Loye v Dial A Beer Limited [2008] NZLLA 1397 (2 October 2008)

New Zealand Liquor Licensing Authority

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Loye v Dial A Beer Limited [2008] NZLLA 1397 (2 October 2008)

Last Updated: 9 February 2010

Decision No. PH 1397/2008

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 cancellation of off-licence number 007/OFF/170/2007 issued to DIAL A BEER LIMITED in respect of premises situated at Unit 133, 300 Richmond Road, Grey Lynn, Auckland, known as “Dial a Beer”

BETWEEN JASON PETER LOYE
(Police Officer of Avondale)

Applicant

AND DIAL A BEER LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms J D Moorhead

HEARING at AUCKLAND on 10 September 2008

APPEARANCES
Sergeant J P Loye – NZ Police – applicant
No appearance by or on behalf of respondent
A Phillips – Auckland District Licensing Agency Inspector – to assist

DECISION OF THE AUTHORITY

[1] On 1 November 2007 we issued an ‘on the papers decision’ granting an off-licence to a company known as Dial a Beer Limited (hereafter called the company) in respect of premises situated in Grey Lynn known as “Dial a Beer”. The purpose of the business was to sell liquor by telephone order.

[2] There were no objections to the application. However both the Police and the District Licensing Agency Inspector recommended that the matter be referred to us because the proposal was slightly unusual. There were no intentions to hold stocks of liquor on the premises, and all orders would result in a purchase from a wholesaler on an ‘as required’ basis, with the liquor being delivered directly to the client.

[3] The premises comprised an office within the confines of a larger occupancy. One of the concerns was the lack of tenure because the tenancy was on a month to month basis. In our decision LLA 1173/2007 we said:

“It occurs to the Authority that this may not be an ideal arrangement given that, in the event of any termination of the lease the applicant is left with no alternative but to cease trading until fresh premises have been secured and the application process is undertaken all over again. However, that is a business risk the applicant is apparently prepared to run.”

[4] In late July 2008, the Authority received an application for cancellation of the off-licence. The application was brought by the Police and was based on the grounds that the licensee’s conduct showed a lack of suitability. Further, it was alleged that the licensed premises had been used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public. A number of particulars were alleged concluding with the assertion that because of the behaviour of the company’s employees, the tenancy had been terminated.

[5] The application was duly set down for a public hearing. The respondent company and/or licensee failed to appear and no explanation was given for the non-appearance. The evidence consisted of an affidavit from the office manager of the premises where the company’s office was sited. The office manager confirmed that on 1 May 2007, it had been agreed to lease the office to the company for a business to be known as “Dial a Beer”. On the morning of 14 May 2008, she had found vomit in a hand basin and urine on the toilet floor of the upstairs ladies toilet area, which is near the office. The adjacent kitchen facility was in the process of being cleaned by staff. She was advised that because of the damage to the area it had to be sterilised and cleaned.

[6] On passing the company’s office she could smell cigarette smoke. On opening the door she found a male asleep on the floor. The company’s manager was called out of the office, and the other males were asked to leave immediately. The manager advised that they had been out partying in the town and had slept in the office, as they were unable to drive home. There were empty beer cans scattered around the office. The manager was given a once only final warning, and advised that the company would be charged for cleaning the premises and replacing the rubbish bin.

[7] A subsequent management meeting on 15 July 2008 showed that the rear driveway seal was damaged. Video surveillance revealed that a member of the company’s staff had left the premises and a cloud of smoke had been seen from the parting vehicle. The landlord was able to establish that the culprit had come from the company’s office. Accordingly the company was given one month’s notice to vacate the office, and it was confirmed that the company had since moved out of the office. Sergeant Jason Peter Loye of the Avondale Police advised that the company’s website was still functioning. However the indications were that the business was not operating, but the company had indicated that it hoped to be up and running in the near future.

[8] It is clear that the company can no longer operate its off-licence on the premises. The company has no tenure and no premises from which to conduct its business. Any application for an off-licence in respect of other premises might result in adverse reports from the reporting agencies. Those are matters for the future. In the meantime we have been satisfied that the grounds for the application have been established. In the absence of any explanation from the company we confirm that off-licence number 007/OFF/170/2007, issued to Dial a Beer Limited is now cancelled.

DATED at WELLINGTON this 2nd day of October 2008

Sara Cunningham
Secretary

DialABeer.doc(jeh)