Salton v N. and E.L. Nionakis Limited [2000] NZLLA 1073 (11 August 2000)

Last Updated: 16 February 2012

Decision No. PH 1073/2000

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for suspension of off-licence 007/OFF/57/97 issued to N. AND E.L. NIONAKIS LIMITED in respect of premises situated at 10 Queens Road, Panmure, Auckland, known as "Dionysus Kava"

BETWEEN STEVEN JOHN SALTON

(Police Officer)

Applicant

AND N. AND E.L. NIONAKIS LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum
Chairman: District Court Judge J P Gatley
Member: Mr R J S Munro

HEARING at AUCKLAND on 12 July 2000

APPEARANCES

Sergeant M J Lopdell – NZ Police – applicant
Mr D W Sara – Auckland District Licensing Agency Inspector – to assist
Mrs E L Nionakis – as a director of respondent

DECISION

1. By application dated 5 April 2000 pursuant to s.132 of the Act the Police sought suspension of off-licence 007/OFF/57/97 issued to N. and E.L. Nionakis Limited in respect of premises situated at 10 Queens Road, Panmure, Auckland, known as "Dionysus Kava".
   
2. The grounds of the application are:-
   

"That the licensed premises have been conducted in breach of the following provisions of the Act:

section 155 – licensee allows liquor to be sold or supplied to minors
section 115(2) – failing to display duty manager's name

section 175(3)(b) – failing to provide information reasonably required by a member of the Police relating to any matter within the duties of the licensee"

Police

3. In opening submissions Sergeant Lopdell outlined two Glen Innes Police Officers with one vehicle keeping the respondent's premises under observation between 6.30 pm and 7.40 pm on Friday 10 March 2000. During that time the Officers spoke to three minors (under the age of 18) who had purchased liquor from the subject off-licence premises. The three minors were each in vehicles containing other minors. The vehicles were followed and stopped.
   
4. Constable A G Lovelock gave evidence of observing the three minors purchase liquor and subsequently speaking to them. On each occasion the minors identified Mrs E L Nionakis, a director and shareholder in the licensee company, as the person from whom they had purchased liquor.
   
5. The first minor, Samuel Rundell, had purchased 1 x 6 pack of Speights, 1 x 12 pack of Double Brown, 1 x 40 ounce bottle of Kentucky Gold and 1 x 40 ounce bottle of Mad Jacks.
   
6. The second minor, Richard Martin, had purchased 2 x 15 packs of Steinlager, 1 x 750 ml bottle of Jack Daniels and 1 x 1 litre bottle of Jack Daniels.
   
7. The third minor, Matthew Bowden, had purchased 1 x 15 pack of DB Export.
   
8. Rundell and Martin gave evidence. Bowden had been summonsed but he was unable to locate the hearing room before the conclusion of the hearing.
   
9. Rundell confirmed that he was aged 17 on 10 March last, that he knew the legal drinking age was 18, and that he was the only customer in the store when he made the purchase. The witness identified Mrs Nionakis as the person who had made the sale. "She never asked me for ID. She never does. I have been in there about 20 or more times before." Rundell said that he had made his first purchase from Dionysus Kava last year. "Friends told me that I could get alcohol from there even if I was under age".
   
10. Martin, also 17 on 10 March last, entered the bottlestore with a 17 year old girlfriend. They were the only two in the store when served by Mrs Nionakis who was identified in the hearing room by the witness. They paid "about $140 in cash" and were not asked for any form of identification. Martin said he had been to Dionysus Kava about 20 times before without being asked for ID. The first time he was only 16 years of age. He had once been asked for ID at the shop by a young lady. "I greased her up and she let me buy the alcohol". The witness said his friends used the bottlestore as they know they can also buy alcohol there even if they are under age.
    
11. Constable S J Salton gave evidence of visiting Dionysus Kava on 30 March last around 7.00 pm to talk to Mrs Nionakis. The Constable observed that the duty manager's name was not displayed. The name displayed was that of Mrs Nionakis' daughter, who is also an employee of the respondent. The licence displayed had expired and the renewal notice was not displayed.
    
12. Mrs Nionakis informed the Constable that the notice of renewal was "at home". Mrs Nionakis also acknowledged having been the only person working on the night of 10 March 2000. Mrs Nionakis had disputed not asking Rundell and Martin for ID, asserting that she always asks for ID.
    

Respondent's Evidence

13. Reading from a handwritten brief Mrs Nionakis acknowledged that there are times that she would misjudge a customer's age and make mistakes. "If I didn't ask for ID I didn't do it purposely". The witness did not deny making the sales recounted by Rundell and Martin.
    
14. Mrs Nionakis then outlined the personal financial circumstances of herself and her husband. They have operated the business for two and a half years and have been burgled three times within four weeks. Three weeks prior to the hearing they had suffered an aggravated robbery resulting in Mr Nionakis ending up in hospital with six stitches in his forehead.
    
15. Mrs Nionakis concluded her prepared brief by telling us:-
    

"We have to carry on and be strong, its our nature, we don't give up easily. We have a mortgage of about $87,000 to service, money we borrowed to set up the shop. Cancelling our licence will have a devastating effect on us."

Police Closing Submissions

16. In closing submissions for the Police Sergeant Lopdell submitted that evidence by two minors of repeated purchases from the off-licence premises whilst under age, up to 40 in total, warranted cancellation of the licence instead of suspension.
    

Authority's Conclusion and Reasons

17. The Authority is satisfied on the evidence that the premises known as "Dionysus Kava" have traded in breach of the following provisions of the Act:-
    

Section 155 – sale or supply of liquor to minors
Section 115(2) – failure to display name of person on duty as manager

Section 175(3)(b) – failure to provide information reasonably requested by the Police relating to a matter within the duty of a licensee or manager i.e. proof that the licence is current

18. The principal ground of the s.132 application is sale of liquor to persons under the age of 18. It is that breach of the Act that we will address in determining the appropriate sanction.
    
19. We had the opportunity to form our own assessment of the ages of Rundell and Martin when they gave evidence. Whilst they were both reasonably mature 17 year old youths, that does not excuse the breach by Mrs Nionakis of the obligation on her to ask them both for photographic ID.
    
20. We are satisfied that the grounds of the Police application have been established. We are also satisfied that it is desirable that we should make an order under subs.(6) of s.132 of the Act.
    
21. No notice having been given to the licensee by the Police that cancellation of the licence would be sought at the hearing, we consider that it would not be fair to order cancellation.
    
22. Repeated sales to minors certainly warrant suspension of the licence, which in terms of s.132(6)(c) may be "for such period not exceeding six months as the Licensing Authority thinks fit".
    
23. This is the first s.132 application on the ground of sales to minors to have come before the Authority since the legal drinking age was lowered to 18 on 1 December 1999, following enactment of the Sale of Liquor Amendment Act 1999. It might have been expected that a lengthy period of suspension would be imposed by the Authority, as a deterrent to other licensees and managers who might be tempted to make sales to persons who may or may not be under the age of 18 without first asking for photographic ID.
    
24. In this case we are conscious that because of the personal circumstances of the two directors and shareholders in N. and E.L. Nionakis Limited, suspension of the off-licence for one month will involve considerable hardship for them both. That is the period of suspension that we have concluded is appropriate in this instance. We warn others in the liquor industry that the period of suspension imposed cannot be relied upon as a precedent if other licensees or managers come before us following the sale or supply of liquor to persons under the age of 18.
    

Order

25. Off-licence 007/OFF/57/97 issued to N. and E.L. Nionakis Limited is hereby suspended for a period of one month from 11.00 pm on Tuesday 15 August 2000.
    

DATED at WELLINGTON this day of 2000

_____________________________
Judge J P Gatley
Chairman

Dionysus.doc(J9)