Vishal Liquor [2011] NZLLA 246 (24 March 2011)

Last Updated: 7 April 2011

[2011] NZLLA PH 246

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by VISHAL HOLDINGS LIMITED pursuant to s.41 of the Act for renewal of an off-licence in respect of premises situated at 204-206 Ferguson Drive, Upper Hutt, known as “Vishal Liquor”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 24 February 2011

APPEARANCES

Mr L O Tuffs – for applicant
Mr J L Peat – Upper Hutt District Licensing Agency Inspector – in opposition
Sergeant S D Benge – NZ Police – to assist

RESERVED DECISION OF THE AUTHORITY

[1] This decision relates to an application for the renewal of the off-licence issued to Vishal Holdings Limited. There is no doubt that the applicant satisfies the criteria for renewal set out in s.45 of the Act.

[2] The only issue was whether the licence should be varied to extend the trading hours as follows:

Monday to Thursday 9.30 am to 9.30 pm

Friday and Saturday 9.30 am to 10.00 pm

Sunday 10.00 am to 9.00 pm

[3] The off-licence was issued following a reserved decision of the Authority dated 16 November 2009 (NZLLA PH 1261/2009). Following a protracted public hearing at which seven objectors gave evidence, the Authority granted the off-licence but required the business to be closed between the hours of 2.00 pm and 4.00 pm from Monday to Friday. This was because the licensed premises are opposite St Patricks College in Silverstream and close to the Silverstream Primary School. There was a concern that children leaving both schools would pass by the premises to and from their homes.

[4] At paragraph [42] of the decision the Authority stated:

“Given the proximity of the two schools, we accept that a bottle store at this site could impact adversely on the neighbouring amenities and way of life. The community has a history of involvement in how alcohol is managed locally. We hope that the “probationary” year will provide an opportunity to monitor the way the business is run to see if the community concerns have been justified.”

[5] Whilst there were three objectors to the request for extended trading hours, only one sought to attend the hearing. She was unable to do this because of an accident. Nevertheless, her email was considered by the Authority. In her email she pointed out that it is possible to put in place measures to protect children from liquor abuse. She considered that this would be achieved by refusing the application for the extended hours.

[6] Bhavna Kirit Patel who is a director of the licensee gave evidence. She pointed out that both St Patricks College and the Silverstream Primary School do not close until 3.00 pm. Further, she has noticed over the past year that there is not much foot traffic consisting of children emanating from both schools between 2.00 pm and 4.00 pm.

[7] Brian Bernard Robertson of Heretaunga is a former Police Officer who presently works in the area. He has never given evidence in support of any application previously. However, he has been most impressed with the way the applicant has run the business and in particular has observed favourably how the applicant has prevented the sale of liquor to minors.

[8] Having observed the area, he has noted that students from St Patricks College generally leave the school and proceed to a set of lights to the south of the premises. They then go on towards the railway station or the Silverstream Shopping Centre. Only a few of the students actually go past the licensed premises.

[9] As the Authority was concerned at the absence of a report from the District Licensing Agency Inspector, it called Jeremy Luke Peat the Inspector to give evidence. Mr Peat advised the Authority that no report for the Authority had been prepared. It was considered unnecessary. He was aware that the Silverstream Primary School closes at 3.00 pm and that St Patricks College closes at 3.00 pm.

[10] He told the Authority that the District Licensing Agency and its Inspectors have not monitored the operation of the licence in any way. No investigations as to how the licensee was operating the premises have been undertaken in preparation of this hearing. It was clear from his evidence that he considered that it was not the responsibility of the District Licensing Agency to undertake the monitoring as suggested in paragraph [42] of the 16 November 2009 decision. Who he thought might undertake the monitoring was unclear.

[11] Section 43(2) of the Act requires the Inspector to enquire into and file with the District Licensing Agency a report on an application for renewal. Likewise, the Police are required to enquire into and if they have any matters in opposition file with the District Licensing Agency a report on the application.

[12] Section 44(2) of the Act requires the Secretary of the District Licensing Agency to forward the complete file to this Authority. That includes any report made under s.43 of the Act.

[13] In this case, the Inspector has failed to comply with s.43(2) of the Act. There was no report for the Secretary of the District Licensing Agency to forward to the Authority in accordance with s.44(2) of the Act.

[14] The applicant has made out its case for a variation of the conditions. However, given the sensitivity of the area where the business is located, it is important that the extended hours do not cause liquor abuse to occur. In the circumstances the Authority proposes to grant the application for the renewal of the off-licence together with the extended hours but upon condition that the renewed period will be for a probationary period of 15 months from 15 December 2010. During this probationary period the District Licensing Agency Inspector is expected to actively monitor the operation of the licence so that a comprehensive report can be prepared for the District Licensing Agency at the next renewal date.

DATED at WELLINGTON this 25TH day of March 2011

B M Holmes
Secretary

Vishal Liquor.doc(aw)