respect for authority. Mr Ferguson submitted that placing the responsibility of interpreting on Mr Chan’s teenage children was quite inappropriate. They would effectively be enforcing the law.

[17] Mr P N Shaw has been employed by the Canterbury District Health Board as a liquor-licensing officer since August 2004. He visited the premises in June 2005. It became clear to him that none of the three people who were working at the premises could speak or understand English. Eventually Mr Chan’s daughter arrived from school and was able to introduce him to her father, Mr P K Chan.

The Authority’s Decision and Reasons

[18] Pursuant to the provisions of s. 28 of the Act, an on-licence endorsed under that section authorises the holder to allow the consumption of liquor in the restaurant by any person who is there for the purposes of dining if the liquor is brought to the restaurant by that person or any other person dining with that person. The licence is known as a BYO licence. One of the features of a BYO licence is that s.26(1) of the Act (which makes it mandatory for the appointment of managers) does not apply. Nor is it necessary to display a copy of the licence or signage about the trading hours.

[19] It is accepted that in a small-sized restaurant where the only liquor consumed is brought to the premises by the patron, there is less likelihood of liquor abuse, or other breaches of the Act. Nevertheless, there is always a potential for the provisions of the Act to be ignored or abused with resultant anti-social behaviour. There is no limit on the amount of liquor which can be brought in. Our view has always been that in any licensed premises there must be someone permanently on the premises who is able to communicate in the language of the country. This avoids misunderstandings, enables proper monitoring by the three agencies, and ensures that the provisions of the Act will be respected.

[20] Mr Davidson suggested that there should be some leeway given to those who do not have the ability to communicate other than in their own language. Such an expectation may well be appropriate when information is being imparted to those who have recently arrived in this country. However as a regulatory authority we believe that if people from overseas wish to obtain a liquor licence they must accept the law as they find it.

[21] In this country it is expected that in the hospitality industry the standards will be high. In the case of Mr Chan it is our view that he must either learn the language or employ someone who is able to speak it. If he receives a communication (such as this decision) it is up to him to have it interpreted if he is serious about wanting a licence.

[22] The following cases show that we have been reasonably consistent in our approach. In King Young Joe LLA 1403/94 the Authority dealt with an application for an on-licence (BYO) in respect of a restaurant in Wellington. The application was opposed by the District Licensing Agency Inspector on the grounds that the applicant was unable to communicate in the English language, and had an extremely limited knowledge of the Sale of Liquor Act 1989. The Authority had this to say:

“In Decision 389/94 we granted an application for an on-licence by Mr Jong-Boo Ahn in North Shore City for the “Seahorse Licensed Restaurant”, despite his lack of command of the English language. A condition of that licence was that a certified manager be on duty at all times when liquor is being sold or supplied to the public.

In this application we see a parallel need for an English-speaking person on duty whenever the restaurant is open. The situation is not unlike that when a company or incorporated society holds a licence, in those cases a manager is required......

The licence may issue when the applicant’s solicitor provides a written undertaking to the Authority and the Wellington District Licensing Agency that at least one person proficient in the English language and responsible to the licensee will be present on the premises for the purposes of the Sale of Liquor Act 1989 whenever they are open pursuant to the licence.”

[23] In Jun Li LLA PH 276/2006 we said:

“The Authority has emphasised in a number of decisions in the past the importance of a general manager being able to converse in the English language both with the enforcement authorities and customers of the premises.”

[24] In Min & Kim Company Limited LLA PH 544-545/2005 there was an application for an on-licence for a restaurant. We said:

“While we accept that Mrs Min is willing to uphold the law, she is currently unable to communicate with patrons, or the Police or any warranted Inspector. In the same way she was unable to show that she had sufficient knowledge of the Act and the practical ability to apply that knowledge under New Zealand conditions. Accordingly any company managed by Mrs Kim would be unsuitable to hold an on-licence”.

[25] In considering an application for an on-licence we are directed by s.13(1) of the Act to have regard to certain criteria. We do not propose to list all the criteria because, in our view, the only relevant matter is the suitability of the applicant company. The company fulfils all the other criteria.

[26] The issue of suitability was referred to by Panckhurst J in Page v Police (unreported HC V Christchurch AP 84/98 24 July 1998). He stated:

“Section 13(1)(a) provides that the applicant for an on-licence must demonstrate his or her suitability. In other words what is required is a positive finding. That implies an onus upon the applicant to demonstrate suitability. Such suitability is not established in a vacuum but in the context of the particular case: for example, the place, the intended business (here in a difficult central city location), the nature of the business itself, the hours of operation and the intended activities, provide the basis for the assessment of the individual.”

[27] In this case, we are discussing the operation of a small, established Chinese restaurant. The endorsed on-licence is limited to customers who bring their own liquor. We do not think that the issue of the three health requisitions over three years should prevent the issue of such a licence. Those who spoke were complimentary about the standard of the cuisine. We assume that the company has now learned that it must be proactive in keeping the kitchen clean. We note that the premises have never been closed for food safety reasons.

[28] The issue is whether we are satisfied that the company and, in particular, Mr P K Chan and the employees will obey the law. Will they be proactive in ensuring that there is no liquor abuse among the patrons? The onus is on the company to establish its suitability. We agree with Mr Ferguson that the offer from Mr Keung is not satisfactory. It seems that he will be on call, or only available at certain times. We are not satisfied that Mr Simon Chan or Mr P K Chan are aware how seriously we regard the issue. The suggestion that the manager’s teenage children might be used for the task of helping to maintain the law is almost irresponsible in itself.

[29] It is therefore up to the company to read and understand this decision and act accordingly. If the company is able to satisfy the two reporting agencies that an adult English speaking person will be on site at all times when patrons bring liquor to the premises, then we would be prepared to grant the application on the papers. Alternatively, a further public hearing can be scheduled. If the company finds that it cannot reach our expectations it may withdraw the application or it will be refused.

[30] The application is adjourned to await the company’s response.

DATED at WELLINGTON this 20th day of September 2006

Judge E W Unwin Ms P A Ballard
Chairman Member

Golden Boat.doc