Thurston v Magan [2009] NZLLA 806 (28 July 2009)

New Zealand Liquor Licensing Authority

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Thurston v Magan [2009] NZLLA 806 (28 July 2009)

Last Updated: 2 February 2010

Decision No. 806/2009 – 807/2009

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/59/2007 issued to
MAHENDRA MAGAN in respect
of premises situated at 2 Mount
Street, Kelburn, Wellington, known
as “Mena’s Convenience Store”

AND

IN THE MATTER of an application pursuant to s.135
of the Act for suspension or
cancellation of General Manager’s
Certificate number
049/GM/518/2004 issued to
MAHENDRA (HINI) MAGAN

BETWEEN JASON RONALD THURSTON
(Police Officer of Wellington)

Applicant

AND MAHENDRA MAGAN

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 Sergeant J R Thurston, Wellington Police, for suspension or cancellation of an off-licence in respect of grocery premises known as “Mena’s Convenience Store”, and for suspension or cancellation of a General Manager’s Certificate issued to Mahendra Magan. Mr Magan also holds the off-licence for the store.

The grounds of the applications are that the licensed premises have been conducted in breach of the following sections of the Act:

Section 115 – Manager to be on duty at all times and responsible for compliance
Section 155 – Sale or supply of liquor to minors

and that the manager has failed to conduct the licensed premises in a proper manner.

More particularly it is alleged that on Thursday 18 June 2009, a controlled purchase operation was undertaken in Wellington. Pursuant to s.162(5) of the Act, at the request of Police, a 16 year old female volunteer entered licensed premises and attempted to purchase liquor.

The volunteer entered “Mena’s Convenience Store”. She selected a bottle of wine and went to the counter. The salesperson did not ask the volunteer for identification or other proof of age, and completed the sale.

Police entered the store and asked to speak to Mahendra Magan, the licensee and named duty manager. They ascertained that he was not on the premises, having gone to Kilbirnie to do his grocery shopping. He had not appointed an acting or temporary manager in his absence.

In the decision of Nolas Wines and Spirits LLA PH 816-817/06, we commented on the problem of youth access to alcohol, saying:

“Among the education methods employed by the agencies has been the controlled purchase operation. By using this method, the agencies have, for the first time, been able to check to see whether off-licences were playing their part in reducing liquor abuse. All licensees should be well aware of the concerns about under-age access to liquor, and the impact of such access on the community, and the efforts being made to address the problem.”

Mr Magan has admitted that the breach occurred and acknowledges that periods of suspension of the off-licence and his General Manager’s Certificate are appropriate.

He 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) Off-licence number 049/OFF/59/2007, issued to Mahendra Magan, is suspended for five days from 7.00 am on Thursday 13 August to 7.00 am on Tuesday 18 August 2009.

(b) General Manager’s Certificate number 049/GM/518/2004, issued to Mahendra (Hini) Magan, is suspended for 30 days from Monday 7 September 2009.

DATED at WELLINGTON this 28th day of July 2009

______________
B M Holmes
Deputy Secretary