Clearwater v Powderoom Limited [2007] NZLLA 360 (18 April 2007)

New Zealand Liquor Licensing Authority

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Clearwater v Powderoom Limited [2007] NZLLA 360 (18 April 2007)

Last Updated: 13 February 2010

Decision No. PH 360/2007

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 or cancellation of on-licence number 033/ON/203/2006 issued to POWDEROOM LIMITED in respect of premises situated at 108 Devon Street West, New Plymouth, known as “Powderoom”

BETWEEN MURRAY ERIC CLEARWATER

(New Plymouth District Licensing Agency Inspector)

Applicant

AND POWDEROOM LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at NEW PLYMOUTH on 10 April 2007

APPEARANCES

Mrs T A Hall – New Plymouth District Licensing Agency Inspector – applicant
Mr M J Louis – on behalf of respondent
Senior Sergeant S L Wansbrough – NZ Police – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application for the suspension or cancellation of an on-licence issued to Powderoom Limited in respect of premises situated in New Plymouth known as “Powderoom”. The ground for the application is that the premises have been conducted in breach of ss.164(1) and 155(1) and (2) of the Act.

[2] The particulars show that on Friday night, 13 October 2006 the Police and the New Plymouth District Licensing Agency ran a joint controlled purchase operation. Two young volunteers were used. One known as Ben was born on 2 March 1989 and was 17 years of age at the time of the operation. The second known as Sophie was born on 17 October 1989. She was 16 years of age at the time of the operation.

[3] The two volunteers were accompanied by a police officer. During the evening and the following morning of the 13/14 October 2006, they visited 15 off-licensed premises and 11 on-licensed premises in order to test whether licensees or managers were complying with their obligations under the Act. The result is that all 15 off-licensed premises refused to make a sale. Six of the 11 on-licensed premises also refused. The “Powderoom” was one of the five on-licensed premises which failed the test.

[4] Both young people entered the premises at about 1.00 am on Saturday 14 October. They went to the toilet and then sat in the bar area. The volunteer known as Ben then went to the bar where he was served by a young barman who was aged about 20. The volunteer ordered a rum and coke, and a beer. The barman asked for identification and the volunteer looked through his wallet pretending to look for identification. He had been told that if he was asked his age he was to say that he was 18 years of age. The volunteer was about to say that he did not have identification with him, when the barman told him not to worry and the sale was made.

[5] There were only about 15-20 people in the bar at the time. The temporary manager was Rebecca Joy Millers, whose application for a General Manager’s Certificate has been contemporaneously adjourned.

[6] The licensee is a private company. Mark James Louis is one of the shareholders and he represented the company at the public hearing. When he was interviewed by the Police he said that he was not sure whether he was working at the premises at the time, or at other similar premises not far away.

[7] He has given evidence and explained that the company has a policy of ensuring that identification is requested wherever there is uncertainty. He produced a copy of the manual which is required to be read by, and understood by, all employees. To be fair, there is little information about the need to request identification. We understand that it is not part of the employment contracts that failure to ask for identification could lead to dismissal.

[8] Mr Louis was sincere in his belief that he had been let down and that a mistake had been made. The barman had been interviewed by the Police. He had said that he thought that the young man was in town with his girlfriend and he was just trying to be pleasant by not requesting identification or not insisting that it be found.

[9] It seems to us that there was a genuine error of judgement made by a member of the staff who appear to be reasonably trained. The business does not target young people. Hence the inability to focus on such an important issue.

[10] We have heard evidence from both the Police and District Licensing Agency Inspector that the premises known as “Powderoom” are well run, and well managed, and that Mr Louis and others are particularly co-operative with the monitoring authorities. Mr Louis deserves some credit for approaching this application in the way that he has done, and we intend to reflect that in the day that the premises will be suspended.

[11] We are satisfied that there were breaches of the Act. Indeed the barman was taken before the District Court where he received a discharge without conviction pursuant to s.106 of the Sentencing Act. It is also clear that the premises are designated as supervised and the young people should not have been there.

[12] We think it is desirable to make an order for two major reasons. The first is that the sale of liquor to minors always has the potential for liquor abuse. The second reason is that to make no order, would not reflect the attitude displayed by all the off-licensed premises and the majority of on-licensed premises, who, when confronted with an opportunity to make a sale, resisted the temptation

[13] It is now coming up seven years since the Act was amended to allow for young people aged 18 and above, to purchase liquor. It is always surprising to us to find that there are licensed premises which still do not concentrate on this particular issue. We are satisfied that it would be an unreasonable response to cancel the licence in view of the fact that the business is well run. This appears to be an isolated incident and young people are not targeted by the business.

[14] On the other hand we believe it is desirable to suspend the licence and we intend to do so. The on-licence issued to Powderoom Limited will now be suspended for a period of 24 hours commencing at 7.00 am on Thursday 17 May 2007 to 7.00 am on Friday 18 May 2007.

DATED at WELLINGTON this 18th day of April 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

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