Verner v First 5 Limited [2003] NZLLA 323 (9 May 2003)

New Zealand Liquor Licensing Authority

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Verner v First 5 Limited [2003] NZLLA 323 (9 May 2003)

Last Updated: 19 March 2010

Decision No. PH 323/2003 –

PH 324/2003

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 the suspension of off-licence number 049/OFF/55/2002, issued to FIRST 5 LIMITED in respect of premises situated at 6-10 Broderick Road, Johnsonville, Wellington known as “Grandslam Johnsonville”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM 659/99 issued to GABRIELLE SUZANNE TYRER

BETWEEN GRANT DAVID VERNER

(Police Officer of Wellington)

Applicant

AND FIRST 5 LIMITED

First Respondent

AND GABRIELLE SUZANNE TYRER

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 17 April 2003

APPEARANCES

Sergeant G D Verner – New Zealand Police – applicant
Mr D A Richards – for first and second respondents

Mr M J Kemp – Wellington District Licensing Agency Inspector – in support of applicant

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority are two applications. The first application is to suspend the off-licence issued to First 5 Limited, which operates a stand-alone facility known as "Grandslam Johnsonville". The second application is to suspend the General Manager’s Certificate of Gabrielle Suzanne Tyrer.

[2] The grounds for the first application are that the licensed premises have been conducted:

(a) In breach of s.155 of the Act. (That section prohibits the sale or supply of liquor to minors).

(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 application to suspend the General Manager’s Certificate is based on the ground that the manager failed to conduct the licensed premises in a proper manner. The allegations to support the application are that Ms Tyrer was the duty manager, and made a sale to a minor.

[4] Both applications arise out of a controlled purchase operation in which a seventeen year old male was able to purchase 12 cans of “Tui” beer and two bottles of “Red Stripe” beer from an off-licence premises without being asked for identification.

[5] The main issues to be determined are:

(a) Whether it is desirable that suspension orders be made, and

(b) If so, the length of the suspension.

The Factual Background

[6] 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 excellent quality. A total of 21 premises were tested by four under age volunteers. Of the 21 premises that were visited, eight sold to the volunteers without asking for identification.

[7] One of the volunteers was a young man named John. He was born in Jamaica on 31 August 1985, and he was 17 years and 3 months old at the time of the operation. He entered the "Grandslam Johnsonville" at about 7.39 pm. He uplifted a 12 pack of "Tui", a bottle of “Red Stripe” beer, and took them to the counter. He was served by Ms Gabrielle Suzanne Tyrer. He asked Ms Tyrer if she had any “Red Stripe” beer in a six pack. “Red Stripe” beer is imported from Jamaica. Ms Tyrer told him that they only sold imported beer in singles. He then uplifted a second bottle of “Red Stripe” beer. She told him the price was $23.35. He handed over $40.00 and left with the liquor and his change. In our view, by his actions and the conversation he had with the Ms Tyrer, he had “crossed the line”, and ceased to be a passive purchaser testing the system. John visited four off-licence premises that evening. He was served at two of them. The other two were supermarkets. They refused to sell him the liquor when he had no identification.

[8] Ms Tyrer later confirmed with Mr Kemp that she was the duty manager. She remembered selling the liquor to John, and acknowledged that she had not asked for identification. She said that when John entered the premises she had no doubts as to his age. She said she thought that John was aged at least 19 or 20 years. She began to process the sale. She said that her experience over the years was that a minor would exhibit signs that indicated the sale was illegal when a sale was being processed. She referred to a number of those signs. While she was processing the sale John entered into a spirited conversation with her about “Red Stripe” beer, which he said he drank back home with other imported beers. He even went and collected another bottle of “Red Stripe”. John did not exhibit any of the signs of a minor making an illegal purchase. His approach, self-confidence, and knowledge of the product convinced her that John was over 18 years.

[9] Michael John Kemp is a District Licensing Agency Inspector for Wellington. He said the purpose of the operation was to test the compliance of licensed premises against the prohibition under the Act of serving liquor to minors. Before the operation began, he and a Regional Public Health Officer, Mrs Trisha Love, and John attended a briefing at the Wellington Police Station. Prior to leaving the Police Station John was photographed by a Police photographer. At the same time the Inspector also took a polaroid photograph of John.

[10] The Inspector and Mrs Love accompanied John to the premises. After John had made the purchase the Inspector entered the premises, and showed John’s photograph to Ms Tyrer. She admitted making the sale. She said that in respect of asking for identification from minors, she had been told by her employers to use her judgement and to ask for identification if she thought the purchasers were under age. Ms Tyrer was visibly upset by the incident.

[11] The Inspector also referred to an extensive list of initiatives that the District Licensing Agency and Police had taken to ensure that licensees were fully aware of their responsibilities in respect of sales and service of liquor to minors.

[12] Mr Kevin Arthur Rikys is a director of First 5 Limited. He described how the company was formed to purchase sixteen “Grandslam” liquor stores. The sale took place on 3 November 2002, just a little over two weeks after the company’s formation.

[13] The date of the sale also meant that the company had little time to prepare for the Christmas trading period. Mr Rikys described how all the sites were visited, either by a director or an investor/partner, to inform the managers of the new company’s requirements and expectations. Each manager was given a letter setting out the required standards, including signage to be displayed in their store.

[14] Mr Rikys also described the steps that the company has taken since the sale of liquor to John on 29 November 2002. Those steps included a proposal to join the Super Liquor Group to obtain the benefit of their point of sale computer system, improving notices in the shops, and inserting performance provisions in staff contracts.

[15] Mr Gregory Frank Stanbridge has been the manager of “Grandslam Johnsonville” for seven and a half years. He said that the store is a “supervised area” which is part of their policy in dealing with minors. At the time of the sale to John the company’s policy was that all persons whom staff believed to be under the age of 18 years were to be asked for formal identification. Surveillance cameras operate continually in the premises, and record all sales with the time and date. Staff members are required to hold up the purchaser’s identification to the camera to provide a record that acceptable identification had been requested from the purchaser, and had been checked. He said that staff members are required to sign a policy document that details the procedures for dealing with minors. Every week they must sign a declaration that they will abide by the Sale of Liquor Act, the conditions of the liquor licence for the premises, and the policy and procedures laid down by their employer. Mr Stanbridge described the reciprocal arrangement they have with the Super Liquor store whereby they supply each other with the details of minors attempting to purchase liquor.

[16] Mr Stanbridge spoke in support of Ms Tyrer. He said that she continues to be a very trustworthy employee. It was her first brush with the authorities, and she was devastated. Her first concern was that she had put the company’s licence in jeopardy. Although he has every confidence in Ms Tyrer, company policy required her to be formally warned, and to undergo further training. Since the incident, she had successfully completed another manager’s certificate course. Mr Stanbridge said he did not believe that the breach by Ms Tyrer was deliberate, and he will continue to employ her as a duty manager.

[17] Ms Tyrer said she has been the holder of a General Manager’s Certificate for six years. She has worked at “Grandslam Johnsonville” for three years. She had previously worked as an area manager for another liquor company known as “Nicholson’s”.

[18] Ms Tyrer said that all staff had been instructed to stop minors entering the premises who were not accompanied by a parent or guardian. As part of their duties, they are required to look out for minors either alone or in groups in the vicinity of the shop, and request the Police to patrol past the shop. Since 29 November 2002 the policy regarding minors had been changed. All staff are required to request identification from any person whom they believe to be under the age of 25 years. Whenever identification is requested the details must now be entered in a daybook, or the identification must be held up to the security camera.

[19] Ms Tyrer said that when Mr Kemp spoke to her she became distressed and devastated because she had followed the rules, taken care, and used her professional judgement, yet she had failed herself and her employer. She immediately rang her employer, and told him of the incident.

[20] Mr Richards referred to the lack of the classic signs of someone who was making an illegal purchase including John’s conversation about imported beers. He also referred to John leaving the counter to get another bottle of “Red Stripe” beer. He submitted that in this case “the customer by both word and deed, singularly progressed the interaction to one of a purchase. A purchase which may well have not occurred but for the actions of the customer.”

[21] Mr Richards also made the observation regarding a failing of controlled purchase operations. He said that the minor who is asked to make a purchase is also controlled. The minor therefore does “not face the adrenaline rush, the fear of discovery, the nervousness which accompanies most people in the execution of an offence because they are a player in a game.” While we do not agree that that is always the situation we do agree that his observation is appropriate in this case.

Authority’s Conclusion and Reasons

[22] The feature of this case was that the volunteer looked and acted with a maturity beyond his years. We do not think that he was an ideal candidate to be used to test a licensee’s willingness to sell to minors. He had a lot of facial hair, he was six feet tall, had a mature sounding voice, and his discussion about imported beers tended to indicate that his age was much older than 17 years.

[23] We were impressed by Ms Tyrer’s evidence. She considered what she was doing. She made an assessment based on thoughtful grounds that the person was of or over the age of 18 years. She had not blithely said that she thought the person was over the age of 18 years. In hindsight, it would have been safer to have asked for identification, but in her case there was an excuse for not doing so.

[24] While it is clear that the grounds specified in the application have been established, the issue in this case is whether orders should be made. We are satisfied that Ms Tyrer had reasonable grounds to believe that John was over the age of 18 years.

[25] In exercising our discretion under s132(6) and s.135(6) of the Act, we believe that it is not desirable to make a suspension order.

[26] We agree with Sergeant Verner that it is difficult to address the serious issue of liquor abuse while people continue to sell to minors. However, in this case the duty manager made a sale, albeit wrongly, but on reasonable grounds, and where a volunteer had been used who exhibited a maturity beyond his years.

[27] Both applications are therefore refused.

DATED at WELLINGTON this 9th day of May 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

grandslam.doc(aw)