Dalziell-Kernohan v Ahir [2006] NZLLA 1113 (20 December 2006)

Last Updated: 28 January 2012

Decision No. PH 1113/2006 –
PH 1115/2006

IN THE MATTER of the Sale of Liquor Act 1989

IN THE MATTER of an application pursuant to s.132 of the Act for the cancellation or suspension of off-licence number 015/OFF/13/2000 issued to NARESH KUMAR AHIR in respect of premises situated at 174 Clarkin Road, Hamilton, known as “Clarky’s”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for the cancellation or suspension of General Manager’s Certificate number 015/GM/215/04 issued to NARESH KUMAR AHIR

BETWEEN JAMES ROBIN DALZIELL-KERNOHAN

(Police Officer of Hamilton)

Applicant

AND NARESH KUMAR AHIR
Respondent

AND

IN THE MATTER of the resumption of a hearing of an application by NARESH KUMAR AHIR pursuant to s.123 of the Act for renewal of a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms P A Ballard

HEARING at HAMILTON on 14 December 2006

APPEARANCES

Senior Constable J R Dalziell-Kernohan – NZ Police - applicant
Mr N K Ahir - respondent

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Mr N K Ahir has been operating a stand-alone bottle store in Clarkin Road in Hamilton for over six years. He has held a General Manager’s Certificate since 14 October 2004. The certificate fell due for renewal on 14 October 2005. Mr Ahir’s application for renewal was opposed by the Police on the grounds that since the certificate had been granted, Mr Ahir had been apprehended selling liquor to a minor in two separate controlled purchase operations.

[2] The first controlled purchase operation took place on 2 September 2005. A 17 year-old volunteer was able to purchase a 16-bottle pack of beer. Mr Ahir made the sale. The police applied for the suspension of Mr Ahir’s off-licence as well as his General Manager’s Certificate. Mr Ahir indicated that he was willing to have suspension orders made, and on 16 December 2005, we made consent orders that the off-licence would be suspended for 24 hours and the General Manager’s Certificate would be suspended for two weeks. See Dana McDonald v Naresh Kumar Ahir LLA 899-900/2005.

[3] When Mr Ahir’s renewal application came before us on 27 February 2006, we were advised that a second controlled purchase operation had taken place on 12 November 2005. On that occasion a 16-year old female volunteer was able to purchase a 4-pack of Vodka Cruisers without being asked for identification. Once again the salesperson was Mr Ahir.

[4] We were advised at the hearing that Mr Ahir was being prosecuted in the District Court under s. 155 of the Act for this offending. In those circumstances we adjourned the renewal application for a minimum period of six months to await the outcome of the proceedings in the District Court.

[5] Mr Ahir was convicted in the District Court on 18 May 2006, and was fined $500 with court costs of $130. Accordingly the renewal application may now be dealt with, although it appears from the file that Mr Ahir has yet to obtain his Licence Controller Qualification as required by s.117A of the Act. This provision came into force on 1 April 2006.

[6] Following the conviction in the District Court, the Police brought further applications for the cancellation or suspension of Mr Ahir’s off-licence and General Manager’s Certificate. The first application was received on 17 July 2006. However, a third controlled purchase operation was conducted on 12 July 2006. On that occasion it is alleged that a 17 year-old male volunteer was able to purchase a 12-pack of beer. Once again Mr Ahir was alleged to have made the sale. Accordingly, the enforcement applications were amended to include the second and more recent sale to a minor.

[7] There was another more serious aspect to the amended application. The first application sought the suspension only of the off-licence and the General Manager’s Certificate. The amended applications sought cancellation or suspension.

[8] The application in respect of the off-licence is based on the ground that the licensed premises had been conducted in breach of s.155(1) of the Act. Section 155(1) creates an offence for any licensee or manager to sell or supply liquor to any person under the age of 18. It is also alleged that the premises were conducted in breach of the condition in the licence requiring the licensee to ensure that there is no sale and supply of liquor to prohibited persons.

[9] The original application in respect of the General Manager’s Certificate was based on the ground that the manager had failed to conduct the premises in a proper manner. When the amended application was received, the applicant had failed to nominate either of the grounds specified in s.135(3) of the Act. However, Mr Ahir was well aware that it was his conduct of the off-licence which was at issue, and did not take the point.

[10] In summary we have before us three applications being:

• [a] The renewal of Mr Ahir’s General Manager’s Certificate;

1. • [b] The Police application for the cancellation or suspension of Mr Ahir’s off-licence; and
     
   • [c] The Police application for the cancellation or suspension of Mr Ahir’s General Manager’s Certificate.
     

The Hearing

[11] Senior Constable Dalziell-Kernohan has the responsibility for the liquor licensing portfolio in Hamilton. At the hearing, he relied on documentary evidence such as Mr Ahir’s Criminal and Traffic History confirming the conviction for selling liquor to a minor on 12 November 2005. He did not call the volunteer or the officer in charge of the operation. There was very little evidence about the sale made on 12 July 2006 when a 17-year old male volunteer had been able to purchase a 12-pack of beer. The summary of facts alleged that when he was spoken to later, Mr Ahir did not recognise the volunteer from the photograph he was shown, and stated that he looked to be 25 years of age.

[12] When he gave evidence, Mr Ahir repeated the theme that the volunteer had looked over 18. He said that he was a tall young man. We had the opportunity of seeing a photograph of the volunteer and we agree that he looked quite mature. We have also had the advantage of hearing another licensee describe the young man in the same way. There was a considerable amount of disquiet at the way the volunteer had presented.

[13] Section 155(4) of the Act provides:

It is a defence to a charge under subsection (1) or subsection (2) of this section if the defendant proves that the person who sold or supplied the liquor believed on reasonable grounds that the person to whom it was sold or supplied had attained the age of 18 years.

[14] In defending a charge of selling to a minor in the District Court, a defendant may prove, on the balance of probabilities, that he or she believed that the volunteer had obtained the age of 18, and that he or she had reasonable grounds for so doing. It has become accepted that in determining enforcement applications before the Authority, respondents should have a similar opportunity to prove that they were misled into making the sale. In doing so, they must establish that they believed that the volunteer was of age, and that they had reasonable grounds for such belief. As a matter of fairness and since the volunteer was not called to give evidence, we believe that Mr Ahir should be given the benefit of the doubt.

[15] Mr Ahir took no issue with the facts surrounding the controlled purchase operation on 12 November 2005. He seemed to appreciate the seriousness of what had happened, and was able to show that he had declined to make a sale in a very recent controlled purchase operation. Mr Ahir pleaded to retain his off-licence as well as his General Manager’s Certificate. He said that could not afford to appoint a temporary manager during his absence.

[16] While we have considered Mr Ahir’s plea, we believe that suspension orders help to secure future management compliance by this licensee. In our view, any financial loss associated with the suspension or cancellation of a licence or certificate, should be measured against the social costs that society absorbs in respect of alcohol related harm experienced by our young people. We also believe that in this way, recognition will be given to those premises and managers who, when offered the same opportunity to sell to the minors, resist the temptation to do so.

The Authority’s Decision and Reasons

[17] In terms of the Act we are satisfied that the allegation of a sale on 12 November 2005 has been established. Mr Ahir made no real attempt to dispute what had happened. In our view, the licensed premises were conducted in breach of s.155(1) of the Act on 12 November 2005. Further, we are satisfied that the licensed premises were conducted in breach of the condition of the off-licence requiring Mr Ahir to ensure that the provision in the Act relating to the sale or supply of liquor to minors was observed.

[18] It follows that we are equally satisfied that Mr Ahir, as manager, failed to conduct the licensed premises in a proper manner. Not only did he fail in his responsibility to ensure that the premises complied with the Act, he was the person who neglected to request identification before making the sale. For the reasons given, we have not been satisfied that the allegation of selling to a minor on 12 July 2006 was properly established.

[19] There is no question that it is desirable to make enforcement orders in this case particularly as Mr Ahir’s business has already been the subject of a suspension order. There are a number of other aggravating features. Earlier in the year Mr Ahir was warned that his licence could be cancelled if this sort of activity continued. In strict terms there has been no repetition but having seen and heard from Mr Ahir we are not confident that he understands the seriousness of his situation. We considered closing the premises down, but in fairness, what we are dealing with is a second controlled purchase operation for which Mr Ahir has already received a fine of $500. We propose to reduce the period of renewal so that Mr Ahir’s performance is monitored more regularly.

[20] As was stated by the Court of Appeal in Christchurch District Licensing Agency Inspector and another v Karara Holdings Limited and others NZAR [2003] 752, the purpose of s.132 of the Act is to help maintain the integrity and effectiveness of the licensing system. The issue for us is whether the imposition of a suspension order will help to do so. This is very much a discretionary matter. One of the ways in which our discretion may be affected is s.4(2) of the Act which requires us to exercise our jurisdiction, powers and discretions in a manner that is most likely to promote the object of the Act. That object is as follows:

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.

[21] As was said in J M Clark LLA 1169/99:

“A liquor licence is a privilege. It may colloquially be regarded as a “package deal”. Both the burdens and the benefits run with the licence. Mr Clark as a licensee must either accept those burdens and control the sale and supply of liquor in a satisfactory manner, or he will not continue to enjoy the privilege. Either the licensee can manage the premises and on-licence satisfactorily, or he cannot.”

[22] This is the second time in three months that Mr Ahir has sold liquor to a volunteer. We are less than impressed with his attitude to his responsibilities under the Act. In these circumstances a period of three days suspension would be appropriate. In fixing the appropriate orders we have taken into account the fine imposed against Mr Ahir. We have reduced the period of suspension from three days to two. We believe that the period of suspension should be on the same day that the sale was made to the volunteer.

[23] We have also factored into the equation the fact that Mr Ahir made the sale at a time when he was the holder of a General Manager’s Certificate and acting as the duty manager. He has the advantage of recent training. He carries the responsibility under s.115 of the Act of complying with the Act, and the conditions of the licence. He is the front line in the campaign to reduce liquor abuse. If he cannot live up to the standards expected of him, then it would be almost impossible to expect bar persons, checkout operators, and other salespersons to be vigilant.

Orders

[24] For the reasons we have given we make the following orders.

• [a] Off-licence number 015/OFF/13/2000 issued to Naresh Kumar Ahir is suspended for 48 hours from 10.00 am on Saturday 27 January 2007 to 10.00 am on Monday 29 January 2007.
  
• [b] General Manager’s Certificate number 015/GM/215/04 issued to Naresh Kumar Ahir is suspended for one month from Saturday 27 January 2007.
  
• [c] Subject to the production of a copy of a Licence Controller Qualification within two months, Mr Ahir’s General Manager’s Certificate is renewed for two years to 14 October 2007
  

DATED at WELLINGTON this 20th day of December 2006

Judge E W Unwin Ms P A Ballard
Chairman Member

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