Loye v Hillsborough [2010] NZLLA 360 (19 April 2010)

Last Updated: 23 April 2010

Decision No.PH 360/2010-
PH 362/2010

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 007/OFF/167/2009 issued to J L LIQUOR GROUP LIMITED in respect of premises situated at 180-182 Hillsborough Road, Hillsborough, Auckland, known as “Hillsborough Liquor Centre”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number GM/007/456/2009 issued to JASON ZHANG

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/007/998/08 issued to APRIL HEYING GOU

BETWEEN JASON PETER LOYE

(Police Officer of Avondale)

Applicant

AND J L LIQUOR GROUP LIMITED

First Respondent

AND JASON ZHANG

Second Respondent

AND APRIL HEYING GOU

Third Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Ms J D Moorhead

HEARING at AUCKLAND on 26 March 2010

APPEARANCES

Sergeant J P Loye - NZ Police - applicant
Mr E H Wiles - for respondents
Mr A C Phillips - Auckland District Licensing Agency Inspector - to assist

ORAL DECISION OF THE AUTHORITY

[1] This decision relates to three applications. The first is an application pursuant to s.132 of the Act for suspension or cancellation of an off-licence issued to J L Liquor Group Limited in respect of premises at 180-182 Hillsborough Road, Hillsborough, Auckland, known as “Hillsborough Liquor Centre”.

[2] The second application is brought pursuant to s.135 of the Act for the suspension or cancellation of a General Manager's Certificate issued to April Heying Gou. The third application is brought pursuant to s.135 of the Act for the suspension of a General Manager's Certificate issued to Jason Zhang.

[3] The three applications have been dealt with together. The grounds upon which the suspension or cancellation of the off-licence is sought are those contained in s.132(3)(a) and (b) of the Act. It has been alleged that the licensed premises were conducted in breach of the provisions of the Act and that the conduct of the licensee is such as to show that it is not suitable to hold the licence.

[4] The grounds alleged in respect of the applications to suspend or cancel the managers’ certificates are those which are set out in s.135(3) of the Act, namely that the manager in each case failed to conduct the licensed premises in a proper manner. In each case the conduct of the manager, and his or her suitability, is also an issue.

[5] More particularly it is alleged that on Friday 11 December 2009, a controlled purchase operation was conducted in “Hillsborough Liquor Centre”. This involved a young girl aged 15 years and three months being requested by the Police, pursuant to s.162(5) of the Act, to enter the premises and attempt to purchase liquor. Significantly, the photographs indicated that she looked particularly young. There was no way that anyone could have thought that she was anywhere near the age of 18 years.

[6] She went into the premises and purchased a four pack of ‘Vodka Cruisers-Cranberry and Lime’. The Authority recognises that this type of alcohol is commonly drunk by young women in particular. To purchase such liquor of that type should have placed the person on the till on guard as to the age of the purchaser. The young person was not asked for any identification. She was not known at the store.

[7] Subsequently the same day the Police approached the store. They discovered that the seller was a Zhixin Zheng who was aged 21. He was the only person working on the premises. He was not the holder of a General Manager's Certificate.

[8] On the duty manager’s board the name ‘April’ was displayed. She was not present. Subsequently it was ascertained that the duty manager who should have been present was Jason Zhang. It appears that April Guo had instructed Mr Zhang to be on the premises at the time the sale took place. He had decided, without telling her, to leave the premises and asked Mr Zheng to look after the premises on his behalf. In the circumstances it is not surprising that the young person was able to purchase the alcohol.

[9] The various factors which have already been mentioned are all indicative of poor management of the premises by the licensee. Further the licensee, albeit known under another name but with the same personnel involved, has previously had a licence suspended by this Authority for a period of two days in respect of similar incidents. There have also been other incidents over the years indicating bad management.

[10] The impression that the Authority has is that this is a licensee that is slow to learn from its mistakes. In this case the particular matter of concern to the Authority is the failure to display the off-licence. It is not good enough to say that a mistake was made or that the licensee was lazy. There is a statutory obligation to display it.

[11] Second there was the failure to ensure that the duty manager’s full name was on the duty manager’s board. Simply to record the name of the duty manager as ‘April’ is insufficient. There is the previous history of the licensee to which reference has already been made.

[12] Finally in this regard the Authority notes the age and youthful appearance of the volunteer, the nature of the alcohol purchased and indeed the fact that as the whole premises are a supervised area. The young person should not have been present on the premises at all.

[13] The Authority concludes that this is a bad case of its type. Were it not for the mitigating features which are about to be mentioned, the off-licence would have been suspended for a period of seven days. However, there are mitigating features.

[14] There is the immediate acceptance of liability and the way in which the hearing was conducted which has obviated the necessity of the young person giving evidence. There are the following undertakings which have been given to the Authority as to the future management of the premises by the licensee:

• [a] Not to employ anyone on the till aged under 25 years;
  
• [b] Only to employ mature people and those experienced in the industry; and
  
• [c] To institute a till system whereby the person working the till is always reminded to check the identification of anyone who appears to be under the age of 25.
  

[15] In all the circumstances the Authority concludes that the off-licence should be suspended for a period of five days commencing 10 May 2010.

[16] Insofar as Ms Guo’s General Manager's Certificate is concerned the Authority notes that she was deemed to be the duty manager pursuant to the provisions of s.115(3) of the Act. Her name was on the duty manager’s board. In that capacity she left the premises when she was obliged to be there. Finally she not only left the premises but left control of them to a person who proved to be totally irresponsible in his management of them. He too had left the premises. As indicated previously it is not surprising that the young person was able to purchase the alcohol in the manner described.

[17] In all the circumstances Ms Guo’s General Manager's Certificate is suspended for a period of 28 days commencing 10 May 2010.

[18] The behaviour of Mr Zhang in the way in which he carried out his duties as a duty manager is appalling. He failed to place his name on the duty manager’s board. He absented himself from the premises when he knew he was required to be there. He left an inexperienced 21 year old young man in charge of the premises. It is not surprising that the young person was able to purchase the alcohol.

[19] Mr Zhang’s General Manager's Certificate is suspended for a period of 35 days commencing Monday 14 June 2010.

DATED at WELLINGTON this 19TH day of April 2010

B M Holmes
Deputy Secretary

Hillsborough.doc(aw)