Auckland Council’s Regional Strategy and Policy Committee confirmed recently the Draft Local Alcohol Policy (Draft LAP) for Auckland, which has now been released for consultation. In accordance with the special consultative procedure required under the Sale and Supply of Alcohol Act 2012 (the Act), the Draft LAP remains open for consultation over a month-long period, until 16 July 2014.
The Draft LAP divides the city into two broad areas and deals with each differently, and imposes additional requirements, and/or restrictions on licences within ‘Priority Overlay’ areas.
Following the submission period, Council hearings on the Draft LAP and its deliberations will take place, prior to a Provisional LAP being released, likely later in 2014.
Interested parties should be aware that appeal rights on the Provisional LAP are limited to parties that make an initial submission on the Draft LAP. Parties should consider lodging a submission to preserve their position and gain standing in subsequent proceedings, with appeal rights to the Alcohol Regulatory and Licensing Authority (ARLA). Parties should also be aware that the Provisional LAP that is released by Council following the submission and hearing process, is expected to vary from that just notified.
LICENSED PREMISES HOURS
Standard maximum (but reduced) hours for broad areas:
Auckland is divided into two ‘Broad Areas’ under the Draft LAP. Priority Overlay areas are also identified where greater licensing restrictions will be imposed in order to address Council concerns arising in those areas.
For ‘Broad Area A’, which incorporates the City Centre, Ponsonby and Newton, the maximum default trading hours in the Act have been further reduced to 9am until 3am. Reducing the hours by an hour either side of those in the national default sets Auckland Council apart from other councils in metropolitan areas, especially Wellington.
For ‘Broad Area B’, which encompasses the rest of Auckland, the maximum default trading hours proposed under the Draft LAP are 9am until 1am. For some city centres such as Takapuna, the curtailed hours will represent a significant shift in licensing.
For caterers the maximum hours proposed are again, 9am to 1am.
Trial two hour extensions for best practice operators: It is proposed that the maximum hours for on-licences include provision for ‘standard maximum hours’ (noted above) and ‘extended maximum hours’. The ‘extension’ proposed is for up to two hours (either morning or night, but not both). It is only available to “best practice operators” who have a proven track record of compliance. Extended opening hours are offered on a trial basis, and only in Broad Areas, not Priority Overlay areas. The Draft LAP also notes that “Risk is a factor in considering applications for extensions”.
These ‘extended opening hour’ trials may last up to 12 months, and the Draft LAP proposes that a formal variation can then be applied for by premises/licensees seeking to vary their licence to reflect extended hours. That approach will have some significant licensing cost implications for licensees given the application fees, reporting and advertising requirements for licence variations. In seeking to retain the extended maximum hours through a variation process, the Draft LAP proposes that the following be considered by the DLC or ARLA:
- the licensee’s level of compliance with the Act and conditions; and
- “whether there has been any rise in alcohol-related harm in the area that is more than negligible and that can be attributed to the extended maximum hours of the premises”.
The second of those criteria may be difficult to satisfy, or to refute, in the absence of credible evidence – particularly if the ‘before and after’ scenario involves a premises that currently has licensed hours until 4am under the default maximum trading hours provisions of the Act. Licensee will also need to have no compliance problems to be considered.
Any application for extended maximum hours will also need to be accompanied by the applicant demonstrating “why the standard maximum hours are not adequate for their business model”, and a risk management plan will need to be prepared for consideration by the DLC (or ARLA).
ASSESSMENTS AND LICENCE CONDITIONS
Environmental and Cumulative Impacts Assessment: The Draft LAP proposes that certain applications for new licences (predominantly those in a higher risk category), and applications for extended opening hours (outlined above), would need to undergo an Environmental and Cumulative Impacts Assessment (ECIA). The ECIA aims to help the DLC (or ARLA) to determine a licence application. We anticipate that this will likely entail a more fulsome but ‘standardised style’ report on how the new section 105 criteria of the Act can be met. The reports are to be prepared by Council (and it is not clear whether there is any input sought from the licensee/applicant). The Draft LAP suggests that a copy of the environmental and cumulative impacts assessment report will only be provided to the applicant in advance of any hearing of the matter. This is likely to only be in situations where there are public objections or a recommendation from the Council or reporting agencies that the application be declined.
Register of alcohol related incidents: The Draft LAP proposes that all licensees will be required to hold a ‘Register of alcohol-related incidents’. That register is to include all “incidents” including when staff are threatened or injured, when property is wilfully damaged or external agencies (such as Police or emergency services) are called.
Standardised Training for all staff: The Draft LAP also proposes that all staff – including security and ‘glassies’ have successfully completed the Health Promotion Agency’s on-licence training module on responsible service (or other training at the DLC or ARLA’s discretion).
Restrictions on drinks prior to closing: The Draft LAP also proposes that restrictions be imposed for no service of: shots; shooters; high strength mixed drinks with more than 45mls of spirit/liqueur in one serve, beer over 6%, RTD over 6%, during the periods of:
- one hour prior to closing for premises open until 1am or 2am; and
- two hours prior to closing for premises open after 2am.
Other provisions of the Draft LAP include proposals for licence conditions to cover:
- displaying information about alternative transport – A4 Posters in at least two nominated locations;
- minimum numbers of security who need to be present;
- minimum numbers of certified managers who need to be present;
- designations over all areas of taverns (unless there are areas that are used ‘principally for dining’);
- managers being required on BYO on-licence premises if more than 50 people are present;
- requiring cleaning of public areas adjacent to the premises;
- CCTV to be operated and capable of being accessible by staff at all times it is operating, recordings kept for 30 days. The recording quality is to be capable of assisting in identification of alcohol-related offending.
WHAT’S NOT IN THE DRAFT LAP?
No use of a one-way door policy: The Draft LAP proposes to not introduce a one-way door policy for Auckland. The Council report on the proposal (that went before Council’s Committee that approved the Draft LAP for release), noted that evidence on the effectiveness of one-way door policies was insufficient at this stage.
LICENSED PREMISES HOURS
The maximum default trading hours proposed for off-licences in Auckland under the Draft LAP are 9am until 10pm.
FREEZE AND THEN A PRESUMPTION AGAINST GRANT OF OFF-LICENCES
One of the headline items in the Draft LAP is a ‘temporary freeze’ on off-licences within the Broad Area A (the City Centre) and ‘priority areas’ - where incidences of alcohol related harm are higher.
It is proposed that no off-licences be issued in those areas for a period of 24 months from when the LAP is adopted. Exceptions to this default position may be considered if it is considered a new premises can “benefit the community as a whole”. No test for how that standard might be met or explanation is provided in the Draft LAP. Perhaps one example may be ‘high end retail offerings’ where negative environmental and cumulative impacts on the area could be lower than typical off-licence bottle store premises.
The Draft LAP is presently unclear, on whether this ‘freeze’ will apply to:
- New licence applications where an off-licence is effectively sought for a ‘replacement’ licence following sale and purchase of the premises, and entrance of a new licensee (given licences are personal to the holder);
- New licence applications where a licensee seeks to move premises and have the new location of the business licensed; and/or
- Remote sale premises, where orders for alcohol may be received and processed and then orders distributed (for example, mail order or internet orders). To prohibit the establishment of these types of premises which are categorised as ‘low risk’ under relevant regulations is unlikely to be reasonable.
NO SINGLE UNIT SALES
The Draft LAP proposes that licensees must not sell single units of mainstream beer (that term not being defined), cider or RTDs in less than 445ml packaging. (‘Boutique’ and ‘handcrafted beer’ and cider are specifically exempt from this provision.)
A range of other discretionary conditions and requirements are also outlined in the Draft LAP for off-licence holders and staff.
If you have any questions in relation to the Draft LAP, submissions or would like further information, please contact Lisa Daniell or Jessie Duffin, or send us an email.