B & D Co (2008) Limited, re [2009] NZLLA 1 (6 January 2009)

Last Updated: 25 January 2010

Decision No. PH 0001/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by B & D CO (2008) LIMITED pursuant to s.31 of the Act for an off-licence in respect of premises situated at 26 Warspite Avenue, Cannons Creek, Porirua East, to be known as “Creek Liquor Store”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr P M McHaffie

HEARING at PORIRUA on 8 December 2008

APPEARANCES

Mr L O Tuffs – for applicant
Mr J T Sutton – Porirua District Licensing Agency Inspector – to assist
Senior Sergeant S D Sargent – NZ Police – to assist

Dr S G Palmer – Medical Officer of Health – submitter

Objectors

Ms T C Fagaloa – representing the Porirua Alcohol and Drug Cluster
Mr W P Poutoa – representing ‘Streets Ahead 237’
Mrs F Molia – Community Health Worker
Reverend P Leasi – representing the community of the Porirua Pacific Islanders Presbyterian Church of Aotearoa NZ
Ms S H Jungersen – representing Porirua College
Mr D R Crampton – representing the Porirua City Community Safety Project

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority is an opposed application for an off-licence for a stand-alone bottle store. The application was brought pursuant to s.36(1)(c) of the Act on the basis that the principal business is to be the sale of liquor. The building where the proposed business will be located is in a shopping centre in Warspite Avenue, in Cannons Creek, in eastern Porirua. The proposed premises are situated directly opposite the Cannons Creek Primary School grounds, and approximately 10 metres away from the school pedestrian crossing. If the licence is granted, the new business will be known as “Creek Liquor Store”.

[2] The applicant is B & D Co (2008) Limited (hereafter called “the company”). Ms Bhaveeni Dahya is the company’s sole director and shareholder. Ms Dahya’s parents own and operate a bottle store in the neighbouring suburb of Waitangirua known as “Waitangirua Mall Liquor Centre”. That store has failed two controlled purchase operations in the last nine months, and the store’s off-licence has been suspended twice. (see decisions LLA PH 998-999/2008 and 1716-1717/2008).

[3] The company seeks trading hours from 9.00 am to 10.00 pm Sunday to Thursday, and between 9.00 am and 12 midnight Friday and Saturday. It had originally requested the right to trade until midnight seven days of the week, but reduced the hours to bring them into line with the current Porirua District Licensing Agency guidelines, as set out in its Sale of Liquor Policy.

[4] The application was accompanied by a certificate from the Porirua City Council that the proposed use of the premises meets the requirements of the Resource Management Act 1991, and that the building complies with the New Zealand Building Code. The company requested that the entire store be designated as supervised.

[5] Neither the Police nor the District Licensing Agency Inspector opposed the application. There are no outstanding compliance issues. Public notification attracted six letters of objection. The objectors represented a range of community organisations. The main concerns related to the location of the proposed premises, the proliferation and density of liquor outlets in the area, the impact of the proposed store on the general health of the community, and the proposed trading hours.

[6] In addition, the objection from the Porirua Alcohol and Drug Cluster (hereafter called “PADC”) enclosed a petition that contained 604 signatures. The circulation of the petition followed a community meeting held on 10 September 2008. A study of the petition shows that many of the signatories would be unable to meet the test in s.32(1) of the Act. That is to say they did not appear to have a greater interest in the application than the public generally. In other words they lived too far away from the proposed business to experience any personal impact from the business. Those who signed the petition were sent a notice of hearing. Thirty-three such notices were returned “Gone No Address”.

[7] The petition itself has very little persuasive force. Our experience is that many people will sign such a document purely on impulse. Some members of the public have been known to sign petitions both for and against the establishment of licensed premises. In addition this particular petition did not give any grounds for opposing the application. It reads:

“We, the undersigned, wish to strongly express our opposition to the granting of a liquor licence by the Liquor Licensing Authority for an off-licence premise in respect of 26 Warspite Ave Porirua to be known as Creek Liquor Store.”

[8] Although the petition carries little weight, the public movement that started with the formation of PADC continued to gather momentum prior to the hearing. When it was discovered that the hearing venue would be unlikely to accommodate all members of the public who wished to be present, PADC organised a protest meeting followed by a short march to the Porirua District Court. About 150 people took part in the march, and about 50 members of the public were able to observe the proceedings. In summary, there was clear evidence of significant public antipathy to the establishment of an additional liquor outlet in Cannons Creek.

The Application

[9] Mr L O Tuffs appeared on the company’s behalf. His task, which was difficult enough given the groundswell of opposition, presented an even greater challenge when it was revealed that the company’s alter ago (Ms Bhaveeni Dahya) had decided that she was unable to appear. Mr Tuffs tendered a brief letter from Ms Dahya in which she apologised for being unable to attend the hearing. She stated that she was currently completing the College of Law Professional Legal Studies course in order to be admitted to the Bar. She added that her final examinations commenced the following day, 9 December 2008.

[10] Mr Tuffs did not seek an adjournment. He produced another letter that indicated that Ms Dahya was also to commence a course of training the following day, leading to her attaining the Licence Controller Qualification, and ultimately her General Manager’s Certificate. The application form had given the names of two other potential managers of the store.

[11] Mr Tuffs stressed that neither of the two reporting agencies had opposed the application. He commented on the fact that four of the letters of objection had used a similar text concerning the grounds on which the objections were based. He noted that the petition recorded no grounds on which the opposition was based. Mr Tuffs contended that the grounds for objection were limited to the criteria set out in s.35(1) of the Act. He submitted that there was no power to look at the number of existing liquor outlets. In addition he argued that we are unable to refuse an application based on outlet density, or the proposed location of the store.

[12] Mr Tuffs questioned whether it would be fair to reduce the proposed trading hours on the basis that other liquor stores in the area had already been granted similar hours. He referred to our recent decision Complete Catering Company Limited LLA PH 1445/2008, in which there had been significant public opposition to the establishment of a new bottle store in Waikanae. He stressed the comments made in that decision. These were that our approach has been to satisfy ourselves that the applicant was suitable and would obey the law, and that if a suitable applicant has planning permission to sell liquor, then the grant of a licence would normally follow.

The Medical Officer of Health

[13] Dr S G Palmer is the Medical Officer of Health for the Wellington, Hutt Valley and Wairarapa Health Districts. He is a board member of Porirua Health Plus that serves many of the residents of eastern Porirua. Although the Act does not require him to report on off-licence applications, he exercised his right of audience under s.108(c) of the Act. He presented his submission on the basis that it might assist us in dealing effectually with the application. (see s.109 of the Act).

[14] Dr Palmer argued that on the basis of s.4(2) of the Act, we should exercise our discretion in a manner that that was most likely to promote the Act’s objective. He submitted that the reduction of liquor abuse was an important factor in this case because the residents of Cannons Creek were so vulnerable. Without being in any way critical or judgmental of the area, he sought to establish that the community had a poor level of health that would be adversely affected by the increased availability of alcohol.

[15] Dr Palmer pointed out that the demography of eastern Porirua was unusual, in that Pacific people accounted for just over half of the 20,000 people who resided in the area. Maori accounted for just over a quarter of the population, and the European proportion was 16%. In addition, the majority of the people were much younger than the normal structure found in other New Zealand communities. He argued that both the ethnic mix and the age structure pointed to the community’s vulnerability in terms of larger families and lower incomes. He contended that the high proportion of adolescents in the community made them particularly vulnerable to alcohol misuse and abuse.

[16] Dr Palmer noted that in Porirua City (including eastern Porirua), most alcohol outlets were located in disadvantaged areas, and that eight such outlets were located in Cannons Creek and Waitangirua. He pointed out that in Cannons Creek there are three outlets in the central area, and the present proposal would add a fourth. Such density was well out of proportion to more advantaged nearby areas such as Whitby, Paremata, Papakowhai and Ranui Heights. On that basis he submitted that it would be impossible to argue that Cannons Creek needed a further liquor store.

[17] Dr Palmer contended that the area in question was predominantly residential with a nearby school, community hall, health services, and a handful of shops. He produced evidence to indicate that the community experiences some of the poorest health outcomes in the country. He contended that alcohol misuse, along with smoking, obesity, and poor housing were all contributing factors.

[18] Dr Palmer’s evidence was that there is a growing body of research evidence to suggest a significant and positive relationship between the retail availability of alcohol with increased alcohol consumption and alcohol-related harm. He referred in particular to New Zealand research conducted by Huckle T, Huakau J, Sweetsur P, Huisman O, Casswell S (2008), “Density of alcohol outlets and teenage drinking: living in an alcogenic environment is associated with higher consumption in a metropolitan setting.” Addiction 103. This study showed that:

• Living within ten minutes of relatively more outlets was associated with larger quantities consumed;

• Alcohol outlet density was associated with neighbourhood deprivation;

• Supply by family, friends and others also predicted quantities consumed among underage drinkers;
• Both social supply and self-reported purchase were associated with frequency of drinking and drunkenness; and

• The ethnic status of young people also had an effect on consumption

[19] In summary Dr Palmer argued that many agencies were trying to improve the health and wellbeing of the eastern Porirua community. He contended that the area in question was already an “alcogenic environment. And he submitted that another alcohol outlet would lead to further alcohol misuse and further harm, and would undermine the efforts being made to change the local culture for the better.

The Objectors

[20] Ms T C Fagaloa is a Porirua City Councillor and the Manager of Porirua Healthlinks Trust, a non-governmental organisation based in Porirua. She advised that PADC was set up in April 2008, following a local hui of concerned citizens and social and community organisations. She confirmed that PADC spoke on behalf of at least 30 such community organisations. Ms Fagaloa stressed that PADC supported any economic development that led to positive social outcomes. She is PADC’s co-ordinator. As such she has been active in organising the petition and public meetings and consequential publicity. She presented the attendance register of those who had attended meetings on 10 September and 2 December last.

[21] Ms Fagaloa’s concern was that the community was already burdened with high alcohol consumption that in turn fuelled crime and violence. She questioned why the community should have to bear the burden of yet another outlet. She noted the six off-licensed outlets that were already based in Porirua East. She referred to the New Zealand research entitled “Alcohol outlet density and university student drinking: A national study”. Addiction 103 by Kypri K, Bell L M et al. She submitted that this research showed that increased density of alcohol outlets was associated with increased consumption by students, and increased harm and related problems as a consequence.

[22] She submitted that communities were fed up with the proliferation of outlets and the increased evidence of a link between alcohol and Police work, as well as domestic violence, hospital admissions and road casualties. She argued that licences should be harder to get and easier to lose.

[23] The Reverend Perama Leasi is the Minister of Christ the King – Porirua Pacific Islanders Presbyterian Church of Aotearoa New Zealand, located in Cannons Creek. He represented the Church Community of about 25 churches in Porirua. He argued that the petition was a significant and clear sign of the community’s unity and active participation in social issues that affected their lives. He believed that the opening of another liquor store in the middle of Cannons Creek would definitely increase domestic violence, and adversely affect the lives of many people, particularly the young.

[24] Ms S H Jungersen has been the Principal of Porirua College for twelve years. The College is co-educational and caters for about 600 students. She was adamant that alcohol and education do not mix. She had seen the effect of liquor dependency on the students, and the impact of consumption on their decisions to leave the school before year 13. She advised that the school spent a considerable proportion of its budget to ensure that students attended school. She believes that some of the causes of absenteeism were related to liquor abuse.

[25] She referred to the current research tending to link the density of outlets with increased opportunity and access. She said that it was in the nature of teenagers to take risks, and that while the College had safeguards to prevent the consumption of liquor, they were not foolproof. She stated that it was obvious to her that the students were able to use older friends and relations to purchase liquor on their behalf.

[26] Mr D R Crampton is the co-ordinator for the Porirua Community Safety Project. This is a joint project sponsored by the Porirua City Council, NZ Police and the Accident Compensation Corporation. He is also the manager of the Porirua Community Guardians, who serve as ambassadors for the City. He pointed out that Porirua City had been designated as the 143rd International Safe Community by the WHO Collaborating Centre on Community Safety. He said that the designation was the result of a considerable amount of collaborative work by government and non-governmental agencies.

[27] Mr Crampton argued that alcohol is the leading cause of harm, disability, and disease in New Zealand, and is a major contributor to intentional and unintentional harm in the city. In addition he submitted that the sale and use of liquor in the community generated a fear factor. He pointed out that few bottle stores presented as an open, well-lit, and safe environment.

[28] Mrs F Molia has worked for Pacific Health Service as a community youth worker for the last three years. As such, she offers youth programmes and support for young people. She said that she could provide specific examples of minors being able to access alcohol from licensed outlets, and then becoming intoxicated, thereby placing themselves at risk of self harm or harm to others. She contended that there were too many broken homes and family group conferences (for young offenders) because of the ease of accessing alcohol.

[29] Mrs Molia stated that it had been a long, hard process minimising alcohol activity. She believed that with the help of programmes and services in Cannons Creek, the local culture was much more positive. She argued that enough was enough, and it was important to continue with the progress that had been made, by refusing the application.

[30] Mr F W Poutoa is the director of ‘Streets Ahead 237’. This is a community initiative based in Waitangirua, and focused on the reduction of gang recruitment and youth offending. He works closely with youth gangs and the more established gangs in Porirua, and strives to create a safe environment for younger people to prosper. As such he has witnessed a number of young people who consume liquor on a regular basis. He commented on the way they were able to have alcohol purchased for them.

[31] Mr Poutoa submitted that if the licence was granted, then it might as well be followed by the establishment of a larger Police station. He was adamant that the people he tried to help used alcohol as the primary tool of engagement into a world of crime and violence. He saw the establishment of another bottle store in Cannons Creek as a threat to the well being of the young people in the community.

NZ Police

[32] In his closing submissions Senior Sergeant Sargent noted that there was a liquor ban in the area which had been put in place for a specific purpose. He stated that although the Police had not objected to this application, he supported the submissions made by the Medical Officer of Health. He questioned whether the applicant was going to be responsible for the day to day running of the store. He also referred to the fact that Ms Dahya’s parents had twice had their off-licence suspended in Waitangirua. He speculated what might happen to the proposed premises if Ms Dahya’s parents’ company was found to be unsuitable to hold a licence in the future.

The Authority’s Decision and Reasons

[33] In considering an application for an off-licence for a stand-alone bottle store we are directed by s.35(1) to have regard to the following matters:

(a) The suitability of the applicant;

(b) The days on which and the hours during which the applicant proposes to sell liquor:

(c) The areas of the premises or conveyance, if any, that the applicant proposes should be designated as restricted areas or supervised areas:

(d) The steps proposed to be taken by the applicant to ensure that the requirements of this Act in relation to the sale of liquor to prohibited persons are observed:

(e) Whether the applicant is engaged, or proposes to engage, in –

(i) The sale or supply of any other goods besides liquor; or

(ii) The provision of any service other than those directly related to the sale and supply of liquor,-

and, if so, the nature of those goods or services:

(g) Any matters dealt with in any report made under section 33 of this Act.

[34] It will be noted that we have no power to look at the number of licensed outlets currently available to the residents of Cannons Creek. Nor do we have the power to decline applications on the grounds of the density of present off-licensed outlets. The only criteria that which could be regarded as relevant to this application are, the company’s suitability, the proposed trading times, and the steps proposed to be taken by the company to ensure that minors and intoxicated patrons are not served.

[35] In addition there is the ancillary argument raised at the hearing by the Medical Officer of Health and the objectors. They submitted that under s.4 of the Act, the refusal of this application, in this particular environment, would promote the object of the Act. Conversely, they contended that given the evidence about the area’s vulnerability, an increase in liquor abuse and related harm would be inevitable if the application was granted. In other words they suggested that there was a discretion, and that we should exercise that discretion by refusing the application.

[36] Section 4 of the Act reads as follows:

(1) The object of the Act is to establish a reasonable system of control over the sale

and supply of liquor to the public with the aim of contributing to the reduction
of liquor abuse, so far as that can be achieved by legislative means.

(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.

[37] The first issue is the company’s suitability. The reporting agencies expressed no concerns about the company’s ability to operate a licensed business according to the conditions of the off-licence. Ms Dahya is the company’s alter ego. There is nothing adverse known about her character and reputation. She is to receive training to become the holder of a General Manager’s Certificate.

[38] When considering the issue of suitability we have generally had regard to the comments made 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.”

[39] This intended business is to be located in the central business area of Cannons Creek, very close to a primary school. There was no evidence to suggest that the premises would be brightly lit, or that high alcohol-by-volume products would not be sold at discounted prices. Given the significant amount of opposition from such a large number of community organisations, represented by the above objectors, the issue of the off-licence is an extremely sensitive one. The Medical Officer of Health saw fit to voice his concerns by making a full presentation about the probable impact of the proposed business on the residents of Cannons Creek.

[40] By choosing to study for her Professional Legal studies course on the day of the hearing, Ms Dahya was unable to tell us how much time she would be spending at the premises, and what level of responsibility she intended to adopt. She was unable to explain in person, the ways in which she would ensure that minors or intoxicated patrons would not be sold liquor. She did not have the opportunity to counter the suggestions that the last thing that Cannons Creek needed was a new bottle store. In such circumstances her suitability, as well as the steps to be taken by the company to ensure that prohibited people will not be sold liquor, are marginal at best.

[41] If an off-licence is granted, then pursuant to s.37(4) of the Act, we may regulate the days on which and the hours during which liquor may be sold or delivered. There is another consideration set out in s.37(5) of the Act. This section reads:

In determining the conditions to be imposed under subsection (4)(a) of this section, the Licensing Authority or the District Licensing Agency, as the case may be, may have regard to the site of the premises in relation to neighbouring land use.

[42] In this case there was no evidence of any particular adverse effect on neighbouring land use, and the local primary school did not object to the application. However, the application has become a major local issue, and the proposed sale of liquor from this site has become a serious matter for the community. In our view, there needs to be some recognition of that factor, given that we appear to be on the cusp of change in relation to the nation’s system of control over the sale and supply of liquor. If a licence was to be considered, then it is probable that in an attempt to allay the fears of harm to the community, we would grant trading hours from 9.00 am to 8.00 pm.

[43] Given that the company’s ability to satisfy us as to the criteria in s.35 of the Act is marginal, we believe that we need to consider s.4 of the Act. It is the current and conventional licensing wisdom that we have no discretion to decline an application where an applicant is regarded as suitable, and has resource consent to establish an off-licence. However in the decision of Barry Gray Limited LLA PH 1789/2008 we questioned whether there might not be cases where the clear and likely potential to increase liquor abuse might not be a major factor given current research about the links between availability and abuse.

[44] In the decision of Goldcoast Supermarket Limited and anor [2001] 2NZLR 769, Wild J was asked to consider the impact of s.4(2) of the Act. He stated:

“In practical terms, I think that means granting applications only to responsible applicants who satisfy the Authority that they have suitable premises and will have proper controls over the sale of liquor from those premises during the hours of sale which they are seeking. There is no requirement on the Authority in s.35(1) in granting an application to achieve a reduction in liquor abuse.”

[45] The fact that there is no requirement on us to achieve a reduction in liquor abuse does not mean that we cannot do so in certain circumstances. After all, it is nearly eight years since the issue was argued in the High Court. Since that time research has been conducted here and overseas (as well as anecdotal evidence), about the increased number of liquor outlets and their impact on consumption and abuse. In the last nine years there have been a number of licensing changes, the effects of which have taken some time to be appreciated. One example would be the lowering of the purchasing age in 1999. At the same time as that change became law, supermarkets and grocery stores were granted the right to sell beer. This was in addition to the right to sell wine that had been granted in 1992. Another example was the freeing up of licensing hours.

[46] It may well be that these attempts to liberalise the law, and normalise the consumption of liquor, have been achieved for many or even most of the nation’s adult citizens. However the research and the anecdotal evidence is now showing that for many people (and particularly the young), the combination of easier access and lower prices has led to higher consumption and increased liquor abuse.

[47] We used to refute the arguments that the establishment of an off-licence would lead to an increase in liquor abuse and/or disorderly behaviour in the local community. Experience has persuaded us that such consequences are realistic. The fact is that citizens can now purchase liquor anywhere at any time and often cheaply. For many retailers, liquor has become another product to be marketed for maximum profit. There is little acceptance of any social responsibility. The convenience of being able to purchase liquor at any time and any place is seen by some as a ‘right of passage’.

[48] But regard must be had for the social consequences that result from over-consumption. Liquor is not just another commodity. It is a drug requiring a reasonable system of control. The greater the amount that is consumed, the greater the problems that will be experienced in a community. Therefore we believe that the time has come to look more closely at applications such as the present one.

[49] As was stated in the Barry Gray Limited decision (supra):

“With respect we do not intend to imply that there was anything wrong with the decision at the time. Rather we wish to suggest that in the last eight years times have changed. As a result there will now be occasions (as in this case), when the object of the Act will have an impact on our discretion to limit the trading hours. We have done so in a number of recent decisions for off-licences. In other words the evidence is clear that longer trading hours for some off-licensed premises (particularly those that loss-lead and/or target young purchasers) will encourage liquor abuse. There may also be rare occasions where the evidence will show that the grant of an off-licence will inevitably contribute to an increase in liquor abuse. If that is the case, then regardless of an applicant’s ability to control the sale of liquor, a refusal of an application may be warranted.”

[51] The evidence given by Dr Palmer and the objectors was excellently presented and quite overwhelming. Its combined force persuaded us that if this particular application were to be granted, an increase in liquor abuse and alcohol related harm in this community would be likely.

[51] We believe that the grant of the application would undermine the efforts being made to change the local culture for the better. Put in another way the company was unable to persuade us that it is a responsible applicant that has suitable premises and will have proper controls over the sale of liquor.

[52] For the above reasons the application is refused.

DATED at WELLINGTON this 6th day of January 2008

Judge E W Unwin
Chairman

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