The Medical Officer of Health (Wellington Region) v Lion Liquor Retail Ltd

JurisdictionNew Zealand
JudgeClark J
Judgment Date18 May 2018
Neutral Citation[2018] NZHC 1123
Docket NumberCIV-2017-485-506
CourtHigh Court
Date18 May 2018

In the Matter of an appeal under s 162 of the Sale and Supply of Alcohol Act 2012

Between
The Medical Officer of Health (Wellington Region)
Appellant
and
Lion Liquor Retail Limited
Respondent
New Zealand Police
Interested Party

[2018] NZHC 1123

CIV-2017-485-506

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-Ā-TARA ROHE

Sale of Liquor — appeal under s162 Sale and Supply of Alcohol Act 2012 (“SSAA”) (appeal against decision of licensing authority on question of law) of a decision of the Alcohol Regulatory Licensing Authority (“the Authority”) which allowed an appeal by the respondent to extend its operating hours — whether the Authority failed to apply the correct legal test for imposing the conditions

Appearances:

G Allan, D R La Hood and B Curtis for Appellant

A A Arthur-Young and M J Doesburg for Respondent

JUDGMENT OF Clark J

Introduction
1

A short distance from Courtenay Place, on the edge of Wellington's entertainment precinct, Lion Liquor Retail Ltd (Lion) operates an off-licence bottle store known as Liquor King Kent Terrace. As permitted by the conditions of the licence Liquor King operated between 8.00 am and 11.00 pm seven days a week. When Lion applied to renew the licence in 2016 the Wellington District Licensing Committee (DLC) renewed the licence subject to a condition that alcohol could not be sold or supplied on Fridays or Saturdays after 9.00 pm. 1

2

Lion appealed to the Alcohol Regulatory Licensing Authority (Authority). The Authority allowed the appeal and modified the condition to permit Lion to sell alcohol until 11.00 pm on Fridays and Saturdays. 2

3

The Medical Officer of Health 3 and New Zealand Police challenge the Authority's decision. 4 They say the Authority failed to recognise the evaluative and inquisitorial approach required of it by the Sale and Supply of Alcohol Act 2012 (the Act or 2012 Act) and that it erred in its approach to the application which was for renewal of a licence rather than an application for a licence. Further, it is said the Authority's decision is “unsupportable” on the evidence and is plainly wrong.

4

Two principal issues are raised by the appeal:

  • (a) whether the Authority applied the correct legal test in setting the trading hours condition; and

  • (b) whether the Authority erred in its conclusion there was an insufficient evidential basis to maintain the hours condition.

Background
5

Lion is the retail arm of Lion Beer, Spirits & Wines (NZ) Ltd. Lion has a long history of alcohol retailing in New Zealand. It operates 39 retail stores nation-wide. One of the stores is Liquor King Kent Terrace.

6

Liquor King Kent Terrace has been in operation since 1993. The store is highly visible on a prominent location on the corner of Kent Terrace and Elizabeth Street, at the edge, as previously described, of the Courtenay Place entertainment precinct. Liquor King is 170 m from Clyde Quay Primary School which shares with Liquor King the block on Elizabeth Street. There is a liquor ban in the area.

7

The premises compromise a ground level floor space of approximately 200m 2 with displays of alcohol, chillers, a craft beer filling station and an office. Liquor King has 14 car parks adjacent to Kent Terrace. Within a 500m radius there are approximately 130 on-licensed premises and 13 off-licensed premises.

Decision of the Wellington DLC
8

The DLC heard evidence and submissions over two days. Evidence by way of written brief and oral evidence was given by:

  • • Mr Fowlie, the branch manager of Liquor King Kent Terrace;

  • • Mr Joseph, Liquor King's southern regional manager;

  • • Dr Palmer, the Medical Officer of Health;

  • • Sergeant Rapira-Davies representing the New Zealand Police; and

  • • Mr Christie, a local resident who filed a notice of objection.

9

Mr Guruvayurappan, the Licensing Inspector, appeared but did not oppose the application and made no submissions.

10

The DLC considered there was sufficient evidence to support a reduction in sale hours on Fridays and Saturdays. The DLC based its conclusion on a range of factors including rates of alcohol-related harm reflected in the Police and hospital data; Liquor King's location in a significant centre of alcohol consumption close to residential dwellings and a primary school; and the evidence from Mr Christie as to the real consequences for the neighbouring community from off-licence alcohol consumption later in the evenings and weekends. 5

11

While the evidence supported a reduction in hours on Fridays and Saturdays, the DLC did not consider the evidence supported reduced hours on other days of the week. Any further reduction would not be proportionate to the identified harm. 6

12

Accordingly, the DLC renewed the licence subject to seven conditions two of which Lion appealed to Authority:

  • (a) a condition that alcohol may be sold on, or delivered from, the premises only on Friday and Saturday between 8.00 am and 9.00 pm; and

  • (b) a condition that all carry bags in which alcohol is sold to retail customers must be branded on at least one face of the bag with Liquor King branding.

Decision of the Alcohol Regulatory and Licensing Authority
13

The Authority heard the appeal on 27 April 2017 and issued its decision on 12 May 2017.

14

The Authority set out the background to the appeal before it, including the nature of the objection by Mr Christie. Mr Christie opposed renewal on the basis of trading hours. After setting out the grounds of appeal and the relevant provisions of the Act the Authority turned to the evidence and submissions.

Evidence and submissions
15

Lion's position before the Authority was that the causal nexus required the alcohol-related harm to be related to the specific trading hours condition. No logical link or causal nexus could be drawn between the evidence of alcohol-related harm and Liquor King's trading until 11.00 pm on Friday and Saturday nights. The evidence was “too general”. Lion accepted there was evidence of alcohol-related harm within a 500m radius of its premises and this area encompasses approximately 130 bars, nightclubs and 12 other off-licences. But it submitted that if its store closed earlier customers would either purchase alcohol earlier or purchase from other nearby stores which remained open. Consequently, the benefit of reduced hours of alcohol sale would be lost. This created an uneven playing field. Restricting the sale hours on Friday and Saturday nights was arbitrary and unjustified.

16

In essence, the Medical Officer of Health's position before the Authority was that users in the locality of the premises are especially vulnerable to alcohol-related harm either as consumers, residents or victims of alcohol-related violence. The Medical Officer of Health adduced evidence to demonstrate the vulnerability of the relevant community of users served by the premises. As alcohol supplied through off-licences is a significant contributor to alcohol-related harm the location and characteristics of the Lion's premises make it a likely contributor to alcohol-related harm in the locality on Friday and Saturday nights.

17

The Authority summarised the evidence before the DLC in the following way:

  • (a) The age demographic in the area of the premises is of a greater number of younger people in their late teens and twenties than the national profile. 7

  • (b) Alcohol-related attendances at Wellington Hospital Emergency Department are higher for people living in the locality of the premises than in Wellington generally. 8

  • (c) Research showed that by comparison with adult drinkers, younger drinkers (aged 18 to 24) are more likely to consume alcohol outside the home. 9

  • (d) The attendances of younger people, females and males, at the Emergency Department peak early on Sunday morning and Saturday morning (in that decreasing order of magnitude). In Dr Palmer's opinion the majority of alcohol-related attendances relate to binge drinking. 10

  • (e) With the exception of one incident linking the purchase of alcohol from Liquor King to the hospital admission of a 19-year-old female the hospital admission data did not identify the source or time of purchase of alcohol. 11

  • (f) A total of 1626 calls for Police assistance over the year were for assistance for alcohol-related incidents within a 500m radius of the premises. Of the calls for assistance between 9.00 pm and 11.00 pm, 171 calls for assistance were within 500m of the premises. Police believed the concentration of calls between the hours of 9.00 pm and 11.00 pm to be largely attributed to off-licences. 12

  • (g) Over 960 alcohol infringement offence notices were issued during 2015 for breaches of the alcohol ban area “many” of which were issued within 500m of Lion's premises. 13

  • (h) There was evidence of a vulnerable neighbourhood due to the presence of low-income boarding houses, schools and child care centres. 14

  • (i) The data showed twice the number of people who come to Police attention do so following the consumption of off-licence alcohol compared to alcohol purchased in on-licensed premises. 15

  • (j) Mr Christie gave evidence of litter, noise and the personal impact of vandalism and disturbances at night from drunk people. While Mr Christie could not say definitively the alcohol was sourced to Lion's premises, in his view the evidence strongly implicates the premises “as the trail of discarded cans and bottles … is continuous from the premises to the nearby school.” 16

Reasoning
18

The Authority regarded it as “evident” from its consideration of two High Court decisions that: 17

… the causal nexus which needs to be established is between the granting of the application for a licence (or in this case, a renewed licence), and the object of the Act contained in s...

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1 cases
  • Lower Hutt Liquormart Ltd v Shady Lady Lighting Ltd
    • New Zealand
    • High Court
    • 28 November 2018
    ...Officer of Health v J & G Vaudrey Ltd, above n 12, at [53]–[56]; Medical Officer of Health (Wellington Region) v Lion Liquor Retail Ltd [2018] NZHC 1123, [2018] NZAR 882 at 19 Re Venus NZ Ltd, above n 18, at [60] (citation omitted). 20 Medical Officer of Health (Wellington Region) v Lion L......

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