Cassels & Sons Brewery [2012] NZLLA 1178 (17 October 2012)

Last Updated: 12 November 2012

[2012] NZLLA 1178

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by CASSELS & SONS BREWERY LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 152 Cumnor Terrace, Christchurch, known as "Cassels & Sons Brewery"

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Ms J D Moorhead

DECISION

This is an application by Cassels & Sons Brewery Limited for renewal of an on-licence in respect of premises situated at 152 Cumnor Terrace, Christchurch, known as "Cassels & Sons Brewery". The business trades as a tavern with hours authorised for the sale of liquor between 8.00 am and 3.00 am daily. The applicant seeks a slight increase in trading hours to provide for an opening time of 7.00 am.

Advertising did not attract any public objection.

In a report dated 22 August 2012 the Police contend that the applicant is not suitable to hold the on-licence sought. Police opposition hinges upon an alleged incident of intoxication in the premises during the evening of 22 December 2011 which, it is postulated, might have some connection with a fatal accident elsewhere in Christchurch later that night. An inquest into the incident has yet to scheduled.

The application was referred to the Medical Officer of Health on 31 May 2012. Section 20(3) of the Act provides that if any matters in opposition are raised by the health authority they must be filed with the District Licensing Agency within 15 working days. A report from Canterbury District Health Board signed on behalf of the Medical Officer of Health on 6 June 2012 offered no opposition to renewal of the licence.

However, a supplementary memorandum to the applicant from the Liquor Licensing Officer for Canterbury DHB, dated 19 July 2012 (and copied to the District Licensing Agency and the Police) raised concern in relation to a visit to the premises in June 2012 at which time the question of a lack of low-alcohol beverages was discussed. The memorandum continued by stating that the suitability of the applicant was in question and concluded by saying that the writer would be available to give evidence of his visit (at a hearing).

In decision Clutha Licensing Trust NZLLA PH 277/2001, an application to renew an on-licence for premises in Balclutha, the Police had filed a report pursuant to s.20 of the Act stating that the Police had no objections. The Police later sought to change their stance and oppose the application. The relevant text from the Authority’s decision is as follows:

“Section 23(2) is absolutely clear. In this case the Authority may not exercise its powers to either renew or refuse to renew a licence except in response to a report duly made under s.20 of the Act.

In this case the only report duly submitted under s.20 was the report of 3 July 2000 stating that the Police had no objections. For a report to be duly submitted under s.20 it is required to be filed with the District Licensing Agency within 15 working days after receiving the application.

The Police submitted a further report of 12 October 2000. That report said that the Police wished to support the [public] objections that had been filed. That since late June the Police had received numerous calls to the hotel and its environs to deal with serious assaults and incidents of disorder. The report...did not meet the requirements of s.20 and therefore the Authority is prevented from exercising its powers by s.23(2)(b).”

The time constraints imposed upon the Police in s.20 of the Act also apply to the Medical Officer of Health. It follows, therefore, that the supplementary report of 19 July 2012 is inadmissible.

The Agency Inspector’s report reveals that a subsequent visit to the premises indicates that low-alcohol beverages are now available in the premises. The Inspector’s report states that she has “little concern with regard to the day to day running of this premise [sic]. Issues relating to the availability of low alcohol beverages and noise appear to have been resolved. On that basis I would be content with a 12 month renewal of the licence.”

In decision Cassels & Sons Brewery Limited, [2012] NZLLA 951, an application for an on-licence, the Police raised identical matters in opposition because the applicant was the same as in this instance. We can only reiterate what we said in that decision, namely:

“Whilst the Police concerns are noted, and given that those matters are before the coroner, we are not persuaded that the application requires to be determined at a public hearing. Accordingly we propose to deal with the application on the papers.

If the investigation of the alleged sequence of events subsequently establishes any culpability on the part of the applicant, the Police have the option of filing applications for variation, suspension or cancellation of any licence that the applicant may hold.”

In the circumstances we are not persuaded that the application should be refused, nor are we of a mind to impose the truncated period of renewal suggested by the Inspector simply because the applicant might be a party to matters yet to be determined. Accordingly 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.22 of the Act. We renew the licence with the requested one hour earlier opening time until 22 June 2015, that being three years from the first anniversary of the licence, and we authorise the issue of a replacement licence and a notice of renewal.

DATED at WELLINGTON this 17th day of October 2012

B M Holmes
Secretary

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