Kim, re [2004] NZLLA 235 (8 April 2004)

Last Updated: 3 March 2010

Decision No. PH 235/2004 –
PH 236/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of applications by WON YOUNG KIM and KEUM-JA KIM 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 AUCKLAND on 31 March 2004

APPEARANCES

Mr W Y Kim and Mrs K J Kim - applicants
Mr C G Taylor - Waitakere District Licensing Agency Inspector - in opposition
Senior Sergeant J Loye - NZ Police - to assist

ORAL DECISION OF THE AUTHORITY

[1] There are two applications before the Authority for General Manager’s Certificates. The applications are brought by Won Young Kim and his wife Keum-Ja Kim. Mr and Mrs Kim have lived in New Zealand for about ten years. They were born in Korea, and came to New Zealand in May 1994 with their two children. They are New Zealand permanent residents. Both have excellent qualifications. Mr Kim received a Bachelor of Science from the Korean Military Academy in 1972, and subsequently a Master of Arts from a university in Taiwan.

[2] Mr Kim worked for some six years in the Army, and then worked in various government departments until he came to New Zealand. Mrs Kim worked for 20 years as a teacher in foreign language schools in Seoul, Korea. Mrs Kim has a BA from the Teachers College in Korea, and an MA in Language Teaching from the University of Auckland.

[3] When the Kims arrived in New Zealand, Mr Kim obtained a taxi drivers licence and then ran a laundromat business. In 2002, Mr and Mrs Kim established a Korean product supermarket at Kowi in Glenfield, Auckland. There are ten Korean businesses within Kowi selling a variety of products. Most of these products are from Korea, and are accessed by the Korean community. Mr and Mrs Kim have discovered that there is a large demand for Korean liquor particularly Soju. They decided that they would make an application for General Manager’s Certificates, and once these had been received, they would then apply to open a liquor store.

[4] We understand that the premises already have a Resource Management Certificate, and can be physically separated from the grocery store so that the liquor store would be able to sell Korean rice wines and Soju. In other words the off-licence would not be part of the grocery business.

[5] It is clear that both Mr and Mrs Kim qualify for a General Manager’s Certificate in terms of much of criteria set out in s.121 of the Act. There are no concerns about their characters and reputation. They have both completed a course with Liquor Licensing Consultants 2000 Limited, although we understand that that company provides a course of training in the Korean language.

[6] However both Mr and Mrs Kim were able to communicate adequately at the hearing in their second language. When they were interviewed by the Inspector, both displayed a good knowledge of the Sale of Liquor Act. The reason that the applications have come before the Authority is that in the application form both were asked the question ‘Has the applicant had any experience, in particular recent experience in managing any premises or conveyance in respect of which a licence was in force’. Both answered ‘no’. There was a supplementary question which asked whether the applicant intended to be the manager of any particular licensed premises. Once again both answered ‘no’, although it is clear that both intended in the course of time to manage their own liquor store.

[7] Because they have no experience, the issue is whether the Authority is prepared to depart from its normal guidelines, and make an exception for Mr and Mrs Kim, particularly in the light of the other positive aspects which they bring to the application. And the answer to that must be a firm no.

[8] We have had sufficient experience in dealing with inexperienced managers to know that this can be fraught with problems. In particular we are aware of cases further north where applicants apply for a licence and once it is granted, they appoint themselves as temporary managers. While the application is awaiting the hearing before the Authority, they then say they have gained sufficient experience during that waiting time. The consequences have been quite unhelpful in terms of liquor abuse issues.

[9] In this case we are dealing with an off-licence. Nevertheless, it is our view that this is the important criteria of experience cannot be ignored. Even though both Mr and Mrs Kim have a good, sound knowledge of the Act, that on its own is not sufficient when compared with practical experience which we regard as vital in managing licensed premises. Mr and Mrs Kim have two options. They can either find work in a liquor store while awaiting the grant of any off-licence, or once a licence is granted, they can employ a certificated manager and gain experience working with that person.

[10] We regret that they have not been properly advised in respect of the process. In realty it may have been preferable if the application for the off-licence had been made first.

[11] Having said that, we do not intend to refuse the applications at this time. Rather they will be adjourned for a period. During that period the process of applying for the licence can be proceeded with. If possible, attempts can be made to gain valuable experience. We would expect that prior to any General Manager’s Certificate being issued, an undertaking would have to be filed by both applicants that if granted a General Manager’s Certificate, that certificate would only be used in the proposed off-licence, unless an exemption was obtained either from the Inspector or from this Authority.

[12] We regard the Sale of Liquor Act and in particular its object to reduce abuse seriously. For that reason, we are not prepared to depart from the Authority’s guidelines. On the other hand in the light of the proposed undertaking, and in view of Mr and Mrs Kim’s general life experience, the required length of experience required in licensed premises can be reduced to three months.

[13] The cases are adjourned for six months. They can be adjourned further if necessary. Once the Inspector has been satisfied that sufficient experience has been obtained, then we would be prepared to grant the applications on the papers. If necessary the applications can be brought back before this Authority for a further public hearing.

DATED at WELLINGTON this 8th day of April 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Won Young Kim.doc(afw)