Patel and Patel, re [2008] NZLLA 1167 (18 August 2008)

New Zealand Liquor Licensing Authority

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Patel and Patel, re [2008] NZLLA 1167 (18 August 2008)

Last Updated: 5 February 2010

Decision No. PH 1167/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by SHITAL NAGIN PATEL AND PRIYA SHITEL PATEL trading in partnership pursuant to s.31 of the Act for an off-licence in respect of premises situated at 171 Colombo Road, Masterton, known as "Colombo General Store"

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Dr J Horn

HEARING at MASTERTON on 8 August 2008

APPEARANCES

Mr L O Tuffs – agent for applicant
Mr P N Kinaston – Masterton District Licensing Agency Inspector – in opposition

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by the partnership of Shital Nagin Patel and Priya Shitel Patel for an off-licence in respect of premises situated at 171 Colombo Road, Masterton known as "Colombo General Store".

[2] The application is made pursuant to s.36(1)(d)(ii) of the Act. In other words the applicants are required to satisfy the Authority that the principal business of the store is the sale of main order household foodstuff requirements. Mr and Mrs Patel have been operating this general store for over four years. They seek licence hours between 6.30 am and 10.00 pm, seven days a week.

[3] The criteria to which the Authority must have consideration are set out in s.35 of the Act. It is our view that Mr and Mrs Patel satisfy all the criteria. Both of them have applied for General Managers' Certificates. They are obviously popular in the community as evidenced by a petition which was presented and there have been no issues about their general suitability. There has been no opposition from the monitoring agencies and it can be inferred that they will uphold the law if granted a licence.

[4] They used to sell party pills as part of the business but they no longer do so and are well aware of the Authority's view that any such business might place a licence at risk.

[5] The reports from the District Licensing Agency Inspector offer no objection to the application. The original Police report showed opposition but that was based on matters outside the criteria under the Act and a subsequent report from the Police had no objection.

[6] The public notification attracted five letters of objection from residents in the neighbourhood. However it is fair to say that only one of the letters addressed the criteria and that was in respect of the proposed trading hours. On the other hand it is clear that the trading hours are not necessarily excessive. In any event none of the objectors appeared in support of their objection and no explanation has been received for their non appearance.

[7] The difficulty from our perspective when objectors do not appear is that it is impossible to tell whether they have now been satisfied about the application, whether they may have moved, or whether they are reasonably apathetic to the matter. As a consequence very little weight can now be given to those original objections.

[8] The applicant was represented by Mr L O Tuffs as agent and he gave a comprehensive submission as to why in his view the application should be granted. In particular he referred to the well known decision of Jay & H Company Limited LLA PH 155/2001 in which the Authority set out a number of tests in making a decision whether the principal business of the store was a dairy.

[9] Looking at the suggested criteria the figures which have been presented of turnover show that the primary purpose the business is a grocer. These figures are certified by an accountant in Wellington although it is noted that there is a disclaimer based on the fact that the figures were compiled on information provided by the applicant. On the other hand the applicant has satisfied us that the information has been calculated from a computer from the till and should be accurate.

[10] Although there is one small discrepancy the figures show that over 50% of the items that are sold in the business could be described as main order household foodstuffs. The balance of the items include tobacco products, personal hygiene products, cleaning products, hardware, newspapers and magazines, flowers, bathroom products, cordial drinks, pet food, confectionery and ice creams.

[11] If those figures are accepted then the applicant has achieved the major aspect of the criteria. In terms of the number and range of items that are available the Authority has taken the view and it is our opinion that there was not a great range of household foodstuffs such that we were surprised that the sale of such foodstuffs exceeds 50%. We noted that absence of fresh fruit and the small amount of fresh vegetables that were available.

[12] It could be argued that a family could subsist or live comfortably on the range of items available but in our view that was no positive as far as the applicants were concerned.

[13] Item three is the size of the premises. That is important for two reasons. Firstly small premises are more likely to be categorised as a dairy and secondly there is legislation currently before Parliament which fixes a square metreage under which a licence will not be granted.

[14] The premises have been measured and we understand that the measurement indicates an area of 84 square metres which is very small. On the other hand the business gives a good impression of use of space, there is no clutter and one can walk around the aisles. The layout could be described as fair in terms of whether or not this is a dairy. So the size is small, on the other hand the applicant is well aware that if a licence is granted and the legislation is subsequently passed, there may well be the possibility that the licence could be lost in the future, after a sunset clause has been seen out.

[15] We did take a view of the premises. It is our opinion that the outside of the premises is not a good look from a dairy perspective and it will be our strong suggestion that subject to any commercial contracts that are in existence for the advertising the applicant makes a concerted effort to regenerate the look of the premises to be more consistent with that of a grocery store. That issue will be considered on renewal and the applicant needs to be aware that if no effort is made then the renewal is not a guarantee.

[16] We are in a situation where we are satisfied on the turnover percentages that the applicant has established its case. We could indicate that were it not for the complete absence of any objections the application might well not have been granted because this is very much a case where the scales are quite evenly weighted.

[17] The application will be granted. But the applicant needs to understand that on a renewal in 12 months time further figures will be required to establish that the applicant continues to show a percentage of main order household foodstuffs of over 50 percent. In our view it is important that if the applicant wants to retain its licence it must promote such foodstuffs in a greater way.

[18] Having satisfied ourselves as to the criteria set out in s.35 and that the applicant has established that the principal purpose of the business is the sale of main order household foodstuffs, the application will be granted and the trading hours will be fixed from 6.30 am to 10.00 pm, seven days a week.

[19] The licence cannot issue until the expiry of 20 working days, which is the normal period of time required by the Act in which an appeal can be lodged. Following that period of time the licence will issue and the licence will contain a number of conditions. The applicant is reminded of the various requirements that need to take place in relation to signage, the display of the licence and the trading hours as well as the name of any duty manager.

DATED at WELLINGTON this 18th day of August 2008

B M Holmes
Deputy Secretary

Colombo General Store.doc(aw)