Nishchay's [2010] NZLLA 780 (22 July 2010)

Last Updated: 27 July 2010

[2010] NZLLA PH 780

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application NISHCHAY’S ENTERPRISES LIMITED for an off-licence pursuant to s.31 of the Act in respect of premises situated at 25 Queen Street, Wainuiomata, Lower Hutt, known as “Nishchay’s Discount Liquor”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Dr J Horn

HEARING at WELLINGTON on 20 July 2010

APPEARANCES

Mr G D S Taylor - for applicant
Sergeant A L Smith - NZ Police - to assist
Miss K P Naylor - Hutt District Licensing Agency Inspector - to assist

Objectors
Ms H M Willard
Mr R Wallace
Mrs J A Lester
Mr B A Iacoppi
Ms N J Wynn
Mr A C Cannons
Mr M Phillips
Ms J A Raukawa

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This decision relates to an application for an off-licence in respect of premises situated at 25 Queen Street, Wainuiomata, Lower Hutt.

[2] Neither the Police nor the District Licensing Agency Inspector opposed the application. However, 64 objections were filed in time and it was apparent that the application had generated considerable opposition within the Wainuiomata community.

[3] The applicant and its directors have been involved in the operation of off-licences since 1998. They presently operate six off-licences within the greater Wellington area. They are very experienced operators and have never come to the attention of the authorities in respect of breaches of the Act.

[4] It is proposed that the hours of opening will be from Monday to Sunday 9.00 am to 10.00 pm each day.

[5] The premises will be designated as supervised and a host responsibility policy has been prepared dealing with intoxicated persons and dealing with minors.

The objections

[6] Of the 64 valid objections, one was submitted by the Chairperson of the Wainuiomata Community Board and another by a member of the Wainuiomata Community Patrol. In summary the objectors expressed the following concerns:

• [a] There are already sufficient off-licensed premises in Wainuiomata;
  
• [b] Wainuiomata already has an excessive number of persons with alcohol abuse problems and another off-licence will aggravate the situation;
  
• [c] Wainuiomata has a high incidence of alcohol related incidents recorded by the Police and the District Health Board;
  
• [d] Wainuiomata has problems with underage drinking, vandalism, graffiti and litter; and
  
• [e] Young persons are known to frequent the immediate areas of existing off-licences after school and during weekends asking adults to procure liquor for them;
  
• [f] Another liquor shop will have a negative affect on the shopping centre of Wainuiomata. Wainuiomata already has sufficient problems with young people loitering and intimidating older people;
  
• [g] The name “Discount Liquor” is a further incentive to youth who might not otherwise feel able to afford alcohol.
  

The Authority’s decision and reasons

[7] Section 35 of the Act sets out the criteria to which the Authority must have regard when considering applications for off-licences. In as much as s.35 of the Act affects this application, those matters of particular concern are the suitability of the applicant; days and hours of operation; and steps proposed to be taken by the applicant to ensure that the requirements of the Act in relation to the sale of liquor to prohibited persons are observed.

[8] The Authority is satisfied that most of the objectors come within s.32(1) of the Act as having a greater interest in the application than the public generally. However, most of the objections contravene s.32(3) of the Act as they relate to matters which were not specified in s.35(1) of the Act. The objections may be summarised as being an objection to the concept of another off-licence in the Wainuiomata area.

[9] The Authority is satisfied that the steps proposed to be taken by the applicant to ensure that the requirements of the Act in relation to the sale of liquor to prohibited persons are adequate. Further, there is no real concern as to the days and hours of the proposed operation.

[10] The issue for the Authority is whether or not the applicant constitutes a suitable licensee. In this regard, there is no doubt that the licensee is a very experienced operator and has not come to the adverse attention of the authorities.

[11] Two of the objectors had taken the trouble to investigate other off-licences operated by the applicant. They noted that the stores they investigated sold a large proportion of cheap beer and ready to drink spirit mixes. They were mostly priced at about $10 and the packs could be split up so that their contents purchased as individual bottles or cans for between $1.50 and $2.50. They also sold individual “shots” of spirits. The objectors were concerned that the applicant’s target market in respect of those shops was young people and ethnic groups who were likely to drink to excess. In those circumstances it was submitted that in respect of the shops investigated, the applicant had failed to comply with s.4 of the Act in the promotion of the reduction of liquor abuse.

[12] Recognising the concerns of the objectors, counsel for the applicant gave an undertaking on behalf of the applicant in respect of the matters set out in paragraphs 22.1, 22.2 and 22.3 of the brief of evidence of Bhanumati Patel (a director of the applicant) as follows:

“(a) The applicant does not intend to “loss lead” in the sale of liquor;

(b) The applicant does not intend to sell high alcohol by volume products at heavily discounted prices. It has been and will be our practice to sell products or above the recommended retail price;

(c) It will be the practice of the applicant to sell products at or above the recommended retail price; and

(d) The applicant does not intend to sell liquor at heavily discounted rates below the prices offered by competitors.”

[13] In addition through its counsel, the applicant undertook to remove the word “Discount” from the name of the licensed premises.

[14] In the course of her evidence, Mrs Patel assured the Authority that either she or her husband intended to be on the premises at all times they are open for trade unless they are unable to do so due to some unforeseen circumstance (which, of course is unlikely to include having to be present at other business premises owned by the applicant as this cannot be regarded as “unforeseen”).

[15] From the evidence of Ms Wynne, in particular, the Authority wondered whether some of the practices carried out in the applicant’s off-licences at Taita and at Waitangirua might involve breaches of s.154A of the Act (relating to the promotion of excessive consumption of alcohol). A breach of s.154A is a factor that can be taken into account when determining an applicant’s suitability. However, it seemed to the Authority that provided the applicant complies with the undertakings and assurances (given under oath on behalf of the applicant) any such concerns can be allayed. Indeed, should there be a breach of the undertakings or assurances given, then this would constitute a ground for an application for suspension or cancellation of the licence.

[16] Given the undertakings and assurances by the applicant, the Authority is satisfied that the applicant is suitable to hold the off-licence.

[17] Accordingly, the application is granted.

[18] The licence will not issue until the expiry of 20 working days from the date of this decision. That period is the time provided by s.140 of the Act for the lodging of a notice of appeal. The company is not allowed to sell liquor until the licence is issued.

DATED at WELLINGTON this 22ND day of July 2010

Judge J D Hole
Chairman

Nishchay’s Discount Liquor.doc(aw)