Kitcher v P & S International Limited and Son [2007] NZLLA 1206 (13 November 2007)

Last Updated: 15 February 2010

Decision No. PH 1206-1207/2007

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 007/OFF/132/2006 issued to P & S INTERNATIONAL LIMITED in respect of premises situated at 244 Taniwha Street, Glen Innes, Auckland, known as "Glen Innes Liquor Centre"

AND

IN THE MATTER an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number GM/007/667/05 issued to HOON SON

BETWEEN WAYNE DENNIS KITCHER

(Police Officer of Greenlane)

Applicant

P & S INTERNATIONAL LIMITED

First Respondent

AND HOON SON

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms J D Moorhead

HEARING at AUCKLAND on 29 October 2007

APPEARANCES

Sergeant W D Kitcher – NZ Police – applicant
No appearance by or on behalf of respondents
Mr A C Phillips – Auckland District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] There are two applications before the Authority for consideration. The first is an application for the suspension of an off-licence issued to P & S International Limited in respect of premises situated at Glen Innes in Auckland known as “Glen Innes Liquor Centre”.

[2] The grounds for this application are that:

• [a] The licensed premises have been conducted in breach of s.155 of the Act. This section creates an offence for the licensee or manager or an employee to sell liquor to a minor.
  
• [b] The conduct of the licensee has been such as to show that it lacks suitability to hold the licence.
  

[3] The particulars relate to a controlled purchase operation which took place on Thursday 31 May 2007, when a volunteer was able to purchase liquor without being asked either for details of her age or for the relevant identification.

[4] The second application is for the suspension of a General Manager's Certificate issued to Hoon Son. Mr Son has held his General Manager's Certificate since 27 May 2005.

[5] The application is based on the grounds that Mr Son failed to conduct the licensed premises in a proper manner. The particulars in support of the application allege that Mr Son was the duty manager at the time of the sale and it was he who made the illegal sale.

[6] The evidence comes from two witnesses. The first witness was the volunteer named Jaimee. She was born on 23 August 1990 and was 16 years and 7 months at the time of the operation. She visited the "Glen Innes Liquor Centre" at about 6.50 pm on Thursday 31 May 2007. She had been given $20 and asked to see if she was able to make a purchase without being challenged. She took a six pack of bourbon and cola RTDs, valued at $10.99, from a fridge. She had not been in the store before and she chose the product because it was the closest liquor at hand. The liquor has was produced and showed that it contained 5.3% alcohol by volume. Accordingly it is liquor in terms of the Act.

[7] Jaimee took the liquor to the counter. She was served by Mr Hoon Son. He did not ask her for either details of her age or for identification. The sale was made and the liquor was returned to the Constable. Constable R Singh returned to the store shortly thereafter. He identified himself. He spoke to Mr Son. Mr Son confirmed that he had not asked for identification. He indicated that he thought the volunteer was aged 19 or 20 and that she had been in the shop before. Subsequently he acknowledged that in retrospect he should not have sold her the liquor.

[8] The Police submitted that suspensions are appropriate. We were referred to the decision of Trisha Trading Company Limited LLA PH 319-328/2005 in which it was said:

"It is the accepted wisdom that selling to minors has the potential for serious liquor abuse. It is regrettable that the message about the dangers inherent in teenage drinking has taken so much time to get through"

[9] It is also regrettable from our perspective, that neither of the respondents have appeared to present their side of the story. There has been no explanation for the non-appearance and it is unclear whether this is the result of apathy or ignorance. Either way it is very important that the message be brought home to both of them that their managerial systems are lax, and that we regard the sale of liquor to minors as a very serious breach of the Act.

[10] We accept at this stage that the respondents are first offenders. However, we deem it totally desirable that suspension orders be made.

[11] We note that both the licence and the General Manager's Certificate are relatively new, and we would hope that the lessons arising out of these proceedings will be quickly absorbed and changes implemented.

[12] For the reasons that we have given we order that off-licence 007/OFF/132/2006 issued to P & S International Limited, will be suspended for two days commencing at 8.00 am on Wednesday 5 December until 8.00 am on Friday 7 December 2007.

[13] The sale by the holder of a General Manager's Certificate is equally serious. We rely on such persons to ensure that the provisions of the Act and the licence are respected. Mr Son would have had recent training about the need to request identification and completely failed to do so.

[14] The General Manager's Certificate issued to Hoon Son will be suspended for a period of six weeks commencing on Wednesday 5 December 2007. This means of course that he will be unable to use his certificate over what is often a very busy time in terms of retail selling.

DATED at WELLINGTON this 13th day of November 2007

B M Holmes
Deputy Secretary

Glen Innes Liquor Centre.doc(aw)