Cox v Countdown Pukekohe South [2011] NZLLA 241 (24 March 2011)

Last Updated: 7 April 2011

[2011] NZLLA PH 241-243

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for suspension of off-licence number 010/OFF/02/2010 issued to GENERAL DISTRIBUTORS LIMITED in respect of premises situated at 186-192 Manukau Road, Pukekohe, known as “Countdown Pukekohe South”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number GM010/48/2010 issued to MICHAEL JOSEPH McCREANOR

BETWEEN STEPHEN GOODALL COX

(Police Officer of Manukau)

Applicant

AND GENERAL DISTRIBUTORS LIMITED

First respondent

AND MICHAEL JOSEPH McCREANOR

Second respondent

AND

IN THE MATTER of an application by GENERAL DISTRIBUTORS LIMITED pursuant to s.39 of the Act for variation of the conditions of an off-licence in respect of premises situated at 186-192 Manukau Road, Pukekohe, known as “Countdown Pukekohe South”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at PUKEKOHE on 10 March 2011

APPEARANCES

Sergeant G J Campbell – NZ Police – applicant
Mr D S McGill – for first respondent and applicant for variation of off-licence
No appearance by or on behalf of second respondent
Mr R M Gapes – for District Licensing Agency Inspector – to assist
Mr T N Long – Auckland District Licensing Agency Inspector – in opposition to application for variation of off-licence

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] The statement of agreed facts which was submitted at the hearing records that General Distributors Limited is the licensee and operator of a “Countdown” supermarket situated at 186-192 Manukau Road, Pukekohe (“Countdown Pukekohe South”). The supermarket is located within the territory of the former Franklin District Council and as from 1 November 2010 the newly created Auckland Council.

[2] On 25 February 2010 the Franklin District Licensing Agency granted General Distributors Limited an off-licence in respect of “Countdown Pukekohe South” permitting the licensee to sell or deliver liquor on or from the premises between the hours of 10.00 am and 10.00 pm, Monday to Sunday. This was in accordance with the Franklin Local Alcohol Policy which was approved by the Strategy and Policy of the Franklin District Council on 19 November 2009 as a result of due consultation and notification.

[3] At 7.43 pm on 10 September 2010 a controlled purchase operation was conducted at the licensed premises. A girl aged 15 years entered the premises and selected six cans of “Export Gold” beer. She took the liquor to the counter and a sale was concluded. She was not asked her age or for any identification.

The applications

[4] There are three applications for consideration. The first is an application brought by the Police for the suspension of the off-licence upon the grounds set out in s.132(3)(a) of the Act to the effect that on 10 September 2010 the licensed premises were conducted in breach of s.155 of the Act (sale of liquor to a minor).

[5] The second application is for the suspension of the General Manager's Certificate issued to Michael Joseph McCreanor. The application alleges in accordance with s.135(3)(a) of the Act that on 10 September 2010 Mr McCreanor as duty manager failed to conduct the licensed premises in a proper manner and in particular a breach of s.155 of the Act occurred.

[6] The third application has been brought by General Distributors Limited seeking a variation of the conditions of the licence. The licence presently provides that liquor may be sold at the licensed premises from Monday to Sunday from 10.00 am to 10.00 pm each day. The application seeks an extension of those hours to Monday to Sunday from 6.00 am to 11.00 pm. At the hearing, the application was amended so that the proposed hours were from 7.00 am to 11.00 pm. In the application the reasons given for it were “Countdown Pukekohe South trades Monday to Sunday 6.00 am to 11.00 pm and wishes to provide its customers with a full range of products (including wine, beer and food condiments containing liquor which have been prepared to culinary purposes and rendered unsuitable for drinking) during its full trading hours”. The Authority notes an inconsistency in respect of those reasons as the amended application seems to indicate that on each day between 6.00 am and 7.00 am there is no desire by the licensee to sell wine and beer to those persons purchasing other items at the supermarket. This was not explained.

Suspension applications

[7] The licensee did not dispute the grounds for the application for the suspension of the licence. Indeed, it indicated that it would accept a suspension of five days commencing 11 April 2011. There is an order accordingly.

[8] There was no appearance by the second respondent. In the circumstances the General Manager's Certificate is suspended for 30 days commencing 11 April 2011.

Application for variation of conditions of off-licence

[9] Mr Hartley, the sole witness for the applicant, explained that the applicant wished to bring “Countdown Pukekohe South” into line with its other supermarkets. Most of its supermarkets have licences permitting the sale of liquor from 7.00 am until 11.00 pm each day. In this regard, the licence applicable to “Countdown Pukekohe South” is an aberration. Further, it was submitted that the granting of the application did not conflict with s.4 of the Act and, indeed, might have assisted in the reduction of liquor abuse by preventing persons seeking liquor from migrating from “Countdown Pukekohe South” to other licensed premises with more extensive hours.

Finally, it was submitted that General Distributors Limited has a good record (given the number of supermarkets it operates) and accordingly is suitable in accordance with s.35(1) of the Act.

[10] The main opposition to the application came from the District Licensing Agency Inspector. First, the Franklin District Council local alcohol policy was referred to and it was suggested that there was no reason to depart from its terms in this case. Second, it was suggested that the way in which liquor was promoted in the premises constituted a breach of s.4 of the Act. Finally, the fact that there was a failed controlled purchase operation (after a warning in respect of another similar matter) all during the probationary first year of the licence indicated a lack of suitability in this case.

Decision of the Authority and reasons in respect of the application for variation

[11] In Loye v General Distributors Limited and Sundar decision NZLLA PH 555 - 556/2006 the Authority referred to previous comments made by the Authority in G M Clark NZLLA 1169/99:

“A liquor licence is a privilege. It may colloquially be regarded as a ‘package deal’. Both the burdens and the benefits run with the licence. Mr Clark as a licensee must either accept those burdens and control the sale and supply of liquor in a satisfactory manner, or he will not continue to enjoy the privilege. Either the licensee can manage the premises and on-licence satisfactorily, or he cannot”.

[12] The inference to be taken from these comments, and in accordance with the usual policy of the Authority, is that to grant an application for variation of conditions of a licence involves the exercise of a concession. The suitability of the applicant is one of the criteria to be considered (see ss.39(7) and 35(1) of the Act). Whilst the suitability of General Distributors Limited per se is not doubted, its suitability in respect of the licence applicable to “Pukekohe Countdown South” is of concern. The undisputed evidence was that not long after the commencement of the business Mr Long, the Inspector, noted that he was concerned that there were insufficient measures to prevent sales of liquor to minors in place. As a result, he had a meeting with Mr Hartley who is the manager of the premises. Mr Hartley was warned that procedures required improvement and that the operation of the licence would be closely monitored. Notwithstanding new procedures put in place (as a result of changes in national policy of General Distributors Limited) there was the failed controlled purchase operation. This plainly resulted from human error but reflects badly on the management practices then adopted by the licensee in respect of the premises. The situation is compounded in that these incidents occurred during the first probationary year of the licence. The Authority concludes, therefore, that the applicant has failed to establish its suitability in respect of these premises and accordingly does not qualify to have its hours extended at this stage.

[13] The Authority inspected the premises after the hearing. It does not accept Mr Long’s assertion that the way in which liquor is displayed in the premises constitutes a breach of s.4 of the Act. Upon entering the premises the liquor is to be found to the right of the entrance in an area which is quite discrete from the rest of the supermarket premises. It is quite a large area. The stock is attractively displayed but cannot be regarded as being “in one’s face” upon entry to the premises. The large beer and wine chiller is beyond the rows of wine and beer and, whilst an impressive facility, does not dominate. The overall first impression, on entering the supermarket, is the view to the left and immediately ahead of a very extensive large modern open plan supermarket.

[14] The Franklin District Council’s local alcohol policy is undoubtedly relevant to this application. As was stated in Pukekohe Food Warehouse Limited [2010] NZLLA 1563:

“We have made it clear in numerous previous decisions that where a local authority adopts a liquor policy after due community consultation and a ratification process, we will seriously consider the recommendations contained therein. On the other hand, where we are satisfied that the applicant is suitable, the object of the Act, at s.4, is not in jeopardy and a business has operated without blemish for over 10 years, then our obligation to act reasonably takes precedence. Without seeking to be unduly critical it seems that the blanket off-licence hours recommended in the policy document have not taken into account the widely diverse nature of businesses to which an off-licence can relate.

The principal business at a supermarket is not the sale of liquor. Additionally, supermarkets trade relatively long hours because their stock and trade is to provide the widest possible service to different sectors of the community. ...”

See also My Noodle Limited and Ors v Queenstown Lakes District Council and New Zealand Police [2009] NZCA 564.

[15] In this case, if the applicant had been able to establish suitability, the Authority would have given serious consideration to the grant of the application. It would not have done so because of the argument that all Countdown supermarkets should have consistent licensing hours, but because of the reasons indicated in paragraph [14].

[16] The application for variation of conditions of the licence is refused.

DATED at WELLINGTON this 24TH day of March 2011

B M Holmes
Secretary

Countdown Pukekohe.doc(aw)