Bright v H D Robertson Limited [2008] NZLLA 1683 (4 December 2008)

Last Updated: 12 February 2010

Decision No. PH 1683/2008

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 032/OFF/8/2000 issued to H D ROBERTSON LIMITED in respect of premises situated at 39 Hakiaha Street, Taumarunui, known as "Robertson Super Liquor"

BETWEEN LANCE DION BRIGHT

(Police Officer of Taumarunui)

Applicant

AND H D ROBERTSON LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TAUMARUNUI on 19 November 2008

APPEARANCES

Sergeant L D Bright – NZ Police – applicant
Mr A R Humphrey – on behalf of respondent

ORAL DECISION OF THE AUTHORITY

[1] This is an application for the suspension of an off-licence issued to H D Robertson Limited in respect of premises situated in Taumarunui known as "Robertson Super Liquor". The application is based on the ground that the licensed premises have been conducted in breach of s.155(1) of the Act.

[2] The evidence shows that on 26 June 2008 a controlled purchase operation was conducted in Taumarunui. During the course of the operation a 17 year old male and a 14 year old female were used in an attempt to purchase liquor from a variety of off-licensed premises. Around 6.00 pm on that day, the 14 year old female made the first attempt to purchase liquor from “Robertson Super Liquor”. Her request to do so was refused.

[3] About 15 minutes or so later, a 17 year old male called Mac entered the premises. Mac was born on 1 February 1991, and was aged 17 years and 4 months at the time of the purchase. He is quite a large young man in that he is approximately 1.9 metres in height. He was unsure of his weight but he is larger than other young men of that age. He chose a four-pack of 'Woodstock' bourbon and coke RTDs from a refrigerator and went to the counter. He paid for the liquor with a $20 note that he had been given by the Police Sergeant.

[4] He was served by Mr Allan Ross Humphrey. Mr Humphrey is the holder of a General Manager's Certificate. His wife is one of the respondent company’s directors and shareholders.

[5] Mr Humphrey has appeared at the hearing to represent the company, particularly as it was he who made the sale. Mr Humphrey stated that he had declined to sell to the first minor. He accepted that he had made what he described a bad mistake, in respect of the second sale. He said that it was his opinion that the young person was over the age of 18 years. He based that opinion on the fact that the person appeared quite confident in the way that he came in and chose the items, and took them up to the counter. He questioned how often the young person had purchased liquor in the past.

[6] However, Mr Humphrey acknowledged that he probably should have asked for identification. Apparently there is CCTV in the premises. Mr Humphrey made the point that although the Sergeant had returned the following day to tell them what had happened, he had not seen a photograph of the young man until recently when disclosure was made.

[7] Mr Humphrey says that he has the defence to the matter in that he had reasonable grounds for believing that the young man was 18 because of the way in which the young man presented himself.

[8] Mr Humphrey has been very cooperative in that he has accepted that the four-pack of 'Woodstock' bourbon and coke was liquor as defined under the Act. In other words that it was more than 1.15% alcohol by volume. He also accepted that the volunteer was born on 1 February 1991. The volunteer has given evidence to that effect, but there has been no other corroborative evidence in the form of either hearing from the young man's mother or sighting a birth certificate. Mr Humphrey stated that since the incident, the processes have been tightened. He stated that he is much more aware of the potential for harm if liquor is sold to minors.

[9] The issue in this case is whether the defence has been established. This is a case where the onus of proof is reversed. It is up to the licensee in the form of Mrs Humphrey, to prove that Mr Humphrey believed on reasonable grounds that the person to whom the liquor was sold had attained the age of 18 years. In our view Mr Humphrey has fallen short of the necessary standard of making that proof. It is our view that when there is doubt, one cannot rely simply on looks. In this case the young man has a very young face. We believe that some conversation would have been appropriate. If for example, the young man had claimed to be over the age it is possible that a salesperson could claim to have been misled.

[10] In the event there was no conversation and no real attempt to discover the volunteer’s age. Accordingly, Mr Humphrey has been unable to establish to our satisfaction that he had reasonable grounds for any belief of maturity. Therefore we are satisfied that the premises were conducted in breach of s.155(1) of the Act. We believe that it is desirable in the circumstances to make a suspension order.

[11] Because of the cooperation displayed by Mr Humphrey we have decided that the licence will be suspended on a Wednesday rather than a Thursday as some recognition of that cooperation.

[12] Accordingly, and for the reasons stated, off-licence number 032/OFF/8/2000, issued to H D Robertson Limited, will be suspended for a period of 24 hours commencing on Wednesday 26 November 2008 from 8.00 am until Thursday 27 November 2008 at 8.00 am.

DATED at WELLINGTON this 4th day of December 2008

B M Holmes
Deputy Secretary

Robertson Super Liquor.doc(aw)