Sunrise Enterprise 2009 Limited and Khan, re [2009] NZLLA 1375 (10 December 2009)

New Zealand Liquor Licensing Authority

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Sunrise Enterprise 2009 Limited and Khan, re [2009] NZLLA 1375 (10 December 2009)

Last Updated: 15 January 2010

Decision No. PH 1375-1376/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by SUNRISE ENTERPRISE 2009 LIMITED pursuant to s.31 of the Act for an off-licence in respect of premises situated at 46-48 McLean Street, Waitara, known as “Waitara Liquor”

AND

IN THE MATTER of an application by ABDUL KADIR KHAN pursuant to s.118 of the Act for a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at NEW PLYMOUTH on 24 November 2009

APPEARANCES

No appearance by or on behalf of the applicants
Mr M E Clearwater – New Plymouth District Licensing Agency Inspector – in opposition
Senior Sergeant M P J Prendergast – NZ Police – to assist
Mr T P Corrigan - objector

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority are two related applications. The first is by Sunrise Enterprise 2009 Limited (hereafter called “the company”) for an off-licence in respect of premises situated in McLean Street, Waitara, to be known as “Waitara Liquor”.
[2] The second application is brought by the sole shareholder and director of the company, Mr Abdul Kadir Khan. He applies for a General Manager's Certificate.
[3] The first application, for an off-licence, is governed by s.35 of the Act which lists the criteria of which the applicant company must satisfy us. The primary issue in this case is the company’s suitability. The application for the General Manager's Certificate is governed by the criteria set out in s.121(1) of the Act. The issue is the applicant’s character and reputation.
[4] The hours sought for this off-licence are between 10.00 am and 10.00 pm Mondays to Saturdays. Planning and building certificates have been issued. This is a shop which has not yet been fitted out. If a licence were to be granted then a final building certificate would be required.
[5] The Inspector who gave evidence pointed out that although the owner has signed a lease, no specific approval has been received for the establishment of the proposed bottle store. There have been difficulties in making contact with Mr Khan in recent times. The Inspector pointed out that a public objection has been received although he doubted that the objection addressed the criteria set out in s.35 of the Act. The Inspector opposed the application on the grounds of the company’s suitability, which in turn reflected Mr Khan’s lack of experience and lack of knowledge of the Act.
[6] One of the issues in this case is that it is believed that the company was to be part of what is known as “Liquor Centre Group”. It is understood that this commercial enterprise operates on extremely low margins bordering on loss-leading and deep discounting practices. It is the underlying belief that such practices are contrary to the spirit of the Act and have the capacity to lead to liquor abuse issues.
[7] However, there were more detailed reasons given by the Inspector in his evidence. He noted that Mr Khan had no experience in controlling licensed premises as required in the criteria. When interviewed, he thought that Mr Khan displayed an unsatisfactory knowledge of the provisions of the Act, and a lack of understanding of the duties and responsibilities expected of the holder of a manager’s certificate.
[8] At the time of the interview, Mr Khan was working as a manager of new off-licensed premises in New Plymouth. Those premises were being conducted illegally because the appointment of the acting manager had expired five days previously.
[9] The Senior Sergeant from Waitara gave a useful summary of the potential consequences that might arise in Waitara were the application to be granted. These consequences related to crime and other forms of disorder. The Senior Sergeant reflected to some extent the general concerns in the community, and the potential for liquor abuse if there was further access to cheaper liquor.
[10] Finally we heard from Mr P T Corrigan who is the manager of the licensed premises that filed the public objection. As stated above, it appeared to us that the objection did not address the criteria which must be taken into account on such an application. These criteria are quite restrictive.
[11] As the Inspector pointed out it is the company and the applicant that carry the onus of proving suitability, as well as character and reputation. In this case the evidence is that Mr Khan left New Zealand on 28 October 2009, and has not returned. He was not present in support of the application. No explanation was received for his non-appearance and no request for an adjournment was made.
[12] It seems a reasonable inference to draw that Mr Khan has lost all interest in pursuing this matter. Mr Khan is quite unable to establish the criteria set out in the Act. Accordingly we have no hesitation in declining both the application for the off-licence and the application for a General Manager’s Certificate.

DATED at WELLINGTON this 10TH day of December 2009

B M Holmes
Deputy Secretary

Waitara Liquor.doc(aw)