Verner v Patel [2003] NZLLA 326 (13 May 2003)

New Zealand Liquor Licensing Authority

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Verner v Patel [2003] NZLLA 326 (13 May 2003)

Last Updated: 19 March 2010

Decision No. PH 326/2003 –
PH 327/2003

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/3/2001 issued to VALLABH HIRA PATEL AND KALPANA VALLABH PATEL trading in partnership in respect of premises situated at 1 Khandallah Road, Ngaio, Wellington, known as "Ngaio Supermarket"

BETWEEN GRANT DAVID VERNER

(Police Officer of Wellington)

Applicant

AND VALLABH HIRA PATEL AND KALPANA VALLABH PATEL trading in partnership

Respondent

AND

IN THE MATTER of an application by KALPANA VALLABH PATEL 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 23 January 2003 and 14 April 2003

APPEARANCES

Sergeant G D Verner – New Zealand Police – applicant
Mr J D Evans – for respondents and applicant for a manager’s certificate
Mr R S Putze – Wellington District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority are two applications. The first application is brought by the Police pursuant to s.132 of the Act, and is for the suspension of an off-licence in respect of the premises known as "Ngaio Supermarket”. The second application is by Kalpana Vallabh Patel for a General Manager's Certificate.

[2] The grounds for the application to suspend the off-licence are:

(a) That the licensed premises have been conducted in breach of ss.155(1) and 115(2) of the Act (sale or supply of liquor to minors, and requirement to display manager’s name).

(b) That the licence has been conducted in breach of the following condition of the licence:

“(d) The licensee must ensure that the provisions of the Act relating to the sale and supply of liquor to prohibited persons are observed.”

[3] The hearing began on 23 January 2003. It was adjourned part-heard when Mrs Patel was unable to be present because she was unwell. On that date the Authority heard the evidence of one witness. The decision to adjourn the hearing part-heard is recorded in decision Vallabh Hira Patel and Kalpana Vallabh Patel trading in partnership LLA PH 62-63/2003.

[4] The grounds are based on an allegation that a 17 year old female went to the “Ngaio Supermarket” on 20 September 2002. She is alleged to have purchased one dozen bottles of Tui beer from Mrs Patel. Mrs Patel is one of the owners and operators of the premises. It is alleged that the minor was not asked for any identification when she purchased the beer. It is further alleged that Mrs Patel admitted selling the beer to the minor. She said that she had not asked for identification because the minor had been a regular customer, and she had shown her identification to Mrs Patel some time previously. The application for a General Manager’s Certificate was opposed for the same reasons, although the Police took a neutral attitude to the application at the hearing.

The Factual Background

[5] Emma Jane Taylor is aged 17 years. She was born on 5 August 1985. At about 9.30 pm on Friday 20 September 2002, she went to the “Ngaio Supermarket” in Khandallah Road, Ngaio. She took a carton of a dozen bottles of Tui beer to the counter where she spoke to Mrs Patel. Mrs Patel did not ask her for identification. Emma said that she had previously purchased liquor about seven or eight times at that shop. The first time she went to the store she was 16 years of age. This was in 2001. At that time, she was asked if she was 18 years old, and she said that she was. She was then sold the liquor. She had never been asked her age again. She has never shown identification to anyone at the shop. On one occasion she was with a friend who was asked for identification. She said that she had never falsified her passport or presented false identification. When she appeared before us Emma said that she was dressed as she was on the day that she bought the beer.

[6] Shortly after Emma left the shop she was questioned on the street by a Police officer. Emma initially told the Police that she was 18 years but then she admitted that she was aged 17 years. She told him where she had got the beer. She accompanied him to the store where she identified Mrs Patel as the seller. After speaking with Mrs Patel, and asking Emma more questions, the constable issued Emma with a Liquor Infringement Notice. Although on two occasions she had given false information about her age, we found Emma to be an utterly believable witness.

[7] Constable Christiaan Rolland Barnard is currently stationed at the Wellington Police Station. At about 9.40 pm on 20 September 2002 he was on patrol in Ngaio when he saw a group of three people in Colway Street. One of them was Emma who was carrying a carton of beer. She appeared to be under 18 years of age. She told him she was over 18 years. He checked her details through the Police computer, and he established that she was 17 years old. He and Emma went to the “Ngaio Supermarket” where he spoke to Mrs Patel. She was the only person in the shop. She admitted selling the beer to Emma. She said that she had seen Emma’s identification on a previous occasion, so she did not ask for it again.

[8] After Constable Barnard issued Emma with an infringement notice Mrs Patel showed him an entry in a notebook which she thought referred to Emma. The entry stated:

“Young girl about 18 tried to purchase bottle of wine was not carrying I.D. she might have been about 18. But I refuse to sell as no I.D.”

Constable Barnard noted that this entry, and another one on the same page had the dates changed from 2001 to 2002. He noted that the dates on the previous page were for 2001. Constable Barnard referred to photographs showing the entries on both pages of the notebook.

[9] Constable Barnard then noted that a General Manager’s Certificate in the name of Kalpana Vallabh Patel was dated 13 February 2001. Mrs Patel showed him an application for renewal of that certificate, but no evidence that it had been renewed. He also noted that the duty manager’s name was displayed as “Vinod”. Vinod is Mrs Patel’s husband.

[10] Sergeant Grant David Verner is the Liquor Licensing Sergeant stationed at Wellington. On 2 October 2002, he and Ms J H Burt, a District Licensing Agency Inspector, had a meeting with Mrs Patel at the Ngaio Supermarket. He asked Mrs Patel to explain to him the events of 20 September 2002. She said that Emma was a regular customer. On the first occasion she had refused service to her because Emma had no identification. She said Emma went away and came back with photo identification. Mrs Patel believed it to be a driver’s licence. Since then she has not asked for Emma’s identification again.

[11] Sergeant Verner asked Mrs Patel about her General Manager’s Certificate. She said that she had no idea that it had expired. She also stated that she thought it lasted for three years. Sergeant Verner observed that the names of both Mr and Mrs Patel were displayed as duty managers. He pointed out that only one name should be displayed.

[12] He asked to see the “incident book“ that they used to record problems such as minors trying to purchase liquor. Mrs Patel gave him a notebook with 3F1 on the cover. He produced photocopies of the contents as an exhibit. He noted that there were no names or other details in the book. She also showed him a larger book that that they now use. The first entry was recorded as 26/9.
[13] When Sergeant Verner returned to his vehicle he checked the notebook against the file he had received from Constable Barnard. He found that the entry Constable Barnard had referred to was not in the notebook. He returned to the “Ngaio Supermarket” and obtained another notebook from Mrs Patel which had 3B1 on the cover. He produced in evidence photocopies of entries from the books. They show that on various dates in 2002 Mrs Patel had refused service to minors.

[14] Mrs Kalpana Vallabh Patel is a co-owner and operator of the “Ngaio Supermarket”. She said her family had owned and operated the business in Ngaio for eighteen years. She and her husband had been operating it for the last 2 years. Liquor sales are a small part of the business which is carried on to provide a convenient service to their customers.

[15] She repeated that Emma has been a regular customer for several months. She said she mainly purchased “V” soft drinks and other goods. The first time Emma had tried to purchase a bottle of wine, Mrs Patel asked her for identification. Emma did not have it with her. Mrs Patel said that she was unable to sell her wine without identification. Emma did not return that day. Mrs Patel could not remember when she did return, but when she did she was in the company of two other girls. She purchased a bottle of Bernadino wine. She alleged that Emma had produced a driver’s licence bearing a photograph. Mrs Patel said that she glanced at it because she was alone in the shop and it was very busy that evening. She accepted that the photograph was of Emma and that the driver’s licence showed she was 18 years of age.

[16] Mrs Patel said she had readily admitted to Constable Barnard that she had sold beer to Emma without asking for identification because she had seen it previously. She said that she could only find one of the incident books when she spoke to Constable Bernard. She was not 100% certain that the entry for 31 May 2002 related to Emma. She said she was really surprised to be told that Emma was only 17 years.

[17] She alleged that Emma told untruths to the Police about her age when she was questioned, and in her evidence she said that Mrs Patel had never asked her for identification. Mrs Patel considered that Emma had given that evidence to avoid being charged for giving false information.

[18] Mrs Patel said that as a result of the present proceedings she and her husband now insist that all people who appear to be under the age of 25 years produce identification. She produced a photocopy of the new incident book in which is recorded the date, the person’s name, the details of the identification supplied, and the person’s date of birth or signature.

[19] When Constable Barnard pointed out to her that the name of duty manager was that of her husband she said that her name had been sellotaped on to the board but it had fallen off. She had not realised that her manager’s certificate had expired because the Wellington City Council only sends out reminder notices for premises licences, and not managers’ certificates.

[20] Mr Vallabh Hira Patel is the husband of Mrs Patel and part-owner and operator of the “Ngaio Supermarket”. He gave evidence of one occasion when he had asked his wife if he should sell liquor to Emma. Mrs Patel had told him that it was all right because she had seen Emma’s identification.

[21] Carol Zoias is a customer of the “Ngaio Supermarket”. She has known the Patels for 2 years. She shops at the supermarket fairly regularly. Consequently, as a customer she has got to know them quite well. She said that she had been in the shop when customers were purchasing alcohol. She described Mr and Mrs Patel as very conscientious. In her view, Mr and Mrs Patel always ask for identification from people who look under age. Although she did not know Emma by name she had seen her in the shop with her friends. She described Emma as having a foreboding presence. She thought that the way the girls stand in the shop with beer under their arms waiting to be served was a form of pressure on Mrs Patel when she is busy.

[22] Sergeant Verner submitted that the evidence clearly showed that Mrs Patel sold liquor to a minor without sighting or making any request for identification. The sale should not have taken place. Having previously held a General Manager’s Certificate as well as being a holder of an off-licence in partnership with her husband, Mrs Patel should have been well aware of her responsibilities and obligations under the Act. Although Mrs Patel showed a lack of judgement in making the sale, the Police consider that that she is suitable to hold a General Manager’s Certificate. The Police also believed that she should be given the opportunity to show that it was a ”one-off” lapse of judgement. It was submitted that a period of suspension of the off-licence was appropriate.

[23] Mr Evans submitted that Mrs Patel had candidly admitted the breach of the condition of her licence, and the failure to renew her General Manager’s Certificate. However, this was because Emma had previously shown her identification to Mrs. Patel. Mr Evans argued that Emma had lied to avoid unpleasant consequences.

[24] Mr Evans submitted that Mrs Patel’s evidence was to be preferred to Emma’s. This was a first time breach by Mrs Patel, and she had taken remedial steps. Mr Evans referred to the well known test for suitability in Re Sheard [1996] 1 NZLR 751 at 758 where Holland J said:

"The real test is whether the character of the applicant has been shown to be such that he is not likely to carry out properly the responsibilities that are to go with the holding of a licence."

He said that Sergeant Verner had indicated that he was happy for Mrs Patel to have a manager’s certificate, and therefore it should be granted.

[25] Mr Evans submitted that any suspension is not to be for punitive or deterrent reasons, citing Karara Holdings Limited and Others v The District Licensing Agency Inspector and Others AP 14/02 Christchurch High Court 8 July 2002. It will be appreciated that the Court of Appeal is about to issue a decision on the matter, so that further discussion is likely to be inconsequential. In Geoffrey Alan McCrostie v Mervyn John Roper and Hazel Rosalie Roper trading in partnership LLA PH 31/2003 we said:

“[13] We note however, that at paragraph [54], His Honour made these comments:

‘By contrast I am in no doubt that the Authority's power of suspension in Part VI of the Act is intended for a different purpose. As I have already endeavoured to explain it is a power vested in the Authority to enable it to enforce the management responsibility which is in itself a key concept of the licensing regime.’

[14] For our part, we would have thought that the sale and supply to minors was very much part of management responsibility. We accept that His Honour felt that while an order for suspension may be punitive and deterrent in nature, those ends were not the essential purpose for which the power was conferred. Since the judgment, we have relied on the decision of Fisher J in Super Star Bar (NZ) Limited v Peter Alan Kavaney HC 100/96 High Court Auckland, and continued to take the view that applications for suspension are one of the ways in which the object of the Act can be achieved. It is our view that a reduction in liquor abuse cannot be achieved if the law relating to the sale of liquor to minors is ignored or treated with disrespect.”

Authority’s Conclusion and Reasons

[26] There are two tests which are contained in s.132 of the Act. First, the Authority has to be satisfied that that the grounds have been established. If they have, then the Authority must decide whether it is desirable that orders be made. There is also provision for an adjournment of the application to give a licensee an opportunity to remedy any matters which the Authority may require to be remedied.

[27] In this case, we are satisfied that the grounds have been made out. The licensed premises were conducted in breach of ss.155(1) and 115(2) of the Act, and in breach of the licence.

[28] In coming to a decision about the desirability of making an order, the Authority will be guided by the object of the Act as set out in s.4:

The object of the Act is to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse, so far as that can be achieved by legislative means.

[29] Having found that the grounds of the application under s.132 have been established, the issue then is, whether an order 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.

[30] 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 clearly took the view that the supply of liquor to minors was a very serious liquor abuse issue. It gave the Act the necessary teeth in an attempt 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.

(c) 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 (for managers and licensees), and the District Court was given the power to suspend a licence for up to 7 days.

[31] There is no question that selling to minors has the potential for serious liquor abuse. Furthermore, it is our view that the only way that standards will be raised in the industry is if examples are made when the law is ignored in this way. On the other hand, the system of control over the sale and supply of liquor must be a “reasonable” one.

[32] Since the lowering of the drinking age in 1999 the Police, District Licensing Agencies and Public Health Officers throughout the country, have been concerned with the ease with which young people were accessing liquor. Research showed that there was a percentage of off-licensees who were prepared to sell liquor to minors without checking for acceptable ID.

[33] There is also an issue of credibility in this case. Despite Mr Evans submission that Mrs Patel’s evidence be preferred, we found Emma’s evidence was impressive. Not only were the dates changed in the notebook, but Mrs Patel tried to deflect blame from herself by claiming that Emma was dishonest. Having seen both persons give evidence we find that it was Mrs Patel who lacked credibility.

[34] In exercising our discretion under s.132(6) we believe that it is desirable to make an order. In Julie Ann Smale v Fell Family Trust, and Aileen Kerema Edwardson (supra) we distinguished a “stand-alone” bottle store from a tavern or supermarket when making an order for suspension. Taking into account that this is a supermarket we propose to suspend the licence for three days.

[35] Although Mr and Mrs Patel have introduced some changes we take the view that applications for suspension are one of the ways in which the object of the Act can be achieved. It is our view that a reduction in liquor abuse cannot be achieved if the law relating to the sale of liquor to minors is ignored or treated with disrespect. We do not accept that an adjournment is appropriate, particularly given our decision on credibility.

[36] In considering Mrs Patel’s application for a General Manager’s Certificate we must refer to s.121:

121. Criteria for manager's certificates---(1) In considering any application for a general manager's certificate, the Licensing Authority or District Licensing Agency, as the case may be, must have regard to the following matters:

(a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant:

(c) Any experience, in particular recent experience, that the applicant has had in managing any premises or conveyance in respect of which a licence was in force:

(d) Any relevant training, in particular recent training, that the applicant has undertaken and any relevant qualifications that the applicant holds:

(e) Any matters dealt with in any report made under section 119.

[37] Having seen and heard Emma giving evidence, dressed as she was on the relevant day, it was our view that any prudent manager would have asked her for identification. The issue is one of suitability. Is the applicant likely to carry out the responsibilities that go with the holding of a General Manager’s Certificate? In this case the answer was “no”, although Sergeant Verner believes that it was a one-off lapse of judgement despite the evidence of Emma. Furthermore, when the offending took place, Mrs Patel’s General Manager’s Certificate had been expired for more than seven months.

[38] Having taken into account the submissions of Sergeant Verner and Mr Evans that this was a lack of judgement by Mrs Patel, we propose to adjourn the application for six months. If at the end of that time there have been no further incidents, and there are no adverse reports from the Police or the District Licensing Agency Inspector we propose to grant the application on the papers.

[39] In respect of the application for suspension, after balancing all the competing factors, off-licence number 049/OFF/3/2001 issued to Vallabh Hira Patel and Kalpana Vallabh Patel trading in partnership will be suspended for three days from 6 pm on Wednesday 21 May 2003 to 6 pm on Saturday 24 May 2003.

DATED at WELLINGTON this 13th day of May 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

ngaiosupermarket.doc(aw)