Loye and Whittle v Macka & Co Limited and MacKenzie [2007] NZLLA 580 (8 June 2007)

New Zealand Liquor Licensing Authority

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Loye and Whittle v Macka & Co Limited and MacKenzie [2007] NZLLA 580 (8 June 2007)

Last Updated: 30 January 2010

Decision No.580/2007-581/2007

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 007/OFF/121/2005 issued to MACKA & CO LIMITED in respect of premises situated at 453 Richmond Road, Grey Lynn, Auckland, known as "The Wine Vault"

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM/005/175/2002 issued to SIMON ANDREW MACKENZIE

BETWEEN JASON PETER LOYE

(Police Officer of Avondale)

AND GARY SELWYN WHITTLE

(Auckland District Licensing Agency Inspector)

Applicants

AND MACKA & CO LIMITED

First respondent

AND SIMON ANDREW MACKENZIE

Second respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Members: Dr J Horn
Mr P M McHaffie

DECISION

We have before us applications filed jointly by Senior Constable J P Loye of Avondale Police, and Mr G S Whittle, Auckland District Licensing Agency Inspector, for suspension of an off-licence and a General Manager’s Certificate following a controlled purchase operation conducted in the Auckland licensing district in December last year.

The grounds for the applications are that the premises have been conducted in breach of the following provisions of the Act:

(a) Section 155 – sale of liquor to a person under 18 years of age; and
(b) Section 164 – allowing a person under 18 in a designated area; and
(c) Section 165 – unauthorised sale; and;
(d) Section 172A – licensee’s offences in respect of manager;

and that the manager has failed to conduct the licensed premises in a proper manner.

More particularly it is alleged that on Saturday 16 December 2006 a female volunteer, at the time aged 17 years and one month, was requested by the Police to enter licensed premises and attempt to purchase liquor. This request was made pursuant to s.162(5) of the Act in order to monitor compliance with the requirements of the Act and the conditions of licences.

A successful purchase was made. The minor was not asked her age, nor was she required to present any form of identification.

When spoken to by the Police the sales person advised that the duty manager, whose name appeared on the signage prescribed by s.48 of the Act as ‘Simon’, was not on the premises. The sales person was not the holder of a manager’s certificate.

The duty manager, subsequently identified as the second respondent was contacted at a later date and advised that an application for suspension of his General Manager’s Certificate would be filed in due course.

The respondents do not dispute the grounds for the applications and they have acknowledged their culpability. They accept that suspension of the licence and certificate is an appropriate sanction.

Following discussions with Senior Constable Loye and Mr Whittle the respondents are willing to accept recommended terms of suspension, to be imposed by the Authority, without the requirement to appear before us at a public hearing.

Having considered the recommendations from the applicants we are prepared to deal with the matters on the papers. Accordingly, we now make the following orders:

(a) Off-licence number 007/OFF/121/2005, issued to Macka & Co Limited, is suspended for 24 hours from 10.00 am on Saturday 30 June 2007.

(b) General Manager’s Certificate number GM/005/175/2002, issued to Simon Andrew MacKenzie, is suspended for 30 days from 1 July 2007.

DATED at WELLINGTON this 8 day of June 2007

______________________
B M Holmes
Deputy Secretary

The Wine Vault.doc(ab)