RESERVED DECISION OF THE COMMITTEE

Transcription

1 IN THE MATTER of the Sale and Supply of Alcohol Act 2012 ( the Act ) AND IN THE MATTER of an application by G & G BOLINA LIMITED for the renewal of an off-licence pursuant to s.127 of the Act in respect of premises situated at 163 Taharepa Road, Taupo, trading as Tauhara Four Square. BEFORE THE TAUPO DISTRICT LICENSING COMMITTEE Chairman: Member: Member: Murray Clearwater Judy James John Boddy HEARING at Taupo on 10 May 2016 APPEARANCES Mr Robin Bryant for the Applicant Mr Grant Singer Taupo Licensing Inspector ( the Inspector ) to assist Sergeant Chris Turnbull Police Alcohol Harm Reduction Officer to assist Ms. Dawn Meertens- for the Medical Officer of Health in opposition RESERVED DECISION OF THE COMMITTEE Introduction 1. By an application dated the 20 th of January 2016, the applicant has applied for the renewal of the off-licence 020/OFF/0067/2014 in the name of G & G BOLINA LIMITED. It was duly advertised and reported on by the agencies. 2. The applicant has operated Tauhara Four Square for three years. The licence permits alcohol sales on Monday to Sunday from 7am to 10pm. No changes are sought. 3. The premises is situated in the Taupo township some 8km from the Town Centre. 4. Initially the Medical Officer of Health opposed the application believing that the 1

2 Single Alcohol Area (SAA) did not comply with the requirements of s of the Act and that the licensed hours were excessive. 5. The Committee was also advised that the business had failed a Controlled Purchase Operation on the 17 th of April 2014 but had passed all subsequent operations. 6. The Inspector and the Police did not oppose the renewal of the licence. 7. MOoH later revised their opposition to just the days and hours of the licence and also sought a condition that no single sales of mainstream beers be permitted other than craft beers of over 500mls. 8. Other than the disputed matters the application meets the requirements of the Act. Applicant s Evidence 9. On 10 May 2016 the agent for the applicant called Gurvinder Pal Singh, the joint owner of the business to give evidence. 10. He told us that sales before 9am were small in number but important to his business as they were often sales to shift workers going home from a nightshift. He believed that if they could not buy their beer or wine for later consumption at the same time as they bought their groceries or provisions for breakfast they would shop elsewhere. 11. He said his clientele where mainly middle-aged European New Zealanders and young people did not frequent his shop. 12. In response to questioning he said he did not sell single serves of mainstream beers. The only single serve sales were craft beers of 500ml. 13. Mr Singh was questioned about the failed CPO of April He acknowledged that it was an error on his part and that the sale should not have been made. We note they have passed all CPOs run by the Police and mystery shopper tests run by Foodstuffs since that date. Inspector s Evidence 14. The Inspectors report was received and no questions were put to him by any party. 2

3 Police Evidence 15. The Police did not report on the application within the required timeframe and pursuant to Section 103(4) we can assume they have no matters in opposition to this renewal. Medical Officer of Health Evidence. 19. Ms. Dawn Meertens qualified herself as a designated officer for the Medical Officer of Health and outlined the reasons for the MOoH opposition. 20 The officer told the Committee that the concerns about the Single Alcohol Area (SAA) had been satisfied with alterations made to the layout and stock re-positioning by the applicant. Similarly, an assurance from the applicant that they do not, and will not, sell single services of mainstream beers satisfied the second concern. 21 Ms. Meertens said the remaining issue concerning the MOoH was that they believed that the availability of alcohol for 15 hours a day in a high deprivation area was not consistent with the Object of the Act and would contribute to alcohol related harm in the area. MOoH believed the hours of 9am to 10pm would be more appropriate for an off-licensed premises in this area. 22 In support of this position the witness provided 2013 census data that showed the Tauhara Area Unit had a decile deprivation score of 9 meaning the area was in the poorest 10% of area mesh blocks nationally. She also produced data from a 2012 Population Survey that showed that 90% of Taupo residents survey wanted more restrictive hours than those currently permitted under this licence. 23 Under cross examination from Mr Bryant Ms. Meertens conceded that she had no direct evidence that alcohol from this store was contributing to alcohol related harm but said it was possible. 24 Further she had no direct evidence that reducing the opening hours at the start of the day would reduce alcohol related harm but she said studies do indicate that reduced availability will contribute to a reduction in alcohol related harm. 25 Mr Bryant raised concerns about the late disclosure of the substance of the matters in opposition and the data relied on by the witness. We comment on this later in this decision. 3

4 Relevant legislation 22. Section 3 of the Sale and Supply of Alcohol Act 2012 ( the Act ) states the purpose of the Act as follows: (1) The purpose of Parts 1 and 3 and the schedules of this Act is, for the benefit of the community as a whole, (a) to put in place a new system of control over the sale and supply of alcohol, with the characteristics stated in subsection (2); and (b) to reform more generally the law relating to the sale, supply, and consumption of alcohol so that its effect and administration help to achieve the object of this Act. (2) The characteristics of the new system are that (a) It is reasonable; and (b) Its administration helps to achieve the object of this Act. 23. Section 4 states the object of the Act as follows: (1) The object of this Act is that (a)the sale, supply, and consumption of alcohol should be undertaken safely and responsibly; and (b)the harm caused by the excessive or inappropriate consumption of alcohol should be minimised. (2)For the purposes of subsection (1), the harm caused by the excessive or inappropriate consumption of alcohol includes (a)any crime, damage, death, disease, disorderly behaviour, illness, or injury, directly or indirectly caused, or directly or indirectly contributed to, by the excessive or inappropriate consumption of alcohol; and (b)any harm to society generally or the community, directly or indirectly caused, or directly and indirectly contributed to, by any crime, damage, death, disease, disorderly behaviour, illness, or injury of a kind described in paragraph (a). 24. Section 131 of the Act provides the criteria that the licensing committee must have regard to in deciding whether to renew a licence as follows: (a) the matters set out in paragraphs (a) to (g), (j), and (k) of section 105(1): (b) whether (in its opinion) the amenity and good order of the locality would be likely to be increased, by more than a minor extent, by the effects of a refusal to renew the licence: (c) any matters dealt with in any report from the Police, and inspector, or a Medical Officer of Health made by virtue of section 129: (d) the manner in which the applicant has sold (or, as the case may be, sold and supplied), displayed, advertised, or promoted alcohol. 4

5 Further Considerations for the Committee Whether the premises is a grocery store 25. Pursuant to section 33(2) and 125 of the Act the Committee is satisfied that the business is that of a grocery store and entitled to continue to hold an off licence. Other criteria to be considered 26. The Act provides that in deciding whether to renew a licence, the licensing committee must also have regard to the matters contained in section 131 and 132 of the Act. Section 105(1)(a) The Object of the Act 27. Section 105(1)(a) of the Act requires the licensing committee to have regard to the Object of the Act. In the absence of any direct evidence to the contrary the Committee is satisfied that a renewal of the licence will not offend against the Object of the Act. Section 105(1)(b) Suitability of the Applicant 28. Section 105(1)(b) provides that the applicant be a suitable person to hold an offlicence. Although the applicant has come to notice once by way of a failed CPO during the renewal period we are satisfied that the applicant in unlikely to reoffend. In this regard the suitability of the applicant is not seriously challenged. Section 105(1)(c) Relevant Local Alcohol Policy 29. In respect of section 105(1)(c) of the Act there is no relevant local alcohol policy in existence. There is nothing to consider. Section 105(1)(d) The days and hours of operation of the licence 30. The current operating hours are Monday to Sunday 7am to 10pm. They are unremarkable and are within the default national maximum trading hours for off licences. Section 105(1)(e) The design and layout of any proposed premises 31. The premises is a grocery store with standard design and layout features typical of stores of this nature. Section 105(1)(f) Whether the applicant is engaged in or proposes on the premises to engage in, the sale of goods other than alcohol, low-alcohol refreshments, non-alcoholic refreshments, and food, and if so, which goods. 32. The applicant carries a large range of goods as described in the application consistent with a grocery store. Section 105(1)(g) Whether the applicant is engaged in or proposes on the premises to engage in, the provision of services other than those directly 5

6 related to the sale of alcohol, low-alcohol refreshments, and good, and if so, which services. 33. No other services were offered from the store other than those associated with a grocery store. Section 105(1)(j) Whether the applicant has appropriate systems, staff, and training to comply with the law 34. The applicant stated that they have four certificated managers, have regular staff meetings and have robust policies in place regarding the prohibition of the sale and supply of alcohol to prohibited person and intoxicated persons. Section 105(1)(k) Any matters dealt with in any report of the Police, an Inspector and the Medical Officer of Health under Section The MOoH opposed the renewal in a belief that reducing the start time for the sale of alcohol would contribute to, and be consistent with, the Object of the Act. Reasons for the decision 36. As we have often said, Section 3 of the Act requires us to act reasonably and consistently with the aim of contributing to the Object of the Act in the exercise of our duties. 37. Firstly, we intend to make comment on matters of natural justice and in particular about the timeliness, and fullness, of agency reports and the disclosure of documents that are intended to be introduced in to evidence. 38. In regard to agency reports we note in PAULIN v SCOTT [2013] NZARLA 489 the Authority accepted that the Police may not be able to express their grounds for opposition with adequate particularity within 15 working days.it would be permissible for the Police to state their grounds in opposition in more detail within a very short period of time. The Authority envisages that this would be within 15 working days of the initial report. 39. We see merit in this positon and we intend to follow it in future matters coming before this Committee. The initial report from the Police and MOoH must be received by the DLC within 15 working days of receiving the application. 40. The report in opposition must contain sufficient detail for the applicant to know the case that they be required to answer. A supplementary report expanding on those matters may be lodged with the DLC and again we expect that report to be lodged as soon as possible and no later than 15 working days after the initial report. 41. Should the matter proceed to hearing all briefs of evidence and documentary evidence that the parties intend to rely on and introduce in to evidence must be disclosed to the other parties at least 10 working days before the hearing. 6

7 42. We now turn to this particular application. The applicant has owned and managed this grocery store for more than 3 years. Other than one failed CPO test they have operated compliantly and not come to notice in an adverse manner. 43. The Police did not report that they had any matters in opposition and we are entitled to take from that that the business is not considered high risk and contributing to alcohol related offending in the area. 44. On the 6 th of November 2015 the High Court appeal was released relating to two off-licensed premises in Christchurch. CHRISTCHURCH MEDICAL OFFICER OF HEALTH v J & G VAUDREY LIMITED [2015] NZHC 2749 [6 November 2015] 45. In this judgment Justice Gendall said, whilst considering an appeal relating to SAAs, that DLCs were evaluative bodies and required to make a merit-based determinations of applications. 46. While we generally accept the proposition put by the MOoH that reducing the hours of availability of alcohol can contribute to a reduction of alcohol related harm we intend to follow the principle expressed in Otara-Papatoetoe Local Board (supra) that there must be a casual nexus between the evidence presented indicating the potential for alcohol related harm and the way that the licence has (actually) been operated. 47. There has been no evidence placed before us linking the operation of this store with any specific alcohol related problems in this particular area. 48. On that basis we see no justification for reducing the licensed hours at the start of the day. Accordingly, Off- Licence number 020/OFF/0067/2014 is renewed for three (3) years from the 8 th of February Pursuant to Section 132 the licence conditions will be refreshed to meet the requirements of the new Act. The following conditions are to apply: 1. Alcohol may be sold on the premises for consumption off the premises, and supplied free as a sample for consumption on the premises, only on the following days and hours: Monday to Sunday 7am to 10pm; 7

8 2. No alcohol is to be sold on or delivered from the premises on Good Friday, Easter Sunday or Christmas Day or before 1.00 pm on Anzac Day; 3. While alcohol is being supplied free as a sample, water is to be provided to patrons free of charge at the place where the samples are being supplied. 4. No alcohol may be sold other than a. beer that complies with the applicable New Zealand food standard for beer; or b. mead that complies with the applicable New Zealand food standard for mead; or c. fruit or vegetable wine that complies with the applicable New Zealand food standard for fruit or vegetable wine; or d. grape wine that complies with the applicable New Zealand food standard for grape wine; or e. a food flavouring, prepared for culinary purposes, that is unsuitable for drinking undiluted. 5. A properly appointed Certificated, or Acting or Temporary, Manager must be on duty, at or nearby the point of sale, at all times when the premises are open for the sale and supply of alcohol. 6. The Licensee must display signage as follows: a. At every point of sale detailing restrictions on the sale and supply of alcohol to minors and intoxicated persons; b. A copy of the licence attached to the inside of the premises so as to be easily read by people entering each principle entrance to the premises; and c. A sign prominently displayed at the premises, which identifies by name the manager for the time being on duty. 7. The single alcohol area for the premises is as described on the attached plan date stamped 20/01/2016: a. All alcohol must be displayed and promoted only within the single alcohol area; b. No advertising or promotion of alcohol within the single alcohol area may be visible from outside the premises; c. No products other than alcohol may be displayed or promoted within the single alcohol area. DATED at TAUPO this 17 th day of May

9 Murray Clearwater Commissioner For the Taupo District Licensing Committee 9