Liquor Shack [2012] NZLLA 905 (13 August 2012)

Last Updated: 23 August 2012

[2012] NZLLA PH 905

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by XIAOYING TRADING (NZ) LIMITED for an off-licence pursuant to s.31 of the Act in respect of premises situated at 75 Anzac Avenue, Auckland, known as “Liquor Shack”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 7 August 2012

APPEARANCES

Mr J D Young – for applicant
Ms J M Rushton – for objectors
Mr P Radich – Auckland District Licensing Agency Inspector – to assist
Mr G S Whittle – NZ Police – to assist

Objectors
Mr M Aislebie
Ms C Mitchell
Dr P Mitchell
Ms N Talacek
Mr M N Forster

DECISION OF THE AUTHORITY

[1] On 8 November 2011 an application for an off-licence in respect of the premises situated at 75 Anzac Avenue, Auckland was brought before the Authority. At that time the Authority indicated to the applicant that it was unsuitable to hold an off-licence. In particular, it expressed concerns as to the absence of suitability of Mrs Li and Ms Yue Hu. Accordingly, the application was withdrawn.

[2] The applicant has continued to trade as a bottle store pursuant to temporary authorities.

[3] The current application for an off-licence in respect of the same premises was filed on 5 March 2012.

[4] At the conclusion of the applicant’s case, the Authority indicated that the applicant (again) had failed to establish its suitability to hold an off-licence. The applicant’s evidence established that the proposed premises are situated in an area where a liquor ban is in force. That liquor ban is frequently breached. Further, the proposed premises are opposite the “Oceanic Hostel” which accommodates university students and persons on bail pending Court action. Thus, the location of the premises is problematic and any licensee needs to be well aware of and experienced in dealing with liquor abuse problems arising in the locality. The Authority notes that the applicant’s general manager, Mr Grewal has recently had a meeting with the manager of the “Oceanic Hostel” who has been asked to identify persons whom he knows breach the liquor ban in order that they will not be served by the applicant. This meeting did not occur until July 2012.

[5] The sole director of the applicant, Pengyu Deng has been a director since December 2011. He has not become involved in the business. He presently operates a restaurant in Balmoral. This restaurant has earned a ‘D’ health rating which indicates that regulatory standards are not complied with in a rigorous fashion. Mr Deng stated that if a licence were granted for the premises he would become more involved in the bottle store business. The Authority has reservations about accepting his evidence on this point as if he had intended to be involved in the business he has had eight months for this to happen. Even if he were to become more involved in the business, the Authority has no confidence that he would ensure compliance with the Act.

[6] The current shareholders of the applicant were regarded by the Authority as unsuitable in November 2011. Nothing seems to have changed in this regard.

[7] Thus, neither the shareholders nor the sole director of the applicant are able to pass the suitability test. The premises are managed by Mr Grewal who has held a General Manager's Certificate since 13 July 2011. Given the nature of the premises and its environs, his lack of experience is disconcerting. Nevertheless, despite a number of inspections by the Police and Inspector, no adverse findings have been made in respect of his management of the business since January 2012. It is significant that neither the Police nor the Inspector oppose this application.

[8] The appointment of Mr Grewal as a general manager is the only positive factor affecting the applicant’s suitability. It is clear from the evidence that Ms Hu and Yung Zhang remain the effective operators of the business, notwithstanding the appointment of Mr Deng as its director. In the event of Mr Grewal departing the business, there is no one involved in the applicant with adequate suitability to appoint a replacement.

[9] When assessing the applicant’s suitability, the nature of the clientele of the business, its location and environs are relevant. The applicant does not impress the Authority that it has the ability to deal with the liquor abuse problems which inevitably will arise in respect of these premises. Thus, the applicant’s suitability has not been established.

[10] As a result of the Authority indicating its adverse finding of suitability to the applicant, the applicant, its directors and shareholders have undertaken as follows:

• [a] Not to pursue another application in respect of the same premises;
  
• [b] Not to dispose of their shares in the applicant or change its directorate before 10.00 pm, 5 September 2012;
  
• [c] To relinquish the temporary authority issued to the applicant as at 10.00 pm, 5 September 2012;
  
• [d] To withdraw the application for the renewal of the off-licence as at 10.00 pm, 5 September 2012.
  

[11] In recognition of these undertakings the Authority has agreed that this application for an off-licence is deemed to have been withdrawn as at 10.00 pm, 5 September 2012.

DATED at WELLINGTON this 13th day of August 2012

B M Holmes
Secretary

Liquor Shack.doc(aw)