Just Liqour [2010] NZLLA 1422 (1 December 2010)

Last Updated: 17 December 2010

[2010] NZLLA PH 1422

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by JUST LIQUOR LIMITED pursuant to s.31 of the Act for an off-licence in respect of premises situated at Unit 4, Richmond Centre, 4 Egmont Street, New Plymouth known as “Just Liquor”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Mr P M McHaffie

HEARING at NEW PLYMOUTH on 18 November 2010

APPEARANCES

Ms L P Wallace – for applicant
Ms T A Hall – New Plymouth District Licensing Agency Inspector – to assist

Objectors
Mr M G Brewer
Ms C A Lee
Ms J Handsman

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This decision relates to an application for an off-licence in respect of premises at Unit 4, Richmond Centre, 4 Egmont Street, New Plymouth. The premises are to be known as “Just Liquor”. The premises have not been licensed previously. The applicant initially proposed that the business would trade between 7.00 am and 11.00 pm Monday to Sunday. This was subsequently amended so that the trading hours would be from 9.00 am to 11.00 pm Monday to Sunday. Ultimately, at the hearing, the applicant indicated it was prepared to amend its proposal so that trading would take place from 10.00 am to 10.00 pm Monday to Sunday. These amended hours are the same hours as apply to the applicant’s main opposition, “The Mill Liquorsave”.

[2] In their respective reports, the Police and the District Licensing Agency Inspector did not oppose the application. There are no outstanding resource management constraints. The premises are currently undergoing a fit out. A final Building Code Compliance Certificate will be required prior to the issue of any licence.

[3] Advertising attracted four letters of objection. One of those was filed by an applicant for another off-licence in New Plymouth and cannot be considered by virtue of s.35(2) of the Act (which provides that the Authority must not take into account any prejudicial effect that the grant of the licence might have on any other business conducted pursuant to any other licence). Of those objectors who filed letters of objection, two appeared at the hearing, namely Messrs Brewer and Lee. At the hearing Ms Handsman was permitted to submit an objection although she had not previously sent in a letter of objection as the Authority considered that s.111 of the Act applied to her circumstances. As it happens, there was nothing in her objection which related to the criteria set out in s.35 of the Act.

The Authority

[4] This Authority was established by s.85 of the Sale of Liquor Act 1989. As a creature of statute, its jurisdiction and powers are circumscribed by the Act. It is not entitled to act outside the terms of its empowering Act and Regulations.

Objections

[5] Generally, the three objections heard related to such matters as alcohol related harm, proliferation of liquor outlets, zoning, proximity to the walkway along the coast, and similar concerns. In addition, the objections requested reduced hours of operation and, as indicated previously, the applicant has agreed to some reduction of hours. The Authority considers that the reduction agreed to by the applicant is sufficient to meet the speculative concerns of the objectors.

[6] Section 35 of the Act sets out the criteria which the Authority must have regard to when considering an application for an off-licence. The criteria are:

(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 other 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.

[7] Section 32(3) of the Act provides that objections must be made only in relation to those matters specified in s.35(1) of the Act.

[8] As a result of the combination of ss.32 and 35 of the Act most of the matters raised in the objections are not relevant to this application and cannot be considered.

The Authority’s decision and reasons

Suitability

[9] The applicant is a family company. It has two shareholders. Mrs Usha Walia holds 80 out of the total of 100 shares issued. Mr Manpreet Singh Walia holds 20 out of the total of 100 shares issued.

[10] The directors of the applicant are Mr Sandeep Sharma, Mr Vijay Kumar Kamboj, and Mrs Usha Rania Walia.

[11] It will be noted that neither Mr Sharma nor Mr Kamboj are shareholders. Mr Walia is not a director of the applicant.

[12] The principal witness for the applicant was Mr Sharma. He is aged 42, is married and has two sons. He does not have any criminal convictions. He holds a General Manager's Certificate. He came to live in New Zealand in 2002. From 2002 to 2005 he was the owner/operator of the “Rangiora Mini Market” at Palmerston North. Then, from 2006 to 2007 he was the owner/operator of the “Sunshine Super Laundry”. Since 2007 he has been the owner/operator of two liquor off-licences in Palmerston North and one in Marton. He remains the owner/operator of the “Cloverlea Liquor Store” in Palmerston North and the “Local Liquor Store44” in Marton. He stated that while the Police have inspected his liquor stores on several occasions he has never been charged with any breach of the Act.

[13] In evidence, Mr Sharma stated that it is his intention to move his family and himself to New Plymouth. He will become the general manager of the proposed business. He will ensure that two full time certified managers operate his other liquor outlets. He stated that it was the applicant’s intention that there would be between two and three general managers working in the proposed business at any one time. He intends to work almost full time in the business although he will be required approximately once per week to travel to Palmerston North and Marton to look after his other businesses.

[14] Mr Kamboj also gave evidence. He came to live in New Zealand in 2009. He worked for Mr Walia at “Burger King” from 2009 until early 2010. He has been working (mainly part time) at “Local Liquor” in Marton since May 2010. He holds a General Manager's Certificate. He intends to relocate to New Plymouth.

[15] The Authority was not impressed with Mr Kamboj. His experience in the liquor industry is negligible. His understanding of a licensee’s responsibilities under the Act is minimal. He was unaware that there was an industry standard that all persons under the age of 25 should be checked for identification. He thought that the industry standard meant that only those persons who appeared to be under the age of 18 should be checked. He thought that he had a 40 percent shareholding in the company but upon reflection did not seem to appreciate or understand what his interest in the company might be. He was unable to give the Authority any coherent answer as to the purpose of the Act. Without the authority of his co-directors, he was prepared to give undertakings to the Authority as to how the hours of operation might be reduced. While Mr Kamboj’s answers to some of the issues raised improved under re-examination (and after an interval during which he could be appropriately briefed), the Authority remained unconvinced as to his suitability. It was suggested that his poor responses to questions posed by the Authority came about through nervousness. The Authority was not convinced. The Authority concluded that the poor responses came about through inexperience and ignorance.

[16] The other witness for the applicant was Manpreet Singh Walia. He holds 20 percent of the shares in the company. He is not a director. He intends to look after the applicant’s administration. He has no experience in operating within the Act. He said that ultimately Mr Sharma may obtain a financial interest in the business. It was apparent that no decisions in this regard have been made by either the Walia family or Mr Sharma.

[17] Suitability depends upon Mr Sharma. In this regard, the Authority noted Mr Sharma’s assurances to the effect that it was his intention to work principally in this business. The Authority was concerned that Mr Sharma, with no financial interest in the applicant, should be prepared to give such an undertaking when his financial interests were in the Palmerston North and Marton off-licences. Notwithstanding where his financial interests lie, Mr Sharma was prepared to assure the Authority that his commitment to this business would be virtually full time if a licence were granted.

[18] The Authority did not hear from Mrs Walia. Although a director, it seems that she will have no active involvement in the business. Nevertheless, she is a majority shareholder and has the ability to overrule the minority shareholder (Mr Walia) in business matters. As the majority shareholder, she will have the power to remove directors. Mr Kamboj has no financial interest in the applicant. He has no experience and no understanding of his responsibilities either as a company director or licensee. In these circumstances, the lynchpin of the licensee as to suitability is undoubtedly Mr Sharma. The Authority is satisfied that so long as Mr Sharma remains involved in the licensee then the applicant meets the criterion of suitability. However, if Mr Sharma should fail to be engaged in the business on a virtual full time basis (as he undertook) then his failure would place the licensee in breach of assurances given to the Authority (by Mr Sharma as a director). No doubt the Inspector would seek cancellation of the licence in these circumstances. Such failure would also reflect badly on Mr Sharma personally and his suitability to continue to hold other licences under the Act would be at risk.

Hours

[19] As indicated previously, the Authority considers that opening hours from 10.00 am to 10.00 pm daily are appropriate. They are the same hours as apply to “The Mill Liquorsave”. The Authority noted that there is no sale of liquor policy endorsed by the New Plymouth City Council in existence. Generally, these hours meet most of the concerns (as to hours) posed by the objectors. To reduce the hours further would, in the opinion of the Authority, be unreasonable.

Conclusion

[20] The Authority has had regard to all the other criteria set out in s.35 of the Act. The application is granted on the basis that the hours of operation will be from 10.00 am to 10.00 pm daily. The licence will not issue until;

• [a] The expiry of 20 working days from the date of this decision. That period of time is provided by s.140 of the Act for the lodging of a notice of appeal; and
• [b] All relevant clearances have been obtained.
  

[21] The company is not entitled to sell liquor until the licence issues.

DATED at WELLINGTON this 1ST day of December 2010

B M Holmes
Secretary

Just Liquor.doc(aw)