Lawn and Spang v Jeffrey Stewart Limited and others [2009] NZLLA 1027 (17 September 2009)

New Zealand Liquor Licensing Authority

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Lawn and Spang v Jeffrey Stewart Limited and others [2009] NZLLA 1027 (17 September 2009)

Last Updated: 4 February 2010

Decision No.1027/2009 - 1034/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of applications pursuant to s.132 of the Act for suspension of off-licence number 060/OFF/6/2007 issued to JEFFREY STEWART LIMITED in respect of premises situated at 703 Colombo Street, Christchurch, known as "Colombo Street Night ‘N’ Day Foodstore"; and off-licence number 060/OFF/10/2007 issued to CH & DL PROPERTIES LIMITED in respect of premises situated at 78 Cashel Street, Christchurch, known as "Cashel Night ‘N’ Day"; and off-licence number 060/OFF/5/2007 issued to M.R. & M.E. MCDONALD LIMITED in respect of premises situated at 21 Marriner Street, Christchurch, known as "Sumner Night ‘N’ Day Foodstore"; and off-licence number 060/OFF/20/2007 issued to ZEP ENTERPRISES LIMITED in respect of premises situated at 679 Ferry Road, Christchurch, known as "Woolston Night ‘N’ Day Foodstore"

BETWEEN ALASTAIR JOHN LAWN

(Police Officer of Christchurch)

AND PAUL JOHN TYCHO SPANG

(Christchurch District Licensing Agency Inspector)

Applicants

AND JEFFREY STEWART LIMITED

CH & DL PROPERTIES LIMITED

M.R. & M.E. MCDONALD LIMITED

ZEP ENTERPRISES LIMITED

Respondents

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum: Dr J Horn
Mr P M McHaffie
Ms J D Moorhead

DECISION

We have before us applications by Sergeant A J Lawn of Christchurch Police and Mr P J T Spang, Christchurch District Licensing Agency Inspector, dated 12 May 2009 and 22 May 2009, for suspension of four off-licences.

The grounds for the applications are that the premises have been conducted in breach of the provisions of s.155 of the Sale of Liquor Act 1989 (sale of liquor to a person under 18 years of age); or s.72(1) of the Crimes Act 1961 (attempt to commit an offence).

More particularly it is alleged that on Saturday 1 November 2008, television show “Target” sent a 15 year-old volunteer into various licensed premises with instructions to attempt to purchase liquor. In each of the premises identified in these applications the salesperson attempted to complete the transaction. However, the Eftpos card provided to the volunteer had insufficient funds for the sale to proceed. At no time did the salespersons ask the volunteer for identification or other proof of age.

The applicants contend that were it not for the fact that the Eftpos card was unfunded the sales would have been completed.

In the case of “Sumner Night ‘N’ Day Foodstore” a controlled purchase operation was conducted in the premises on 17 January 2009. In separate incidents about seven or eight minutes apart, volunteers aged 16 years and 14 years, were instructed by the Police to enter the licensed premises and attempt to purchase liquor. This is a mechanism contained in s.162(5) of the Act to monitor compliance with the provisions of the statute and the conditions of licences.

Both minors were sold liquor without being challenged as to their ages, and without being asked to produce any form of identification.

In “Woolston Night ‘N’ Day Foodstore”, as part of the same operation, the same two minors entered separately in order to attempt to purchase liquor. The 16 year-old volunteer was able to make the purchase without question. However, the 14 year-old was refused service.

The respondents do not dispute the grounds for the applications, and it is accepted that suspension of the off-licences is appropriate.

The applicants have invited the respondents to consider the option of imposition by the Authority of terms of suspension without the requirement to attend a public hearing. That course of action has been adopted.

Accordingly, having considered the recommendations from the District Licensing Agency Inspector and the Police, we will deal the matter on the papers. We now make the following orders:

(a) Off-licence number 060/OFF/6/2007, issued to Jeffrey Stewart Limited, is suspended for 24 hours from 9.00 am on Saturday 10 October 2009.

(b) Off-licence number 060/OFF/10/2007, issued to CH & DL Properties Limited, is suspended for 24 hours from 9.00 am on Saturday 26 September 2009.

(c) Off-licence number 060/OFF/5/2007, issued to M.R. & M.E. McDonald Limited, is suspended for 10 days from 7.00 am on Monday 28 September 2009 until 7.00 am on Thursday 8 October 2009.

(d) Off-licence number 060/OFF/20/2007, issued to Zep Enterprises Limited, is suspended for seven days from 7.00 am on Monday 28 September 2009 until 7.00 am on Monday 5 October 2009.

DATED at WELLINGTON this 17th day of September 2009

______________________
B M Holmes
Deputy Secretary

Colombo Street Night ‘N’ Day & Ors.doc(ab)