Tauranga Wholesale Liquor [2011] NZLLA 191 (10 March 2011)

Last Updated: 25 March 2011

[2011] NZLLA PH 191

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by TE PUKE WHOLESALE LIQUOR LIMITED, pursuant to s.31 of the Act for an off-licence in respect of premises situated at 39 Burrows Street, Tauranga to be known as “Tauranga Wholesale Liquor”

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Ms J D Moorhead
Mr P M McHaffie

HEARING at TAURANGA on 3 February 2011

APPEARANCES

Mr W R Ah Chan – agent for applicant
Sergeant N P McGlone – NZ Police – in opposition
Mr P R Mason – Tauranga District Licensing Agency Inspector – to assist

Objectors
Mr D M Simpson
Mr H E Payne
Mr J W McCulloch
Mr K Frentz
Mr N M Hockly
Mr D Ensor
Mr J Moore
Mr J Arnold
Mr P Mckinlay
Mr K G Witney
Mrs J Chadwick
Mrs J G McCarroll
Ms A Timms
Mrs J E Witney-Taylor

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This is an application for an off-licence in respect of a proposed stand-alone retail liquor store that is to be called “Tauranga Wholesale Liquor”. The applicant is Te Puke Wholesale Liquor Limited (“the company”). The application was filed with the Tauranga District Licensing Agency on 24 June 2010 and received by the Authority on 3 September 2010.

[2] The application is brought under s.36(1)(c) of the Act. In other words the sale of liquor is to be the principal business of the store. The premises are not an existing liquor outlet. The company seeks hours to sell liquor between 9.00 am and 11.00 pm daily.

[3] Accompanying the application was a planning certificate from the City Council for the purposes of s.31(1)(e) of the Act. This certificate confirmed that the use of the premises meets the requirements of the Resource Management Act 1991. The building also meets the requirements of the New Zealand Building Code.

[4] The Police opposed the application on the basis of the trading hours sought. The Agency Inspector does not oppose the application but asked for it to be determined at a public hearing because of the objections received.

[5] An error in the first public notice required the application to be advertised three times resulting in receipt of a total of 108 public objections, a significant number of which contend that the hours sought are excessive. Other grounds included proliferation of outlets, proximity to schools and places of worship, oversupply of liquor, intoxication, littering, traffic and parking difficulties but these grounds do not address the criteria for objections set out in s.35 of the Act. We are however permitted to consider the neighbouring land use in determining conditions of licences.

[6] It was clear that there was a strong groundswell of public antipathy to the application and a number of objectors expressed a desire to be heard at a public hearing.

The Application

[7] Mr Manohar Singh is the sole director of the company. The company holds an off-licence in Te Puke for premises known as “Te Puke Wholesale Liquor”. That licence was issued by the Western Bay of Plenty District Licensing Agency three years ago. Mr Singh also holds a current General Manager’s Certificate.

[8] There was some confusion as to who would manage the Tauranga premises if a licence were granted. Mr Singh said at the hearing that he had three managers available for the Te Puke premises and two for Tauranga, although it appeared from his responses to questions from the Authority that these were the same people and were not those advised on the original application. He thought that the two people originally advised as proposed managers would still be available and said that he intended to work at the Tauranga premises himself.

[9] Mr Singh said that the proposed Tauranga premises were 400 metres from St Mary’s school and 900 metres from Tauranga Boy’s College but that he had noted that not many students passed the premises on their way to or from school. This was at odds with the evidence given by the local residents, some of whom were the parents of children at the local schools.

[10] The application form did not specify any parts of the proposed premises as being intended to be designated either restricted or supervised instead seeking a “nil” designation. Mr Singh had great difficulty understanding any questions put to him regarding a proposed designation. In his final submissions Mr Ah Chan, agent for the applicant, advised that a supervised designation would be accepted.

The Police

[11] The opposition by the Police is recorded in a report dated 27 July 2010 “on matters relating to the hours and days applied for”. It was also noted that no designation had been sought in the application. During the course of the hearing the applicant’s suitability was also questioned as a result of the evidence given by the director of the applicant company.

[12] Sergeant Nigel Peter McGlone is the Sub District Liquor Licensing Co-ordinator and Alcohol Harm Reduction Officer for the Western Bay of Plenty Police area. He said that he was aware of Mr Singh through his Te Puke application. The licence had been issued in October 2007 and is due to expire in October 2011. Sergeant McGlone advised that on four occasions when controlled purchase operations had been conducted at those premises the volunteer had been refused service.

[13] Sergeant McGlone visited the Burrows Street area in Tauranga and took photographs which were produced at the hearing. He estimated the 14th Avenue church diagonally opposite was approximately 50-60 metres from the intended premises. He noted that the sign on the front of the Gospel Church indicates that on Sundays there is a worship service at 10.00 am and teaching gospel at 11.00 am with bible study on Wednesday at 1.30 pm.

[14] It was submitted that if the application was granted, the hours of trading should be dramatically reduced. The hours granted by the Authority in PP & G Basra Limited NZLLA PH 540/2009 had already been proffered to the applicant by the Police as being the most suitable but were not accepted.

The District Licensing Agency Inspector

[15] Mr Norman Gilbert was the reporting Inspector on the application but has since left the Council. In his report he noted that the proposed premises were located in a small industrial area designated commercial and that the sale of liquor was a permitted activity under the District Plan. He further noted that the nearest residential premises were 50 metres away behind the premises and accessible via an access lane that runs adjacent to the boundary of the proposed premises. The nearest house in front of the premises was approximately 100 metres away. He also noted the 14th Avenue Gospel Centre on the opposite side of the road and the Catholic Primary School 300 metres away. His report attached a plan showing the location of the various properties.

[16] Mr Paul Mason is the Team Leader and a Licensing Inspector with the Tauranga District Licensing Agency. He appeared to assist the Authority at the hearing. Mr Mason advised that the Tauranga City Council’s current Sale of Liquor Policy formulated in October 2005 provides for hours to be granted to stand alone off-licences up until midnight. This Policy is currently pending review.

The Objections

[17] We heard from 14 local objectors whose appearances are recorded at the beginning of this decision. Many of them had also been provided with written authority to speak on behalf of other objectors who had lodged objections but were unable to attend the hearing. Mrs J A Chadwick for example also spoke on behalf of 15 other residents. Mr Ensor spoke on behalf of three other residents as well as the Taekwondo Academy. Mr J Moore represented the 14th Avenue Gospel Centre where he is an elder. Mr Arnold represented two trusts. Mr McKinley is the president of the Residents Association. Mrs J G McCarroll spoke on behalf of St Mary’s Catholic school. The closest residents, Mr K G Witney and his wife Mrs J E Witney, both made submissions.

[18] While we listened carefully to all of the objectors we do not propose to set out all of the objections in detail as many matters were repeated. We summarise the main factors below:

• The proximity of the 14th Avenue Gospel Church diagonally across the road with regular services, meetings, funerals and weddings
• The neighbouring Taekwondo Academy with youth members
• The proximity of the Catholic Primary School and of Tauranga Boys High School
• The adjacent quiet residential neighbourhood with many elderly folk
• Residential properties nearby including the Witney family immediately next door with three teenage boys
• Existing problems with drinking and other activities in the church car park
• Other business activities in the area close at 5.00 pm
• Local children who walk to the dairy and playgrounds
• Poorly lit areas currently subject to graffiti
• Nearby public reserves
• The cultural, social, physical and economic effects on the community
  

[19] The objectors that we heard from had similar concerns. In the end result they did not want the off-licence to proceed as they saw it as being incongruous with their neighbourhood. The volume of objections attested strongly to this. We were asked to decline the application but if we found that we could not do so were asked to curtail the hours sought to take into account the effects on the neighbourhood as referred to above.

[20] Many of the objectors also raised concerns about the applicant’s suitability after hearing Mr Singh’s responses at the hearing.

The Authority’s Decision and Reasons

[21] In considering an application for an off-licence the Authority is directed by s.35(1) of the Act to have regard to the criteria set out below. Pursuant to s.32(3) of the Act, an objector may not make an objection in relation to any matter other than these criteria:

(a) The suitability of the applicant;

(b) The days on which and the hours during which the applicant proposes to sell liquor:

(c) The areas of the premises or conveyance, if any, that the applicant proposes should be designated as restricted areas or supervised areas:

(d) The steps proposed to be taken by the applicant to ensure that the requirements of this Act in relation to the sale of liquor to prohibited persons are observed:
(e) Whether the applicant is engaged, or proposes to engage, in -

(i) The sale or supply of any other goods besides liquor; or

(ii) The provision of any services other than those directly related to the sale or supply of liquor, -

and, if so, the nature of those goods and services:
(f) Any matters dealt with in any report made under section 33 of this Act.

[22] The other relevant consideration is s.37(5) of the Act. This provision does not affect our ability to grant or refuse a licence, but we are able to invoke the provision in relation to the proposed trading days and hours. This subsection reads:

(5) In determining the conditions to be imposed under subsection (4) of this section, the Licensing Authority or District Licensing Agency, as the case may be, may have regard to the site of the premises in relation to neighbouring land use.

[23] The first issue to be dealt with here is that of the suitability of the applicant. Also to be taken into account are the proposed days and hours of trading, the areas proposed to be designated restricted or supervised and the steps 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.

[24] Mr Singh made a very brief statement at the hearing consisting of only five paragraphs. The application itself was similarly light on detail. The agencies, objectors and the Authority were left to try and elicit answers from Mr Singh in order to try and establish what his proposal was. The process was frustrating for all concerned, as Mr Singh seemed either unable or unwilling to provide adequate answers. We found the answers he did give to be evasive.

[25] It is up to the applicant and its director to show complete transparency and thereby establish his integrity and credibility. He was unable to do so. It seemed to us that there was a lack of candour by the applicant and its director.
[26] Mr Singh was completely unable to respond to any questions about the object of the Act thus raising the issue as to his suitability as a director of the applicant company and as a manager. His inability to understand the different designations also reflects extremely poorly upon the suitability of the applicant, as well as the steps to be taken to ensure that the requirements of the Act in relation to the sale of liquor to prohibited persons are observed.

[27] In Page v Police (unreported HC Christchurch AP 84/98 24 July 1998) Pankhurst J stated in regard to suitability:

“Section 13(1)(a) provides that the applicant for an on-licence must demonstrate his or her suitability. In other words what is required is a positive finding. That implies an onus upon the applicant to demonstrate suitability. Such suitability is not established in a vacuum but in the context of the particular case: for example, the place, the intended business itself, the hours of operation and the intended activities, provide the basis for the assessment of the individual.”

[28] There seemed to be little understanding and commitment to the proposal. We were left with the clear impression that Mr Singh had no idea whether school children pass the premises on their way to and from school, as he had not been there at the relevant times. His statement that “not many” did was self serving to say the least.

[29] Mr Singh has previously appeared before the Authority when his integrity was called into question. Decision NZLLA PH 361-362/2008 records that both Mr Singh and his wife came before the Authority at a public hearing in Rotorua in relation to their applications for General Managers Certificates. There was concern as to the applicants’ knowledge and understanding of the Act and they had limited experience in the management of licensed premises. There were also a number of discrepancies in relation to the applications which required further investigation. The applications were adjourned and transferred to the Western Bay of Plenty area for this to be done. The Authority said :

“On the one hand we have considered simply to refuse the applications on the grounds that to grant them would be to reward deceit and/or incompetence. On the other hand there has to be a healthy touch of realism about this matter. Both applicants have given undertakings that if they are granted General Manager's Certificates they would only be used at the new licensed premises situated at 161 Jellicoe Street in Te Puke. Such an undertaking cannot last forever. It is possible that although the certificates are tied to those premises, an exemption could be granted in the future either by an Inspector or by this Authority. “

[30] The Authority’s subsequent decision NZLLA 1131-1132/2008 records that an updated report was sought on how the applicants were able to come to terms with their obligations and responsibilities under the Act. The Western Bay of Plenty Inspector reported that Mr Singh and his wife had been able to demonstrate a good knowledge and that while he had received information that liquor sales to minors may have been made from the applicants’ premises, this had not been substantiated. The Inspector was otherwise satisfied that there was no further impediment to the grant of the certificates and he recommended that the applications be approved. This was done on the basis of the undertakings previously recorded that if granted the General Managers’ Certificates would only be used at the Jellicoe Street premises in Te Puke. In the circumstances, given our concerns in regard to the present application, we are not prepared to release Mr Singh from his earlier undertaking.

[31] Mr Ah Chan submitted that the establishment of a Tauranga store is a natural progression of the growth of the business, but as was stated by Holland J in Hayford v Christchurch District Licensing Agency (HC Christchurch, AP 201/92, 3 December 1993):

“A liquor licence is a privilege and not a right.”

[32] If we are to achieve the object of the Act, then we must have faith in the ability of operators of licensed premises to uphold the provisions of the Act. In the end result the onus is on the applicant to satisfy us as to its suitability in regard to this particular application. It has not done so. It would also be a nonsense for a licence to be granted if the sole director of the applicant was not able to utilise his General Manager’s Certificate at the premises as he had intended.

[33] Justice Cooper in a recent High Court appeal R A Sayed v N P McGlone (HC Tauranga, CIV-2010-470-397,29 June 2010, at para 21) made the following comment:

“The object of the Act, stated in s 4(1), is to establish a reasonable system of control over the sale and supply of liquor to the public. It is for that reason that the Act is structured so as to ensure that applicants for the various licences for which it provides may be assessed for their suitability. In the case of an application for an off licence the first assessment criterion stipulated in s 35(1)(a) is the suitability of the applicant. It would be extraordinary if a licence could continue in effect on condition that one of the two persons to whom it had been granted could not take part in its operation, on the basis that he was unsuitable.”

[34] For the sake of completeness we record that if the application had been granted, the hours would have been greatly reduced. The hours sought by the applicant of 9.00 am to 11.00 pm are in our view clearly inappropriate for this location so close to such sensitive activities.

[35] For the reasons given the application is declined.

DATED at WELLINGTON this 11TH of March 2011

B M Holmes
Secretary

Tauranga Wholesale Liquor.doc(aw)