Loye v Xtreme West City Limited (formerly Hot Millions Company Limited) and Jain [2008] NZLLA 772 (10 October 2003)

Last Updated: 23 January 2012

Decision No. PH 772/2003 –
PH 774/2003

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 on-licence number 006/ON/77/2002 issued to XTREME WEST CITY LIMITED (formerly Hot Millions Company Limited) in respect of premises situated at Westfield Shoppingtown, 22 Railside Avenue, Henderson, Waitakere City, known as “Xtreme Entertainment”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM 6644/02 issued to AKHIL JAIN

BETWEEN JASON PETER LOYE
(Police Officer of Waitakere City)

Applicant

AND XTREME WEST CITY LIMITED (formerly Hot Millions Company Limited)

First Respondent

AND AKHIL JAIN

Second Respondent

AND

IN THE MATTER of an application by XTREME WEST CITY LIMITED (formerly Hot Millions Company Limited) pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at Westfield Shoppingtown, 22 Railside Avenue, Henderson, Waitakere City, known as “Xtreme Entertainment”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at AUCKLAND on 23 September 2003

APPEARANCES

Senior Constable J P Loye – NZ Police – applicant and in opposition to application for renewal of on-licence
Mr P D Swain – agent for the first and second respondents and applicant for renewal of on-licence
Mr C G Taylor – Waitakere City District Licensing Agency Inspector – to assist and in opposition to the application for renewal of on-licence

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority are three matters for determination. One of the applications is by Xtreme West City Limited, and it is for the renewal of its on-licence. This application can be disposed of promptly as it is to be adjourned by consent. On 23 August 2001, the on-licence was issued to Hot Millions Company Limited. The premises are situated in the Westfield Shoppingtown in Waitakere City. The licence was restricted to the hours that the premises were being operated as a restaurant, or where facilities were being provided for the playing of ten-pin bowls and pool. On 14 March 2002, the name of the company was changed to Xtreme West City Limited, and the on-licence will need to be re-issued accordingly.
[2] When the application for renewal was made, the company requested a supervised designation in respect of an area which contained 18 gaming machines. In accordance with previous decisions of the Authority, the Police and the District Licensing Agency Inspector opposed the application, upon the grounds that it was inappropriate to designate an area that was not a bar. There was no opposition to the renewal ‘per se’.

Since the application was filed, the number of machines has been reduced by the Department of Internal Affairs, to nine. The company’s current intention is to convert the extra space into a working bar. If this can be accommodated, then it may be that the opposition to the designation will be withdrawn. Consequently, Mr P D Swain as agent for the company, asked that the application be adjourned. During discussions on the issue, it became apparent that the company may revisit the issue of designating the existing bar as well. Mr Swain also flagged the possibility that a further application may be made to extend the hours of operation. Such a move will require a separate variation application. There being no opposition to the request, the application is adjourned. A further public hearing will be scheduled on request by any party to the proceedings.

The remaining applications are for suspension. The first is an application to suspend an on-licence issued to Xtreme West City Limited (formerly Hot Millions Company Limited) in respect of the ten pin bowling and entertainment centre in the Westfield Shoppingtown, at 22 Railside Avenue in Waitakere City.

The grounds for the application are that the licensed premises have been conducted in breach of ss.155 and 165 of the Act. Section 155 prohibits the sale or supply of liquor to minors. Section 165 prohibits the sale or supply of liquor by a manager or licensee to any person, at any time when the licensee is not authorised by the licence or the Act, to sell to that person.

The second application is for the suspension of a General Manager’s Certificate issued to Akhil Jain. The ground for this application is that the manager has failed to conduct the licensed premises in a proper manner.

Both applications arise from the same set of facts. It is alleged that on Thursday 5 December 2002, a sixteen-year old male was able to purchase two bottles of KGB from the bar. He was accompanied by a fifteen-year old female to whom he gave one of the bottles. The sale was made by Mr A Jain who was the duty manager at the time.

Mr P D Swain accepted the statements of the two minors as being an accurate account of what had happened. The Authority gives full credit for this co-operative attitude, which saved the volunteers from appearing at the hearing, and being questioned. The Authority was requested to take into account a number of mitigating circumstances, in assessing the appropriate sanction to be imposed if considered desirable. In terms of the desirability of making orders, Mr Swain stressed that no system is foolproof, and the event had been brought about by human error.

The Background Facts

[9] Senior Constable Jason Peter Loye is the Liquor Licensing Officer for the Waitakere City District. His duties include the monitoring and enforcement of the laws in relation to the Sale of Liquor Act. He confirmed that the Police had received information about the ability of minors to access alcohol from licensed premises in the district, without being asked for identification.
[10] The information had come from a number of sources including the Auckland Pseudo Patrons Project, which was run by the Alcohol and Public Health Research Unit. The project was run over three successive weekends, and showed that 40% of premises in Waitakere had not asked the young purchasers for identification. The premises which were targeted were all off-licences. Senior Constable Loye gave evidence that as a consequence of access to liquor, the Police had been required to deal with youths getting intoxicated, and causing numerous problems for the Police and residents in the area.

As a result of the build up of the use and abuse of liquor, Senior Constable Loye, together with the North Shore Police, conducted a Controlled Purchase Operation to determine whether licensees, managers and staff were complying with the requirements of the Act. A Controlled Purchase Operation had been conducted in October 2002, with resultant media publicity. The most recent operation involved minors visiting a total of 30 premises twice over a two-day period on 5/6 December 2002. The Police used two volunteers aged 15 and 16 years. Of the sixty attempts to purchase alcohol, eight sales were made from seven premises.

Andrew was born on 7 December 1985, and was almost seventeen on the day of the operation. On Thursday 5 December 2002, at about 10.05 pm, Andrew entered

‘Xtreme Entertainment’. By this time, he had been declined sales on numerous occasions because he had no identification. He was accompanied by Nikola who was born on 25 January 1987, and was aged fifteen years and ten months. Nikola stood beside Andrew as he ordered two KGB’s. A KGB is a ready to drink bottle comprising Vodka and Lemon. It is a popular drink for young people.

[13] Mr Akhil Jain served Andrew. He took the two bottles from a fridge and opened them. He put the bottles on the bar, and charged Andrew the total sum of $10.00. At no time was there any conversation about age, or any request for identification. Both minors left with a bottle in hand. Although Mr Jain thought that Andrew had taken both bottles, we accept the evidence of Senior Constable Loye who was present observing the transaction, and was certain that both youngsters had taken the bottles separately.

As the volunteers were leaving with the liquor, they were stopped by a member of the security staff for taking liquor from the bar. It was then that Senior Constable Loye spoke with Mr Jain. There was not much that Mr Jain could say in the circumstances. He was eventually convicted and discharged in the Waitakere District Court. In other words, no penalty was imposed other than the conviction.

Mr Akhil Jain had only been granted a General Managers Certificate five months previously. One might have hoped that the training lessons so recently learned, would not have been forgotten so quickly. Mr Jain gave evidence. He stated that normally he would have had a supervisory role. On the night in question, the premises had become busy, and he had assisted serving behind the bar. He did not consciously notice the young female volunteer when the sale was made. He could not explain why he had not asked for identification. He accepted full responsibility for the mistake, and confirmed that the policy was to ask for identification of persons who appeared to be under 25 years of age. He said that since the incident, the number of working security staff had been increased, and that minors were no longer permitted in the premises after 9.00 pm.

The Respective Submissions

[16] Mr R S Chahil is a director of the company. He was present at the hearing and available to answer questions. Mr P D Swain submitted that Mr A Jain had suffered a penalty by appearing in the District Court. He noted that following the incident, there was a further attempt by the minors to purchase liquor the following day. The attempt was unsuccessful. He acknowledged the recent decision of Gendall J in The Mill Liquorsave Limited v Grant David Verner CIV-2003-438-874 Wellington High Court 18 August 2003, in which the Judge robustly confirmed the ability of the Authority to impose suspensions for deterrent purposes.
[17] Mr Swain noted that the premises acted as a magnet for minors. He contended that suspensions were undesirable, but that if they were to be imposed, that they be as short as possible. On the other hand, it could be argued that if the premises are designed to attract the young, the licensee has a heightened duty to ensure his or her staff are even more vigilant.

Constable J P Loye noted that the sale was made on a Thursday night and submitted that any suspension should take place on the same day of the week. He argued that this would send a warning to other on-licensed premises that they should take more care in monitoring the clientele.

Decision

[19] By accepting the evidence, the respondents acknowledged that the grounds in both applications had been established. The premises were operated in breach of ss.155 and 165 of the Act. The manager made the sale and therefore failed to conduct the premises in a proper manner. The next issue then is whether it is desirable that suspension orders should be made. That issue should reflect the seriousness of supplying liquor to minors.
[20] On-licensed premises are not the places where we expect to find breaches of the Act. In other decisions we have set out the reasons why we regard the sale of liquor to minors as an incident of liquor abuse. The reasoning received approval from the High Court in The Mill Liquorsave Limited case referred to above.
[21] In that case His Honour Mr Justice Gendall made the following comments:

“[23] I have no doubt at all that deterrence (i.e.to ‘discourage’ others) from selling to minors, as well as special deterrence to the licensee before the Authority, is a relevant consideration and squarely within the objects of the Act. A reasonable system of control of the supply of liquor includes the need to be able to secure compliance with licence conditions and the law through the exercise of discretionary disciplinary powers specifically given to the Authority by Parliament. If it could not suspend a licence given to a corporate body where a ‘fault’ or breach of the Act was that of a manager, its powers of control over licensed persons or bodies could be rendered nugatory or severely curtailed.”

[22] In recent cases we have stressed that sales made in on-licensed premises aggravate the potential for liquor abuse. We do not see the current case as having any distinguishing features, although we accept Mr Jain’s obvious sincerity and regret.
[23] There have been other enforcement actions involving sales made on on-licensed premises. In James Leslie Sole v Zeebos Limited and another LLA PH 348-349/2003, the on-licence was suspended for 24 hours for the sale of a bottle of vodka cruiser to a seventeen-year old minor. The suspension took place on a Friday being the day of the sale.

In James Leslie Sole v Ashburton Licensing Trust and Others LLA PH 399-402/2003, the on-licence was suspended for 24 hours for two sales which were made by the same volunteer in different bars on the premises on the same night. The suspension was made on a Friday which was the same night that the sales were made.

In Jason Peter Loye v Supreme Enterprises Limited LLA PH 492/2003, the on-licence was suspended for 48 hours for two separate sales to two sixteen-year old minors. On both occasions the minors were able to purchase an RTD.

In a recent case being Jason Peter Loye v Brent Warrick Gore and Another, LLA PH 710 – 712/2003, the on-licence was suspended for 48 hours for separate sales to two minors. The manager who made the sales had his certificate suspended for three weeks, taking into account mitigating circumstances.

[27] In our view, there are no distinguishing factors between these cases and the present case. Although there were two minors present there was one sale, and the respondents were very co-operative. A nominal suspension is called for.

In the same way, we can see no reason why a different period of suspension should be imposed in respect of Mr Jain. He had been trained to uphold the law and the conditions of the licence. He is the person charged with leading staff by example. Although in this case, we felt the licensee’s systems needed to be reviewed, the manager carries the responsibility pursuant to s.115 of the Act, of ensuring compliance with the conditions of the licence, and the provisions of the Act. He failed that challenge.

For the reasons we have given we make the following orders:

(1) On-licence 006/ON/77/2002 issued to Xtreme West City Limited formerly Hot Millions Company Limited is suspended for 24 hours from 6.00 am on Thursday 30 October 2003 to 6.00 am on Friday 31 October 2003.

(2) General Manager’s Certificate GM 6644/02 issued to Akhil Jain will be suspended for a month from Thursday 30 October 2003.

DATED at WELLINGTON this 10th day of October 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

XtremeEntertainment.doc(aw)