Dowson v Friends Liquor Limited and others [2009] NZLLA 940 (17 August 2009)

Last Updated: 3 February 2010

Decision No. 940/2009 – 943/2009

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of applications pursuant to s.132 of the Act for suspension of off-licence number 007/OFF/065/2008 issued to FRIENDS LIQUOR LIMITED in respect of premises situated at 18 Shortland Street, Auckland, known as "Friends Liquor"; and off-licence number 007/OFF/166/2007 issued to CREATIVE MANAGEMENT SERVICES LIMITED in respect of premises situated at 7 Queen Street, Auckland, known as “The Family Barrow”

AND

IN THE MATTER of applications pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM/007/157/09 issued to SOUNG SOUK LEE; and General Manager’s Certificate number GM/007/059/09 issued to DAVID LEONARD JONES

BETWEEN BRAD DOWSON

(Police Officer of Auckland)

Applicant

AND FRIENDS LIQUOR LIMITED

AND CREATIVE MANAGEMENT SERVICES LIMITED

First respondents

AND SOUNG SOUK LEE

AND DAVID LEONARD JONES

Second respondents

BEFORE THE LIQUOR LICENSING AUTHORITY

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

DECISION

We have before us applications by Constable B E Dowson of Auckland Police, dated 20 July 2009, for suspension of two off-licences and two General Managers’ Certificates following a controlled purchase operation undertaken in the Auckland licensing district.

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

(i) Section 155 – sale of liquor to a person under 18 years of age; and
(ii) Section 165 – unauthorised sale or supply of liquor; and

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

More particularly it is alleged that on Friday 17 July 2009 a controlled purchase operation was conducted in the Auckland licensing district. Two volunteers, one male at the time aged 17 years and four months, and a female aged 14 years and 11 months, were requested by the Police to enter licensed premises and attempt to purchase liquor. Section 162(5) of the Act provides that such a request may be made to monitor compliance with the provisions of the Act and the conditions of licences.

The female volunteer entered “Friends Liquor” and selected a 4-pack of ‘Woodstock Bourbon and Cola’, a spirit-based ready-mixed beverage (RTD). A staff member completed the sale without asking the volunteer her age, and without requesting any form of identification.

When spoken to by the Police the sales person stated that he was not a manager. The duty manager was Soung Sook Lee. Ms Lee did not witness the sale because she said that she was in the toilet at the time.

The male volunteer entered “The Family Barrow”, went to the cooler and selected a single 440 millilitre can of ‘Speights’ beer and placed it on the counter. The sales person asked the volunteer if he was old enough to buy alcohol and the volunteer did not respond.

The sales person did not make any further inquiries but took the volunteer’s money and handed him his change. The sales person was not the manager. The duty manager was David Jones. When approached by the Police he stated that he had been dealing with other customers at the time of the sale and he would have expected the staff member to demand identification.

We feel bound to comment that in both instances ‘alarm bells’ ought to have rung in the minds of the sales staff, either because of the type of liquor selected in “Friends Liquor”, or the minimal quantity purchased at “The Family Barrow”. This is particularly so in light of the fact that both customers were obviously young, a fact demonstrably borne out in the case of the male volunteer – because the sales person clearly had doubts as to his lawful entitlement to purchase liquor.

The respondents do not dispute the fact that the grounds for the applications have been established. They have accepted that suspension of the off-licences and the managers’ certificates is appropriate.

A settlement has been reached in which recommended periods of suspension of the licences and certificates will be imposed by consent, without the requirement to convene a public hearing to determine the applications.

Having considered the recommendations from the Police we make the following orders:

(a) Off-licence number 007/OFF/065/2008, issued to Friends Liquor Limited, is suspended for 24 hours from 6.00 am on Friday 21 August 2009.

(b) Off-licence number 007/OFF/166/2007, issued to Creative Management Services Limited, is suspended for five days from 8.00 am on Saturday 26 September 2009 until 8.00 am on Thursday 1 October 2009.

(c) General Manager’s certificate number GM/007/157/09, issued to Soung Sook Lee, is suspended for 30 days from Friday 21 August 2009.

(d) General Manager’s certificate number GM/007/059/09, issued to David Leonard Jones, is suspended for four weeks from Saturday 26 September 2009.

DATED at WELLINGTON this 17th day of August 2009

______________________
B M Holmes
Deputy Secretary

Friends Liquor & Ors.doc(ab)