Genes [2010] NZLLA 811 (27 July 2010)

Last Updated: 27 July 2010

[2010] NZLLA 811

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by GENES FOOD LIMITED for an on-licence pursuant to s.9 of the Act in respect of premises situated at 22-24 Kitchener Street, Auckland, known as "Café Favourite"

BEFORE THE LIQUOR LICENSING AUTHORITY

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

DECISION

This is an application by Genes Food Ltd for an on-licence in respect of premises situated at 22-24 Kitchener Street, known as “Café Favourite”.

The general nature of the business to be undertaken is that of a restaurant. They seek hours authorised for the sale of liquor between 7.00 am and 12.00 midnight, Monday to Sunday. The premises are currently operated under temporary authority issued by the Auckland District Licensing Agency.

Public notification of the application attracted two objections. Both objectors submitted within the statutory time-frame, and live in the building above the premises so can show a greater interest in the application than the public generally by dint of proximity.

The issues that can be raised in objection to this application are limited by s.10(4) of the Act. As a licence currently exists over the premises and the applicant seeks the same terms and conditions as the existing licence, the scope of our considerations is limited to the suitability of this applicant.

The objections centre on allegations of a pattern of disruptive noise from the premises. The objectors correctly cite Paihia Saltwater (2001) Limited PH 391/2001, where we stated that the continued failure to address excessive noise could impact upon suitability.

What they fail to do, however, is convince us that they can actually show evidence of a lack of suitability of the applicant. We reach this conclusion based on the fact that the applicant has only been trading since the start of this year, and the Inspector reports that they are taking active and effective steps to manage noise emissions. At this time, while the objectors may well have issues with the hours of trade of the applicant, we do not feel they raise an objection to the suitability of the applicant.

In reaching this conclusion, we point out that any licence which issues is only valid for 12 months. This is regarded as a probationary period to give a new licensee an opportunity to demonstrate an ability and willingness to operate the business in a fitting manner. At the end of that initial year an application for renewal must be lodged, and advertised, giving scope for further public input if the conduct of the licensee has given cause for concern.

In any event, should the manner of operation of the business bring it to the attention of the enforcement authorities, we would expect from them an application, pursuant to s.132 of the Act, for variation, suspension or cancellation of the licence.

On this basis, we will 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.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 27th day of July 2010

__________________
B M Holmes
Secretary

Cafe Favourite.doc (OS)