Jenco [2010] NZLLA 348 (19 April 2010)

Last Updated: 23 April 2010

Decision No.348/2010

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by JENCO ENTERPRISES LIMITED for an on-licence pursuant to s.9 of the Act in respect of premises situated at Shop 4, Flagstaff Shopping Centre, River Road, Hamilton, known as "Flagstaff Cafe & Sports Bar"

BEFORE THE LIQUOR LICENSING AUTHORITY

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

DECISION

This is an application by Jenco Enterprises Limited for an on-licence in respect of premises situated at Shop 4, Flagstaff Shopping Centre, River Road, Hamilton, known as “Flagstaff Cafe & Sports Bar”. The business trades as a tavern and hours are sought to sell liquor at the following times:

Sunday to Thursday 7.00 am to 10.30 pm
Friday and Saturday 7.00 am to 12.00 midnight.

The licence authorised for the previous occupant authorised trading hours as follows:

Sunday to Thursday 8.30 am to 10.00 pm
Friday and Saturday 8.30 am to 11.00 pm.

The Police, Medical Officer of Health and District Licensing Agency Inspector do not oppose the application.

Advertising attracted an objection from K J & L S Findsen who reside in the immediate locality of the applicant’s premises. The objection is supported by 13 other neighbouring residents, all of whom express concern at the hours sought.

The business has twice been subject to public hearings before the Authority because of problems associated with excessive noise from the premises. The Authority was satisfied that there was real potential for unacceptable disturbance given the proximity of the business to the objectors’ homes. The Authority invoked the provisions of s.14(7) of the Act, which provides that when determining conditions in relation to trading hours it may take into account the site of the premises in relation to neighbouring land use. The Authority went on to say in a decision in respect of renewal of the licence held by a previous operator who had sought to extend the trading hours, that it was “very unlikely that the trading hours would be extended on this site” unless certain stringent conditions were able to be met.
The applicant is currently trading under a temporary authority issued in terms of the licence held by the previous operator of the business. Section 10(4) of the Sale of Liquor Act 1989 provides:

10 Objections

(4) In any case where –

• (a) The application relates to any premises or conveyance in respect of which an on-licence is presently in force; and
• (b) The applicant seeks the same conditions as those presently applying to that licence, --

an objection may be made only in relation to the suitability of the applicant.

There is no challenge to suitability and the objectors have made it clear that while they have no opposition to the application per se they “..rely on the Authority to maintain the status quo in hours of operation..” as set out in the decision referred to in the previous paragraph.

The applicant made some minor amendments to the hours sought, but they still exceeded those set by the Authority in respect of the previous licensee, and did nothing to ameliorate the objectors’ misgivings. Our Secretary has now been advised that the applicant no longer seeks hours beyond those currently in force. In the circumstances, therefore, the concerns of the objectors are addressed and we are in a position to deal with the application on the papers.

We are satisfied as to the matters to which we must have regard as set out in s.13 of the Act, and we grant the applicant an on-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.25 and 115(3) of the Act obliging the holder of an on-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 19th day of April 2010

__________________
B M Holmes
Deputy Secretary Flagstaff Cafe & Sports Bar.doc(ab)