Love & Beware Co Limited [2009] NZLLA 664 (2 July 2009)

Last Updated: 31 January 2012

Decision No. PH 664/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by LOVE & BEWARE CO LIMITED for an on-licence pursuant to s.9 of the Act in respect of premises situated at 302 Highgate, Dunedin, known as “Kiki Beware”

BEFORE THE LIQUOR LICENSING AUTHORITY

Deputy Chairman: District Court Judge D J R Holderness
Member: Dr J Horn

HEARING at DUNEDIN on 4 June 2009

APPEARANCES

Miss M Norman – on behalf of applicant
Mr A S Mole – Dunedin District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

[1] The Authority is required to determine an application made by Love & Beware Co Limited (hereafter called “the company”) pursuant to s.9 of the Act for an on-licence in respect of premises situated at 302 Highgate, Dunedin, known as “Kiki Beware”.

[2] The sole director and shareholder of the company is Miss Melanie Norman. She is aged 28. She carries on a café/restaurant business in the premises.

[3] The name “Kiki Beware” is the new trading name for the premises. The premises were previously known as “Ibericos”. This was a café business, which an aunt and uncle of Miss Norman operated for some four years. Miss Norman purchased the café business from them in about July 2008. Since then Miss Norman has continued to operate a café from the premises, which are situated in the Roslyn Village area.

[4] The company initially applied to sell liquor at the premises from Monday to Sunday between 7.00 am and 4.00 am the following day. This aspect of the application attracted a number of objections. However, several of the objectors lived quite some distance from the premises. These objectors did not therefore appear to have a greater interest in relation to the application than the public generally, this being the test under s.10(1) of the Act.

[5] A common thread in respect of the objections was that the hours sought were considered to be excessive both in terms of opening and closing times. Concerns as to the risk of excessive noise from the premises, particularly from the rear courtyard area, were also raised.

[6] After discussion between the District Licensing Agency Inspector and Miss Norman, the application was amended. The applicant now seeks to sell liquor between 8.00 am and 1.00 am the following morning.

[7] In relation to the 8.00 am opening time Miss Norman explained to the Authority in her evidence that on a few occasions, perhaps two or three times in each year – for example on Dunedin race meeting days – she would like to attract patrons for a “champagne breakfast”.

[8] The Authority’s secretariat wrote to the objectors on 16 December 2008 seeking an indication as to whether they would wish to appear at a public hearing. Seven objectors responded. However, only Dr Simon and Dr Brenda Stebbings (“the Stebbings”) indicated that they would be prepared to appear. The Stebbings live at 3 Strathmore Crescent, Roslyn. Their house is situated behind and below the premises and is about 40 to 50 metres from the rear of the courtyard.

[9] In the event no objectors appeared at the hearing. This, as the Authority has said in numerous earlier decisions, limits the weight which can be placed upon an objection.

[10] However, in view of the proximity of the Stebbings’ house and the matters raised in their letter dated 26 December 2008, the Authority decided to visit the premises on the day of the hearing.

[11] The café is small. As detailed in the District Licensing Agency Inspector’s report dated 17 November 2008, it can cater for approximately 25 persons inside the premises and a further 15 in the courtyard at the rear. We think that in fact if all or most patrons were standing rather more than 15 could be accommodated in the courtyard area.

[12] The courtyard is enclosed by a high wall at the rear and along one side. A lower brick wall runs along the other side. In the rear wall of the courtyard there is a glassed in window which provides a view of the Stebbings’ house, which is at a lower level, and an attractive view of the Otago harbour in the distance.

[13] Miss Norman intends to place an awning or sail over part of the courtyard area. This may help to reduce noise emanating from the courtyard.

[14] There are several other licensed premises nearby in the Roslyn Village area namely, “Lunar”, a restaurant and bar, “Zuchinnis”, a pizza restaurant and “Rhubarb”, a café which is situated roughly across the road from “Kiki Beware”.

[15] Although Miss Norman does not have prior experience in running licensed premises she has previously been employed in the hospitality industry, particularly in Australia. Despite her relative in experience Miss Norman nevertheless impressed the Authority as being an intelligent, organised and competent person with an outgoing personality. She appeared to have a sound understanding of the object of the Act as set out in s.4.

[16] None of the agencies, required by the Act to report in respect of this application, have raised any objection or any particular concerns as to the suitability of the company or Miss Norman, or her ability to manage and operate the premises in a responsible and proper manner.

[17] The Authority must have regard to the criteria set out in s.13 of the Act. The suitability of the applicant has not been questioned. The Authority is satisfied that the company is a suitable entity to hold an on-licence and that Miss Norman is a suitable person to operate licensed premises.

[18] The Authority is also satisfied that the days and hours of operation (as amended) are appropriate.

[19] It is necessary for the Authority to apply an even-handed, rather than a heavy-handed, approach in relation to the grant of new on-licences (see Christchurch District Licensing Agency v Karara Holdings Ltd and Ors [2003] NZCA 96; [2003] NZAR 752).

[20] The hours sought are similar to those during which other broadly similar businesses in the same area are trading. The Authority therefore considers that it would not be reasonable to curtail the hours of this business (as amended) now sought by the applicant.

[21] For these reasons the Authority is satisfied that the application ought properly to be granted. An on-licence is to issue in respect of the premises for the days and amended hours sought. As discussed at the conclusion of the hearing the licence is to become operative when Miss Norman is granted her General Manager’s Certificate.

[22] A copy of the licence setting out the conditions to which it is subject is attached to this decision.

[23] The licence will not issue until the expiry of 20 working days from the date of this decision. That is the period provided under s.140 of the Act for the lodging of an appeal.

[24] The applicant’s attention is drawn to ss.25 and 115(3) of the Act requiring the holder of an on-licence to display:

• [a] A sign attached to the exterior of the premises, so as to be easily read by persons outside each principle entrance, stating the ordinary hours of business during which the premises will be open for the sale of liquor; and
  
• [b] A copy of the licence, and of the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through each principle entrance; and
  

[c] A sign prominently displayed inside the premises, which identifies by name the manager for the time being on duty.

DATED at WELLINGTON this 2nd day of July 2009

Judge D J R Holderness
Deputy Chairman

Kiki Beware.doc(aw)