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Whariki

 

Roles of the Liquor Licensing Authority

and District Licensing Agencies

Local and national level responsibilities

• The Alcohol & Public Health Research Unit supports some devolution of routine decision making to District Licensing Agencies, provided those decisions are audited by officers of the Authority. Special licences are at present wholly at the discretion of District Licences Agencies, but the Alcohol & Public Health Research Unit believes these too should be audited by the national Authority. All applications for licences or renewals that did not receive support from all statutory agencies, or which are opposed by members of the public, should be referred to the Authority.
• This audited devolution will speed the licensing process while ensuring its integrity. Some re-portioning of fee revenue may be warranted. There has been concern expressed that special licences are sometimes granted where the requirements of a more appropriate licence category would not be met; or to allow clubs to sell to the public or on-licenses to extend authorised hours on a continuous basis, rather than 'from time to time' (Hill & Stewart 1996). This may undermine legislative intentions with regard to licence categories. The Alcohol & Public Health Research Unit supports a role for the Authority in auditing these decisions by District Licensing Agencies.
• The Alcohol & Public Health Research Unit supports an expanded role for the Authority' secretariat, while Authority Members retain their 'tribunal' role. At the 1996 Alcohol Advisory Council Conference, 'Working Together' Host Responsibility and Liquor Licensing, there was a very strong call from local statutory officers for greater support, training for inspectors, summaries of emerging case law and written guidelines from officers at the national level. Amendments to extend or strengthen sections 92 and 96 in this regard would be supported, as well as written guidelines, case law summaries and training sessions by Authority officers.
• This expanded role for the Liquor Licensing Authority would be consistent with the practices of similar bodies in Canada and Australia, who take a proactive role in providing written material and advice not only to local officers but also to licensees about expectations and legal interpretation.

A flexible response to problems

• The Alcohol & Public Health Research Unit recommends allowing the Liquor Licensing Authority greater flexibility in its decision making powers and in its ability to impose conditions on a licence as appropriate to particular circumstances.

The Authority has considered itself unable under the Act to consider some objections or proposed solutions, because they did not fit the limited set of criteria and conditions laid down. The Act stipulates some licence terms while the Authority 'may' set other listed in the Act, with hours and days of trading being the main variable between licences. The Alcohol & Public Health Research Unit supports flexibility in the conditions that the Licensing Authority may impose on individual licences. Examples are a requirement which satisfies neighbours or community members opposing a licence, such as sound insulation, a privacy wall, or a restriction on type of entertainment; or a safety requirement such as toughened glassware, or cans and paper cups only at an open air event.

• The powers of the Liquor Licensing Authority are less flexible than licensing legislation in comparable countries. All ten of the other licensing acts reviewed by the Alcohol & Public Health Research Unit allowed flexibility in setting conditions. At the end of a list of mandatory and permissible conditions, several Acts included 'as the Authority sees fit', or similar wording.

More flexible powers are argued by theorists, on the basis of research in a number of fields, to be more likely to lead to negotiated solutions to regulatory problems, with more commitment to compliance by the licensees involved (Ayres & Braithwaite 1992)

Sanctions appropriate to the infringement

• At the time of its enactment, the Sale of Liquor Act was said to make licences 'easier to get, easier to lose'. This has not proved to be the case. In early decisions the Authority expressed reluctance to deprive licensees of the livings and more recently cancellations had taken up to two years to achieve. The Alcohol & Public Health Research Unit supports the recent legislative amendment preventing premises from remaining open while awaiting the outcome of an appeal against licence removal by the Authority, and believes this change will improve compliance with the Act.
• Many problems are being resolved informally at the local level. However, when this does not occur, the Authority's main power under the Act has been to suspend or cancel the licence - or do nothing. The only area offering a flexible response has been in the hours of opening that the Authority may set as a condition of the licence, and this has become a key means of sanctioning recalcitrant premises, where these have late hours of opening.
• An alternative approach is to provide a set of options from which the Authority might select a sanction of a level of severity appropriate to the infringement, without necessarily closing the business. Recent regulatory theory (Ayres & Braithwaite 1992) suggests that compliance is most likely where regulation is seen to be backed by appropriate sanctions - including but not limited to 'the big stick'. The set of sanctions suggested above draws on examples from New South Wales and South Australian legislation. Several others also allowed a greater range of sanctions than suspension or cancellation.

An equal role for the Medical Officer of Health

• The Alcohol & Public Health Research Unit supports amendment to the role and powers of Medical Officers of Health to balance these with the role and powers of the police and District Licensing Agencies. Public health input into licensing decisions, an equal role for Medical Officers of Health, including the right to delegate authority and tasks to local public health officers, is in keeping with the Act's object of 'contributing to the reduction of alcohol related abuse.'
• Like the police, Medical Officers of Health should be able to apply directly to the Liquor Licensing Authority for suspension or cancellation of a licence on public health grounds.

Investigating and reporting from a public health perspective

• The Alcohol & Public Health Research Unit supports an amendment requiring Medical Officers of Health to be notified of all special licences. At present the Medical Officer of Health is required to investigate and report on applications for new licences and renewals, but not on special licences which are granted by District Licensing Agencies, rather than the national Liquor Licensing Authority. In most cases these are small affairs, but special licences are also granted for very large events such as city festivals, sports tournaments, rock concerts and Operas-in-Parks. Such events entail public health and safety considerations and the Alcohol & Public Health Research Unit supports input from public health officers into the conditions negotiated for these licences.
• The Alcohol & Public Health Research Unit does not support the suggestion (Other Technical Issues, item 2) that the requirement for reports from Medical Officers of Health be dropped 'where no objections have been raised'. The Act requires Medical Officers of Health to 'investigate and report' on licence applications, and this investigation may well lead to an objection from the Medical Officer on public health grounds. Such investigation also allows beneficial interaction between licensee and health promotion officer, and a public health overview of liquor licensing in general.

Improving enforceability

• Research elsewhere has shown that the effectiveness of any liquor legislation depends on the extent to which it is enforced (Jeffs & Saunders 1983; McKnight & Streff 1994). The Alcohol & Public Health Research Unit supports amendments which improve enforceability by clarifying the legislation, such as the clauses on age restrictions, bar and restaurants licence categories, definition of a meals, etc. It also supports the above amendments which enable the police to collect evidence for prosecution under the penal provisions of the Act and have that evidence recognised by the courts.
• The Alcohol & Public Health Research Unit supports strict liability for penal offences, removing the defence that a licensee was unaware of an infringement. This is in line with expectations of professional standards of management of licensed premises and the concept of host responsibility. With clarification of provisions on age restrictions and licence categories, two clear situations are presented to licensees, as well as to enforcement officers. The presence of a person under 20 on restricted licensed premises is the responsibility of the licensee. On restaurant licensed premises, the sale or supply of liquor to an underage person is also the responsibility of the licensee, who can be expected to have a good overview of tables. The Act already covers supply as well as sale by persons other than the licensee, irrespective of the licensee's liability, and the Alcohol & Public Health Research Unit would support this clause being strengthened.

Presenting evidence

• For police powers to seize liquor and court recognition of averment, see section 6. Intoxication. For police power to enforce age identification and prosecute misuse, see section 1(b) Age Identification.
• The wording of the 1962 definition of liquor allowed acceptance that beer, ale, wine porter etc. are in fact alcoholic, as well as any other beverages above a certain percent proof. The 1989 wording, however, allows lawyers to require police to prove that any beverage sold or drunk was in fact more than 1.15% alcohol by volume. Police report this wording makes it difficult to bring a prosecution, compared to the previous Act's definition of alcohol.
• Enforcement of the penal provisions related to serving intoxicated persons and off-licence sales to underage drinkers involves time consuming observation of premises, raising questions of resource priorities. In the United States, considerable success in reducing the sale of alcohol by licensees to underage persons has been achieved through sporadic police operations using 'decoy' purchasers (eg. Prevention File 1995). Some police here have expressed interest in this 'sting operation' strategy, given some of the above changes which would make prosecutions more successful, and therefore a deterrent to other licensees. The suggestion amendment to the Act would ensure minors acting as decoys could not be prosecuted.

• Research on administration and enforcement of the Act in 15 localities shows that where statutory agencies were meeting together on a regular basis, they were more likely to be satisfied with the operation of the Act in their area and with compliance by licensees. Also officers from all the local agencies were more likely to give greater attention to the aspects of the Act related host responsibility on licensed premises (Hill & Stewart 1996). Regular meetings between local statutory agencies are not yet occurring in all areas.

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