Waihi Wholesale Liquor [2012] NZLLA 1370 (7 December 2012)

Last Updated: 9 January 2013

[2012] NZLLA PH 1370

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by SAPPHIRE DREAMS LIMITED for an off-licence pursuant to s.31 of the Act in respect of premises situated at 1 Silverton Road, Waihi, known as “Waihi Wholesale Liquor”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Mr R S Miller

HEARING at PAEROA on 15 November 2012

APPEARANCES

Mr R W Murphy – agent for applicant
Sergeant D R Litton – NZ Police – in opposition
Mr J P Tregidga – objector – on behalf of Hauraki District Council

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This decision relates to an application for an off-licence by Sapphire Dreams Limited in respect of premises situated at 1 Silverton Road, Waihi to be known as “Waihi Wholesale Liquor”. The application states that the business will trade as a bottle store with hours sought for the sale of liquor between 9.00 am and 11.00 pm daily. At the hearing the proposed hours were amended to 10.00 am to 10.00 pm each day.

[2] The applicant already operates an off-licence in Paeroa. No adverse comments concerning the operation of those premises have been received.

Criteria

[3] Section 35(1) of the Act sets out the criteria to which the Authority must have regard when considering an application for an off-licence. These include:

(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:

...

(f) Any matters dealt with in any report made under section 33 of this Act.

[4] Otara Papatoetoe Local Board v Joban Enterprises Limited CIV 2011-404-007930 [2012] NZHC 1406 is the most recent authority concerning applications for off-licences. At paragraph [31] Heath J suggested an appropriate approach to be taken by the Authority when determining whether or not to grant an off-licence. He said:

“In my view, the Authority is required to undertake an evaluative exercise which brings to bear both the factors set out in s.35(1) and any other relevant considerations relating to the statutory object. In undertaking that task, checklists should be eschewed and a framework for analysis developed. An appropriate framework would involve (in no particular order) consideration of:

[a] The criteria set out in s 35(1);

[b] The reports presented by the Police and the Inspector. Such reports should be directed to both the s 35(1) criteria and the extent to which the grant of an application might offend against the object of the Act; and

[c] Public objections that are directed to the s 35(1) criteria.

Having considered all of that information, the Authority must stand back and

determine whether the application should be granted (whether on conditions or

not) or refused. This step requires the Authority to form a view on whether

there is any evidence to suggest that granting the application will be contrary to

s 4(1), increase the risk of alcohol abuse. While a causal nexus is required

between such evidence and the relevant risk, it is unnecessary to qualify the

nature of the link by reference to such words as “power” or “direct”.”

Section 35 Criteria

[5] Notwithstanding decision [2012] NZLLA PH1281 dated 21 November 2012, where the director of the applicant, Mr Nitin Talwar, had his General Manager's Certificate suspended for 14 days as a result of a drunken incident involving disorderly behaviour on 19 August 2012, no substantive issues affecting the suitability of the applicant arise in the case of this application.

[6] The proposal that the premises open from 10.00 am to 10.00 pm is appropriate. There was no suggestion otherwise.

[7] It is proposed that the entire area of the premises should be designated as supervised. This is appropriate for this type of business.

[8] Accordingly, this application satisfies the criteria set forth in s.35(1) of the Act; except s.35(1)(f).

The Regulatory Authorities

[9] The Inspector’s report was perfunctory and did not oppose the application.

[10] However, the Police’s report made under s.33 of the Act opposed the application. The opposition was elaborated on by Constable D Litton when he gave evidence. He stated that the carpark adjacent the premises was poorly lit and attracted undesirable persons at night. He noted that 23 incidents involving violence, disorder and liquor had occurred in the carpark from 1 November 2011 to 1 November 2012. This was regarded as a large number of incidents given that the total population of Waihi is 4,500. He stated that a 24 hour liquor ban is in place in the carpark. Already patrons from the “Commercial Hotel” (both an on and off-licensed premises) come into the carpark. Patrons attending the “KFC” outlet also use it. He noted that there six off-licensed liquor outlets in Waihi. All of them, except the “Countdown” supermarket, were within about 100 metres of the proposed premises.

[11] In summary, the evidence adduced on behalf of the Police indicated that the car park adjacent the proposed premises already has problems involving the abuse of liquor. The Police’s concern was that the creation of another off-licence in the vicinity of the carpark would exacerbate those problems.

Objector

[12] The only objector who gave evidence was John Percival Tregidga. He is the Mayor of Hauraki District and gave evidence on behalf of the Hauraki District Council. Essentially his evidence was that another off-licence outlet would constitute an unreasonable proliferation of liquor outlets in the small town of Waihi. He was concerned that the greater the number of off-licences in the area, the greater would be the availability of liquor to prohibited persons. The Authority notes that the proliferation of liquor outlets in itself is not a matter it should take into account: see paragraph [23] of Liquor World Limited LLA PH 1189/2009.

[13] Under cross examination Mr Tregidga stated that he has been in retailing all his life. It was clear that he was knowledgeable in this field. He said that in retailing, any additional outlet creates additional demand, and that usually results in price cutting. He noted that in Paeroa, where the applicant’s existing business is situated, an additional off-licence did result in additional demand and consequential price cutting by various off-licensees in the town. He stated that the price cutting was not by the applicant; but by his competitors.

[14] This is the first time that the current Authority has heard specific evidence from a knowledgeable retailer as to how an additional retail outlet can create additional demand resulting in price cutting. The assertion was supported by what has occurred in Paeroa recently. It was not refuted in any way.

Authority’s Decision and Reasons

[15] As indicated previously, this application meets the criteria set out in s.35(1) of the Act.

[16] The Police evidence indicates liquor abuse problems arising in the carpark area immediately adjacent the proposed premises.

[17] The evidence of Mr Tregidga indicated that if this application were granted, price cutting (not necessarily by the applicant) would result. Inevitably this would result in more liquor becoming available in an area where liquor abuse problems are rife.

[18] Adopting the approach in Otara Papatoetoe Local Board v Joban Enterprises Limited, the evidence before the Authority establishes that if this application were granted the risk of alcohol abuse being increased is inevitable. There is a direct link between the evidence of the Police and Mr Tregidga and the relevant risk.

[19] In these circumstances, to grant this application would be contrary to s.4 of the Act. Accordingly, the application is refused.

DATED at WELLINGTON this 7TH day of December 2012

B M Holmes
Secretary

Waihi Wholesale Liquor.doc(aw)