Mahue and Radich v Nguyen [2007] NZLLA 730 (15 August 2007)

Last Updated: 1 February 2010

Decision No.730/2007
731/2007

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 008/OFF/82/2006 issued to KIMBERLEY NGUYEN in respect of premises situated at 185 Great South Road, Manurewa, Manukau City, known as "South Mall Liquor Bargain"

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM08/132/2006 issued to KIMBERLEY NGUYEN

BETWEEN SHEREE MAHUE

(Police Officer of Manukau)

AND PAUL RADICH

(Manukau District Licensing Agency Inspector)

Applicants

AND KIMBERLEY NGUYEN

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr P M McHaffie

DECISION

These applications are filed jointly by Constable S Mahue of Manukau Police and Mr P Radich, Manukau District Licensing Agency Inspector, seeking suspension of an off-licence held by Kimberley Nguyen in respect of premises situated at 185 Great South Road, Manurewa, Manukau City, known as “South Mall Liquor Bargain”, and suspension of Miss Nguyen’s General Manager’s Certificate.

The grounds for the applications are that the licensee has conducted the premises in breach of s.155 of the Act; i.e. sale of liquor to a person under 18 years of age, and the manager has failed to conduct the premises in a proper manner.

More particularly it is alleged that on Thursday 21 June 2007 a controlled purchase operation was conducted in the Manukau licensing district. The operation involved the use of volunteers below the age of 18 years who were requested, pursuant to s.162(5) of the Act, to enter licensed premises and attempt to purchase liquor.

A female volunteer aged 17 years entered “South Mall Liquor Bargain” and purchased a 4-pack of ‘Pulse’, a spirit based pre-mixed beverage (RTD). The volunteer was asked her age, to which she responded ‘18’, and then her date of birth to which she gave a date and year which placed her over 18 years of age. The sales person then requested a document of identification which the volunteer truthfully said she did not have.

The volunteer’s details were entered in a book kept by the duty manager. The liquor was then sold to the volunteer who obtained a receipt, and returned with her purchase to the attending Police officer.

We would observe that the sequence of events outlined in the applicants’ summary has an air of incongruity in that, having made very effort to ascertain the age of the volunteer, and not being able to be thus satisfied in the absence of an acceptable document of identification, the sale was made notwithstanding.

The fact that the sales person’s suspicions had been aroused in the first place should have rung alarm bells, especially in light of the type of liquor selected. Ready mixed (RTDs) are among the most popular liquor based beverages among younger persons, and the question must be asked, why was the sale completed?

The grounds for the applications are not disputed and it is accepted that suspension of the licence and manager’s certificate is appropriate. Following discussions between the applicants and the respondent it has been recommended that a period of suspension may be imposed by the Authority without the requirement for appearance at a public hearing, a recommendation that has been accepted by the licensee.

Having considered the recommendations from the applicants we are prepared to deal with the matters on the papers and we make the following orders:

(a) Off-licence number 008/OFF/82/2006, issued to Kimberley Nguyen, is suspended for 24 hours from 9.00 am on Thursday 27 September 2007.

(b) General Manager’s Certificate number GM08/132/2006, issued to Kimberley Nguyen, is suspended for one week from Monday 24 September 2007.

DATED at WELLINGTON this 15th day of August 2007

______________________
B M Holmes
Deputy Secretary

SouthMallLiquor.doc(ab)