[2019] NZARLA 75 in the MATTER of the Sale and Supply of Alcohol Act 2012

[2019] NZARLA 75 IN THE MATTER of the Sale and Supply of Alcohol Act 2012 AND IN THE MATTER of an appeal pursuant to s 154 of the Act against a decision of the Wellington District Licensing Committee in respect of a new off- licence for premises situated at 102 Aro Street, Aro Valley, Wellington, to be known as “Aro Liquor” BETWEEN PATELS SUPERETTE 2000 LIMITED Appellant AND CHRISTOPHER JAMES MUIR (New Zealand Police) First Respondent AND DR STEPHEN PALMER (Medical Officer of Health) Second Respondent AND PHILMA (PHIL) THOMAS GREY WHELAN (Licensing Inspector) Third Respondent AND DANIEL BROWN (TE ARO SCHOOL BOARD OF TRUSTEES), HILARY UNWIN (ARO VALLEY COMMUNITY CENTRE), MARIA CASSIDY, LUISA BELTRAN-CASTILLON (also representing KEITH McLEOD and A BROADHURST), PHILIP MAY, KEITH CLEMENT, and ANN CLARK (Objectors) Fourth Respondents 2 BEFORE THE ALCOHOL REGULATORY AND LICENSING AUTHORITY Chairperson: District Court Judge K D Kelly Member: Mr D E Major HEARING at WELLINGTON on 20 March and 12 April 2019 APPEARANCES Mr N S P Laing and Ms A Jones – for appellant Sgt C Muir – NZ Police – first respondent Dr S Palmer and Ms A Boston – second respondent Mr P Whelan and Mr L Howells – third respondent Mr A Sherriff – for fourth respondents DECISION OF THE AUTHORITY Introduction [1] On 17 May 2018, following a four-day hearing, the Wellington District Licensing Committee (DLC) declined to grant an application for an off-licence to Patels Superette 2000 Limited (Patels) for a bottle store proposed to be established at 102 Aro Street, Aro Valley and to be known as ‘Aro Liquor’. [2] The premises currently operate as a fruit and vegetable shop. Next door at 100 Aro Street is a grocery store also owned by Patels. The grocery store currently holds an off-licence1 which Patels proposes to surrender should an off-licence be issued for the proposed bottle store where at least 85% of its annual sales revenue is expected to be earned from the sale of alcohol.2 [3] The application was refused by the DLC on the basis that the suitability of the appellant was not able to be fully evaluated;3 the amenity and good order of the locality would likely be reduced by more than a minor extent by the issue of the licence;4 the days and hours during which Patels proposed to sell alcohol were excessive;5 and the object of the Act (s 4) would not be satisfied by the application.6 [4] On 31 May 2018, Patels appealed the decision of the DLC seeking an order from the Authority7 reversing the decision of the DLC and granting the licence ‘on terms that the Authority sees fit’. 1 per s 32(1)(f) 2 per s 32(1)(b) 3 DLC decision at [109] 4 DLC decision at [126] 5 DLC decision at [126] 6 DLC decision 49A/2018/NZWDLCWN/833 dated 17 May 2018 at [125] 7 pursuant to s 158 of the Act 3 Locality of the premises [5] Given that the DLC considered that the amenity and good order of the locality would be reduced to more than a minor extent by the issue of the licence, it is useful to understand at the outset the nature of the locality. The DLC described the locality as follows:8 The Aro Valley is a discrete area giving onto the southernmost end of the Wellington CBD. The Committee has visited the area recently as part of the hearing process and noted its principally residential character. Restored, usually very small and closely set workers’ cottages of the 19th century still line parts of the street. There are more substantial residences of 2 or 3 storeys of the same and later eras mainly built on the adjacent slopes and streets which are arranged rather as tributaries to the main ‘stream’ which is Aro Street itself. Some of the housing, especially the more recent builds, appear to be purpose-built flats or apartments. It appears to be a fairly densely populated area with many houses up small accesses from the sides of streets. There are number of areas with only pedestrian access and almost all the streets are narrow. On the northern side of Aro Street from Devon Street westwards the gradient is quite steep leading up to Kelburn and Victoria University. This is a recognised strongly student-oriented area with a large number of older houses rented as flats. On the southern side there are some gentler gradients in areas such as Epuni Street, which has number of suburban style dwellings, still fairly densely arranged. The valley’s eastern end gives onto Willis Street: on the corner there is a funeral home on the north side and the Shalimar Four Square (which holds an off licence) on the south; further south shortly beyond that intersection and curving back toward the valley is a site occupied by council housing (the Pukehinau Flats). At the western end of the valley is Holloway Road and the steep streets of Highbury and Mitchelltown, all of which are entirely residential areas. The Aro Street commercial precinct is located toward the eastern, Willis Street end of the street. It comprises a small group of businesses mostly (but not all) housed in buildings dating back a century or so – there is a heritage precinct designation on most of this area. Amongst the businesses there are two licensed cafes (Aro Café and Rita’s), a craft brewery (The Garage Project) housed in a converted motor repairer/petrol station which has recently opened a cellar door/café in the heritage precinct, another bakery/café without licence, craft furniture maker, mountain bike store, the Aro Video store, a fish and chip shop, a Vinnie’s op shop (the building was for sale at the time of our visit), the Aro Valley Mini Mart, and the Garage Project main building. Everything else is aptly described as ‘boutique’ at least in size. Most of the stores open directly to the street, are highly individual, and there is no chain presence with the exception of the Four Square. There is, importantly, no physical separation from the residential area surrounding the business. The commercial precinct is one building deep along both sides of the street and people are living behind, beside and above those buildings. (The aerial photograph and map appended to Ms Boston’s evidence refer). It is part of the evaluative exercise required of the committee to assess the ‘amenity and good order’ of the locality. In terms of amenity, we were able to identify that this (at least in daylight hours) is a very pleasant part of the city with its mixture of historic buildings, interesting and individual businesses, and open spaces – some steeper parts of the valley have been retained in bush, and there are a number of parks in the area, including Aro Park, a flat, grassy area with trees and benches 8 DLC decision at [8] – [11] 4 located toward the Willis Street end of the valley, which is used for community events (the community hall and local pre-school are adjacent). [6] The Authority considers this to be an accurate description of the locality based on its familiarity with the area. Ownership and management [7] Mrs Manjulaben Patel is the sole shareholder of Patels. [8] Mrs Patel and Mr Vinod Hira are the directors of Patels. Mr Hira became a director of Patels in 2015 after the death of Mrs Patel’s husband, having been involved in the preparation of the grocery store’s accounts since 2000. [9] Both Mrs Patel and Mr Hira hold managers’ certificates. In addition, another staff member holds a manager’s certificate. [10] Mrs Patel would be the hands-on operator of the premises. Mr Hira works fulltime as a network engineer for Capital & Coast DHB. Mr Hira said he also assists a friend with the operation of a liquor store in Dixon Street and stated before the DLC that he expects to be at the proposed Aro Liquor premises from 6.00 pm most evenings, and on weekends.9 [11] Neither Mrs Patel nor Mr Hira reside, or have resided, in Aro Valley. Reporting agencies Police [12] By way of a letter dated 30 May 2017 Sergeant Chris Muir of the New Zealand Police opposed the application based on s 105(1)(h) of the Act (amenity and good order of the locality). Sergeant Muir said that: Police believe the Amenity and Good Order … will decrease if the license were to be granted: The premises is located within the Wellington Liquor Ban area where there is already infringement notices for the consumption of alcohol with no bottle stores in the immediate area. This area has a high density of students who attend University. Traditionally University students are abusers of alcohol. This age group represent the highest at risk of alcohol related harm. Increasing the availability of an off-licence bottle store will provide easier access to alcohol. Medical Officer of Health [13] In his s 103 report dated 2 June 2017 Dr Stephen Palmer, the Medical Officer of Health and Clinical Head of Department for the Wellington Regional Public Health, opposed the application following inquiry by his delegate, Ms Andrea Boston, a Public Health Advisor. [14] The Medical Officer of Health opposed the application based on the criteria in s 105(1)(a) of the Act (the object of the Act), s 105(1)(d) (the days and hours during which the applicant proposes to sell alcohol), s 105(1)(h) (amenity and good order of 9 DLC decision at [13] 5 the locality), and s 105(1)(j) (whether the applicant has appropriate systems, staff and training to comply with the law).

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