Sargent v Asquith [2003] NZLLA 1005 (19 December 2003)

Last Updated: 27 January 2012

Decision No. PH 1005/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM 4652/98 issued to KAY ELIZABETH ASQUITH

BETWEEN STEPHEN DENNIS SARGENT
(Police Officer of Porirua)

Applicant

AND KAY ELIZABETH ASQUITH

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at WELLINGTON on 16 December 2003

APPEARANCES

Senior Sergeant S D Sargent - NZ Police - applicant
Mrs K E Asquith - respondent

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application by Senior Sergeant S D Sargent for the suspension of a General Manager’s Certificate issued to Kay Elizabeth Asquith. The ground for the application is that the manager has failed to conduct the licensed premises in a proper manner.

[2] The application arises from a joint controlled purchase operation which was run by the New Zealand Police, the District Licensing Agency in Porirua, and the Regional Public Health Service. The Police have brought the application in order to educate off-licence holders, managers, and licensees generally about their responsibilities under the Act with regard to checking for appropriate forms of identification, and refusing service to those who are unable to produce it.

[3] Two volunteers were used. A young female volunteer who was 16 years and almost 9 months at the time of the operation, and a male student who was just over 16 years of age at the time of the operation. A total of 21 premises were tested. The volunteers were successful in purchasing liquor from seven of those premises, without being asked for any form of identification or without being asked their age.

[4] A business known as “Grand Slam Mana” was one of the licensed premises which were detected in the operation. That business is a stand alone bottle store and has been run by Ms Kay Elizabeth Asquith for about three years. Mrs Asquith first obtained her General Manager’s Certificate on 2 December 1998. She works generally on her own in the bottle store, and she has no real memory of the incident.

[5] The young volunteer was named “Matthew”. He was born on 29 July 1987. He went into the “Grand Slam Mana” on Friday 5 September 2004 at about 6.50 pm. He had visited four other premises, three of which had refused to serve him. Although he has not given evidence before us, it is fair to say that he is a well built youngster, but looking at his face it would appear that he looks at least his age and certainly under the age of 18.

[6] The volunteer only said a few words to Mrs Asquith before selecting a six pack of Lion Brown beer and taking it to the counter. The beer was scanned and priced at $8.00, and the volunteer handed over a $20 note and was given change. When the Police visited Mrs Asquith later she really could not remember the transaction at all. She has given evidence and indicated that she was not particularly well on the night, and that she had shut up the shop at about 7.30 pm to clear her head, and then continued until about 9.00 pm when the shop was closed. She has always been in the habit of checking for identification for persons who look to be under the age of 25 years. That policy has always been part of the instructions from her employer company. She could not really explain why it was that on this particular occasion she was not as focused as she had been.

[7] Mrs Asquith has suffered as a result of the indiscretion. Her employment has been terminated although the matter is currently before the Employment Court. She has been unable to find other work pending this particular hearing, and is hoping that it can be resolved one way or another so that she can start obtaining employment if possible.

[8] In coming to a decision there is no issue about the facts. The only issue is whether it is desirable that a suspension order should be made. We have referred in the past to a decision of the High Court in The Mill Liquorsave Limited v Grant David Verner at the High Court, Wellington 18 August 2003 in which the Judge said:

“I have no doubt at all that general deterrence (i.e. to discourage others) from selling to minors as well as special deterrent to the licensee before the Authority, is a relevant consideration and squarely within the objects of the Act.”

[9] We have also taken the view that making orders in this way is recognition to those premises who when offered the same opportunity to sell to the minor, resisted the temptation to do so. It is clear that as far as Mrs Asquith is concerned, as a manager she failed to conduct the premises in a proper manner on this night. She had relatively recent training when obtaining her certificate enabling her to manage licensed premises. She is charged by s.115 of the Act with ensuring compliance with the conditions of the licence and the Act.

[10] It is our view that strong reasons would have to be advanced for us not to impose some form of sanction. The normal period of suspension when a manager makes a sale, is one month. We have not found this case to be different from the norm although we do acknowledge Mrs Asquith’s cooperation and clear concern as to what has happened.

[11] In the circumstances we believe an order is desirable, and that it should be along the lines of suspensions ordered against other managers.

[12] The decision of the Authority therefore is to suspend General Manager’s Certificate number GM 4652/98 issued to Kay Elizabeth Asquith for one month as from today 16 December 2003.

DATED at WELLINGTON this 19th day of December 2003

B M Holmes
Deputy Secretary

Kay Asquith.doc(afw)