Mid Island [2010] NZLLA 278 (26 March 2010)

Last Updated: 16 April 2010

Decision No.PH 278/2010

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MID ISLAND ADVENTURES LIMITED pursuant to s.9 of the Act for an on-licence in respect of premises situated at Unit 1, 71 Rangatira Drive, Mangakino, known as

“M-I-A Bar”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at MANGAKINO on 12 March 2010

APPEARANCES

Mr K G Barker - on behalf of applicant
Mr G A Singer - Taupo District Licensing Agency Inspector - to assist
Mr E Foley - on behalf of Taupo District Council - to assist
Mr G Coffey - objector
Mrs B Cordes - objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This decision relates to an application dated 9 March 2009 by Mid Island Adventures Limited (the applicant) pursuant to s.9 of the Act for an on-licence in respect of premises situated at Unit 1, 71 Rangatira Drive, Mangakino, known as “M-I-A Bar”. The proposed premises form part of a block of shops situated at 71 Rangatira Drive, Mangakino.
[2] Mr Kristian Graham Barker appeared on behalf of the applicant. He has lived in Mangakino for three years and said the applicant presently operates a water sports business on Lake Mangakino. This attracts visitors to Mangakino. The applicant wishes to provide a place for its customers to socialise in a relaxed atmosphere. It is intended that food will be provided at the bar and that the whole of the premises will be a supervised area. In a discreet portion (but as part of the overall premises) there will be a small retail shop selling water sports equipment. It is intended that the hours of operation will be from 4.00 pm to 1.00 am daily. These hours are the same as those applying to the “Mangakino Hotel” and other licensed establishments at Mangakino.
[3] There was no opposition to the application from the Police or other reporting authorities.

The Objections

[4] Eight objections were filed with the Taupo District Licensing Agency. Two objectors, Mrs Bernadette Cordes and Mr Gerald Coffey appeared at the hearing in support of their respective objections.
[5] Mrs Cordes is a long term resident of Mangakino and the proprietor of a store in the block of shops at 71 Rangatira Drive. Her objection related to concern that another liquor outlet in Mangakino was unwarranted. In particular, she noted the licensed establishments already in existence. She pointed out that Mangakino experiences problems with young persons drinking to excess and causing trouble in the small town. She noted that the Police do not have a 24-hour presence in the area.
[6] Mr Coffey, a long term resident, also noted the absence of 24-hour policing at Mangakino and the Authority inferred from his remarks that he, too, was concerned about the unruly activities that occur in the town when young people have had too much to drink. He was also unjustifiably concerned that there was no designated area for smokers.

The Authority’s Decision and Reasons

[7] Although some of the objections did not address the criteria set out in s.13 of the Act, it seemed to the Authority that both Mrs Cordes and Mr Coffey did demonstrate a “greater interest than the public generally” in the application.
[8] As to the other objectors (who did not attend the hearing), the comment of the Authority in Min Sung Kim and Ji Sun Chang NZLLA PH 1470/2009 at paragraph
[9] [34][c] applies:

“If objectors do not appear and no explanation is received for their absence, then it is likely that their objection will have no value. On the other hand if they appear and do not address the above criteria the their objection will also have little probative value.”

To make a ruling adverse to an applicant based on an unsupported objection is “a denial of natural justice”.

[10] Turning to the substantive objection of Mrs Cordes, the Authority records that in the same case it observed that it has no power to take into account the number of other liquor outlets in the area. A licence cannot be refused merely because public opinion claims that the licence is not wanted. Further, an applicant does not need to establish that the grant of a new licence is necessary or desirable. “In summary we have no discretion to refuse an application if the applicant is suitable and holds the appropriate resource consent” (see Cayman Holdings Limited NZLLA PH 145/2001).
[11] Notwithstanding that the main objection of Mrs Cordes could not be sustained (for the abovementioned reasons), nevertheless, she impressed the Authority as a sincere and passionate person who was concerned about the way that young people at Mangakino abuse alcohol. When questioned by the Authority she admitted that she had no problem with the suitability of the applicant or the proposed hours pertaining to the licence.
[12] When analysing Mrs Cordes’ objection against the criteria for on-licences as set out in s.13 of the Act, the Authority agrees that the sale or supply of water sports retail goods within the supervised area may attract young persons into the licensed premises. This could lead to alcohol abuse. Whether this actually happens will depend upon how effective the management is. Should Mrs Cordes’ concerns in this regard prove a reality, then the management may find it necessary to desist with its retail activities. This could be a factor which might be taken into account when the on-licence is reviewed in 12 months’ time.
[13] Notwithstanding the matter set out on paragraph [11], the Authority is satisfied that the application for the on-licence should be granted.
[14] The hours of trading will be:

Monday to Sunday 4.00 pm to 1.00 am the following day

[15] A copy of the licence setting out the conditions to which the licence will be subject, will be attached to this decision. The premises will be designated as supervised. 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.

[16] The company is not entitled to sell liquor until the licence issues.
[17] The applicant’s attention is drawn to ss.25 and 115(3) of the Act obliging the holder of an on-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 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] When any manager is on duty the name of the manager is to be prominently displayed inside the premises so as to be easily read by persons using the premises.
  

DATED at WELLINGTON this 26TH day of March 2010
B M Holmes
Deputy Secretary

Decision No.PH 278/2010

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MID ISLAND ADVENTURES LIMITED pursuant to s.9 of the Act for an on-licence in respect of premises situated at Unit 1, 71 Rangatira Drive, Mangakino, known as

“M-I-A Bar”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at MANGAKINO on 12 March 2010

APPEARANCES

Mr K G Barker - on behalf of applicant
Mr G A Singer - Taupo District Licensing Agency Inspector - to assist
Mr E Foley - on behalf of Taupo District Council - to assist
Mr G Coffey - objector
Mrs B Cordes - objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[18] This decision relates to an application dated 9 March 2009 by Mid Island Adventures Limited (the applicant) pursuant to s.9 of the Act for an on-licence in respect of premises situated at Unit 1, 71 Rangatira Drive, Mangakino, known as “M-I-A Bar”. The proposed premises form part of a block of shops situated at 71 Rangatira Drive, Mangakino.
[19] Mr Kristian Graham Barker appeared on behalf of the applicant. He has lived in Mangakino for three years and said the applicant presently operates a water sports business on Lake Mangakino. This attracts visitors to Mangakino. The applicant wishes to provide a place for its customers to socialise in a relaxed atmosphere. It is intended that food will be provided at the bar and that the whole of the premises will be a supervised area. In a discreet portion (but as part of the overall premises) there will be a small retail shop selling water sports equipment. It is intended that the hours of operation will be from 4.00 pm to 1.00 am daily. These hours are the same as those applying to the “Mangakino Hotel” and other licensed establishments at Mangakino.
[20] There was no opposition to the application from the Police or other reporting authorities.

The Objections

[21] Eight objections were filed with the Taupo District Licensing Agency. Two objectors, Mrs Bernadette Cordes and Mr Gerald Coffey appeared at the hearing in support of their respective objections.
[22] Mrs Cordes is a long term resident of Mangakino and the proprietor of a store in the block of shops at 71 Rangatira Drive. Her objection related to concern that another liquor outlet in Mangakino was unwarranted. In particular, she noted the licensed establishments already in existence. She pointed out that Mangakino experiences problems with young persons drinking to excess and causing trouble in the small town. She noted that the Police do not have a 24-hour presence in the area.
[23] Mr Coffey, a long term resident, also noted the absence of 24-hour policing at Mangakino and the Authority inferred from his remarks that he, too, was concerned about the unruly activities that occur in the town when young people have had too much to drink. He was also unjustifiably concerned that there was no designated area for smokers.

The Authority’s Decision and Reasons

[24] Although some of the objections did not address the criteria set out in s.13 of the Act, it seemed to the Authority that both Mrs Cordes and Mr Coffey did demonstrate a “greater interest than the public generally” in the application.
[25] As to the other objectors (who did not attend the hearing), the comment of the Authority in Min Sung Kim and Ji Sun Chang NZLLA PH 1470/2009 at paragraph [34][c] applies:

“If objectors do not appear and no explanation is received for their absence, then it is likely that their objection will have no value. On the other hand if they appear and do not address the above criteria the their objection will also have little probative value.”

To make a ruling adverse to an applicant based on an unsupported objection is “a denial of natural justice”.

[26] Turning to the substantive objection of Mrs Cordes, the Authority records that in the same case it observed that it has no power to take into account the number of other liquor outlets in the area. A licence cannot be refused merely because public opinion claims that the licence is not wanted. Further, an applicant does not need to establish that the grant of a new licence is necessary or desirable. “In summary we have no discretion to refuse an application if the applicant is suitable and holds the appropriate resource consent” (see Cayman Holdings Limited NZLLA PH 145/2001).
[27] Notwithstanding that the main objection of Mrs Cordes could not be sustained (for the abovementioned reasons), nevertheless, she impressed the Authority as a sincere and passionate person who was concerned about the way that young people at Mangakino abuse alcohol. When questioned by the Authority she admitted that she had no problem with the suitability of the applicant or the proposed hours pertaining to the licence.
[28] When analysing Mrs Cordes’ objection against the criteria for on-licences as set out in s.13 of the Act, the Authority agrees that the sale or supply of water sports retail goods within the supervised area may attract young persons into the licensed premises. This could lead to alcohol abuse. Whether this actually happens will depend upon how effective the management is. Should Mrs Cordes’ concerns in this regard prove a reality, then the management may find it necessary to desist with its retail activities. This could be a factor which might be taken into account when the on-licence is reviewed in 12 months’ time.
[29] Notwithstanding the matter set out on paragraph [11], the Authority is satisfied that the application for the on-licence should be granted.
[30] The hours of trading will be:

Monday to Sunday 4.00 pm to 1.00 am the following day

[31] A copy of the licence setting out the conditions to which the licence will be subject, will be attached to this decision. The premises will be designated as supervised. 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.

[32] The company is not entitled to sell liquor until the licence issues.
[33] The applicant’s attention is drawn to ss.25 and 115(3) of the Act obliging the holder of an on-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 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] When any manager is on duty the name of the manager is to be prominently displayed inside the premises so as to be easily read by persons using the premises.
  

DATED at WELLINGTON this 26TH day of March 2010

B M Holmes
Deputy Secretary