Friday, April 28, 2017

Negotiations

For a while now, some of us have been observing how alcohol licences are issued in Wellington, with a bit of concern for one particular aspect. And that is the practice of the Police telling applicants that they will oppose their applications unless they agree to certain conditions being written into the licences.

If and when Police object, the application goes to a hearing and everyone takes their chances with the District Licensing Committee. From what I've seen, the DLC overrules the objections of the Police (and the Medical Officer of Health) with surprising frequency. Nevertheless, for a lot of applicants the hearing and the time taken for it to happen are unpalatable, especially if they're applying for a new licence and any delay in the licence might delay their opening. (It's different if you're applying for a renewal.) So applicants tend to pay very close attention to any suggestions the Police have for avoiding a hearing.

Fortunately there’s an extremely useful website with the very exciting name of NZLII. It’s an archive of decisions by all kind of courts, tribunals and what have you. And it includes decisions by the Wellington District Licensing Committee and the outfit that has oversight over them, which is the New Zealand Alcohol Regulatory and Licensing Authority.

Now if you know the names of a few bars or bottle stores whose licence applications might have been contentious it’s pretty easy to study the outcomes of those decisions. For instance, here’s the news-worthy Siglo case, where Police tried to make Siglo accept a one-way door policy only to have the Licensing Committee rule against them.

Today I came across this one. It's from a hearing on Feb 7, 2017, with the decision dated March 2. The Police and the Medical Officer of Health appealed the renewal of an off-licence by the Wellington committee so it went to the national body to adjudicate. They not only rejected the appeal, they said something that strikes me as kind of extraordinary.
[79] Reporting agencies should be careful to avoid ‘negotiating’ conditions with an applicant in exchange for those agencies not opposing the application. Doing so risks creating the impression that they have used their statutory reporting function under s103 to achieve their own ends. While the interests of reporting agencies are undoubtedly of significant importance, and it is for that reason that they have been given a function under s103, the Authority would take a dim view if opposition turned on whether an applicant agreed with reporting agencies’ recommendations on conditions. The role of the Police and the Medical Officer of Health under s103 is clear. They are to inquire into the application and if they have any matters in opposition, to file with the DLC a report on those matters. The evaluative exercise under s131, and the imposition of conditions, is for the DLC alone and not for the Medical Officer of Health or the Police. It would be an improper use of their reporting role in s103 if that was used in a way that effectively usurped the DLC’s licensing function.

From what I know of these things, the behaviour that the New Zealand Alcohol Regulatory and Licensing Authority is saying should be avoided sounds an awful lot like the way Wellington licensing has been operating for the last two or three years. For example the 2015 decision regarding an off-licence application here incorporates extracts from a succession of emails that must pretty much fit the dictionary definition of a "negotiation". (Paragraphs 12-17, on pages 5 and 6.)

So if the New Zealand Alcohol Regulatory and Licensing Authority is saying that this kind of practice is against the intent of the 2012 Sale and Supply of Alcohol Act, but this practice has been routine for several years, what does it say about the licences that have been granted in this time? Do they need to all be reconsidered by the Wellington District Licensing Committee?

Getting more extreme, if a bar or liquor store felt coerced into accepting shorter trading hours, can they sue the Police for loss of income?

Incidentally - and for full disclosure - Hashigo Zake's two liquor licences (on- and off-premise) were renewed on March 2, with no conditions added. So if the Authority's comments have affected how these things are done in Wellington, we may have been an early beneficiary.