Patrick v Lion [2010] NZLLA 380 (20 April 2010)

Last Updated: 23 April 2010

Decision No.PH 380/2010-
PH 381/2010

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 002/OFF/37/2001 issued to LION LIQUOR RETAIL LIMITED in respect of premises situated at 51-53 Maunu Road, Whangarei, known as “Liquor King Whangarei”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager's Certificate number 002/GM/77/2008 issued to ANTHONY VICTOR POATA

BETWEEN TAI JOSEPH PATRICK

(Police Officer of Whangarei)

Applicant

AND LION LIQUOR RETAIL LIMITED

First Respondent

AND ANTHONY VICTOR POATA

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Mr P M McHaffie

HEARING at WHANGAREI on 25 March 2010

APPEARANCES

Sergeant T J Patrick - NZ Police - applicant
Mr M Heron and Ms R Carjannis - for respondents

ORAL DECISION OF THE AUTHORITY

[1] This decision relates to two applications. The first is brought pursuant to s.132 of the Act for suspension or cancellation of an off-licence issued Lion Liquor Retail Limited in respect of premises situated at 51-53 Maunu Road, Whangarei, known as “Liquor King Whangarei”.

[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 Anthony Victor Poata. Both applications are brought upon the basis of a failure to meet the test in a controlled purchase operation.

[3] On 18 July 2009 a bottle of wine was sold to a 15 year old girl. At the time of the sale the duty manager, Mr Poata was at the rear of the shop dealing with another customer. He did not see the transaction. It is clear that the young woman who effected the sale was well aware of her obligations in respect of dealing with young people but had a temporary lapse of concentration. As a result she was dismissed.

[4] The Authority is impressed with the measures that the licensee has effected to prevent young people purchasing alcohol at the premises. They are detailed in the evidence of Richard Hazeldean. There is no necessity to repeat them. It seems to the Authority that this licensee is doing everything it possibly can to prevent breaches of the Act occurring and to prevent the abuse of alcohol.

[5] Near the conclusion of the hearing the Authority asked Mr Hazeldean what else the licensee might be able to do to comply with the purpose of the legislation. He indicated that in the future it was proposed that general managers should actually be present at the till and this would have greater control of what occurs at that point of sale.

[6] The other thing he indicated was that it is intended that sales persons under the age of 23 will not work the tills. It is recognised that more mature people are needed in that area. The Authority considers that both proposals are useful and should assist in preventing further breaches of the Act by this licensee.

[7] This is an unusual case. The Authority is aware that there has been a previous failure in a controlled purchase operation. However, it is impressed that everything is being done both by the general manager and the licensee to prevent underage persons being supplied or sold alcohol at the premises.

[8] Significantly, the young sales person allegedly involved in the controlled purchase operation was subject to an in-house controlled purchase operation some 45 minutes prior to the incident. She passed the examination.

[9] We are now told that it was not the sales person who passed that particular test, however the sales person involved in the incident did pass an earlier in-house controlled purchase operation. This of course confirms that it was a temporary lapse of concentration on her part which brought about these applications.

[10] Both the General Manager's Certificate and the off-licence are suspended for a period of 24 hours and the suspensions will commence at 7.00 am on Saturday 10 April 2010.

DATED at WELLINGTON this 20TH day of April 2010

B M Holmes
Deputy Secretary

Liquor King Whangarei.doc(aw)