Wholesale Liquor [2010] NZLLA 1320 (10 November 2010)

Last Updated: 19 November 2010

[2010] NZLLA 1320

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by I.S. DHILLON AND SONS LIMITED for an off-licence pursuant to s.31 of the Act in respect of premises situated at 116 Princess Street, Palmerston North, known as "Wholesale Liquor"

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Members: Dr J Horn
Mr P M McHaffie

DECISION

This is an application by I.S. Dhillon and Sons Limited for an off-licence in respect of premises situated at 116 Princess Street, Palmerston North, known as "Wholesale Liquor".

The application is in respect of premises in which the principal business is the sale of liquor. The applicant seeks trading hours between 8.00 am and 12.00 midnight daily and it is proposed that the whole of the premises will be designated as a supervised area.

Public notification of the application attracted three letters of objection, two of which are from the same address some distance from the applicant’s premises. The third is from the address of similarly licensed premises in the locality. All of the objections are identically worded.
It is contended that there are already sufficient licensed outlets of the genre in Palmerston North and establishment of a further liquor retail facility may be detrimental to businesses already in existence. It is further submitted that the applicant is unsuitable – this contention is based upon failure by the applicant, in 2009, to pass the test in a controlled purchase in its premises at 931 Tremaine Avenue, Palmerston North.

This resulted in decision NZLLA 1099/2009 which imposed 24 hours’ suspension of the off-licence.

The objectors also cite projected changes to legislation governing the sale of liquor and it is postulated that the application is an attempt to ‘circumvent the new proposed liquor laws’.

Whether or not any such proposal becomes law is a matter for the future. At this stage the applicant is entitled to have the matter considered under the statute currently in force.

Section 35(1) of the Act provides:

35 Criteria for off-licences

(1) In considering any application for an off-licence, the Licensing Authority must 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, 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 goods besides liquor; or
  • (ii) The provision of any services other than those directly related to the sale or supply of liquor, --

and, if so, the nature of those goods or services:
(f) Any matters dealt with in any report made under section 33 of this Act.

Furthermore, s.35(2) of the Act precludes our being able to have regard to any prejudicial effect that the grant of a licence may have on any business conducted under any other licence.

The Police and District Licensing Agency Inspector do not oppose the application. Accordingly, despite the previous lack of judgment referred to in relation to the unlawful sale in 2009, we are not persuaded that this renders the applicant unsuitable to hold an off-licence.

Having considered the application we believe that the objections are based upon grounds outside the scope of the Act in terms of s.106(2)(b) and we propose to deal with the matter on the papers.

In doing so, we point out that any licence which issues is valid for 12 months. This is regarded as a probationary period to give a new licensee an opportunity to demonstrate an ability and willingness to operate the business in a fitting manner. At the end of that initial year an application for renewal must be lodged, and advertised, giving scope for further public input if the conduct of the licensee has given cause for concern.

We are satisfied as to the matters to which we must have regard as set out in s.35 of the Act and we grant the applicant an off-licence pursuant to s.29. A copy of the licence setting out the conditions to which it will be subject is attached to this decision.

The licence will not issue until all relevant clearances have been obtained. The applicant is not entitled to sell liquor until the licence issues. Unlicensed sales can result in imprisonment for up to three months or a fine of $40,000 (ss.114(2), 151 and 152 of the Act refer).

The applicant's attention is drawn to ss.48 and 115(3) of the Act obliging the holder of an off-licence to display:-

1. A sign attached to the exterior of the premises, so as to be easily read by persons outside each principal entrance, stating the ordinary hours of business during which the premises will be open for the sale of liquor; and
   
2. 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 principal entrance; and
   
3. A sign prominently displayed inside the premises, which identifies by name the manager for the time being on duty.
   

DATED at WELLINGTON this 10th day of November 2010

_____________________
B M Holmes
Secretary

Wholesale Liquor.doc(ab)