Verner v Cuba Street Superette Limited [2006] NZLLA 370 (25 May 2006)

Last Updated: 1 April 2010

Decision No. PH 370-371/2006

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/82/2000 issued to CUBA STREET SUPERETTE LIMITED in respect of premises situated at 301 Cuba Street, Wellington, known as "Cuba Street Superette"

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number 049/GM/70/2000 issued to NATVAR BHIKHA PATEL

BETWEEN GRANT DAVID VERNER

(Police Officer of Wellington)

Applicant

AND CUBA STREET SUPERETTE LIMITED

First respondent

AND NATVAR BHIKHA PATEL

Second respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

DECISION

We have before us applications by Senior Sergeant G D Verner of Wellington Police for suspension of an off-licence held by Cuba Street Superette Limited, in respect of premises at 301 Cuba Street, Wellington, known as “Cuba Street Superette”; and for suspension of a General Manager’s Certificate held by Natvar Bhikha Patel.

The grounds for the applications are that the premises have been conducted in breach of s.155 (1) of the Act, and that the manager has failed to conduct the premises in a proper manner. The applications stem from a controlled purchase operation conducted jointly by the Police and Wellington District Licensing Agency.

Section 155(1) of the Sale of Liquor Act 1989 creates an offence for any person who, being the licensee or a manager of any licensed premises, sells or supplies any liquor, or allows any liquor to be sold or supplied, on or from the licensed premises to any person who is under the age of 18 years.

More particularly it is alleged that on Friday 2 December 2005, a female volunteer, then aged 15 years, was requested by the Police, pursuant to s.162(5) of the Act, to enter the first respondent’s premises and attempt to purchase liquor.

The second respondent, whose name was displayed as the manager on duty at the time, requested that the volunteer produce some acceptable document of identification to establish her true age. Notwithstanding that no such document was forthcoming, Mr Patel completed the sale. When subsequently questioned by the Police as to why he had done so, he stated that he thought the volunteer was of the lawful age to buy liquor.

In decision PH 325/2005, Roy Hunt v S & J Kesha Limited, we said, in part, in paragraph [58]

“[58] [Counsel for the respondent] sought to invoke the s.155(4) defence. We do not accept that Miss Thys reached the probative threshold. It was obvious that she had misgivings about “Violet’s” age, otherwise why would she ask whether “Violet” had identification? It seemed to us that what she had to say to the Inspector at the time of the incident was likely to be a more truthful reflection of the position. In our view, the grounds on which Miss Thys based her apparent belief could not be said to be reasonable. The only basis on which she apparently made up her mind was the volunteer’s appearance. There was no relevant conversation. “Violet” did nothing else to indicate that she was over the age of 18.”

It appears to us from the summary of facts in this instance that a similar situation prevails. Sergeant Verner has very helpfully provided a photograph of the volunteer, as she appeared before the respondent on the day the unlawful sale was made. We observe that the volunteer appears extremely youthful.

The controlled purchase operation has been developed as a mechanism by which compliance with the provisions of the Act and the conditions of liquor licences can be monitored. The formula, repeated by Police licensing officers throughout the country has been simple but compelling, “No ID, no sale”. Considering the extensive media publicity given to enforcement operations of this nature in recent times, it is disturbing to note that the message is still slow to get through.

The respondents do not dispute the grounds for the applications. Furthermore, they acknowledge that suspension of the off-licence and the manager’s certificate is an appropriate sanction in the circumstances.

Sergeant Verner invited the respondents to consider the option of suspension of the licence and certificate by consent, without the requirement to appear at a public hearing. That course of action has been accepted, and the applicant has recommended periods of suspension which he considers appropriate to the nature of the offence.

Having considered the recommendations from Sergeant Verner, we are prepared to deal with the matters on the papers. Accordingly, we make the following orders:

(a) Off-licence number 049/OFF/82/2000, issued to Cuba Street Superette Limited, is suspended for four days from 8.00 am on Tuesday 20 June 2006 until 8.00 am on Saturday 24 June 2006.

(b) General Manager’s Certificate number 049/GM/70/2000, issued to Natvar Bhikha Patel, is suspended for three weeks from Monday 19 June 2006.

DATED at WELLINGTON this 25th day of May 2006

______________________
B M Holmes
Deputy Secretary

CubaStreetSuperette.doc(ab)