AGENDA DISTRICT LICENSING COMMITTEE

Transcription

1 AGENDA DISTRICT LICENSING COMMITTEE COUNCIL CHAMBER MEMORIAL AVENUE KAIKOHE MONDAY 29 MAY 2017 COMMENCING AT 10:00 AM Committee Membership Chairperson Councillor Ann Court Members Martin Macpherson Stewart Wright Document number A

2 DISTRICT LICENSING COMMITTEE PUBLIC HEARINGS Some alcohol licensing applications must be heard by a District Licensing Committee at a public hearing. Each Committee has three members - a Commissioner (or Chairperson) and two list members. The Committee members and Chairperson are independent from the Council and have experience in hearings like this as well as in the community or hospitality industry. The applicant, and anyone opposing the application who wishes to be heard, will be given 10 working days notice of the date, time and venue of the hearing. Public hearings are reasonably formal so that applications are dealt with consistency and fairly, and all parties are given a fair opportunity to present their views. District Licensing Committee hearings are open to the public, including the news media. It may be necessary to exclude the public from some parts of a hearing or limit the release of information for commercial or personal privacy reasons. WHAT HAPPENS AT THE HEARING? When you arrive at the hearing, you will be asked by the Committee Advisor to record your attendance if you are appearing as an applicant, on behalf of an applicant, as an objector, as a witness or representing one of the reporting agencies. If you have a written submission you wish to present at the hearing, 10 copies of your submission should be given to the Committee Advisor for distribution to the Committee and others who are appearing. The hearing will usually follow this format: OPENING AND INTRODUCTION The Committee Advisor announces that the hearing is about to start and everyone stands as the Committee comes into the room. The Chairperson asks everyone to sit down before introducing the Committee members and advises which licence is being heard. The Chairperson then gives a brief outline of proceedings. THE APPLICANT The Applicant or their Representative will be asked to swear either by oath or affirmation, if they are giving evidence. The Applicant or their Representative maybe called upon to present their case. The Applicant or their Representative may be represented by legal counsel or consultants and may call witnesses in support of the application. All witnesses will be required to take either an oath or affirmation. After the Applicant has presented their case, members of the Committee may ask questions to clarify the information presented. The Police, Ministry of Health or Licensing Inspector may also ask questions. The Chairperson can intervene at any time. REPORTING AGENCIES The Reporting Agencies are then permitted to present their case. They may also be assisted by legal counsel or consultants and may call witnesses. All witnesses will be required to take either an oath or affirmation. Committee members may ask questions to clarify the information presented. OBJECTORS Any objector wishing to give evidence will be required to take either an oath or affirmation. An objector also can call witnesses. Again the Committee members may ask questions. SUMMARISE and CONCLUSION Once objections and cross examination has finished the applicant and their Representative has the right to make submissions and respond to matters raised. Other parties also have the opportunity to make final submissions. Members of the Committee may ask further questions at any stage. The Chairperson then generally closes the hearing. Document number A Page 1 of 1

3 Item FAR NORTH DISTRICT COUNCIL DISTRICT LICENSING COMMITTEE MEETING MONDAY 29 MAY 2017 COMMENCING AT 10:00 AM IN THE COUNCIL CHAMBER, MEMORIAL AVENUE, KAIKOHE A G E N D A 1.0 INTRODUCTIONS 2.0 APPLICATION FOR OFF-LICENCE 2.1 Ennals Consulting Limited (Nosh Food Market) Document number A CLOSE OF MEETING Document number A

4 MEETING: Name of item: Author: Date of report: 27 April 2017 Document number: Executive Summary DISTRICT LICENSING COMMITTEE 29 MAY 2017 Item: 2.1 APPLICATION FOR OFF LICENCE: ENNALS CONSULTING LIMITED (NOSH FOOD MARKET) Sam Kemp - Team Leader, Environmental Health Services A This is an Inspectors Report as required from an Inspector appointed by the Far North District Council, for an application for Off-Licence. The criteria found at Section 17 of the Sale and Supply of Alcohol Act 2012 (the Act) apply to this application. Section 99 of the Act provides that the application is determined by the District Licensing Committee. Recommendation THAT the District Licensing Committee pursuant to section 99 of the Sale and Supply of Alcohol Act 2012 (the Act) determines the application for an Off- Licence held by Ennals Consulting Limited (Nosh Food Market) made pursuant to section 17 of the Act is granted. 1) Background This application was filed by Ennals Consulting Limited pursuant to Section 17 (Off Licence) of the Sale and Supply of Alcohol Act 2012 for the premises to be known as the Nosh Food Market situated at 1993 State Highway 10, Kerikeri, Far North District. The application was filed with the Far North District Council on the 19 December This is a new premises that requires a new licence to allow them to sell and supply alcohol from their new business to be consumed elsewhere. The 1 st Public Notice calling for any objections went out on the 22 December 2016 and the closing date for objections was the 6 February As a result of this we received objections from both members of the public as well as our agency partners namely the Police and the Medical Officer of Health. 2) Discussion and options Premises History The premises is a new food market style business catering for boutique style food, grocery items and beverage sourced locally and though out New Zealand and overseas. It is not a petrol station. The premise is situated in the west sector of the site at 1993 State Highway 10, Waipapa and has its own allocated car parking area in front and to the left side of the building. The premise itself is approximately 82m off state highway 10 and covers almost 507 square metres in area. Document number A Page 1 of 7

5 The premise is next to a number of Gull Self-Service Station Petrol Pumps. There is no service station building on the site. The distance between the closest petrol pumps and the entrance of the applicant s premises is approximately 35 metres. Vehicles can access the premises from a shared driveway off State Highway 10 it has with the Gull Self-Service Station Petrol Pumps. The premises it has its own allocated parking areas in front to the right of their building and to the left side of it. There are two large gardened areas separating the Nosh Food Market and the Gull Self Service Petrol Pumps. Surrounding these gardens will be a railed fence approximately 0.5m in height to discourage people from walking across them as they contain the premises effluent treatment system. This is the first time this premise has been utilised since its inception back in Both the Nosh Food Market and the Gull Self Service Station Petrol Pumps operate completely independent of each other with no financial or organisational ties. Statement of Compliance - Fire Service Regulations The applicant has provided a statement, dated 16 December 2016, that the building in which the premises is situated has an evacuation scheme for public safety which meets the requirements of Section 21A of the Fire Service Act Amenity and Good Order of the Locality Report An amenity and good order report has been provided by the applicant specifying reasonable controls that the licensee will take with their customers to minimize disturbance to neighbouring properties and businesses. Staff will receive on the job training as well as completing their Licence Controllers Qualification (LCQ) and other requirements to attain their individual Duty Manager s Certificates. Licensed Hours The hours sought are: Monday to Sunday am to 10.00pm Public Notifications This was carried out in the prescribed manner and within the prescribed time. A number of objections were received and as a result requiring the need for a District Licensing Committee Hearing. PUBLIC OBJECTIONS Alison and Kevin Pearson - Liquorland Kerikeri Clayton Pearson - Liquorland Waipapa The Pearson s own two Off- Licence premises within the Waipapa and Kerikeri area and rely on the following grounds to oppose the premise obtaining an Off- Licence. Grounds: Sale and Supply of Alcohol on the same site as a Petrol Station, Two further off licences within 500m of the applicant s site. Document number A Page 2 of 7

6 As the Pearson s would be in direct competition with this premises I don t believe the second part of their objection would be valid by them being in direct competition to the proposed business. AGENCY OBJECTIONS Police and the Medical Officer of Health are also relying on similar grounds to the Pearson s that the premise is operating next to the Gull Self Service Petrol Pumps. The Medical Officer of Health has provided the section from the Sale and Supply of Alcohol Act 2012 (Section 36(f)) that they believe not only relates to the applicant s situation but also disqualifies them from holding an Off- Licence. The Medical Officer of Health has also provided case law which she believes adds credence to her opposition and enforces that fact that the applicant should not hold an Off- Licence. The grounds are as follows: Police Grounds: There is no separation from the petrol station and the entrance can only be via the service station entrance. The natural flow of the parking layout of the petrol station is that the proposed supermarket will be seen as the shop attached to the service station. Medical Officer of Health (MOH) Grounds: Section 36(f) of the Sale and Supply of Alcohol Act 2012 No off Licences for petrol stations, certain garages, dairies, convenience stores, conveyances or shops within a shop The licensing authority or licensing committee must not direct that an off-licence should be for any premises if (in its opinion) (f) The public can reach them directly from the shop, or directly from the premises where the principal business carried on is a business of the kind described in paragraph (a) The MOH has also addressed case law in their opposition being: Parmar and Asiata Limited (2016) NZARLA PH137 Alpine Cellar (2001) NZLLA 1253 (31 st October 2011) Inspectors Assessment As the Chief Licensing Officer for the Far North District Council I have considered this application and reviewed the grounds in which the Pearson s, Police and the Medical Officer of Health have objected to the applicant obtaining an Off- Licence. The objectors have raised the following points and I have addressed each point below it; 1. The Pearson s, Police and Medical Officer of Health are objecting to the fact that the applicant wishes to operate his Off-Licence from what they believe is the same site as the Gull Self Service Station. Document number A Page 3 of 7

7 In my opinion the site map provided by the applicant and signed off by the Planning Department from the Far North District Council (RC ) clearly shows that the Gull Self Service Petrol Pumps and the Nosh Food Market have distinct and designated areas where there two businesses operate. The underground tanks servicing the petrol pumps for the Gull Self Service Petrol Pumps are also within their own boundaries. The map also shows the parking that is to be utilised by customers of the Nosh Food Market and where the vehicles park when using the self-service petrol pumps. For these reasons I believe that the Nosh Food Market and the Gull Self Service Petrol Pumps are not operating on the same site. 2. Police believe that there is no separation between the service station and the premises and that both premises share the same entrance from the main road. In my opinion I believe the applicant has provided clear separation between the main entrance to their premises and the Gull Self Service Petrol Pumps by the use of gardens and fencing between the two. I also believe that signage provided by both businesses gives a clear indication of the separation between them as well I have provided photographs taken of both premises that in my opinion clearly shows this separation and would assist the Committee in this matter. 3. Police also believe that due to the natural flow of the parking lay out of the petrol station that the premises will be seen as the shop attached to the petrol station. I disagree with this point as clear separation has been established by the applicant as pointed out above. There is separation of approximately 35m between the nearest petrol pump parking and the main entrance to Nosh Food Market and to me this demonstrates that the business will not be seen by members of the public as being attached to each other. 4. The MOH have said that the premises falls under Section 36(f) of the act which disqualifies them from holding an Off-Licence and have provided case law which they believe assists them in their opposition. 5. The MOH are also concerned about the risk of harm to the public associated with OFF Licence premises being next to petrol service stations and for members of the public to purchase fuel and alcohol in such close proximity. The MOH is relying on this part of Section 36(f) which says; (f) The public can reach them directly from the shop, or directly from the premises where the principal business carried on is a business of the kind described in paragraph (a) Section 36 (a) of the Act refers to: (a) the principal business carried on there is Document number A Page 4 of 7

8 (i) (ii) the sale of automotive fuels; or the repair and servicing of motor vehicles and the sale of automotive fuels; or I believe guidance in this matter may come from those types of premises of a similar nature to the applicants and who currently hold an Off- Licences and have self- service petrol pump close to or next to their premises. I believe there is only one other premise in the Far North District area that is similar in nature to that held by the applicant. This premise is Pak n Save Kaitaia who on the 9 December 2015 was granted their Off-Licence by the District Licensing Committee. When Pak n Save Kaitaia applied for their Off-Licence they provided a site plan that clearly showed a Fuel Station in the car park area of the supermarket.(refer to Section 12 of this report) Pak n Save has no separation of any kind between the petrol pumps and the front entrance to their premises and both Pak n Save building and the Self Service Petrol Pumps share the same entrance to their premises off North Way in Kaitaia. The licence was granted on the grounds that it was a supermarket under Section 32(1) (e) of the Act but there is still the inherent risk as pointed out by the MOH present in associated with petrol and alcohol purchases in situation as well. This situation is not addressed in any of the reports submitted by the MOH in regards to the Kaitaia Pak n Save MOH and there have been no issues that I am aware of have surfaced as a result of Pak n Save having a self-service petrol station. The Pak n Save franchise has over 40 other stores throughout the country that operate self-service petrol stations from their premises and who also hold Off- Licences. The New World Supermarket franchise also operates self -service petrol station from some of their premises as well with the closest one to the Far North District being the New World Supermarket in the Regent, Whangarei. For this reason I don t believe it was the intention of legislation to capture business next to self -service petrol pumps otherwise these businesses would not be able to operate. Case law provided by the Medical Officer of Health(MOH), Parmar and Asiata Limited (2016) NZARLA PH137 and Alpine Cellar (2001) NZLLA 1253 (31 st October 2011), I believe are not relevant to the applicant s situation as they are totally different in arrangement and appearance. The Case law Parmar and Asiata Limited (2016) NZARLA PH137 and photographs provided to me by Rob Abbott Chief Licensing Inspector, Auckland in charge of the hearing in this matter. The photographs show the Off- Licence in the same building as the service station. Document number A Page 5 of 7

9 Case law Alpine Cellar (2001) NZLLA 1253 (31 st October 2011) as well as photographs of the actual premises that wanted an Off- Licence utilising the Gas Alley petrol stations building. Both Off- Licence premises and the Petrol Stations were located in the same building and there was no separation between both of the premises. This in itself differs drastically from the applicant s intended operation. For this reason I believe in my opinion that case law provided by the MOH is not helpful in this matter. This is the report is required from an Inspector appointed by the Territorial Authority. 3) Financial implications and budgetary provision There are no financial implications or budgetary provision required as a result of this report. 4) Reason for the recommendation To provide the District Licensing Committee with information to allow it to determine its decision pursuant to Section 99 of the Act to grant an off-licence for Ennals Consulting Limited (Nosh Food Market). Manager: Dean Myburgh - General Manager - District Services Group Attachment 1: Application for Off-Licence - Ennals Consulting Limited (Nosh Food Market) - Document number A Document number A Page 6 of 7

10 Compliance schedule: Full consideration has been given to the provisions of the Local Government Act 2002 S77 in relation to decision making, in particular: 1. A Local authority must, in the course of the decision-making process, a) Seek to identify all reasonably practicable options for the achievement of the objective of a decision; and b) Assess the options in terms of their advantages and disadvantages; and c) If any of the options identified under paragraph (a) involves a significant decision in relation to land or a body of water, take into account the relationship of Māori and their culture and traditions with their ancestral land, water sites, waahi tapu, valued flora and fauna and other taonga. 2. This section is subject to Section 79 - Compliance with procedures in relation to decisions. Relationship with existing policies and Community outcomes. Possible implications for the relationship of Māori and their culture and traditions with their ancestral land, water, site, waahi tapu, valued flora and fauna, and other taonga. Views or preferences of persons likely to be affected by, or to have an interest in the matter, including persons with disabilities, children and older persons. Does the issue, proposal, decision or other matter have a high degree of significance or engagement as determined under the Council's Policy #2124? If the matter has a Community rather than a District wide relevance has the Community Board's views been sought? Financial Implications and Budgetary Provision. Financial Controller review. Not applicable Not applicable Not applicable Not applicable Not applicable There are no financial implications or the need for budgetary provision as all costs are met by the Applicant. Document number A Page 7 of 7

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