Ensor v Grant Stevenson Limited [2008] NZLLA 1408 (3 October 2008)

New Zealand Liquor Licensing Authority

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Ensor v Grant Stevenson Limited [2008] NZLLA 1408 (3 October 2008)

Last Updated: 9 February 2010

Decision No. PH 1408/2008

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 064/OFF/6/2002 issued to GRANT STEVENSON LIMITED in respect of premises situated at 261 Selwyn Street, Timaru, known as "Grants Four Square Supermarket"

BETWEEN BARBARA ANNE ENSOR

(Timaru District Licensing Agency Inspector)

Applicant

AND GRANT STEVENSON LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Dr J Horn

HEARING at TIMARU on 24 September 2008

APPEARANCES

Mrs B A Ensor – Timaru District Licensing Agency Inspector – applicant
Mr G Stevenson – respondent
Sergeant G McCrostie – NZ Police – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application brought by the Police for the suspension of an off-licence issued to Grant Stevenson Limited in respect of premises located in Selwyn Street, Timaru known as "Grants Four Square Supermarket".

[2] The company has been operating from this site for about 25 years, and has held an off-licence for at least 13 years. The application is based on the grounds that the premises have been conducted in breach of s.155(1) of the Act.

[3] The evidence, (which was basically accepted by the company), was that overnight between 3 and 4 May 2008, the Police, District Licensing Agency and Community and Public Health conducted a controlled purchase operation in South Canterbury. The objective was to test licensees on their systems to ensure that minors are not given access to liquor. Twenty three on and off-licences were visited during the operation. Regrettably 11 sales were made.

[4] In this particular case on Saturday 3 May 2008, a 17-year old volunteer entered the supermarket premises in Selwyn Street and was able to purchase a bottle of wine for $7. The sale was made by Susan Frances Hudson who held a General Manager's Certificate.

[5] The consequence of that sale was that approximately two weeks later Ms Hudson resigned from the business. It is thought that the major reason was guilt. Although an effort was made to have her General Manager's Certificate suspended, this had little impact because she was no longer in the industry.

[6] The second major consequence for Mr Stevenson was that he was the only other person in the business holding a General Manager's Certificate. Because he was away from the business so frequently, he decided to move all the liquor from the shelves and store it out the back, where it was out of vision of his customers. He had a system in place under which, the customers were able to purchase liquor when he was present. This is a small business and the customers generally knew when he was likely to be there. Other people might not see liquor and therefore not be tempted to make an impulsive purchase.

[7] Mr Stevenson calculated that he had lost a considerable sum of money by adopting this process. It seemed to us that he has reached a stage that he is so fearful of the possible consequences of selling liquor to minors, that he is not prepared to trust his staff with the responsibility of deciding who may or may not purchase liquor. It will be noted that members of staff are basically young people.

[8] The rule therefore is that when Mr Stevenson is present the sales may be made. When he is not present no sales are made. This policy is of course a business decision made by Mr Stevenson following the loss of the person who held a second manager’s certificate.

[9] The offending has been aggravated to some extent by previous incidents. The first was on 14 December 2001. This was in the early days of controlled purchase operations, and a warning was given. When there has been a warning issued then it is clear that not too much can be taken from the actual incident. The issue is whether the warning is heeded.

[10] On 4 October 2002, (not that much later), a second sale was made. As a consequence, the licence was suspended for a period of three days over a weekend. It should be pointed out that on both the first two occasions, the sale was made by a 15-year old employee. Mr Stevenson has the difficult decision to make as to whether to continue to employ young people who might continue to make illegal sales. Alternatively, he may place his trust in more mature people to ensure that sales are not made without asking for adequate identification.

[11] Mr Stevenson has pointed to the fact that after the second sale in 2002, a new cash register with a liquor prompt has been purchased. He now has found that it is easy enough to bypass that particular prompt by nominating items other than liquor.

[12] In this case it is clear that Mr Stevenson has been let down by a member of his staff. There have been widespread consequences. On the one hand we have tried to balance the losses caused by his decision following the absence of the second certificated manager, with the fact that this is now a third time in which a sale has been made to a minor during a controlled purchase operation. There was a further controlled purchase operation in November 2004, but the sale was refused. We should also take into account that access of minors to liquor carries a huge social cost. Finally, some recognition should be given to those other businesses who when faced with the temptation of making a sale declined to do so.

[13] In our view Mr Stevenson shows a considerable commitment to the Act. He is not apathetic to the aim and objective behind the Act, and he is not a person who flagrantly breaches the Act. In all cases he has been let down by his staff.

[14] We have decided that the grounds for the application have been established. We believe that it is desirable to make an order. Accordingly off-licence number 064/OFF/6/2002, issued to Grant Stevenson Limited, is now suspended for four weeks commencing on Wednesday 24 September 2008.

DATED at WELLINGTON this 3rd day of October 2008

Sara Cunningham
Secretary

Grant Stevenson Limited.doc(aw)