Verner v First 5 Limited and Lui [2003] NZLLA 272 (17 April 2003)

New Zealand Liquor Licensing Authority

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Verner v First 5 Limited and Lui [2003] NZLLA 272 (17 April 2003)

Last Updated: 9 March 2010

Decision No. PH 272/2003 – PH 273/2003

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 number 049/OFF/3/2003, issued to FIRST 5 LIMITED in respect of premises situated at 66 Northland Road, Northland, Wellington, and known as “Grandslam Northland”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number 049/GM/179/2000 issued to MICHAEL ALLAN LUI

BETWEEN GRANT DAVID VERNER

(Police Officer of Wellington)

Applicant

AND FIRST 5 LIMITED

First Respondent

AND MICHAEL ALLAN LUI

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 15 April 2003

APPEARANCES

Sergeant G D Verner – NZ Police - applicant
Ms G Bareta – Wellington District Licensing Inspector – in support of applicant
Mr M A Lui – second respondent

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] In this case, the Authority has two applications for determination. The first is an application to suspend an off-licence issued to First 5 Limited, in respect of a "stand alone" bottle store situated at 66 Northland Road, in Northland, Wellington, and known as "Grandslam Northland".

[2] The grounds for the application in respect of the off-licence are that the licensed premises have been conducted:

(a) In breach of ss.155 and 115(2) of the Act. Those sections respectively prohibit the sale or supply of liquor to minors, and require the name of the duty manager to be prominently displayed.

(b) In breach of a condition of its licence. The condition requires the licensee to ensure that the provisions of the Act relating to the sale and supply of liquor to prohibited persons are observed.

[3] The second application is for the suspension of a General Manager’s Certificate issued to Michael Allan Lui. The ground for this application is that the manager has failed to conduct the licensed premises in a proper manner.

[4] Both applications arise from the same set of facts. It is alleged that a 16 year old female was sold liquor without being asked for her identification. The sale was made by Mr Lui, who was the duty manager at the time.

[5] The first respondent has recently surrendered its off-licence. It closed its business some months ago, when it found trading conditions too difficult. The company’s liquor agent surrendered the off-licence by letter dated 11 April last. Accordingly, no further action is required in respect of the application for suspension, and can be treated as withdrawn.

[6] In respect of the application to suspend the manager’s certificate, Mr M A Lui did not contest any of the evidence. As a consequence, the issues to be determined are, (a) whether it is desirable that a suspension order be made, and (b) if so, the length of the suspension.

The Factual Background

[7] The drinking age was lowered to 18 on 1 December 1999. Over the last three years, there has been increasing concerns about minors gaining access to liquor directly from licensed premises. The Wellington District Licensing Agency has been at the forefront of initiatives, aimed at ensuring that licensees were fully aware of their responsibilities, not to sell to young people without requesting identification. Some of the initiatives were conducted jointly with the Police.

[8] In August 2001, the Authority issued its decision in the case of Onehunga Wines & Spirits Co Limited LLA PH 311-312/2001. That decision cancelled an off-licence and a manager’s certificate, following proof of ten unauthorised sales to minors. The District Licensing Agency sent a copy of the Authority’s decision to every off-licence in Wellington. In the letter, it asked all licensees to help keep Wellington safe. At the time, "Grandslam Northland" was not being operated by First 5 Limited, and it is unlikely that Mr Lui was employed at the business.

[9] In June 2001, the Wellington Liquor and Environment Health teams combined to produce a "new look" quarterly newsletter. Ms G Bareta, the Wellington District Licensing Agency’s team co-ordinator, produced three newsletters in which age verification issues were highlighted. Since July 2002, the District Licensing Agency and the Police, have operated an electronic bulletin board designed to keep the hospitality industry in Wellington up to date with relevant issues. These have included discussions about sales to minors.

[10] In addition, the Agency has its website offering sample licences highlighting the conditions of a licence. Furthermore, the Wellington City Council has its well established Liquor Licensing Policy which has previously received very favourable comment from this Authority. Finally, the District Licensing Agency holds presentation forums for licensees twice a year. Such forums routinely include a focus on the importance of checking identification before selling to young people.

[11] In summary, the District Licensing Agency has proactively sought to educate licence holders and managers about their responsibilities under the Act. Ms Bareta submitted that licensees and managers in Wellington had been given every opportunity to be aware of the current climate of monitoring, in respect to the compliance by licensed premises, of the law affecting supply to minors.

[12] In November 2002, the District Licensing Agency in conjunction with Regional Public Health, and the New Zealand Police, conducted their first controlled purchase operation in the city. The operation followed an evaluation of other controlled purchase operations, and resulted in a framework document of exceptional quality. A total of 21 premises were tested. Of the 21 premises that were visited, 8 sold to the volunteers without asking for identification.

[13] One of the volunteers was a young woman named Chloe. She was born on 11 April 1986, and was sixteen and a half years at the time of the operation. She entered the "Grandslam Northland" at about 8.20 pm. She uplifted a 4 pack of "Tattoo" vodka and cranberry and took it to the counter. We were advised that "Tattoo" contains 5% alcohol by volume. Chloe was served by Mr Michael Allan Lui. She and Mr Lui were the only persons in the store. He told her the price was $8.95. She handed over $20.00 and left with the liquor and her change. The incident took about five minutes. Chloe visited six or seven off-licensed premises that evening. In five other premises, sales were refused when she acknowledged, either that she was under age, or had no identification.

[14] Mr Lui later confirmed with Ms Bareta, that he was the duty manager, although some one else’s name was displayed on the sign above the doorway. He remembered selling the liquor to Chloe, and acknowledged that he had not asked for identification. He said he thought that Chloe was 18, and was surprised to learn she was only 16. Mr Lui confirmed that his employment contract was at his home. It included certain instructions on how to manage the premises. There was some signage on the premises, warning against sales to minors.

[15] Mr Lui elected not to give evidence. He said there was nothing he could usefully add to what had been said. He confirmed that he had been made redundant, when the premises had been closed down. He is currently a university student, and part time doorman. He was first granted his manager’s certificate on 11 August 2000.

Decision

[16] The feature of this case is that the sale was made by the manager on duty. Mr Lui had no excuse for what had happened. As submitted by Ms Bareta, a manager is the person who has benefited from specific training in upholding the law, and the conditions of the licence. He is the person charged with leading staff by example. He carries the responsibility pursuant to s.115 of the Act, of ensuring compliance with the conditions of the licence, and the provisions of the Act. He failed the challenge. Had he asked either “Do you have identification?” or “Are you 18?” the volunteer was instructed to tell the truth. It is likely that had either question been asked, no sale would have taken place.

[17] It is clear that the grounds specified in the application have been established. The issue in this case is whether orders should be made. That issue must reflect the seriousness of supplying liquor to minors, when viewed against a background of two factors.

(a) The potential increase of liquor abuse. Although there was no abuse reported in this case, some minors who have purchased liquor unlawfully, have ended up in a hospital, or have become involved in offending.

(b) The 1999 reduction of the legal drinking age from 20 to 18.

[18] This major change of policy was accompanied by a number of other statutory measures. These measures were designed to bolster the detection and enforcement of breaches of the new law. Parliament took the view that the supply of liquor to minors was a very serious liquor abuse issue. It gave the Act the necessary teeth to actively discourage those who might be tempted to supply liquor to persons under age. The measures which were enacted included:

(a) Section 2A. The provision of “evidence of age documents”.

(b) Section 132A. The mandatory reporting of certain proven offences (including sales to minors) to the Authority, and a requirement for the Authority to consider whether a public hearing to suspend or cancel the licence is appropriate.

(d) Section 155(2A). Not only were all penalties doubled for all offences, the penalty for supplying liquor to minors was increased to a maximum of $10,000.00 (for managers and licensees), and the District Court was given the power to suspend a licence for up to 7 days.

[19] Our views about the impact of these provisions were first expressed in Onehunga Wines & Spirits Co. Limited (supra). As was said in that case:

"Since the age limit was reduced to eighteen, there have been regular concerns expressed throughout the country about the ability of young people to obtain alcohol ... When Parliament reduced the age limit to eighteen it doubled the penalties. It was sending a message to the public that people who breached this aspect of the law must expect rigorous enforcement and severe consequences."

[20] In exercising our discretion under s.135 (6) of the Act, we believe that it is desirable to make a suspension order. Put in another way, if no sanction is imposed, we would not be exercising our discretion in a way envisaged by s.4(2) of the Act:

The Licensing Authority, every District Licensing Agency, and any Court hearing any appeal against any decision of the Licensing Authority, shall exercise its jurisdiction, powers, and discretions under this Act in the manner that is most likely to promote the object of this Act.

[21] As submitted by Sergeant Verner, it is difficult to address the serious issue of liquor abuse, while people continue to sell to minors. This is one of the few cases which have come before us, where the duty manager has made the sale. Taking into account the provisions of s.115 of the Act, and bearing in mind that this was a controlled purchase operation, and acknowledging that Mr Lui has attracted no other adverse comments, we propose to suspend his manager’s certificate for a month. In this regard he may consider himself fortunate that in his case, we have decided to maintain consistency with other similar applications before the Authority.

[22] General Manager’s Certificate number 049/GM/179/2000 issued to Michael Allan Lui will be suspended for one month from 6.00 am on Monday 30 April 2003.

DATED at WELLINGTON this 17th day of April 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

GrandslamNorthland.doc(nl)