Pirovano v Universal Liquor Limited [2007] NZLLA 206 (13 March 2007)

Last Updated: 28 February 2010

Decision No. PH 206/2007 –
PH 207/2007

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 068/OFF/17/04 issued to UNIVERSAL LIQUOR LIMITED in respect of premises situated at 33 Ardmore Street, Wanaka, known as “Betty’s Liquor”

BETWEEN KATHARINE ANNE PIROVANO

(Police Officer of Queenstown)

Applicant

AND UNIVERSAL LIQUOR LIMITED

Respondent

AND

IN THE MATTER of an application by UNIVERSAL LIQUOR LIMITED pursuant to s.41 of the Act for renewal of an off-licence in respect of premises situated at 33 Ardmore Street, Wanaka, known as Betty’s Liquor”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at QUEENSTOWN on 28 February 2007

APPEARANCES

Sergeant A J Harris – NZ Police – applicant and in opposition to application for renewal of off-licence
Mr S H N Stamers-Smith – for respondent and applicant for renewal of off-licence
Ms T J Surrey – Queenstown-Lakes District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] There are two matters before the Authority for determination. The first relates to an application brought by the Police for the suspension of an off-licence issued to Universal Liquor Limited hereafter called (“the company) in respect of premises situated in Wanaka known as “Betty’s Liquor”.

[2] The application is based on the grounds that the premises were conducted in breach of four sections of the Act. These sections were s.155 (which makes it an offence for any person to sell or allow liquor to be sold to a minor or a person under the age of 18 years). It is also alleged there was a breach of s.115 of the Act. That section requires that a manager be on duty at all times when liquor is being sold to the public. There is an allegation of a breach of s.130 of the Act. That section places an onus on a licensee to notify the appointment of a manager or a temporary manager. Finally there is an allegation of a breach of s.165 of the Act. This section creates an offence for any sale to be made of liquor that is unauthorised. This allegation relates to the fact that when the sale was made the manager on duty was not properly certificated.

[3] There is a further allegation that the premises were conducted in breach of a condition of the licence. That condition requires the licensee to ensure that the provisions of the Act relating to the sale of liquor to prohibited persons are observed.

[4] Coincidentally the company made application for renewal of its off-licence. The application was received by the District Licensing Agency on 4 October 2006. The licence itself fell due for renewal on 24 October last. Because the premises were the subject of an application for suspension it was felt appropriate that both matters would be heard at the same time. The fact that liquor was sold to a person under the age of 18 years together with the other breaches of the Act was sufficient to raise adverse reports about the renewal of the off-licence.

[5] The facts have been agreed and we thank the company through its counsel for the way that this application has been brought to a conclusion. It is clear that on Friday 28 July last a controlled purchase operation was conducted in Queenstown and Wanaka for the purpose of monitoring compliance by outlets. Twelve off-licence premises were visited in Wanaka by a volunteer who was born on 11 November 1989, and was aged a little over 16 years on the day of the operation.

[6] At about 6.00 pm this volunteer entered the premises known as “Betty’s Liquor” in Wanaka. She was able to purchase an RTD four pack of Vodka Cruisers from a Mr M F McNamara. He said he was the duty manager at the time. The facts show that he had completed a polytechnic course but had not applied for a General Manager’s Certificate. There had been no notification of any temporary appointment. Mr McNamara duly received Police diversion and has since ceased employment with the company.

[7] Through its counsel the company has agreed that there is no dispute as to what happened and that in the circumstances a suspension of the off-licence for one day is accepted. We are advised that there have been no major concerns about the way that the premises have been managed, but the Police were particularly concerned about youth access to liquor in the Wanaka area.

[8] As far as the renewal is concerned although there is some issue taken with the fact that there were breaches of other aspects of the Act. Mr Stamers-Smith has appeared for the company and advised that there was a system in place whereby all persons who worked in the stand alone off-licence would either be the holders of General Manager’s Certificates or would be trained in order to obtain such a certificate. The company is to be commended for this initiative. Of course even the holder of a General Manager’s Certificate might occasionally make a slip, and sell to a minor or to an intoxicated person.

[9] On this occasion the managers were of the opinion that the other one had checked the credentials of the duty manager. There was a lack of communication with the consequences which have just been outlined.

[10] In the circumstances we confirm that the off-licence will be suspended. We believe that is a desirable outcome. At least it gives some credit to the 10 premises in Wanaka which, when offered the opportunity to make a sale, declined to do so. The suspension will, we hope, serve as a reminder both to the company and to others of the potential consequences when slips of this nature happen.

[11] The off-licence issued to Universal Liquor Limited will be suspended for 24 hours commencing at 7.00 am on Friday 20 April 2007. Returning to the renewal of the off-licence, the submission was made by the Inspector that a truncated period of renewal be imposed. She argued that such a sanction would give recognition to the fact that there had been not just the one breach to the sale of liquor to a minor but there was an uncertificated duty manager. We have considered the matter. We have taken into account that this is the first occasion that this company has appeared before us, and the first occasion that it has been the subject of an application pursuant to the enforcement provisions of the Act, and it has co-operated in bringing this matter to a conclusion. We are sufficiently confident of the company’s suitability, (taking into account the criteria set out in the Act) to renew the off-licence for a period of three years.

DATED at WELLINGTON this 13th day of March 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

Betty’s Liquor.doc(aw)