McDonald v Primo Vino Limited and others [2006] NZLLA 70 (17 February 2006)

Last Updated: 18 February 2010

Decision No. PH 70/2006 –
PH 73/2006

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of applications pursuant to s.132 of the Act for suspension of off-licence number 015/OFF/12/04 issued to PRIMO VINO LIMITED in respect of premises situated at Shops 2 & 3, 955-957 Victoria Street, Hamilton, known as "Primo Vino"; and off-licence number 015/OFF/02/02 issued to the partnership of JAGDISH PRASAD THAKUR and USHMA THAKUR in respect of premises situated at 64 Cameron Road, Hamilton, known as “Cameron Road Foodmarket”

AND

IN THE MATTER of applications pursuant to s.135 of the Act for suspension of General Manager’s Certificate number 015/GM/290/02 issued to PATRICIA JACOBS; and General Manager’s Certificate number 015/GM/483/05 issued to JAGDISH PRASAD THAKUR

BETWEEN DANA McDONALD

(Police Officer of Hamilton)

Applicant

AND PRIMO VINO LIMITED

JAGDISH PRASAD THAKUR and USHMA THAKUR, trading in partnership

First respondents

AND PATRICIA JACOBS

JAGDISH PRASAD THAKUR

Second respondents

BEFORE THE LIQUOR LICENSING AUTHORITY

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

DECISION

We have before us four applications by Sergeant D McDonald of Hamilton Police for suspension of off-licences and General Manager’s Certificates in respect of licensed premises and their managers in the Hamilton licensing district.

The grounds for the applications are that the licensed premises have been conducted in breach of s.155(1) of the Act, and in breach of the condition of the licence which requires the licensee to ensure that the provisions of the Act in relation to the sale and supply of liquor to prohibited persons are observed; and that the managers have failed to conduct the licensed premises in a proper manner.

Section 155(1) of the Act 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 2 and 3 September 2005, a controlled purchase operation was conducted which targeted licensed premises in the locality. Under-age volunteers were requested by Police, pursuant to s.162(5) of the Act, to enter the various licensed premises and attempt to purchase liquor. Of 32 premises selected in the operation, 22 failed the test and made unlawful liquor sales to minors.

While applications pursuant to ss.132 and 135 of the Act were being prepared in respect of some of those failures, a follow-up operation targeted 20 of the same premises a second time. Regrettably, 12 of those businesses again did not meet the test. Two of the premises involved in that repeat operation are the subject of these applications.

We have frequently expressed our disappointment and dismay at the apparent ease with which underage persons seem able to purchase liquor, due to the lack of vigilance of licensees and/or their management staff. We continue to labour the point that we regard such sales as a serious, and an unfavourable reflection upon a small but significant sector of the liquor industry.

It is becoming clear that, notwithstanding the legislature’s doubling of monetary penalties for offences against the Act when the statute was amended in 1999, in a number of instances, the message is still not getting through. Ongoing media publicity in relation to a perceived undesirable drinking culture amongst young persons cannot be disregarded.

The patience of Police and District Licensing Agencies may begin to wear thin if these enforcement operations continue to show breaches of the Act. We anticipate that future applications of this nature may ask the Authority to cancel licences and certificates, rather than simply suspend them.

However, in the present case the Police have entered into dialogue with the respondents, who acknowledge their shortcomings and do not dispute the grounds for the applications. They recognise that the likely outcome of any proceedings before the Authority will result in suspension of the licences and certificates, and they have expressed a willingness to have any period of suspension recommended by the applicant, imposed without the requirement to appear before us at a public hearing.

Accordingly, having considered the recommendations from the Police, we are prepared to deal with the matters on the papers. Therefore, we now make the following orders:

(a) Off-licence number 015/OFF/12/04, issued to Primo Vino Limited, is suspended for 24 hours from 9.00 am on Friday 17 March 2006.

(b) Off-licence number 015/OFF/02/02, issued to the partnership of Jagdish Prasad Thakur and Ushma Thakur, is suspended for 24 hours from 7.00 am on Friday 17 March 2006.

(c) General Manager’s Certificate number 015/GM/290/02, issued to Patricia Jacobs, is suspended for two weeks from Monday 20 March 2006.

(d) General Manager’s Certificate number 015/GM/483/05, issued to Jagdish Prasad Thakur, is suspended for two weeks from Monday 20 March 2006.

DATED at WELLINGTON this 17th day of February 2006

______________________
B M Holmes
Deputy Secretary

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