A suitable candidate
Thinking of applying for an alcohol licence? There are some important criteria you’ll need to fulfil – the first being “suitability”, as alcohol licensing lawyer Pervinder Kaur explains…
The criteria for assessing alcohol licence applications is set out in the Sale and Supply of Alcohol Act 2012 (Act). Decision-makers (district licensing committees or the Alcohol Regulatory and Licensing Authority) must take into account a range of matters, including the suitability of the applicant, when considering an application.
There is no statutory definition of suitability. As a result, various matters have been identified in the case law as relevant, including an applicant’s experience in the hospitality industry, their management ability, and personal integrity.
To refuse an application for an off-licence on grounds of suitability, the Committee has to be satisfied on the balance of probabilities that the character of the Applicant has been shown to be such that they are not likely to carry out properly the responsibilities that go with the holding of a licence.[1]
More recently, in Two Brothers Wholesale Ltd decision, the Authority stated that suitability is not to be considered in a vacuum and should not be construed narrowly. Any determination on suitability includes assessment of the character and reputation of the applicant, their honesty as well as consideration of the operation of the premises. Suitability is not restricted to whether the grant of a licence will result in the reduction or an increase in alcohol harm, although these issues will be relevant.
“It is important to keep in mind that a licence is a privilege, not a right. ”
What is required is a positive finding. That implies an onus upon the applicant to demonstrate suitability, for example, putting your best foot forward. Although, the Authority has confirmed in Two Brothers Wholesale Ltd, there is no onus on an applicant to prove their suitability at renewal.
It is important to keep in mind that a licence is a privilege, not a right. The privilege comes with obligations: to uphold the Act and the conditions of any licence. Therefore, it is essential that the applicant is honest, and of good character and reputation.
Decision-makers nowadays also require applicants for new licences to demonstrate a knowledge of the locality in which the proposed premises are situated, and any potential problems related or likely to be related with those premises. It also requires applicants to explain how they plan to address those potential problems.
Suitability is interpreted much more widely now than it has been in the past. Where a community is vulnerable, the threshold to establish suitability is harder. It requires an applicant to demonstrate an understanding of the vulnerabilities; engaging with the agencies and community on how to address vulnerability having regard to the object of the Act, which is that the sale and supply of alcohol is undertaken safely and responsibly so the harm caused by the excessive or inappropriate consumption of alcohol is minimised.
It is not sufficient to simply set up a company and apply for a licence. Companies are often the alter ego of their directors. It is the suitability of the directors and shareholders that is under assessment when decision-makers are evaluating an application for an alcohol licence and considering matters set out under s 105 of the Act.
[1] See variously Police v Casino Bar (No 3) Ltd [2013] NZAR 267 (HC), Re Jays LLA 994/94 (15 July 1994), Re Sheard [1996] 1 NZLR 751 (HC), and Re Nishchay’s Enterprises Ltd [2013] NZARLA 837.
Pervinder Kaur is an Associate at Harkness Henry specialising in alcohol licensing and resource management law.
