Top Shelf Liquor [2010] NZLLA 152 (9 March 2010)

Last Updated: 1 April 2010

Decision No.PH 152/2010

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by TOP SHELF LIQUOR LIMITED pursuant to s.31 of the Act for an off-licence in respect of premises situated at Shop 6, 94 Clyde Road, Browns Bay, North Shore City, known as “Top Shelf Liquor”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Ms J D Moorhead

HEARING at AUCKLAND on 12 February 2010

APPEARANCES

Mr R P Bryant - agent for applicant
Mr P N Richardson - North Shore District Licensing Agency Inspector - to assist
Constable M D Waite - NZ Police - to assist
Mr S A Gray - objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This decision relates to an application dated 29 October 2009 by Top Shelf Liquor Limited brought under s.31 of the Sale of Liquor Act 1989 for an off-licence in respect of premises situated at Shop 6, 94 Clyde Road, Browns Bay, North Shore City.
[2] The proposed business is a stand alone off-licence and will be operated by three family members who hold General Managers’ Certificates. They are Gareth Evan George, Julie Sharon George and David Alan Lloyd George. Whilst the family is relatively new to the industry, they do operate another off-licence at premises in Constellation Drive, Rosedale, Auckland.
[3] In the immediate vicinity of the proposed premises there are two licensed supermarkets, a tavern with an off-licence, a South African shop specialising in South African liquor, a French antique shop selling French imported wines, and a “Super Liquor” outlet. The beach is in close proximity and is subject to a liquor ban between 10.00 pm and 6.00 am during daylight saving hours and between 9.00 pm and 6.00 am for the rest of the year.
[4] The North Shore District Licensing Agency Inspector does not object to the proposal. Likewise, the Police have no objection.
[5] Whilst the application attracted a number of objections (including a petition signed by 11 people) only one of those, that of Mr Gray, and the petition were filed within the requisite time. As the balance of the objections were out of time, they could not be considered. Significantly, only one person (Mr Gray) from amongst those objectors actually attended the hearing.

The Application

[6] Whilst the operators of the proposed off-licence are relatively new to the industry, nevertheless, it is apparent that they have operated their Constellation Drive off-licence well. It is for this reason that the Police and the Inspector recognise their suitability to operate an off-licence.
[7] No issue is taken with the balance of the criteria set out in s.35 of the Act except the hours during which the applicant proposed to sell liquor. In this regard, the hours sought by the applicant were from 9.00 am to 11.00 pm daily. At the hearing, Mr Gareth George, who gave evidence for the applicant, acknowledged that the hours sought were greater than required and he was prepared to concede that a linkage with the daylight saving hours affecting the beach was appropriate.

The Objection

[8] There was nothing in Mr Gray’s written objection which indicated that he might have an interest in the application which was greater than that of the general public. In his evidence he indicated that he no longer drank alcoholic liquor, and that he lived between five and 10 minutes (by car) from the proposed site. He stated that he intended at some time in the future to open a martial arts school at Browns Bay but to date no application had been lodged and it was plain that at this stage, this is merely an idea which may or may not occur.
[9] However, in the course of his evidence he indicated that not only was he a shopper at Browns Bay but that he also frequented the beach accompanied by his children. In addition, he indicated that he often frequented the beach in the evening whilst looking after a 16 year old niece. In these circumstances we consider that he has just managed to indicate an interest greater than that of the general public and accordingly his objection can be considered.
[10] His main concern was the availability of alcohol to persons using the beach, especially at night. He recognised that young persons already abuse alcohol on the beach and he was concerned about the increased availability of alcohol emanating from the proposed business.
[11] At the conclusion of the hearing, Mr Gray acknowledged that the proposed off-licence was to be of a type which was less likely to attract young people than is often the case. Further, he recognised that Mr Gareth George and his family were suitable persons to operate an off-licence. Thus, many of his concerns were allayed. He agreed that if the application was to be granted then hours of operation linked to the liquor ban were appropriate.

The Authority’s Decision and Reasons

[12] All the evidence indicated that this was an appropriate case to grant the application. The only concern to the Authority was the hours of operation. In this regard, the Authority is particularly aware of the High Court decision of PP and G Basra Ltd and Hospitality Association of New Zealand v Rangitoto College Board of Trustees and Ors CIV-2009-404-3632. That judgment followed the Court of Appeal judgment in My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 564. Both judgments acknowledge that the Authority is entitled to give precedence to the overriding statutory object contained in s.4 of the Act when considering applications such as this. Section 4 requires the Authority to exercise its jurisdiction with the aim of contributing to the reduction of liquor abuse, so far as that can be achieved by legislative means. It is recognised that there is authority that reduced trading hours can help reduce liquor abuse and therefore crime.
[13] Applying the principles set out in those judgments, it seems that liquor abuse can be curtailed to some extent if the hours of operation of the applicant are linked to the liquor ban hours.
[14] In these circumstances, the application is granted except that the off-licence is only to open during daylight saving hours between 9.00 am and 10.00 pm and during the rest of the year between 9.00 am and 9.00 pm. As indicated at the hearing the licence may issue immediately.
[15] An off-licence will be granted for the sale or delivery of liquor on or from the premises described in the licence to any person for consumption off the premises.

A copy of the licence setting out the conditions will be attached to the decision.

[16] The hours of trading will be:

Monday to Sunday 9.00 am to 9.00 pm

During daylight saving hours Monday to Sunday 9.00 am to 10.00 pm

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

• [a] 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
• [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 principal entrance; and
• [c] The name of the manager. This must be prominently displayed inside the premises so as to be easily read by persons using the premises at all times while any manager is on duty.

DATED at WELLINGTON this 9TH day of March 2010

District Court Judge J D Hole
Chairman

Top Shelf Liquor.doc(aw)