Shick and Gounder v Oriental Oasis Limited and Li [2008] NZLLA 791 (13 June 2008)

Last Updated: 23 January 2012

Decision No. PH 791-738/2008

IN THE MATTER of the Sale of Liquor Act 1989

IN THE MATTER of an application pursuant to s.132 of the Act for suspension or cancellation of off-licence number 008/OFF/13/2007 issued to ORIENTAL OASIS LIMITED in respect of premises situated at 30 Union Drive, Howick, Manukau City, known as “Union Liquor”
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 08/257/2005 issued to LING LI

BETWEEN CHELSEA SHICK

(Police Officer of Manukau City)

AND SANJAY GOUNDER
(Manukau District Licensing Agency Inspector)

Joint Applicants

AND ORIENTAL OASIS LIMITED

First Respondent

AND LING LI

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms J D Moorhead

HEARING at AUCKLAND on 9 May 2008

APPEARANCES

Sergeant G J Campbell – NZ Police – joint applicant
Mr S Gounder – Manukau District Licensing Agency Inspector – joint applicant
Mr G W Halse – for respondents

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are two enforcement matters pursuant to sections 132 and 135 of the Act before the Authority for determination.

[2] The first is a joint application by the Police and District Licensing Agency Inspector for the suspension or cancellation of the off-licence issued to Oriental Oasis Limited in respect of premises situated at 30 Union Drive, Howick, Manukau City known as “Union Liquor”.

[3] The grounds of the application are that the licensed premises has been conducted in breach of s.155(1) of the Act. This section creates an offence for a licensee or manager to sell or supply liquor, or allow any liquor to be sold or supplied to a person under the age of 18. In addition it is alleged that the conduct of the licensee has been such as to show that it is not suitable to hold a licence.

[4] The second joint application, pursuant to s.135 of the Act, is for the suspension or cancellation of the General Manager’s Certificate issued to Ling Li. The ground for the application is that she has failed to conduct the licensed premises in a proper manner, by allowing the sale or supply of liquor to a person under the age of 18 years in breach of s.155(1) of the Act.

[5] The particulars in respect of both applications allege that on 27 August 2007, liquor had been sold to a 16 year old minor. The matter had been brought to the attention of the Police following a complaint made by the minor’s mother.

[6] The applications were received by the Authority on 5 October 2007, but at the request of the applicants and respondents the hearing of this matter was delayed.

The Hearing

[7] The mother of the minor gave evidence that on Monday 27 August 2007 at about 6.00 pm, she found a receipt in her 16 year old daughter’s room for a purchase made at "Union Liquor". The minor’s date of birth is 25 July 1991, so she had only recently turned 16.

[8] When she asked her daughter about the receipt she noticed that she smelt of alcohol. Her daughter told her that she had purchased liquor and cigarettes from “Union Liquor” that day, and had drunk all the liquor before she got home. The mother then contacted the Manukau Police Station to make a complaint.

[9] The minor said in her evidence that on Monday 27 August 2007 at about 12.55 pm, (a teacher-only day at her school), she and two friends went to “Union Liquor” on Union Road in Howick. One of the friends was a female also aged 16, the other was a male aged 18 or 19. Both of the friends apparently also purchased liquor but they were not called to give evidence. The minor confirmed that she had not asked the young man to purchase the liquor for her because she did not want him to know her PIN. She said that no other person knew the number.

[10] The minor was able to purchase a four pack of Woodstock Bourbon and Cola, a four pack of chocolate flavoured mud shakes and a packet of Benson and Hedges cigarettes. The minor was not asked her age or for identification. The only conversation was whether she wanted a packet of 20 or 25 cigarettes. She paid $29.98 for the liquor and cigarettes using her Eftpos card. She was able to produce the receipt and bank statement recording the transaction. She said she was dressed casually in jeans and a white fur jacket. She had not purchased liquor illegally before.

[11] The minor described the person she was served by as being a short Asian lady about 30 years old. When asked to formally identify the person who served her, from the three Asian women seated at the back of the hearing room, she was unable to do so.

[12] The minor was interviewed on 1 September 2007 by Police Constables Lally and Schick and received an official Police caution for purchasing liquor as a minor. There were no significant inconsistencies between what she said in the interview and the evidence she gave at the hearing.

[13] Constable Schick and Mr Gounder, a Manukau District Licensing Agency Inspector, visited the premises of "Union Liquor" on 6 September 2007. They spoke with the duty manager, Ling Li, who informed them that she was working on the day in question but did not remember serving the minor.

[14] Mr Gounder requested security tapes and till receipts relating to the sale on 27 August 2007 pursuant to s.131(2) of the Act. He was told that she did not keep any of the till receipts or any record of what products were sold during the day. They were also told that the security camera was only in operation when it was needed. Mr Deyu Kong (Ms Li’s partner), arrived during the interview. He reviewed the security tapes but was apparently unable to find a recording for 27 August 2007.

[15] Mr Gounder wrote to the licensee on 7 September 2007 requesting the till tapes and any other records for sales transactions for 27 and 28 August 2007. The documents have not been supplied, because they did not exist. We accept that Ms Li was as co-operative as she could be, given the circumstances.

[16] Ms Li subsequently made a statement to Police on 11 September 2007. Ms Li is the director and majority shareholder of Oriental Oasis Limited. She is the holder of a General Manager’s Certificate. She purchased “Union Liquor” about three years ago.

[17] Ms Li said in her evidence that she had no recollection of the alleged transaction and was not contacted until 6 September, some 10 days after the event. She also said that she was not the only person who works in the shop. She said either she or her partner were always in the shop. He is also the holder of a General Manager’s Certificate. They also employ another worker. Ms Li said that she normally works from 11.00 am to 8.00 pm on a Monday. She was adamant that she took her obligations seriously and was fully aware of the dangers of serving under-age drinkers.

[18] Ms Li said that they were able to provide GST receipts if asked, she contended that the Visa statements were kept for six months. On the other hand, she contended that Eftpos receipts are not kept for more than a day or two. She said that there were too many, and once the money went into the account overnight, there was no need to keep them. The till is not electronically connected to an integrated system. She said that she had provided all the information she was able to and could not supply what she did not have. It is fair to say that we were surprised by the licensee’s business practices in regard to keeping records, particularly since no changes had been made since the incident.

[19] Ms Li did not accept that she had sold liquor to an underage person or that she would not have asked for identification. Ms Li agreed that the minor looked very young. She wondered whether the male aged 18 or 19 had used her Eftpos card to purchase liquor. This suggestion was however refuted by the minor when cross-examined by Mr Halse, counsel for the respondents.

The Authority’s Decision and Reasons

[20] Enforcement applications under both ss.132 and 135 require a two step approach. First we must be satisfied that the allegations have been established. If that is the case, we must then consider whether it is desirable that an enforcement order is made.

[21] In regard to the s.132 application we find that the grounds have been established.

[22] In this case there was clearly a breach of s.155(1) of the Act. We are satisfied that liquor was sold from the licensed premises to a person under 18 years of age. The minor’s evidence was utterly believable. In addition we were satisfied that the conduct of the licensee (by its alter ego Ms Li), was such as to show a lack of suitability to hold the licence.

[23] As the Authority has previously said, in our view, selling liquor to minors is one of the worst forms of encouragement of liquor abuse. We commend the actions of the mother who brought this matter to the attention of the authorities. We were also impressed that the minor admitted her role and gave evidence. No doubt she has learned a valuable lesson.

[24] We are required pursuant to s.4(2) of the Act, to exercise our jurisdiction, powers and discretions in the manner that is most likely to promote the object of the Act. That object is set out in s.4(1) as follows:

The object of the Act is to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse, so far as that can be achieved by legislative means.

[25] In the decision of Christchurch District Licensing Agency Inspector v Karara Holdings Limited [2003] NZCA 96; [2003] NZAR 752, the Court of Appeal stated:

“This indicates that the function of s.132 is to enable the Licensing Authority to enforce sound management of licensed premises. Its particular role is to enable the Licensing Authority to secure management compliance by licensees, through enforcement steps, in those cases brought before it by the Police or District Licensing Agencies where it appears there have been breaches in licensing standards which are reflected in the grounds for applying for and making orders under s.132.”

[26] We believe that a suspension of the licence will help to secure the company’s managerial compliance in the future. It is important to state that this sale was not the result of a controlled purchase operation. Given the type and quantity of goods sold, the age of the minor, and the lack of any request for identification, this was an extremely serious incident showing major negligence. The sanctions to be imposed will reflect our view of the matter.

[27] We now consider the application for suspension of Ms Li’s General Manager’s Certificate.

[28] At the conclusion of the applicants’ case, we agreed with Mr Halse that it had not been established that Ms Li had made the sale. However, it was quite clear that Ms Li was the duty manager at the time the sale was made. Accordingly, she failed to conduct the premises in a proper manner. We also believe that it is desirable to make a suspension order in this case.

[29] When Parliament passed the Sale of Liquor Amendment Act in 1999, it amended s.115 to enhance the obligations and responsibilities of managers. The reasoning behind the amendment was to raise the standards of those charged with the responsibility of supplying liquor to the public. On 1 April 2006, the section was again amended and strengthened. The expectation was that the management of licensed premises would be conducted only by persons of integrity, committed to supervising the sale and supply of liquor. The ultimate aim was to achieve the Act’s objective of reducing the incidence of liquor abuse. In this case Ms Li did not live up to such expectations.

[30] In the circumstances, and given the respondents’ record, we do not consider that it would be reasonable to cancel either the off-licence or the General Manager’s Certificate.

Orders

[31] Accordingly, and for the reasons we have given, we make the following orders:

• [a] Off-licence number 008/OFF/13/2007, issued to Oriental Oasis Limited, will be suspended for four days from 9.00 am on Monday 14 July 2008 to 9.00 am on Friday 18 July 2008.
  
• [b] General Manager’s Certificate number GM/08/257/2005, issued to Ling Li will be suspended for 21 days commencing on Monday 14 July 2008.
  

DATED at WELLINGTON this 13th day of June 2008

Judge E W Unwin
Chairman

Union Liquor.jm