Thurston v S & K Liquor Limited and Nugawela [2009] NZLLA 1448 (21 December 2009)

New Zealand Liquor Licensing Authority

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Thurston v S & K Liquor Limited and Nugawela [2009] NZLLA 1448 (21 December 2009)

Last Updated: 17 January 2010

Decision No. PH 1448-1449/2009

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 049/OFF/70/2008 issued to S & K LIQUOR LIMITED in respect of premises situated at Unit 1, 37 Miramar Avenue, Miramar, Wellington, known as “Miramar Liquorland”

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 184/2006 issued to CHAMINDRA SHANE NUGAWELA

BETWEEN JASON RONALD THURSTON
(Police Officer of Wellington)

Applicant

AND S & K LIQUOR LIMITED

First Respondent

AND CHAMINDRA SHANE NUGAWELA

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Dr J Horn

HEARING at WELLINGTON on 16 December 2009

APPEARANCES

Sergeant J R Thurston – NZ Police – applicant
Mr M Satherly – on behalf of first respondent
Mr C S Nugawela – second respondent
Mr R S Putze – Wellington District Licensing Agency Inspector – to assist
Mrs J A Parris – on behalf of Medical Officer of Health – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority are two enforcement applications dated 29 September 2009. The first application is for the suspension or cancellation of an off-licence issued to S & K Liquor Limited (hereafter called the company) in respect of premises in Miramar known as “Miramar Liquorland”. The off-licence is part of the “Liquorland” franchise and has been operated by the company for the past two years or more. The business has never previously appeared before the Authority for any breaches of the Act.
[2] The application is based on the ground that the premises were conducted in breach of s.155 of the Act. That particular section makes it an offence for a licensee or manager to sell liquor to a person under the age of 18 years.
[3] There is also an allegation that the premises were conducted in breach of the condition of the licence which requires the licensee to ensure that the provisions of the Act relating to the sale and supply of liquor to prohibited people are observed.
[4] The evidence shows that on Wednesday 23 September 2009 a young volunteer was asked to enter the premises as part of a controlled purchase operation conducted by the Police together with the District Licensing Agency and Regional Public Health. On this night the volunteer visited six premises, three of which failed the test.
[5] The volunteer was born on 14 November 1992. He was 16 years and 10 months of age at the time of the operation. It is fair to say he is a mature young man but nevertheless the sort of person from whom, with the benefit of hindsight one would have requested identification.
[6] According to the notes that he made immediately after the transaction, the young student went into the store and selected a four pack of RTDs. It has been accepted that that type of product being purchased should have acted as a trigger and alerted those charged with the responsibility of selling liquor to the public.
[7] In any event the sale was made. The duty manager at the time was Chamindra Shane Nugawela. Mr Nugawela has held his manager’s certificate for some time. According to the evidence it is probable that he asked for identification, indicating some concern about the age of the minor. The minor in his notes said that when he was asked he said “not today”. As a consequence the sale was made.
[8] Mr Nugawela is the subject of an enforcement application for the suspension or cancellation of his General Manager's Certificate based on the ground that he failed to conduct the licensed premises in a proper manner.
[9] We heard submissions and evidence from the licensee company. It is clear that there has been something of a wakeup call for the company. There were occasions in the past when the company was regularly tested by the head franchisor but this process stopped. Since the incident the internal tests have started again. It is also clear that the store did not have particularly good systems in place to prevent the sale of liquor to minors. Since the incident the store has discovered that there is a prompt which can be brought up each time the liquor is scanned, reminding the person making the sale to check that the customer is over the age of 18. The person making the sale is reminded to ask for proof if in doubt and the date of birth to look for to establish an age over 18 years is provided by the prompt.
[10] Furthermore the company has now been provided with a document setting out in detail the responsibilities for ensuring that minors are not sold liquor and that any breach will probably result in disciplinary action. The employees are asked to sign the document. From Mr Nugawela’s perspective he was given a verbal warning.
[11] There are two matters that are unusual. Firstly the response “not today” is not an appropriate response in our view when conducting a controlled purchase operation. This is because it might imply that there has been production of identification on an earlier occasion.
[12] This was not a matter that was advanced by Mr Nugawela at the time. However, he who may well have been confused and concerned after realising that he had made a serious error of judgement. He could not recall whether or not he had asked for identification. He said he looked at the person and thought that the person was over the age of 18 years but did nothing more about it. He acknowledged the error.
[13] Mr Satherly is the director and shareholder of the company. He did not use as an excuse the fact that there may have been a systemic failure from the franchisor in not keeping franchisees acquainted and updated with modern methods of preventing sales to minors.
[14] Such sales are always serious. There is no question that such activity is completely in breach of the Act’s objective of trying to contribute to a reduction of liquor abuse in this country. The fact that it is now 10 years since the purchasing age was reduced is an aggravating feature of this case. It is so disappointing that there are still licensed premises that are prepared to make sales of this nature.
[15] Normally speaking a suspension of the licence would be two days. We have made a conscious decision to double the previous guideline in order to try and raise standards even higher. However, because of a variety of circumstances we have decided that there will be a one day suspension of this licence.
[16] Mr Nugawela does have the advantage of training. It is clear he let his own personal standards down on this occasion. There seems to us to be little excuse. His General Manager's Certificate will be suspended for 28 days.
[17] Accordingly and for the reasons stated above, off-licence number 049/OFF/70/2008, issued to S & K Liquor Limited, will be suspended for 24 hours commencing at 7.00 am on Wednesday 6 January 2010 and concluding at 7.00 am on Thursday 7 January 2010.
[18] General Manager's Certificate number GM 184/2006, issued to Chamindra Shane Nugawela, will be suspended for 28 days commencing on Friday 1 January 2010.

DATED at WELLINGTON this 21ST day of December 2009

B M Holmes
Deputy Secretary `Miramar Liquor.doc(aw)