Kisona [2003] NZLLA 1011 (22 December 2003)

Last Updated: 27 January 2012

Decision No. PH 1011/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by DODINA KISONA pursuant to s.123 of the Act for the renewal of a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 16 December 2003

APPEARANCES

Mr D Kisona – applicant

Senior Sergeant S D Sargent – NZ Police – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Dodina Kisona applies to renew his General Manager’s Certificate. He was originally granted a certificate on 6 September 2002. At the time of the original application, he was working at an off-licensed premises in Porirua. These premises became known as “Grandslam Porirua”. Mr Kisona applied to renew his manager’s certificate on 27 August 2003. The application is the first such application to follow Mr Kisona’s “probationary” year as a manager.

[2] The application for renewal attracted an adverse report from the Police. Their concerns related to a controlled purchase operation run jointly by the New Zealand Police, Porirua District Licensing Agency, and the Regional Public Health Service. A total of twenty one premises were tested in the operation. The two sixteen year old volunteers were able to obtain alcohol from seven of the licensed premises. One of those premises was the stand-alone bottle known as “Grandslam Porirua”. Although it is not clear whether he was the duty manager at the time, Mr Kisona made the sale to the minor without checking her age.

[3] In its report under s.124 of the Act, the Police submitted that Mr Kisona’s conduct was such that he should be considered as no longer fit and proper person to hold a General Manager’s Certificate. The matter was accordingly set down for a public hearing.

The Factual Background

[4] On Friday 5 September 2003, three days before his certificate was due for renewal, a young volunteer named “Emma” entered “Grandslam Porirua.” By that time she had visited nine premises and been refused service at six of them. “Emma” was born on 24 December 1986. She was aged sixteen years and eight months at that time. In our view she looked her age. She uplifted a four-pack of Kristov Blueberry Vodka Cruisers and took it to the checkout counter. There she was served by Mr Dodina Kisona. As stated, there is some dispute as to whether Mr Kisona was on duty at the time. He said he was not. He gave evidence that the duty manager was having a meal break at the time. Nevertheless, he was the holder of a current General Manager’s Certificate.

[5] Mr Kisona did not ask “Emma” how old she was, or whether she had identification. He told her the price of the liquor was $8.95. She paid cash, and left with her change and the alcohol. Mr Kisona later acknowledged that he had made the sale. He thought he might have served her before, as she looked familiar. This explanation was not advanced at the hearing concerning the renewal of his certificate, and it was not accepted by the directors of First 5 Limited the relevant holder of the off-licence.

[6] Mr Kisona’s conduct was considered to be a direct breach of company policy. After serious consideration, the directors formed the view that his actions constituted a serious enough breach of the law and company policy, to result in his immediate dismissal. Mr Kisona was written to on 18 September last. The company explained that it could no longer trust or have confidence in him. Mr Kisona has commenced an action in the Employment Tribunal against the company. This action is unresolved, but it is likely that resolution will not be easy.

[7] Mr Kisona made no attempt to dispute the evidence. He acknowledged that he was not currently working in the industry, but hoped to do so in the future. Initially, he decided to withdraw his application, but when he discovered that he was unable to obtain a refund of his filing fee, he decided to proceed. Effectively the Authority must decide whether to renew the manager’s certificate or refuse to do so. If the certificate is renewed, the Authority shall pursuant to s.127(2) of the Act, specify a date being no less than three years on which the certificate shall expire.

The Legal Principles

[8] When Parliament passed the Sale of Liquor Amendment Act 1999, it amended s.115(1) to emphasise the fact that a manager must be on duty at all times when liquor was being sold or supplied. In the future all managers would be responsible for ensuring that the premises complied not only with the Act, but also with the conditions of the governing licence.

[9] The reasoning behind the amendments, was to encourage the drive to raise the standards of those charged with the responsibility of supplying liquor to the public. The expectation was that management of licensed premises would be conducted only by persons of integrity, committed to supervising the sale and supply of liquor, and concerned to give new meaning to the term “host responsibility”. The ultimate aim was to achieve the Act’s objective of reducing the incidence of liquor abuse.

[10] In this case, the Authority is governed by s.126 of the Act. That section reads:

In considering any application for the renewal of a manager’s certificate, the Licensing Authority shall have regard to the following matters:

(a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant since the certificate was issued or last renewed:
(c) The manner in which the manager has managed the sale and supply of liquor pursuant to the licence with the aim of contributing to the reduction of liquor abuse:
(d) Any matters dealt with in any report made under section 124 of this Act.

[11] The report from the Police is the most relevant of the criteria. Any sale to a minor must be regarded seriously in the light of the reduction in the drinking age four years ago, and the potential for liquor abuse.

[12] In Noel Justin Allen LLA 1388/97 the Authority had this to say:

“Following the introduction of a competitive regime on 1 April 1990 under the new Act, the Authority allowed a settling in period. In more recent years, we have endeavoured to gently raise the requisite standards both of licensees and the holders of manager’s certificates in order to improve both knowledge of the Sale of Liquor Act, and the conduct of licensed premises. As Dormer, Sherriff, and Crookston “Sale of Liquor” state in their text introduction at para 22 “Licences will be easier to get and easier to lose.” Provisions for manager’s certificates should, in our view, follow a similar pattern.”

Decision

[13] In this case there is a combination of circumstances which have led us to the conclusion that the application for renewal should be granted but for a limited period. We accept that the sale made by Mr Kisona has brought his suitability into question. On the other hand, it was not proved that he was on duty at the time, and he has suffered a severe punishment for what happened. He is currently unemployed. We believe that the lesson will have been well and truly learned. The message sent by the employer will have had a significant impact on all staff, as well as the industry.

[14] Had Mr Kisona been on duty, and had an application been made for the suspension of his General Manager’s Certificate, it is likely that a one-month stand down period would have been imposed. In those circumstances it seems to us that Mr Kisona has already suffered a penalty commensurate with his conduct. On the other hand the result of this decision will mean that he must again apply for a further renewal in eight or nine months time. Mr Kisona will need to appreciate that by that time he will need to have found employment in the industry, and have the support of an employer.

[15] For the reasons we have stated, the application for the renewal of Mr Kisona’s General Manager’s Certificate is granted for one year to 6 September 2004.

DATED at WELLINGTON this 22nd day of December 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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