Clearwater v Sino Taranaki Trading Company Limited [2007] NZLLA 375 (20 April 2007)

New Zealand Liquor Licensing Authority

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Clearwater v Sino Taranaki Trading Company Limited [2007] NZLLA 375 (20 April 2007)

Last Updated: 13 February 2010

Decision No. 375/2007

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/196/2005 issued to SINO TARANAKI TRADING COMPANY LIMITED in respect of premises situated at 38E Currie Street, New Plymouth, known as “Laughing Buddha”

BETWEEN MURRAY ERIC CLEARWATER

(New Plymouth District Licensing Agency Inspector)

Applicant

AND SINO TARANAKI TRADING COMPANY LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at NEW PLYMOUTH on 11 April 2007

APPEARANCES

Mr M E Clearwater – New Plymouth District Licensing Agency Inspector – applicant
Mr J W Thomson – 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 brought by a New Plymouth District Licensing Agency Inspector for the suspension or cancellation of an on-licence issued to a company known as Sino Taranaki Trading Company Limited (the Company) in respect of premises situated in New Plymouth known as “Laughing Buddha”.

[2] The application is based on the claim that the licensed premises had been conducted in breach of ss.115(1), 172(A), 155(1) and (2), 165, 128, and 130 of the Act.

[3] The evidence in support of the application shows that on the night of 13 October 2006, extending into the following morning, the Police and the New Plymouth District Licensing Agency ran a joint controlled purchase operation. Two young volunteers aged 17 and 16 visited 15 off-licence premises and 11 on-licence premises.

[4] The net result of the operation was that all the 15 off-licence premises refused to make a sale to the minors because of the lack of identification. Six of the 11 on-licence premises also refused to sell liquor to the volunteers. The volunteers were properly briefed and no issue is taken by the company with the way that the operation was conducted.

[5] At 10.23 pm on Friday, 13 October 2006, the two volunteers entered the restaurant known as “Laughing Buddha”. This is a Chinese restaurant which was established in November 2005. At the time of the operation the owners decided to try and establish a high class restaurant which would be rated as one of the best in the city in terms of food and ambience. It is clear from what the director has said to us, and indeed what we have heard from the Senior Sergeant, that this objective has been achieved.

[6] The two volunteers asked for a table but were told that the kitchen had been closed. One of the volunteers asked if they could have a drink and was told that they could do so for half an hour. They were seated at a table and the volunteer ordered a beer and a rum and coke. An undercover policeman was watching over them. He went to the counter to ask to see the dessert menu, but was also advised that the kitchen had been closed but he could have a drink. He sat down with the volunteers.

[7] Mr Tamlin Armstrong was notified as the duty manager but he was not present. The sale was made by an employee who made no request for identification. She was a 22 year old nursing student from China who was studying at Western Institute of Technology at Taranaki.

[8] The Police subsequently spoke with a shareholder of the licensee company and with Mr Jeremy Thomson the sole director. It was revealed that Mr Tamlin Armstrong had worked at the restaurant between 6.30 pm and 8.30 pm when he had left to work at other licensed premises just along the road. It was also revealed that Mr Armstrong had been covering two premises for some particular time. The point was made that he may well have been appointed as a general manager of the premises and not necessarily as the duty manager. But the fact remains that at the time when the volunteers went into the premises there was no duty manager present, and liquor was sold. Indeed when Mr Armstrong, the duty manager was spoken to he expressed some surprise that the restaurant was unable to sell liquor if the kitchen was closed.

[9] The evidence from the Inspector is that prior to this incident there had been no notices received of the appointment of either a manager or a temporary manager of the premises. However since the controlled purchase operation, the company has now formally appointed a General Manager and is now administratively compliant.

[10] Mr Thomson has given evidence on behalf of the company. He stated that the company takes the matter extremely seriously. He said that the company had achieved its objective in the way it sells food and that clearly there had been errors made. He said that the company had had difficulty in obtaining properly certificated duty managers and more recently they had been able to attract a duty manager who had been formally appointed so there should be no further difficulties.

[11] Mr Thomson stated that he accepted that errors had been made but the company was determined that these would not be repeated.

[12] We are therefore satisfied that in fact the Act was breached. It is clear that there was no duty manager present. There had been no formal notification of the appointment of any certificated temporary or acting managers by the company. During the time of the operation one of the minors was able to purchase liquor and he was able to do so at a time when the kitchen had been closed, and a request for food had been refused. The licence is a restaurant style licence, and it is clear that liquor can only be sold when the premises were being operated as a restaurant.

[13] Basically the sale of liquor to the minor was illegal for three reasons. Firstly because the minor was under the age of 18 years. Secondly because no duty manager was present, and thirdly because liquor was sold at a time when the premises was not operating as a restaurant.

[14] This is a clear breach of s.165 of the Act amongst others and we point out that the penalty for a breach under s.165 of the Act is a fine not exceeding $20,000. We are satisfied that there were breaches. We are satisfied that it is desirable to make an order for the suspension of the on-licence notwithstanding the submissions made by Mr Thomson. We confirm that the licence will be suspended for a period of one week commencing at 7.00 am on Monday 21 May 2007. We make this order in the belief and understanding that the restaurant may still continue to operate as a restaurant, albeit that no liquor can be sold for a period of one week.

DATED at WELLINGTON this day of 2007

Judge E W Unwin Ms P A Ballard
Chairman Member

Laughing Buddha.doc(aw)