Hibbert v Smith [2007] NZLLA 1214 (20 November 2007)

Last Updated: 15 February 2010

Decision No. PH 1214/2007

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for cancellation of General Manager's Certificate number GM 006/773/2005 issued to TINARA KEVANA SMITH

BETWEEN VAUGHAN JOSEPH HIBBERT

(Police Officer of Waitakere City)

Applicant

AND TINARA KEVANA SMITH

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 T Beach – for respondent
Mr J P Sheehan – Waitakere District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] This is the resumption of an application for the cancellation of a General Manager's Certificate issued to Tinara Kevana Smith.

[2] The application was part heard. The details are recorded in a decision of Vaughan Joseph Hibbert v Waitakere Licensing Trust and Ors LLA PH 716-720/2007.

[3] In summary, we are faced with an application to cancel the certificate on the ground that Ms Smith failed to conduct the licensed premises in a proper manner.

[4] The evidence is clear that on 4 January 2007, a young volunteer went into the off-licensed premises. He was able to purchase a four pack of Woodstock bourbon and cola. No questions were asked about his age or identification. He was served by a female employee.

[5] We have now heard from Ms Smith who was on duty on the afternoon in question. It is clear from her evidence that there was to some extent a chapter of accidents. She accepted that she was the manager on duty. The person who should have been working that day had apparently been sick, and had arranged for another employee to take his place. This employee did not have a great experience and was therefore being effectively supervised by Ms Smith.

[6] Ms Smith decided to take a lunch break at about 1.15 pm. It was quiet in the store at the time. She decided to go into the office which is in the same area but there is a door. She was not far from the till. She advised the employee that she was going to have her lunch and that she was to ring a bell which would sound in the office if she was needed. Her evidence was that they tested the bell to confirm that it was working. Her further evidence was that if any customer looked under the age of 25 and the staff member needed help, then the bell was to be rung.

[7] While Ms Smith was in the office the sale was made. Ms Smith accepts that had she been in the store she would have asked for identification. We accept in general the submissions made by Mr Beach on behalf of Ms Smith. He contended that Ms Smith was on duty at the time because she was able to be contacted on a moment's notice.

[8] The business systems have changed since the incident. Ms Smith is now aware that even to have a lunch break it is more appropriate to appoint an acting manager. Digital cameras have now been installed so that the area can be observed from the office.

[9] The issue is twofold. Mr Beach has correctly pointed out that the Police carry the onus of establishing the allegations. Under s.115 of the Act the manager is responsible for compliance and enforcement of the Act, as well as the conduct of the premises, (with the aim of contributing to the reduction of liquor abuse). Because a sale was made to a minor during Ms Smith’s watch, then she has failed to conduct the licensed premises in a proper manner.

[10] The issue in this case is whether it is desirable to make a suspension order. When considering that issue, we have taken account of the special steps that Ms Smith took before having her lunch hour. We have taken account of the fact that she is clearly upset by the fact that a sale was made on her watch, and to that extent the lesson has been learned.

[11] We have taken into account the fact that there was a problem with the employee who was unable to be there. To some extent similar future problems should have been averted by actions since taken by the Trust. Finally, we have taken into account that Ms Smith has gone to a considerable amount of trouble to be represented and to present her side of the picture.

[12] It seems to us that although a sale occurred Ms Smith did her best. In those circumstances, notwithstanding the fact that she was on duty when the sale was made, we have decided that it is not desirable to make any further order.

[13] The application for cancellation is therefore declined.

DATED at WELLINGTON this 20th day of November 2007

B M Holmes
Deputy Secretary

Tinara Smith.doc(aw)