Law v Geihinkan and Ichiban [2010] NZLLA 1154 (18 October 2010)

Last Updated: 5 November 2010

[2010] NZLLA PH 1154-1156

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 suspension or cancellation of on-licence number 007/ON/009/2005 issued to TOYO KIKI DISTRIBUTORS LIMITED in respect of premises situated at 17 Albert Street, Auckland known as “Geihinkan and Ichiban”

BETWEEN BRYCE ROBERT LAW

(Police Officer of Auckland)

Applicant

AND TOYO KIKI DISTRIBUTORS LIMITED

Respondent

AND

IN THE MATTER of applications by TOYO KIKI DISTRIBUTORS LIMITED pursuant to ss.18 and 41 of the Act for renewal of off and on-licences in respect of premises situated at 17 Albert Street, Auckland known as “Geihinkan and Ichiban”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Dr J Horn

HEARING at AUCKLAND 6 October 2010

APPEARANCES

Mr G S Whittle – NZ Police – applicant and in opposition to renewal applications
Mr J H Wiles – for respondent and applicant for renewal of on and off-licences
Miss A L Marsh – Auckland District Licensing Agency Inspector – in opposition to renewal applications

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are three applications before the Authority. The first has been brought pursuant to s.132 of the Act whereunder the applicant seeks the suspension or cancellation of the on-licence issued to Toyo Kiki Distributors Limited. The second application is for the renewal of the on-licence issued to Toyo Kiki Distributors Limited. The final application is for the renewal of the off-licence issued to Toyo Kiki Distributors Limited.

[2] The enforcement application claimed that the licensed premises were conducted in breach of s.169 of the Act (sales of spirits otherwise than in a glass).

[3] The Police and the Inspector opposed both the on-licence renewal application and the off-licence renewal application. The grounds for opposition were the alleged breaches of s.169 of the Act. In addition, in respect of the off-licence, the applicant sought a variation of its hours which was opposed. It also sought a change in the designation of part of the premises covered by the on-licence. Each part of the premises is designated as a supervised area and the application for the renewal of the on-licence seeks a variation so that the restaurant area may become undesignated. This variation was not seriously opposed.

[4] The licensed premises are situated at 17 Albert Street, Auckland. The front of the premises consists of a small restaurant. To its rear is a kitchenette and toilets. There is no access from that area of the premises to the area behind which is a karaoke bar. Entry to the restaurant area is from Albert Street. Entry to the bar is from an alleyway which runs alongside the restaurant kitchenette area.

[5] The on-licence provides that liquor may be sold from Monday to Saturday from 7.00 am to 3.00 am the following day and on Sundays to any person present for the purpose of dining from 7.00 am to 9.00 am and then from 10.00 pm until 3.00 am the following day (except for the usual sacrosanct days).

[6] The off-licence provides that liquor may be sold from Mondays to Fridays from 7.00 am to 3.00 am the following day; on Saturdays from 7.00 am to 12.00 midnight and on Sundays from 9.00 am to 10.00 pm except on the usual sacrosanct days.

Enforcement application

[7] Section 169(1) of the Act provides:

Every person commits an offence and is liable to a fine [not exceeding $2,000] who, being the licensee or a manager of any licensed premises or an employee of the licensee, sells or supplies any spirits to any person, for consumption on the licensed premises, otherwise than in a drinking vessel of a capacity not exceeding 500 millilitres.

[8] In this case, the evidence was not disputed. When the premises were checked both by Mr Whittle and Miss Marsh on separate occasions, it was noted that behind the bar was a cabinet full of bottles of spirits. They were labelled with persons’ names and dated. The bottles were not full and contained different quantities of spirits. While there was some confusion as to exactly what both Mr Whittle and the Inspector were told, it seems clear that patrons who wished to purchase spirits were invited to have a bottle reserved for them. They would then purchase glasses of spirits (in containers of less than 500 millilitres) which were poured by bar staff from their reserved bottles. The bottle itself was not sold to the patron; indeed, after 12 months of non-use it would be used as “house spirits”.

Renewal applications

[9] The days and hours of the off-licences were opposed on the basis that they were excessive. While there was evidence of disorder in the central city area from both on and off-licences having extended hours, there was no evidence that such disorder emanated from the licensed premises of the licensee. The licensee’s director, Ms Hayakawa deposed that she found the hours pertaining to the off-licence difficult as customers who had attended the on-licence would sometimes wish to purchase liquor from the off-licence when they returned to their hotels.

[10] She also deposed that persons under the age of 18 frequently wished to dine in the restaurant portion of the premises and their supervised designation inhibited this.

The Authority’s decision and reasons

[11] Section 169(1) of the Act has been the subject of various judicial decisions. In Police v Smith 8/7/94 Judge Tucker, DC Napier CRN 3041010265 held that where liquor was dispensed in “shooters” (being syringes containing 10 millilitres of liquor) as the syringe was very much under the capacity of 500 millilitres, no offence against s.169 had been committed. In Titanic Limited NZLLA PH 680/04, where 750 millilitre and 500 millilitre bottles of whisky were sold to customers (who then had access to their own bottles which remained on the premises), the Authority held that the practice breached s.169 of the Act. In Mega Trade (AKL) v Commissioner of Police 12/8/09 Wylie J HC Auckland CIV 2009-404-1137 the Court (on appeal) was faced with a situation where customers bought spirits in either 150 millilitre or 200 millilitre glasses. They then took the glasses of spirit and jugs of green tea to a karaoke room where some customers added the spirit to the tea. It was held that the facts did not support an offence against s.169 of the Act as the spirits were supplied in drinking vessels of 150 millilitres or 200 millilitres. Wylie J stated that he considered the practice did not infringe the purpose of the section as the effect of the practice was to dilute the spirits not to concentrate them. Nor did it add multiple glasses of spirits to bring the total amount of spirits in a drinking vessel to more than 500 millilitres.

[12] In this case there was no evidence that bottles of spirits were sold to patrons. In accordance with Japanese cultural practice, bottles were reserved for patrons. When the patrons purchased liquor, they would do so from their reserved bottle and pay for it by the glass. The glasses did not exceed 500 millilitres in capacity. The Authority is satisfied that no breach of s.169 of the Act occurred on either 19 or 21 November 2009. The grounds for the application for suspension of the licence have not been established. The application is refused.

[13] Auckland City Council does not have a liquor policy. As a matter of practice, the Police and District Licensing Agency have endeavoured to reduce the hours during which off-licences may operate. There was evidence that a reduction in off-licence hours contributes to a reduction in liquor abuse and consequential disorder. However, there was no evidence that the licensed premises at 17 Albert Street, Auckland contributed to liquor abuse or consequential disorder. The business is essentially of a “boutique” nature catering almost solely for Japanese patrons who are visiting the city of Auckland. The Authority concludes that no reason has been established for the curtailment of the hours pertaining to the on-licence. Further, it accepts the applicant’s contention that the hours of the off-licence should coincide with those of the on-licence.

[14] Likewise, the Authority considers that the evidence supports the applicant’s application for a variation in the conditions attaching to the on-licence to the effect that that area of the premises used as a restaurant should become undesignated. There seems to be no reason for that portion of the premises to remain supervised.

Conclusion

[15] The application for the suspension of the on-licence is refused.

[16] The application for the renewal of the off-licence is granted and the condition relating to its hours is to record that the hours are to be exactly the same as those that pertain to the on-licence.

[17] The application for the renewal of the on-licence is granted and the designation condition is varied so that the restaurant area of the premises becomes undesignated.

DATED at WELLINGTON this 18TH day of October 2010

B M Holmes
Secretary

Geihinkan And Ichiban