RESERVED DECISION OF THE AUCKLAND DISTRICT LICENSING COMMITTEE

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1 [2014] Q/OFL/2007/1097 IN THE MATTER of the Sale and Supply of Alcohol Act 2012 AND IN THE MATTER of an application by WORLD TRADING LIMITED pursuant to s127 of the Act for the renewal of an off-licence in respect of premises situated at 111/125 CUSTOMS STREET WEST, AUCKLAND CBD known as THE POINT STORE. BEFORE THE AUCKLAND DISTRICT LICENSING COMMITTEE Chairperson: MARY DAVENPORT Members: MOTEKIAI PAHULU BRIAN NEESON HEARING at AUCKLAND on 15 October 2014 APPEARANCES Miss Marieta McLeod District Licensing Inspector (in opposition) Mr. Whittle - NZ Police (in opposition) Mr. Mita for the Medical Officer of Health (to assist) Mr. Yong Bae Kim Applicant Mr. Eddie Kim for the Applicant Mr. David Kim for the Applicant RESERVED DECISION OF THE AUCKLAND DISTRICT LICENSING COMMITTEE Introduction [1] We have before us an application by World Trading Limited for renewal of an off-licence for a premises trading as The Point Store situated at 111/125 Customs Street west, Auckland CBD, which operates as a grocery store. 1

2 [2] The application was publicly notified in the New Zealand Herald on 11 and 18 July There were no public objections received as a result of the notification. [3] The Police and the Inspector opposed the application because the applicant produced insufficient accounts for sales for the agencies to conclude that the premises is primarily a grocery store. [4] The Medical Officer of Health did not oppose the application but Mr. Mita appeared to assist. The Application [5] The application was filed with Council s Licensing and Compliance on 3 July 2014 in accordance with the requirements under section 127 of the Act. [6] The inspector provided a report that satisfactorily addressed the criteria under s131 for which we are obliged to consider. The criteria under s131 includes matters under s105(1)(a) to (g), (j) and (k), matters relating to suitability of the applicant, good order and amenity, matters relating to the reports from police and MOH, and the manner in which alcohol is sold, supplied, or displayed. The location itself is summarised by the inspector in the Environmental Scan found in her report 1. The report details the matters for which the committee is obliged to regard in its assessment of the application. [7] The premises are located in the Viaduct Marina Precinct in lower Auckland CBD on the ground floor of a building on the corner of Customs Street West and Pakenham Street East. The store is largely surrounded by apartments and a Marina complex is nearby. The inspector s report does not raise any concerns about the amenity and good order in the locality, and we are satisfied that it complies with s106(2) requirements for assessment of amenity and good order for renewals. [8] There are no proximate sensitive sites, and the premises is otherwise free of graffiti and vandalism. The Inspector concludes that the amenity and good order of the locality would not likely be increased, to more than a minor extent, by the refusing of the licence. 1 Report on Application for renewal of Off-licence, Marieta McLoed, dated 16 August 2014, page 2 2

3 [9] The proposed hours of operation are Monday to Sunday between the hours of 7.00am to 10.00pm and comply with the Default National Maximum Trading Hours stipulated at s43 of the Act. [10] The Inspector has no other particular concerns and is satisfied that the application meets the requirements of the Act, aside from the use of the premises as a grocery store. The Relevant Legal Provisions [11] An off licence may be issued for any premises that are a grocery store: s32. [12] Section 33 provides guidelines in determining whether premises are grocery stores. Section 33 states: grocery store means a shop that (a) has the characteristics normally associated with shops of the kind commonly thought of as grocery shops; and (b) comprises premises where (i) a range of food products and other household items is sold; but (ii) the principal business carried on is or will be the sale of food products [13] The provision of sales evidence is a reasonable request where it is not clear to the agencies that the primary purpose of the business is that of a grocery store. This is an important consideration in coming to a conclusion on whether premises meets the criteria for a grocery store at s33 of the Act. [14] The inspector and the police had concerns that this was not the case when they inspected the premises and requested further information from the applicant to clarify the nature of sales made in the previous 12 months. In the inspector s mind, food and household goods should be 50% or more of the sales taken. We were advised that this is not a requirement under the Act, but has come about through previous caselaw as a good way to provide evidence of the nature of the sales in similar businesses. No authorities were provided for this submission, however, we are satisfied that 50% is an appropriate mechanism to apply for the agencies to be satisfied that the primary business is that of a grocery store. 3

4 [15] In this case, the applicant could not provide more than 20 days of sale receipts which when assessed, showed less than 50% of the sales were from food and household goods, but not significantly less. However, the applicant does not have a digital cash register and could not provide a substantial period of receipts for the inspector to be satisfied. She made further visits to the store and was somewhat satisfied that the applicant had made attempts to vary the quantity and variety of food goods for sale, but was still unsatisfied with the evidence provided by the applicant to substantiate those sales of food and household goods when compared to alcohol sales. [16] The police are of the same view and Mr. Whittle advised that he had visited the store, albeit under a different capacity to ascertain whether the store was selling Kronic rather than a routine visit related to matters under SSAA. Notwithstanding this he concurred with Miss McLeod s views that the store may not have been primarily a grocery store. [17] Neither Mr. Whittle, nor Ms Marieta had any particular concerns with the operation of the store, or with the layout. [18] Mr. Kim answered questions through his sons, Mr. Eddie and Mr. David Kim. They explained that the store ran without a digital register and this made it difficult to quantify sales and substantiate the variety of goods sold, to the inspector s satisfaction. The applicant was otherwise open and appeared honest in his answers. The applicant advised that premises has been operated in accordance with the law and Mr. Kim seemed to understand his obligations under the Act. He has held a licence for the premises since 2007 and there is no information before us to suggest that there have been concerns with the operation of the premises in that time. Mr. Kim honestly advised that he knew that the Act had changed, but was not so confident that he understood the detail of the changes. [19] We consider that the inspector has rightly raised the concerns about the nature of the store, and the applicant understood and agreed that if it could not give evidence to prove that it was a grocery store, then we must consider the renewal carefully. Further, we raised whether the layout of the store meets the single area requirements under s114 of the Act. [20] The premises needs to comply with the requirements to ensure that there is no display or promotion of alcohol outside of a single area as defined by the Act. Neither the inspector nor the police had any great concerns on this point however we make the applicant aware that it should ensure it knows and understands the requirements, and that it provides a 4

5 layout plan to Council that can be approved as meeting the requirements. The store is not very large. It is constrained by size and layout. However it must still meet the requirements. [21] In conclusion, we have looked at the application and the concerns raised by the agencies. We do not consider that the applicant has provided sufficient evidence to prove to us that it is operating as a grocery store as defined under s33 however, given the history of the premises and the suitability of the applicant, and the fact that the application otherwise meets the criteria at s131, the circumstances faced by the applicant in providing evidence of sales, we think that rather than refusing the licence that he should be given the benefit of the doubt and propose a truncated renewal that can be granted to allow Mr. Kim time to upgrade the cash register, and provide further quantifiable evidence of products sold, before we consider refusing this renewal. [22] The agencies also agree that this is a suitable and reasonable way to proceed. The Committee s decision [23] This is a decision by the District Licensing Committee in accordance with s135 of the Act. [24] This committee must take into account the criteria under s131, which encompasses the purpose and object of the Act, the suitability of the applicant to hold such a licence, and any evidence brought to the hearing by objectors that would bring substance to the objections raised. [25] We find that the application otherwise meets the criteria as follows: The Applicant has demonstrated that it has sufficient controls in place for the sale and supply of alcohol to be undertaken in a safe and responsible manner, and that the controls are sufficient to minimise the harm caused by the excessive or inappropriate consumption of alcohol and that the application is consistent with the Purpose of the Act, and achieves the Object of the Act under ss3 and 4. We find no evidence to suggest that the Applicant is not a suitable person to hold a licence. The agencies have no concerns in this respect. There is no Local Alcohol Policy in force. 5

6 The days and hours of operation are consistent with the hours sought for an offlicence and comply with the Default National Maximum Trading Hours stipulated at s43 of the Act. There is no evidence to suggest that the layout of the store is unsuitable however we think that the applicant should provide a floor plan of the layout for the inspectorate to consider and approve in order to satisfy us that the premises complies with the requirements at s112 and 113 for the purpose of single-area promotion and display of alcohol. We are satisfied that the amenity and good order of the locality will not be reduced, to more than a minor extent, by the effects of the issue of the licence. The Police, Inspector and Medical Officer of Health provided reports that offer no opposition to the granting of the renewal. [26] Accordingly, we are satisfied that we have addressed all of the matters that we are required to under s131 of the Act in accordance with the purpose and objective of the Act, in order to grant the renewal of off-licence for a truncated period less than the usual 3 year renewal. The licence shall expire on 31 July 2016 to allow the applicant time to upgrade the cash register systems at the store. [27] The following conditions shall apply: The renewal shall be otherwise in accordance with conditions under 007/OFF/9126/2011. Alcohol as defined in s58 of the Act may only be sold or supplied on the following days and between the following hours: Monday to Sunday between the hours of 7.00am to 10.00pm. No alcohol may be sold outside of these days and hours. No alcohol may be sold on the following restricted days in accordance with s.48 of the Act: Good Friday. Easter Sunday. Christmas Day. Before 1.00pm on Anzac Day. The whole of the premises is an UNDESIGNATED area. The applicant is to provide a layout plan to the satisfaction of the District Licensing Agency identifying a single-area for the promotion and display of alcohol in accordance with s114 by expiry of this renewal or by 31 July

7 Prior to a further renewal, the applicant shall provide records of sales for the previous 12 months of trading to the District Licensing Agency. The following steps must be taken to ensure that the provisions of the Act relating to the sale of alcohol to prohibited persons are observed: (i) Ensure that no intoxicated persons are allowed to enter or to remain on the premises. (ii) Ensure that appropriate signs are prominently displayed detailing the statutory restrictions on the sale and supply of alcohol to minors and intoxicated persons adjacent to every point of sale. (iii) Ensure that no alcohol is sold to Minors. (iv) Ensure that the approved ID of any person purchasing alcohol who appears under 18 years of age is checked prior to serving. At least one certified duty manager, or manager appointed in accordance with s231 shall be available and on duty for the duration of the days and hours defined in the licence. [28] We refer any party who wishes to appeal this decision or part of this decision to sections 154 through to 158 of the Act. Dated at Auckland this 28 th day of October 2014 MARY DAVENPORT Chairperson 7