Hibbert v Skycity Cinemas Nominees Limited and Kiniangatau [2007] NZLLA 1208 (13 November 2007)

Last Updated: 15 February 2010

Decision No. PH 1208-1209/2007

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 cancellation of on-licence number 006/ON/285/2006 issued to SKYCITY CINEMAS NOMINEES LIMITED in respect of premises situated at Shop 8, Westgate Shopping Complex, at the corner of North Western Motorway and State Highway 16, Massey, Waitakere City, known as "Westgate Village 8"

AND

IN THE MATTER of an application pursuant to s.135 of the Act for cancellation of General Manager's Certificate number GM/007/703/00 issued to STEVEN ZEALAND KIMIANGATAU

BETWEEN VAUGHAN JOSEPH HIBBERT

(Police Officer of Waitakere City)

Applicant

AND SKYCITY CINEMAS NOMINEES LIMITED

First Respondent

AND STEVEN ZEALAND KINIANGATAU

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 1 November 2007

APPEARANCES

Constable V J Hibbert – NZ Police – applicant
Mr P D Swain – agent for respondents
Mr J P Sheehan – Waitakere District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority are two enforcement applications.

[2] The first application is for the cancellation of an on-licence issued to Skycity Cinemas Nominees Limited in respect of premises situated at Westgate Shopping Complex in Massey, Waitakere City, known as "Westgate Village 8".

[3] There were two grounds for the cancellation. The first ground is that the licensed premises have been conducted in breach of s.155(1) of the Act. The second ground is that the licensee has failed to ensure that the provision of the Act relating to the sale and supply of liquor to prohibited persons has been observed. The particulars in support of the application relate to an incident on Thursday 25 January 2007, when two volunteers were able to enter the "Westgate Village 8" and purchase two RTDs. At no time during the transaction was the purchasing volunteer asked for her age or any form of identification.

[4] The illegal sale was aggravated by the fact that there was a previous sale to a minor made during a controlled purchase operation on 9 February 2006. By decision LLA 213-216/2006 the on-licence was suspended for a period of two days.

[5] The second application is for the cancellation of the General Manager's Certificate issued to Steven Zealand Kimiangatau. Mr Kimiangatau has held his General Manager's Certificate since 2000. The application is based on the ground that he failed to conduct licensed premises in a proper manner.

[6] The particulars in support of the allegation were that on Thursday 25 January 2007, when the controlled purchase operation was undertaken, Mr Kimiangatau was the duty manager. The sale was made by a bar-person. It is noted that Mr Kimiangatau was the duty manager on the previous occasion when an illegal sale was made in February 2006. On that occasion his General Manager's Certificate was suspended for a period of 10 days.

[7] Mr P D Swain appeared for both respondents. At the hearing he acknowledged that the particulars were correct and there was no need to call any evidence. Mr Swain advised that within 48 hours of the second successful controlled purchase operation, all liquor was removed from the theatre complex, and that has been the position ever since. He said that management had made the decision that liquor would no longer be sold and supplied pursuant to the licence on a daily basis.

[8] The company intends to retain the on-licence for special events such as special viewings and premieres, and the like. But there will be no expectation that liquor would be available to others. Mr Swain confirmed that the staff member had not followed company policy, and had been dismissed as a result of the illegal sale.

[9] In assessing the appropriate sanction, we have taken into account (a), that the sale of liquor is not a primary purpose for which people attend the theatre, and (b), that the company has taken a number of significant steps as a result of the sale, and (c) the full co-operation of both respondents.

[10] In those circumstances it seems to us that cancellations would be quite out of the question. On the other hand we believe that it is desirable that some modest periods of suspension be imposed.

[11] Accordingly we confirm that the on-licence number 006/ON/285/2006, issued to Skycity Cinemas Nominees Limited, will be suspended for seven days commencing from 10.00 am on Monday 19 November 2007 to 10.00 am on Monday 26 November 2007.

[12] The General Manager's Certificate number GM/007/703/00 issued to Steven Zealand Kimiangatau is suspended for 14 days from Monday 19 November 2007.

DATED at WELLINGTON this 13th day of November 2007

B M Holmes
Deputy Secretary

Skycity Cinemas Nominees Ltd.doc(aw)