Hira [2003] NZLLA 1010 (22 December 2003)

Last Updated: 27 January 2012

Decision No. PH 1010/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by PUSPA HIRA pursuant to s.118 of the Act for a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 17 December 2003

APPEARANCES

Mrs P Hira – applicant
Mrs D M Robertson – Porirua District Licensing Agency Inspector – in opposition

ORAL DECISION OF THE AUTHORITY

Before the Authority is an application by Puspa Hira for a General Manager's Certificate. The criteria to which this Authority must have regard are set out in s.121 of the Act. These criteria include such matters as experience, training, and matters dealt with in any report made under s.119 of the Act.

In this case, Mrs Hira was able to produce a certificate that she had attended and passed a seminar on the Sale of Liquor Act conducted by D A Richards & Associates. However, in the application form, she was asked whether it was intended that she manage any particular licensed premises and she said “No”. On the other hand, she identified “Nischay’s Liquor Store” in Porirua as a potential employer. A written reference was received from a Ms Patel from “Nischay’s Liquor Store”, although the name of the store was incorrectly spelt. The reference indicated that there might well be part-time work for Mrs Hira if she was granted a certificate.
Mrs Hira has no significant experience working in licensed premises although she has been working in a grocery store known as “City Foodmarket” in Wellington since she came to New Zealand eight years ago. That store was granted on off-licence earlier in the year. Mrs Hira’s husband is the holder of a General Manager's Certificate.
Mrs D M Robertson is a District Licensing Agency Inspector employed by the Porirua City Council. It is the policy of the Council to conduct interviews with applicants to ensure that they have a good understanding of the Act, and in particular, the responsibilities which go with holding a manager’s certificate. In other words, the interviews are held to assess suitability. The first interview was held on 19 September last. Mrs Hira was accompanied by her husband who persisted in intercepting questions to his wife. He spoke to her in their native Indian language, despite requests on more than one occasion for him to desist in doing so. As a consequence it was difficult if not impossible to establish Mrs Hira’s knowledge of the Act. We are bound to say that Mr Hira conducted the public hearing in the same way until warned to desist.
It was then discovered that Mr Hira and his wife were operating a food market in Wellington which held an off-licence. Mrs Hira had made an application to the Wellington District Licensing Agency, but had subsequently withdrawn this. It was nevertheless decided to offer Mrs Hira a second interview. This interview was held in the absence of her husband, but there was a person present who had formerly been a Liquor Licensing Inspector. Four of the first 14 questions were asked from the questionnaire, but it was found that Mrs Hira could not make herself understood, and the interview was discontinued.
Accordingly the Inspector opposed the application on the grounds that Mrs Hira could not display a good knowledge of the Act or her responsibilities to it, due to her inability to speak English.
There was second jurisdictional issue. Mrs Hira lives in Wellington, but suggests there is a possibility of part-time work in Porirua. In the event, both Mrs Hira and her husband have read statements to the Authority. Mrs Hira had great difficulty in reading the statement and making herself understood. We have no doubt that the statement was prepared by her husband.
It now appears that the real reason for the application is to enable Mrs Hira to work at “City Foodmarket” in Wellington. Mr Hira goes shopping for stock from time to time, and can spend up to four hours getting bargains and shopping around. The reason for the application is to enable Mrs Hira to run the store with a certificate during those periods of time. In other words, her obtaining a certificate will be solely as a matter of convenience. What Mr Hira has failed to understand is that he is entitled as licensee, to appoint an acting manager for any period not exceeding three weeks at any one time, where the manager is unable to act through illness or absence. Alternatively an acting manager can be appointed or for any period not exceeding an aggregate of six weeks in each period of twelve months, to enable the licensee or manager to have a vacation or annual leave. Those provisions can be found under s.129 of the Act.
Furthermore, any appointment as a temporary manager pursuant to s.128 of the Act if for less than 48 hours, does not trigger the making of an application for a General Manager's Certificate. Nor is there a requirement to notify any such appointment. It is our view that there are sufficient provisions in the Act to enable Mr Hira to carry out duties such as shopping, banking, etc, by the appointment of either a temporary manager or an acting manager as required.
The position is that Mrs Hira is clearly unsuitable at this time to hold a General Manager's Certificate. Any person who is unable to understand the English language is unlikely to be regarded as suitable to hold a General Manager's Certificate in New Zealand. Such a person will suffer from an inability to deal with intoxicated persons or minors. These are two of the major concerns which underpin the Act. If the provisions of the Act are to be taken seriously, then so must the appointment of managers who carry out the duties of enforcing the Act’s provisions. If Mrs Hira was able to communicate in the course of time in a way sufficient to establish that she can understand and deal with such issues, then it may well be that an application can be granted.
We point out that under s.118 subsection (2) of the Act, an application shall be filed with the District Licensing Agency where either:

“(a) The applicant intends to be the manager of any particular licensed premises; or

(b) In any other case in the district in which the applicant is residing.”

Based on the evidence which we have heard today, any future application would have to be filed with the Wellington District Licensing Agency.
For the reasons that we have given, the application must be refused.

DATED at WELLINGTON this 22nd day of December 2003

B M Holmes
Deputy Secretary

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