Loye v Brar [2008] NZLLA 1603 (18 November 2008)

Last Updated: 11 February 2010

Decision No. PH 1603-1604/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager’s Certificate number GM/007/579/07 issued to HARDEV SINGH BRAR

BETWEEN JASON PETER LOYE

(Police Officer of Avondale)

Applicant

AND HARDEV SINGH BRAR

Respondent

AND

IN THE MATTER of an application by HARDEV SINGH BRAR pursuant to s.123 of the Act for renewal of a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 6 November 2008

APPEARANCES

Sergeant J P Loye – NZ Police – applicant and in opposition to renewal of General Manager’s Certificate
Mr P D Swain – for respondent and applicant for renewal of General Manager’s Certificate
Mr A Phillips – Auckland District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] There are two applications before the Authority. The first application is for the suspension or cancellation of a General Manager’s Certificate issued to Hardev Singh Brar.

[2] The ground for the application is that Mr Brar failed to conduct licensed premises in a proper manner. The particulars in support of the application show that on two occasions an off-licence, for which Mr Brar was the duty manager, sold liquor to minors. One incident was a controlled purchase operation. The other involved two young females who were students at the time. As a result of the second incident Mr Brar was taken before the District Court.

[3] Mr Brar was originally granted a General Manager’s Certificate on 16 March 2006. However that certificate expired and he obtained a new certificate on 27 June 2007. That leads to the second matter before us which is the renewal of the certificate. The application for renewal has been opposed by the Police based on the circumstances which gave rise to the enforcement application.

[4] There are two other aspects to the opposition to the renewal. The first is that when he completed his application Mr Brar was asked whether he had any convictions since his certificate had been issued. He indicated that he had no convictions. That statement, as it turns out, was incorrect. Mr Brar was taken before the District Court in relation to one of the sales to the minor on a charge of allowing a sale to take place.

[5] Mr Brar had been convicted in December 2007 and he had been fined $500 with Court costs of $130. Mr Brar was overseas but at some stage he entered the plea of guilty. Having been told of the opposition to the renewal, Mr Brar wrote to the Agency explaining that he had made a mistake on the form in that he had failed to disclose that particular matter.

[6] We believe that Mr Brar is entitled to the benefit of some doubt about the issue. It also needs to be borne in mind that having been convicted and ordered to pay a substantial fine, that in itself is a form of sanction that should be taken into account.

[7] The second issue about the renewal, quite properly raised by the Police, relates to the fact that in the interim period of time Mr Brar has sold the off-licence of which he was the owner. This means that he has had no current employment as controller of licensed premises. The Sergeant has quite properly pointed out that as a matter of policy, the Authority is opposed to granting or renewing certificates so that people might use them for job advancement, or as a bankable resource.

[8] In this case Mr Brar indicated that he had part-time work available to him. That has been confirmed by an e-mail presented to us at this time. It is unclear as to the extent of the work available for Mr Brar but it is a form of employment. It has been suggested that he could have used his certificate in the interim period of time. Mr Brar’s answer to this is that his employer was unwilling to employ him in any responsible category pending the outcome of the two applications.

[9] The issue for us relates to a serious matter where two 15 year olds were supplied liquor at the shop. The evidence is that the two young women were attending a birthday and they selected quite a substantial amount of RTDs. They then approached the counter where Mrs Brar sold them the liquor. She asked for identification but the girls begged that they be allowed to purchase the liquor. The sale was conducted and it amounted to almost $50. As a result the girls were able to make the purchase, although they found that they walked straight out to be confronted by an off-duty Police officer. The alcohol was returned and the money was refunded, and, as stated above, both Mr and Mrs Brar were taken before the District Court. This was a serious issue as Mr Brar as the manager failed to ensure compliance. He did not make the sale but he was in the shop.

[10] A similar incident occurred on 1 December 2007 when there was a controlled purchase operation. Mrs Brar made the sale to the minor. Although Mr Brar was outside the shop the minor did walk past. Had Mr Brar been operating the premises in a proper manner he should have noted the age of the minor and alerted his wife to the possibility of a further breach.

[11] In dealing with the renewal the criteria are set out in s.126 of the Act. These criteria relate to:

• (a) Mr Brar’s character and reputation;
• (b) Convictions recorded against him since the certificate was issued;
• (c) The manner in which he has managed the sale and supply of liquor with the aim of contributing to the reduction of liquor abuse; and
• (d) Any matters dealt with in any report made under s.124 of this Act.
  

[12] It is clear that he has not managed the sale of liquor well. However it needs to be pointed out that on both occasions he was not the salesperson. In the first decisions involving managerial responsibility, the average suspension of managers was 10 days. We did indicate that that period of time would be increased, but we still must make allowances for the fact that it was not the manager that made the sale.

[13] The Police not unnaturally have asked that the certificate be cancelled or that the application for renewal be refused. After due consideration we believe that such a response, while it could be justified, is in our view an unreasonable exercise of our jurisdiction.

[14] In the circumstances we have decided that the certificate will be renewed for a period of 18 months. This means that the certificate will next fall due for renewal on 27 December 2009, in just over 12 months time. This gives Mr Brar the opportunity to continue being employed in the hospitality industry, albeit on a part time basis. Should he not use his certificate during that period of time then he will now be well aware that there would be no point in applying for a further renewal.

[15] As to the sanction to be imposed, once again we believe that to cancel the certificate would be an unreasonable exercise of our power. We therefore confirm that General Manager’s Certificate number GM/007/579/07, issued to Hardev Singh Brar, will be suspended for a period of three months, commencing 6 November 2008.

DATED at WELLINGTON this 18th day of November 2008

B M Holmes
Deputy Secretary

Hardev Singh Brar.doc(jeh)