Tinakori Fine Wines and Spirits [2011] NZLLA 445 (25 May 2011)

Last Updated: 28 June 2011

[2011] NZLLA 445

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by KHUSHI PATEL LIMITED for an off-licence pursuant to s.31 of the Act in respect of premises situated at 348 Tinakori Road, Thorndon, Wellington, known as "Tinakori Fine Wines & Spirits"

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Mr P M McHaffie
Ms J D Moorhead

DECISION

This is an application by Khushi Patel for an off-licence in respect of premises situated at 348 Tinakori Road, Thorndon, Wellington, known as “Tinakori Fine Wines & Spirits”. The principal purpose of the business is the sale of liquor and hours are sought to trade between 7.00 am and 10.00 pm daily.

Public notification of the application attracted four letters of objection, one of which is accompanied by a petition bearing 33 signatures. The letter points out that there are already a number of licensed outlets in the locality, the historical environs are not fitting for the establishment of a business of this nature, it is apprehended that vandalism in the form of graffiti and disruption to evening activities will result and the applicant is new to the area and has no local knowledge.

None of these concerns relate to any of the criteria specified in s.35(1) of the Sale of liquor Act 1989 which provides:

35 Criteria for off-licences

(1) In considering any application for an off-licence, the Licensing Authority must have regard to the following matters:

• (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, 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 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 or services:
(f) Any matters dealt with in any report made under section 33 of this Act.

A number of the signatories to the petition do not live in close proximity to the applicant’s premises and cannot demonstrate a greater interest in the application than the public generally in terms of s.32(1) of the Act. One of the objectors who organised the petition subsequently contended, as an afterthought electronically mailed to the District Licensing Agency, that the trading hours sought are excessive.

The other objector who raised the matter of hours is himself an applicant for an off-licence in other premises in the locality. However, s.35(2) of the Act precludes the Authority taking into account the prejudicial effect that the grant of a licence may have on any business conducted under any other licence.

The Police and District Licensing Agency Inspector do not oppose the application.

Notwithstanding the contention in two of the objections, the hours sought by the application are wholly consistent with those authorised for other businesses of a like nature and we are not persuaded that they are excessive. In all the circumstances, having considered the application, the Authority believes that the grounds for objection fall outside the scope of the Act in terms of s.106(2)(b) and we propose to deal with the application on the papers.

We are satisfied as to the matters to which we must have regard as set out in s.35 of the Act and we grant the applicant an off-licence pursuant to s.29. A copy of the licence setting out the conditions to which it will be subject is attached to this decision.

The licence will not issue until all relevant clearances have been obtained. The applicant is not entitled to sell liquor until the licence issues. Unlicensed sales can result in imprisonment for up to three months or a fine of $40,000 (ss.114(2), 151 and 152 of the Act refer).

The applicant's attention is drawn to ss.48 and 115(3) of the Act obliging the holder of an off-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 25th day of May 2011

B M Holmes
Secretary Tinakori Fine Wines & Spirits.doc(ab)