Leach v The Funky Fish COmpany Limited [2009] NZLLA 428 (23 April 2009)

New Zealand Liquor Licensing Authority

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Leach v The Funky Fish COmpany Limited [2009] NZLLA 428 (23 April 2009)

Last Updated: 7 April 2010

Decision No. 428/2009 – 429/2009

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 of
on-licence number 003/ON/3/2008
issued to THE FUNKY FISH
COMPANY LIMITED in respect of
premises situated at 34 Seaview

Road, Baylys Beach, known as “The Funky Fish Company”

AND

IN THE MATTER of an application pursuant to s.135
of the Act for suspension of
General Manager’s Certificate
number GM 735/98 issued to
ELIZABETH JANE KELLIHER

BETWEEN SUSAN ELIZABETH LEACH
(Police Officer of Dargaville)

Applicant

AND THE FUNKY FISH COMPANY
LIMITED

First respondent

AND ELIZABETH JANE KELLIHER

Second respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr P M McHaffie

DECISION

The Authority has received applications by Senior Sergeant S E Leach, Dargaville Police, for suspension of an on-licence in respect of restaurant premises known as “The Funky Fish Company”, and for suspension of a General Manager’s Certificate issued to Elizabeth Kelliher. Ms Kelliher is also the sole director and shareholder of the licensee company.

The grounds of the applications are that the licensed premises have been conducted in breach of s.155 of the Act, by the sale or supply of liquor to a minor, and that the manager has failed to conduct the licensed premises in a proper manner.

More particularly it is alleged that on Saturday 14 March 2009, a controlled purchase operation was undertaken in the Kaipara District. Pursuant to s.162(5) of the Act, at the request of Police, a 17 year old male volunteer entered licensed premises and attempted to purchase liquor.

The volunteer and another young male entered “The Funky Fish Company” at approximately 2.45 pm. The volunteer approached the bar while the other male sat nearby. The volunteer asked Ms Kelliher for two “Export Gold” beers. She did not request identification or other proof of age from either of the boys, and completed the sale. The boys took the two drinks and went outside towards the garden bar area.

Police entered the premises and spoke with Ms Kelliher. She recalled the sale, and the two boys. When she was advised that she had sold liquor to a minor, she assumed that the Police were speaking of the other boy (who had sat nearby) as she believed the purchaser to be 20 years old. She admitted that she had failed to ask for identification, stating that the incident had been a wake-up call and that she was devastated.

The applications state that:

“Police are continuously undertaking actions to raise the standard of managers and licensees in the Kaipara District in pursuit of minimising alcohol abuse, especially amongst our young people, and therefore find the sale of alcohol to minors totally unacceptable.”

Ms Kelliher, on behalf of both respondents, has admitted that the breach occurred and acknowledges that periods of suspension of the on-licence and General Manager’s Certificate are appropriate.

She has indicated willingness to accept recommended terms of suspension of the licence and manager’s certificate, without the requirement to appear before the Authority at a public hearing.

Accordingly, having considered the recommendations from the applicant we make the following orders:

(a) On-licence number 003/ON/3/2008, issued to The Funky Fish Company Limited, is suspended for 24 hours from 7.00 am on Saturday 6 June 2009.

(b) General Manager’s Certificate number GM 735/98, issued to Elizabeth Jane Kelliher, is suspended for four weeks from Monday 8 June 2009.

DATED at WELLINGTON this 23rd day of April 2009

______________
B M Holmes
Deputy Secretary