Dalziell-Kernohan and Fouhy v Yoon and Yoon [2009] NZLLA 1407 (14 December 2009)

New Zealand Liquor Licensing Authority

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Dalziell-Kernohan and Fouhy v Yoon and Yoon [2009] NZLLA 1407 (14 December 2009)

Last Updated: 16 January 2010

Decision No. PH 1407-1408/2009

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 or cancellation of off-licence number 015/OFF/20/05 issued to the partnership of SOON OAK YOON and SUNG HAN YOON in respect of premises situated at 702 Grey Street, Hamilton, known as “Claudelands Food Centre”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager's Certificate number 015/GM/348/05 issued to SUNG HAN (GEORGE) YOON

BETWEEN JAMES ROBIN DALZIELL-KERNOHAN

(Police Officer of Hamilton)

AND CARROL FRANCES FOUHY

(Hamilton District Licensing Agency Inspector)

Applicants

AND SOON OAK YOON and SUNG HAN YOON (trading in partnership)

First Respondent

AND SUNG HAN (GEORGE) YOON

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at HAMILTON on 2 December 2009

APPEARANCES

Mrs C F Fouhy – applicant
Sergeant J R Dalziell-Kernohan – NZ Police – applicant
Mr S H Yoon – on behalf of respondents

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority are two enforcement applications dated 15 May 2009. The first of these is an application for the suspension or cancellation of an off-licence issued to Soon Oak Yoon and Sung Han (George) Yoon trading in partnership in respect of premises in Hamilton known as “Claudelands Food Centre”. The partnership is the holder of a grocery style licence that authorises the sale of liquor for consumption off the premises from 7.00 am to 11.00 pm.
[2] Mr Yoon came to New Zealand approximately 20 years ago. He purchased the grocery business in 2005. At the same time he applied for and was granted an off-licence and a General Manager's Certificate. The application is based on the ground that the licensed premises had been conducted in breach of s.155 of the Act.
[3] The second application is for the suspension or cancellation of the manager’s certificate issued to Soon Han (George) Yoon. As stated above Mr Yoon has held his certificate since 2005. The application is based on the ground that Mr Yoon’s conduct has been such as to show that he is not a suitable person to hold the certificate.
[4] The partnership and Mr Yoon have appeared before us twice before. On the first occasion (see LLA PH 783-795/2005) the partnership was one of a large number of licensed premises in Hamilton that had failed a controlled purchase operation conducted in 2005. As a result, the off-licence was suspended for 24 hours and Mr Yoon’s manager’s certificate was suspended for two weeks (see LLA 609-612/2006).
[5] A second controlled purchase operation that was conducted in 2006 was also failed. As a result the off-licence issued to the partnership was suspended for seven days and Mr Yoon’s manager’s certificate was suspended for four weeks.
[6] It is not clear whether on those two previous occasions Mr Yoon was the seller, or was sanctioned because he was the manager of the premises, and therefore responsible for compliance with the law.
[7] Since 2006 there has been one further controlled purchase operation and the partnership was successful in refusing service to the minor. On that occasion Mrs Yoon was the salesperson.
[8] The evidence before us shows that a controlled purchase operation took place on 1 May 2009. The volunteer’s name was ‘Sara’. She was born on 11 January 1993, and was aged 16 years, three months and almost three weeks at the time of the operation.
[9] On this particular night she visited approximately six other premises. Two of these premises failed the test. At about 5.30 pm she went into “Claudelands Food Centre” at the request of the Police. She had her own driver’s licence but was told not to give false details. In other words, if asked for identification she was to produce the licence showing that she was 16 years of age. She would have purchased RTDs except there were none available because this was a grocery style off-licence.
[10] She picked up a bottle of Chardon sparkling wine with an alcohol per volume content of just over five percent. The wine was valued at $10. She took it to the counter where Mr Yoon said “that will be $10”. She received change and the bottle. No questions were asked at all. No receipt was given.
[11] Mr Yoon was visited about five minutes later. He firstly denied selling to a minor saying that ‘Sara’ looked older than 18. He then went on to say that he had been working all day, and that he was tired, and had not had any lunch. He said he was trying to have his dinner.
[12] He was formally interviewed about two weeks later. At that time he admitted that the sale had happened and repeated his explanation that he was hungry and trying to have his dinner.
[13] Mr Yoon gave evidence and accepted complete responsibility. He stated that he was distracted by trying to have his dinner. He explained that having come from South Korea there was a culture problem in that he had great difficulty in assessing the age of non-Korean people. He appeared to indicate that if people look to be under 25 years of age then he would ask for identification. However, he had no real explanation as to why he made the sale on this occasion without at least asking for identification. His only comment was that he was thinking about the meal that he was trying to consume rather than thinking about his responsibilities.
[14] Mr Yoon gave a reasonable account of himself when asked about his understanding of the Act. It could be argued that it is perhaps unfortunate that he deems it a good commercial practice to sell beer in single bottles. He may like to consider whether in doing so he is making a contribution towards the objective of the Act of trying to reduce liquor abuse in this country.
[15] We are on record as saying that selling liquor to minors is an example of one of the worst forms of potential liquor abuse. This is because of the damage that occurs to our young people when people do not obey the law. It is crystal clear to us that in both matters the grounds have been established. It is also apparent that sanctions should be imposed.
[16] We considered cancelling the licence because that is a real option at this time. We have decided not to do that on this occasion. However, it may well be the partnership’s last opportunity. The reason that we have not done so is because there was a successful rejection of a controlled purchase operation, and because Mr Yoon is otherwise very cooperative with the monitoring agencies. He does what is asked of him and he seems to have a reasonable approach to some of the problems that are faced in this country because of abuse of liquor.
[17] After considering all matters and taking into account the object of the Act, and recognising that this is a third occasion that an illegal sale has been made, we make the following orders:

• [a] Off-licence number 015/GM/348/05, issued to the partnership of Soon Oak Yoon and Sung Han Yoon, is now suspended for a period of six weeks commencing at 7.00 am on Monday 11 January 2010;
• [b] General Manager's Certificate number 015/GM/348/05, issued to Sung Han (George) Yoon, is also suspended for six weeks commencing on Monday 11 January 2010.
  

DATED at WELLINGTON this 14TH day of December 2009

B M Holmes
Deputy Secretary

Claudelands Food Centre.doc(aw)