Gift Boutique [2010] NZLLA 1540 (20 December 2010)

Last Updated: 14 January 2011

[2010] NZLLA 1540

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by VIM TRUST ENTERPRISES LIMITED for an off-licence pursuant to s.31 of the Act in respect of premises situated at 145 Tavinor Road, Otaika Valley, Whangarei, known as "Gift Boutique"

BEFORE THE LIQUOR LICENSING AUTHORITY

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

DECISION

This is an application by Vim Trust Enterprises Limited for an off-licence in respect of premises situated at 145 Tavinor Road, Otaika Valley, Whangarei, known as “Gift Boutique”.

The applicant markets gift baskets and hampers and contends that the sale of liquor is an appropriate complement to the kinds of goods sold in the premises.

Hours are sought to sell liquor between 9.00 am and 5.00 pm daily. Orders will be taken via the internet, mail order or telephone and assembled and despatched from the premises. The premises will not be accessible to the public.

Advertising attracted no public objection. The Police have raised no matters in opposition to the application.

A report from the District Licensing Agency Inspector dated 21 August 2010 questioned whether the application might fall foul of subsection (4) of s.36 of the Act, which provides:

36 Types of premises in respect of which off-licences may be granted

(4) Nothing in subsection (2)(b) of this section shall authorise the grant of an off-licence in respect of any supermarket or grocery store, or any other premises on which the principal business is the sale of food or groceries.

The Inspector expressed these concerns because of the fact that some of the gift items available to purchasers contained food products. The Inspector commended to our attention decisions NZLLA PH 665/2002 Great Outcomes Limited and NZLLA PH 863/2009 Kiwi Christmas Hampers Limited in both of which ‘complementary’ off-licences had been sought in terms of s.36(2)(b) of the Act.

Both of those applicants failed to persuade the Authority that food was not the principal content of the gift items being marketed and the applications were refused. As a consequence the Inspector opposed this application and recommended to the Agency that it be referred to the Authority for determination.
Following discussions with the applicant the Inspector subsequently provided our Secretary with a supplementary report stating that closer examination of the application has led her to draw parallels with NZLLA 791/2003 Gan Limited in respect of premises known as “My Goodness”, an application that also promoted gift items that included some food.

In that decision the Authority said:

“It is quite unrealistic to suggest that people access the premises of “My Goodness” to purchase food for consumption. It is too expensive for such a purpose, especially after being gift wrapped, and included with other goods. Any food is purchased to give away. In our clear view, members of the public access “My Goodness” to buy gifts. The presence of gourmet foods and confectionery in the gift is part of the gifting process. The business provides a service to members of the public who do not wish to go through the inconvenience of obtaining a card, selecting a gift, wrapping it and delivering it. The business is fundamentally and principally a gift business.”

Accordingly, while it is clear that some food items are included in the gifts being sold, the Inspector concludes that the sale of liquor is an appropriate complement to the gifts sold in the premises. As a consequence her opposition is now withdrawn.

Having considered the application we concur that the inclusion of food items does not detract from the impression that the applicant is a retailer of gifts rather than a food vendor. In the circumstances we propose to deal with the matter on the papers.

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

The licence may issue immediately.

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 20TH day of December 2010

___________________
B M Holmes
Secretary Gift Boutique.doc(ab)