Van Der Heijden v Parihar and Parihar [2009] NZLLA 1422 (17 December 2009)

New Zealand Liquor Licensing Authority

[Index] [Search] [Download] [Help]

---

Van Der Heijden v Parihar and Parihar [2009] NZLLA 1422 (17 December 2009)

Last Updated: 16 January 2010

Decision No.PH 1422-1423/2009

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/78/07 issued to the partnership of PARAMJEET SINGH PARIHAR and KULDIP KAUR PARIHAR in respect of premises situated at 3-5 Cook Street, Hamilton, known as “Bottlemart”

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/1083/09 issued to YASHDEEP SINGH MINHAS

BETWEEN THEO VAN DER HEIJDEN (Hamilton District Licensing Agency Inspector)

Applicant

AND PARAMJEET SINGH PARIHAR and KULDIP KAUR PARIHAR (trading in partnership)

First Respondent

AND YASHDEEP SINGH MINHAS

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at HAMILTON on 3 December 2009

APPEARANCES

Mr T P Van Der Heijden – Hamilton District Licensing Agency Inspector – applicant
Mr Karan Parihar – for first respondent
Mr Y S Minhas – second respondent
Sergeant J R Dalziell-Kernohan – NZ Police – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] We have for consideration two enforcement applications that were filed with the Authority on 1 October 2009. Both applications were filed by Mr T P Van Der Heijden who is a Licensing Inspector with the Hamilton District Licensing Agency. Both applications involve a stand-alone bottle store that trades under the name of “Bottlemart”. The off-licence was issued on 15 August 2007 and was recently renewed for three years. Trading is permitted between 8.00 am and 11.00 pm seven days a week.

[2] The business is owned by Mr Paramjeet Singh Parihar and his wife Mrs Kuldip Kaur Parihar (hereafter called “the partnership”). It is located in Cook Street in Hamilton East, next door to a licensed restaurant, and across the road from another bottle store. Nearby there is a public open space called Steele Park. This is said to be frequented by a hardcore group of alcoholics who create a general nuisance in the area. The business relationship between the restaurant and “Bottlemart” is strained.

[3] The partnership owns two other similar bottle shops in Hamilton. These businesses are controlled by certificated managers including Mr Yashdeep Singh Minhas, who is Mr Parihar’s nephew. Mr Parihar used to operate a separate liquor store in another part of Hamilton from 2004 to 2006.

[4] In the first application, Mr Van Der Heijden sought the suspension or cancellation of the off-licence issued to the partnership. The grounds for the application were that the licensed premises had been conducted in breach of s.166(1) of the Act. This section creates an offence for any licensee or manager to sell or supply liquor to any person who is already intoxicated. There was also an allegation that the premises were being used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public.

[5] The particulars relied upon to support the application, referred to an allegation that on 9 September 2009, the duty manager of the bottle store had sold a bottle of ‘Kentucky Blue Bourbon’ to a person who was already intoxicated. No particulars in relation to the use of the premises in a disorderly manner were specified, although there was some limited evidence given at the hearing.

[6] The second enforcement application sought to suspend or cancel the General Manager’s Certificate issued to Mr Yashdeep Singh Minhas. The application alleged that Mr Minhas failed to conduct the licensed premises in a proper manner. Further, that his conduct had been such as to show that he was not a suitable person to hold the certificate. The particulars stated that on 9 September last, Mr Minhas was the manager on duty, and it was he who made the sale to the intoxicated person. Mr Minhas has only held his General Manager’s Certificate since 13 January 2009.

[7] Mr Parihar’s son represented the partnership at the hearing. Essentially there was a factual dispute about whether the person who purchased the bottle displayed signs of intoxication before doing so. The respondents were adamant that the person appeared to be sober. We were assisted by an in-store video of the transaction. In addition the respondents showed another video of a later visit made by the same purchaser. This was presented to try to establish that the purchaser exhibited the same slightly eccentric behaviour whenever he visited the store. The respondents claimed that much of the evidence was tainted either because of the strained relationship between the partnership and their business neighbours, or because the proprietors of the other bottle store were losing business in the face of competition from the partnership.

The Application

[8] Ms Joan Macleod is a director of a company that owns “Eastside Liquorland” situated across the road from “Bottlemart”. The company has owned and operated this bottle store for seven years. She considered that she and her business partner were very experienced and vigilant about monitoring intoxicated patrons. She has known a customer called ‘Ashley’ for 18 months. She knows him as a chronic alcoholic. According to her evidence, ‘Ashley’ is in his 60’s, and spends the majority of his time wandering about the city, and drinking.

[9] Ms Macleod gave evidence that at about 10.00 am on Wednesday 9 September 2009, she sold ‘Ashley’ a bottle of ‘Kentucky Blue Bourbon’. At that time he was sober. At about 2.30 pm her co-director returned to the store to say that she had helped to pick up ‘Ashley’ off the street from where he had apparently fallen. Ten minutes later ‘Ashley’ entered “Eastside Liquorland” and headed straight for the ‘bourbon’ rack. Ms Macleod happened to be standing straight in front of him. She stated that as soon as he walked in the door she knew he was intoxicated. He was clearly unsteady on his feet. She told him he had to leave because he was drunk.

[10] At that point ‘Ashley’ turned round and exited through the front door when he immediately fell down the front steps and into the car park. She noticed two people assist him to his feet almost straight away. He then steadied himself on a railing before staggering across the road towards “Bottlemart”. He then entered the premises. Ms Macleod saw him emerge from the premises about five minutes later with a bottle of ‘Kentucky Blue Bourbon’ ‘Ashley’ then sat on a bench dropping his head between his legs before drinking the contents of the bottle. Ms Macleod’s co-director then walked across to “Bottlemart” to remonstrate with the shop’s manager.

[11] According to Ms Macleod, this was certainly not the first time this had happened. Without being specific she alleged that there had been many (up to 20) previous occasions in the last two years, when people who had been refused service in her premises because they were drunk had then been seen by her to walk across the street to make a purchase from “Bottlemart”. This aspect of her evidence was corroborated by Mrs R A Lean who is a director of the company that operates the restaurant next door to “Bottlemart”. She alleged that she had seen the ladies at “Eastside Liquorland” turning drunks from Steele Park away, only to see them emerge from “Bottlemart” with their supplies.

[12] Mr Jacob McGowan is one of three directors of a company that operates a restaurant next to “Bottlemart”. The company opened the business about two months after “Bottlemart”. Its trading hours are between 7.00 am and 4.00 pm. Mr McGowan acknowledged that since the business opened, there had been longstanding problems with “Bottlemart”, as well as its customers. In particular he alleged that drunks from the next door bottle store regularly staggered through his restaurant’s diners as they were eating outside. He was aware of the hardcore group who hang out in Steele Park drinking and upsetting passersby. He argued that these ‘drunks’ stayed close to “Bottlemart” as well as the Park. Mrs Lean is Mr McGowan’s mother and she supported his evidence. She complained about drunks stumbling through the diners causing havoc. She linked their activity to their usual venue at the southern end of Steele Park.

[13] Mr McGowan was able to recall watching ‘Ashley’ sitting on nearby steps drinking a bottle of ‘Kentucky Blue Bourbon’ at about 10.15 am on 9 September last. At about 2.30 pm he saw two women picking ‘Ashley’ up from the footpath where he had fallen. Mrs R A Lean added some corroboration. She described ‘Ashley’ in the afternoon of 9 September last as “totally pissed”. He was talking gibberish. Mrs Lean alleged that “Bottlemart” was a major contributor to the problems of the neighbourhood because of the type of clientele that the business attracts and does business with.

[14] Mr McGowan stated that he used to have a fairly good relationship with Mr Y S Minhas, the manager of “Bottlemart”. He recalled asking Mr Minhas why he kept selling liquor to such people, and Mr Minhas replying that he would lose his job if he did not do so.

[15] Mr Van Der Heijden noted that two of the stores operated by the partnership had received letters of commendation for refusing to sell liquor to minors during controlled purchase operations. He visited the premises on 10 September last as a result of a complaint. Mr Minhas told him that he had been expecting to see him as the Police had spoken with him the previous evening. Mr Minhas suggested (incorrectly), that the proprietors of “Eastside Liquorland” had lodged the complaint. He acknowledged that he had made the sale but flatly denied that ‘Ashley’ was intoxicated. It was suggested that ‘Ashley’ was staggering but Mr Minhas responded that he walked like that all the time because he was old.

[16] Mr Minhas showed Mr Van Der Heijden the video footage of the incident. He said that he was unable to smell any liquor on ‘Ashley’s’ breath. A written statement was taken a few days later. In the statement Mr Minhas stated that he had known ‘Ashley’ for about six to eight months. He confirmed that ‘Ashley’ had been a regular customer but not every day. He came in maybe twice or so a week but then sometimes not for two or three weeks. Mr Minhas repeated his belief that ‘Ashley’ has been unsteady on his feet because of his age.

The Response

[17] Mr P S Parihar was not present when the sale was made but received a call from his nephew that evening as the Police had visited. He told his nephew that the complaint would have been made by the restaurant proprietors as they were the most selfish people he had ever met. He did not hold back on his belief that they would make up stories in retaliation for some of the commercial incidents that were continuing to occur. Mr Parihar spent the majority of his time in the witness box complaining about his neighbours’ lack of respect and co-operation. He also alleged that the proprietors of “Eastside Liquorland” were complaining about his business in response to lost sales because “Bottlemart” had lower prices. He said: “This complaint is just a cheap dirty plot from Liquorland and Café Owners to get back on us.”

[18] Mr Minhas thought that ‘Ashley’ was 70 years of age. He seemed to be unsure whether or not he was an alcoholic and whether or not he was part of the Steele Park scene. He remembered ‘Ashley’ coming into the shop wearing gumboots and carrying a bag and umbrella. He said that ‘Ashley’ had purchased a bottle of ‘Kentucky Blue Bourbon’ with an alcohol volume of 13.9 percent. He said that ‘Ashley’ visited the shop about once a week. He thought he was looking and behaving normally. He noted him put his bag and umbrella on the ice fridge, and then pay for the bottle which he then put in his bag. Mr Minhas believed that ‘Ashley’ knew what he was doing and there was no smell of liquor from him. When questioned about the inordinate amount of time that ‘Ashley’ has spent in the shop, Mr Minhas stated that he was too old and takes his time.

[19] Mr Minhas also criticised his commercial neighbours for the way they stored rubbish as well as an incident when the power had to be turned off to have the system upgraded. According to him, the neighbours wash their mats outside his shop. He confirmed his uncle’s opinion that the bottle store had lost a large part of its customer base because their prices were too high. He denied saying to Mr McGowan that he had to make sales otherwise he would lose his job. He thought that the complaints were full of lies and conspiracy. On the other hand, he had decided not to sell liquor to ‘Ashley’ again.

The Authority’s Decision and Reasons

[20] Sections 132 and 135 of the Act require a three-stage approach. First the evidence must be examined to see whether we are satisfied that the allegations have been established. If we are so satisfied, we must then decide whether it is desirable that enforcement order are made. If an order is appropriate we must then weigh up all the balancing factors in arriving at a ‘reasonable’ sanction. In exercising our jurisdiction and discretion we must do so in a manner that is most (our emphasis) likely to promote the object of the Act.

[21] This is very much a factual dispute. We are conscious that the Inspector carried the onus of establishing the case to our satisfaction based on the civil standard of proof. Having seen and heard the witnesses on behalf of the applicant we reject any suggestion that they have made up stories as part of a retaliation plot. There was far too much corroboration of all the facts leading up to the purchase even to contemplate such a scenario. On the other hand we accept that some of the allegations were very general and it would have been difficult for the partnership to respond appropriately.

[22] However, there are some aspects of the evidence that are quite incontrovertible. For example ‘Ashley’ was a regular and long time patron of both bottle stores. He had a serious drinking problem. We find it hard to believe that Mr Minhas was not aware of his condition having served him regularly for up to eight months. ‘Ashley’ was quite intoxicated when he staggered across the street towards “Bottlemart”. He had fallen down twice beforehand and been helped up. He spent some time steadying himself before crossing the street. His state of intoxication was immediately apparent to Ms Macleod when he walked into her shop. She knew he was too drunk to be served. To suggest that within a few minutes he would present as he normally behaved defies belief.

[23] We had the advantage of viewing the video footage. Knowing about ‘Ashley’s’ condition it was easy to come to the conclusion that he was quite intoxicated. He swayed, stood still, stumbled, bowed as if in prayer, and stretched. He spent so long getting prepared to leave that Mr Minhas looked at him at least nine times. We assume he was wondering why it was taking ‘Ashley’ so long to leave the store. On the one hand ‘Ashley’ was able to retrieve money from his wallet and pick up his umbrella before leaving. He did not do anything outlandish or show extreme signs of intoxication. On the other hand it is very easy for drunken people to carry out certain everyday tasks (such as buying liquor), that they are quite used to.

[24] In the final analysis the video can be viewed as a neutral exhibit. It supports the claim that ‘Ashley’ was drunk but is not conclusive. It certainly does not support the claim that he was sober. We accept that some of ‘Ashley’s’ behaviour and bizarre mannerisms may have been caused by age if not senility. On the other hand he was clearly impaired. It was argued that ‘Ashley’ had displayed the same type of behaviour a day or so after. What we do not know is whether he was drunk then as well. After all he was refused service on that occasion although Mr Minhas stated that this was because of his new policy to decline service on all occasions.

[25] In summary, we believe that Mr Minhas did make the alleged comment in that he had to sell liquor to keep his job. On the issue of credibility, we are of the view that ‘Ashley’ was intoxicated when he went into “Bottlemart”, and that Mr Minhas not only knew it but also was insufficiently trained and/or knowledgeable to decline the sale. Although there is no definition of intoxication, and although the test is subjective, most people within the industry know when a person has reached that stage when a refusal to supply is necessary.

[26] This is a good illustration of the difference between an on and an off-licence. The salesperson in an off-licence has less opportunity to assess levels of intoxication because of the lack of time and interaction. As a result he or she should be even more alert to possible risks. In this case the salesperson not only had plenty of time to make an assessment (because of Ashley’s obvious impairment), but also should have been aware of ‘Ashley’s’ issue with liquor.

[27] There was no probative evidence that the premises had been used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public. On the other hand we are satisfied that the premises were conducted in breach of s.166(1) of the Act. Given the background evidence, we believe that it is desirable to make suspension orders in respect of the off-licence, as well as Mr Minhas’ General Manager’s Certificate.

[28] In assessing an appropriate sanction we have taken into account the company’s record, as well as its decision to decline sales to ‘Ashley’ in the future. On the other hand the sale of liquor to an intoxicated patron has to be one of the worst examples of encouraging liquor abuse possible.

[29] This case is about intoxication, and s.4 of the Act cannot be ignored. It reads as follows:

The object of this 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 as far as that can be achieved by legislative means.

The Licensing Authority, every District Licensing Agency, and any Court hearing any appeal against any decision of the Licensing Authority, shall exercise its jurisdiction, powers and discretions under this Act in the manner that is most likely to promote the object of the Act.

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

• [a] Off-licence number 015/OFF/78/07, issued to the partnership of Paramjeet Singh Parihar and Kuldip Kaur Parihar, is suspended for seven days from 8.00 am on Monday 25 January 2010, to 8.00 am on Monday 1 February 2010.
  
• [b] General Manager’s Certificate number 015/GM/1083/09, issued to Yashdeep Singh Minhas, is suspended for six weeks from Monday 25 January 2010.
  

DATED at WELLINGTON this 17TH day of December 2009

Judge E W Unwin
Chairman

Bottlemart.doc