had erred in law in its interpretation s52 nor misapplied this provision to the circumstances of the appellant. Analysis and Decision Section 52 is notable for those premises prohibited from selling psychoactive products, but also those premises which have been excluded from that list. While the appellant’s Cuba Mall store, dairies, and convenience stores all sell food, confectionery, and soft drinks we conclude that this is not the test to be applied under s52 to determine whether a venue is prohibited. There are a host of other venues which are not prohibited by s52 which also sell the same line of products as those that would be common to the appellant’s Cuba Mall store, dairies, and convenience stores. As counsel for the appellant agreed, cafés sell food, confectionery, and soft drinks. Subject to the prohibition on a licensed premises selling psychoactive products there is nothing in s52 that would prevent a café from selling psychoactive products. Indeed that must have been part of the appellant’s rationale for creating the Amsterdam Coffee Shop within the confines of the Cuba Mall store. Therefore we consider that the Regulatory Authority erred in law when it equated the sale by the appellant of food, confectionery, and soft drinks as being tantamount to a prohibited premise. Equally this lead to the Regulatory Authority ignoring relevant factors in the assessment. The prohibited premises are those thought of” as a dairy or “commonly convenience store. This must necessarily involve some objective perception which was no doubt intended to ensure that venues could not attempt to superficially alter their appearance to sell psychoactive products. For example, the corner dairy or Four Square could not alter its signage to exclude itself from the list of prohibited venues when it fact continued to trade in the range of products that people would
had erred in law in its interpretation s52 nor misapplied this provision to the circumstances of the appellant. Analysis and Decision Section 52 is notable for those premises prohibited from selling psychoactive products, but also those premises which have been excluded from that list. While the appellant’s Cuba Mall store, dairies, and convenience stores all sell food, confectionery, and soft drinks we conclude that this is not the test to be applied under s52 to determine whether a venue is prohibited. There are a host of other venues which are not prohibited by s52 which also sell the same line of products as those that would be common to the appellant’s Cuba Mall store, dairies, and convenience stores. As counsel for the appellant agreed, cafés sell food, confectionery, and soft drinks. Subject to the prohibition on a licensed premises selling psychoactive products there is nothing in s52 that would prevent a café from selling psychoactive products. Indeed that must have been part of the appellant’s rationale for creating the Amsterdam Coffee Shop within the confines of the Cuba Mall store. Therefore we consider that the Regulatory Authority erred in law when it equated the sale by the appellant of food, confectionery, and soft drinks as being tantamount to a prohibited premise. Equally this lead to the Regulatory Authority ignoring relevant factors in the assessment. The prohibited premises are those “commonly thought of” as a dairy or convenience store. This must necessarily involve some objective perception which was no doubt intended to ensure that venues could not attempt to superficially alter their appearance to sell psychoactive products. For example, the corner dairy or Four Square could not alter its signage to exclude itself from the list of prohibited venues when it fact continued to trade in the range of products that people would
cosmic-corner-07-05-14.docx