The happy hour's last hurray?
5 May 2014
As our summer days shorten and the time for a chilled Rosé gives way to a hearty Cab Sav, you might reflect on the place alcohol plays in your life and its role in our society and economy generally. You can be sure that over the last year or so, perhaps while we have been adjusting our beer–googles, our legislators, regulators and enforcement agencies have been taking a long hard look at our imbibing. They are clearly not amused.
In the last few years New Zealand has, like other Commonwealth jurisdictions such as England and Australia, been doing a lot of soul searching about our drinking. A particular feature of this latest bout of introspection has been how the 'problem' has been largely characterised as an issue solely about our out of control binge drinking youth. The alcohol debate has thus had a paternalistic (and perhaps hypocritical) 'hell in a handcart' feel to it.
However, whatever the demographic vehicle for the reboot, the changes introduced by the Sale and Supply of Alcohol Act 2012 (the Act) will affect imbibers young and old. Indeed you may have already started to notice a number of changes when the Act took full effect in December 2013. These include:
The introduction of national default hours for all licensees. Off-licence (including supermarkets) hours are limited to between 7am and 11pm. On-licence hours are limited to between 8am and 4am. Premises open for longer hours now have to comply with the national default, whilst premises with shorter hours continue to operate in accordance with their licence conditions. The days of widespread 24 hour licences are therefore nigh, although many would say that what happens after 4am is hardly likely to be productive.
Local alcohol policies (LAPs) can be adopted from 18 December 2013. LAPs are developed by councils and augment the Act's controls. LAPs can include limits on the location of licences near particular areas, facilities or other licensed premises, the number and density of licences in an area, and further limits on the maximum trading hours of a licence. These measures will represent a substantial shift from the permissive regime of the old Act, and put power in the hands of local councillors. Territorial authorities choosing to develop LAPs must publicly consult on these. Many councils throughout the country have already consulted on their draft LAPs, and have now started releasing their provisional LAPs.
Restrictions on the location of beer and wine displays in supermarkets (restricted to a single area within the store isolated from other goods), which will be imposed on all supermarket off-licences once they are renewed. Your familiarity with the layout of your supermarket will be tested and you will have to hunt harder for your wine or beer.
A new offence relating to the irresponsible promotion of alcohol, which effectively prohibits advertisements that promote excessive drinking, promote alcohol in a way that has special appeal to minors, advertises free alcohol or discounts of 25% or more, or offers free goods or services with the purchase of alcohol. Is that the end of the Happy Hour?
The licensing process will also change with all new licence applications being assessed under the criteria prescribed in the Act. The Alcohol Regulatory and Licensing Authority (ARLA) has also replaced the Liquor Licensing Authority.
While the Act has some immediate bite, the development of LAPs will be a significant step over the next few months. Many of the draft LAPs consulted on by councils have adopted quite strict standards. Many LAPs appear to have been demonstratively influenced by various interest groups. Public health officials and the Police are keen to limit drinking as far as possible. Bar and hotel owners are keen to ensure that people who are drinking are doing so in bars rather than in the comfort of their own home after visiting a supermarket or bottle store. The LAP process has been notable for some rather bold contentions about alcohol harm and its causes, which seem to rely on very skinny analysis. For example, we are aware of one leading council who has used a study of alcohol harm in respect of a small aborigine community in Australia dreadfully afflicted by alcohol problems, to justify part of their alcohol policies in respect of a large New Zealand city. The validity of that comparison will presumably be challenged on appeal to ARLA. Another notable feature has been the use, and uncritical acceptance of some terminology. A notable example of this, is use of the concept of 'pre-loading' (the harmful consumption of alcohol bought from an off-licence before going to licensed premises). The idea is being used to beat-up supermarkets and other off-licences. What this is, who is doing it and what harm it causes is ill-defined but you might want to reflect on the fact that if you have a wine at home before going to dinner or to a bar you are one of this much maligned group.
The appeals to the various LAPs will be fascinating, with the interests of large hospitality interests, supermarkets, councils, the Police and public health entities all heading in varying directions about how, where and when we will be served our poison of choice.
This article was written by Patrick Mulligan (partner) and Leigh Walker (solicitor) for the Australasian Lawyer magazine (Issue 1.1). Patrick heads the Auckland's resource management and environmental team and also specialises in licensing matters. Leigh specialises in resource management, local government law and licensing law.