McGlone v Sayed [2010] NZLLA 432 (27 April 2010)

Last Updated: 30 April 2010

Decision No.PH 432/2010 -
PH 434/2010

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 021/OFF/10967/2008 issued to the partnership of RAYMOND ARTHUR SAYED and PAULINE BRONWYN CRAWFORD in respect of premises situated at 93 Oceanbeach Road, Mount Maunganui and known as “Omanu Wines and Spirits”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager's Certificate number 012/GM/10460/2007 issued to RAYMOND ARTHUR SAYED

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager's Certificate number 012/GM/10619/2008 issued to PAULINE BRONWYN CRAWFORD

BETWEEN NIGEL PETER McGLONE

(Police Officer of Tauranga)

Applicant

AND RAYMOND ARTHUR SAYED and PAULINE BRONWYN CRAWFORD (trading in partnership)

First Respondent

AND RAYMOND ARTHUR SAYED

Second Respondent

AND PAULINE BRONWYN CRAWFORD

Third Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TAURANGA on 15 April 2010

APPEARANCES

Sergeant M P McGlone - NZ Police - applicant
Mr W T Nabney - for respondents
Ms D M Jurgeleit – Tauranga District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This decision relates to three applications.

[2] The first application is brought pursuant to s.135 of the Act for the suspension or cancellation of General Manager's Certificate number 012/GM/10619/2008 issued to Pauline Bronwyn Crawford.

[3] The second application is brought pursuant to s.135 of the Act for the suspension or cancellation of General Manager's Certificate number 012/GM/10460/2007 issued to Raymond Arthur Sayed.

[4] The third application is brought pursuant to s.132 of the Act for the suspension or cancellation of off-licence number 021/OFF/10967/2008 issued to the partnership of Raymond Arthur Sayed and Pauline Bronwyn Crawford in respect of premises situated at 93 Oceanbeach Road, Mount Maunganui and known as “Omanu Wines and Spirits”.

Application for Suspension or Cancellation General Manager's Certificate Issued to Pauline Bronwyn Crawford

[5] The specific allegation in the application to suspend or cancel Mrs Crawford’s General Manager's Certificate is that she has failed to conduct the licensed premises in a proper manner in that she breached s.155(1) of the Act on 29 December 2009 by selling liquor to a 16 year old boy.

[6] The evidence of Andrew Granger Bayley, who is the boy concerned, is that he was born on 6 February 1993. At the time of the incident he was 16 years old. At about 7.15 pm he went to the “Omanu Wines and Spirits” store in Oceanbeach Road, Mount Maunganui. He went into the walk-in fridge and obtained a box of 12 stubby sized bottles of Lion Red beer. He took the beer to the counter and was served by a female there whom he identified as Mrs Crawford. He says he paid $21.99 for the beer and was not asked for any identification.

[7] He took the beer out of the shop. Thereupon he was approached by a Police Officer who questioned him about his age. With the Police Officer he returned to the liquor store and identified the female who sold the beer to him as Mrs Crawford. He denied at the hearing that he had stolen the beer.

[8] Detective Sergeant Lyttle was the Police Officer who apprehended Andrew Bayley outside the bottle store. He went into the bottle store with Mr Bayley and saw him identify Mrs Crawford. He agreed that at the time of the identification Mr Bayley was looking somewhat contrite and was not prepared to look Mrs Crawford in the face.

[9] After administering Mrs Crawford her Bill of Rights warnings, the following conversation took place:

“Question:

Do you recall selling liquor to the young man (indicating Andrew Bayley)?

Answer:

No I don’t recognise him.

Question:

He has said it was you that served him about five minutes ago.

Answer:

It probably was longer than that more like 10. He was the first person I didn’t ask.”

[10] In evidence both Mr Sayed and Mrs Crawford claimed that the seller could not have been Mrs Crawford as she was not in the shop premises at the time. There was no other female who could have been the seller. Mrs Crawford said that at the time it was alleged that the incident took place she was out of the shop purchasing the evening meal at a fish and chip shop which was just down the road. She says that she initially went to the fish and chip shop but was unable to obtain an appropriate order. She was obliged to return to the licensed premises to obtain further instructions from Mr Sayed and another employee in the premises. Thereupon she returned to the fish and chip shop and placed the order. She was told that it would take 10 minutes for the order to be fulfilled so she returned to the licensed premises to undertake some work in the chiller. She says that she did not see either the Police or Mr Bayley outside the shop when she returned.

[11] The only conclusion that the Authority can reach is that at the time Mr Bayley entered the shop Mrs Crawford was in the premises. This must have been after the second visit to the fish and chip shop. If this were not the case then she would have seen Mr Bayley and the Police Officer outside the shop on her return. She did not see them. The Authority does not accept her alibi and is satisfied that she did undertake the sale. Further, the Authority is satisfied that the confession to Detective Sergeant Lyttle did occur as he deposed. While her answer to the first question would indicate that she did not remember selling the liquor to Mr Bayley, it is apparent that her answer to the second question acknowledges that she did undertake the sale and that this was the first young person whom she did not ask for identification.

[12] The Authority is satisfied that Mrs Crawford breached s.155(1) of the Act by selling liquor to 16 year old Andrew Bayley.

[13] Eight days after the incident an attempt was made by Mr Sayed to accuse Mr Bayley of having stolen the alcohol. He claims that the reason it took so long for him to make the allegation was that the business was particularly busy over the New Year period. It was apparent to the Authority that he had no evidence to support his allegation. There was no CCTV coverage of the incident. There was no means to enable the reconciliation of Eftpos transactions to occur. There was no evidence of loss. The only conclusion that the Authority could reach was that this was an attempt to further blemish the character of Mr Bayley with the intent that he would no longer appear as a reliable witness. It was also evidence of poor management.

[14] The next issue in respect of Mrs Crawford’s General Manager's Certificate is whether or not it is desirable that a suspension should take place. The Authority considers that this is an appropriate case for a suspension. The General Manager's Certificate affecting Mrs Crawford is suspended for a period of 30 days commencing on Friday 14 May 2010.

Application for Suspension or Cancellation of General Manager's Certificate Issued to Raymond Arthur Sayed

[15] Mr Sayed is known to the Authority. Indeed, on 20 August 2007 under decision NZLLA PH 799/2007 the Authority refused to renew his General Manager's Certificate.

[16] Subsequently, Mr Sayed indicated that he wished to operate a completely different type of business in Tauranga and as a result of this it was considered that the matters giving rise to the refusal to renew his certificate were no longer appropriate in respect of the new application for a General Manager's Certificate. He was given one by the District Licensing Agency.

[17] Thereupon he, together with Mrs Crawford, formed the partnership which is licensed to operate the “Omanu Wines and Spirits” business.

[18] The specific allegations made in support of the application are that Mr Sayed as manager has failed to conduct the licensed premises in a proper manner and in particular committed breaches of ss.155(1) and 165 of the Act.

[19] There are two specific incidents alleged. It is alleged that on Friday 6 November 2009 four young men, all under the age of 18 were sold liquor by Mr Sayed, without him making any effort to check their identification. Mr Sayed acknowledges that he does not remember the incident when the liquor was sold to Adam Charles Stanley. Mr Stanley was 16 years old at the time of the incident and he purchased a box of 15 Codys Bourbon and Cola. He paid $22 for it.

[20] Aaron James Hone, who was 15 at the time, was another of the four young men who went into the bottle store at that time. One of the young men who went in with Mr Hone was called Brandon and it would seem that Brandon was the ringleader of the group.

[21] The evidence was that Brandon had regularly purchased liquor at the store but had convinced Mr Sayed that he was entitled to do so by the production of a fake identification card. Indeed, Mr Sayed was so impressed with Brandon that he was prepared to offer him credit for the purchase of liquor. On this occasion, not only Brandon purchased liquor but also another young man named Corey. Corey did not give evidence. Insofar as the purchase by Mr Hone is concerned, he says that Brandon and he went to Mr Sayed who was asked to “put it on account”. Thus, Mr Sayed was prepared to offer credit to the two young men one of whom, Mr Hone, was obviously well under the age of 18 years.

[22] The evidence of Mr Hone went a great deal further than this. He gave evidence to the effect that on eight occasions from 21 April 2009 he had purchased liquor from the licensee using his Eftpos card. In addition to that he said that he had regularly purchased liquor from the licensee using cash. It was plain from his evidence that he usually did this in conjunction with Brandon.

[23] Mr Sayed claims that it was Brandon who used Mr Hone’s Eftpos card. He discovered the true owner of the Eftpos card only after the incident. He had always assumed that the card proffered by Brandon belonged to Brandon. He claimed that on all of these occasions it was Brandon who did the purchasing and that Mr Hone was merely a bystander.

[24] Even if Mr Sayed’s evidence is accepted in this regard, it is clear from his own evidence that he permitted Mr Hone (accompanied by Brandon) to be present in the supervised area of the licensed premises but not accompanied by either a guardian or a parent. He knew that persons under the age of 18 years were not permitted to be in the supervised area unaccompanied and he indicated that he never checked the identification of such young persons.

[25] It seems to the Authority that in respect of these various other alleged purchases by Mr Hone, it matters little whether Mr Hone himself actually did the purchase or whether the purchase was done by Brandon. What is clear from Mr Sayed’s evidence is that Mr Hone accompanied Brandon on many occasions and that Mr Hone should not have been on the premises in the first place. The position is worse than that because in his evidence Mr Sayed said (under cross examination), when asked if he was interested as to what happened to the purchased liquor, “I am not to judge who does what with it”.

[26] The Authority is satisfied that at the time the liquor was purchased (whether by Brandon or Mr Hone) Mr Sayed was disinterested as to who was to drink the liquor. It must have been perfectly obvious to him that the under aged Mr Hone would be consuming at least some of it.

[27] The Authority concludes that there is ample evidence to establish that Mr Sayed as manager has failed to conduct the licensed premises in a proper manner. Indeed, the Authority also is of the opinion that his conduct as manager is such as to show that he is not a suitable person to hold the certificate.

[28] In this latter regard, from Mr Sayed’s evidence the Authority became very concerned about the attitude of Mr Sayed in the way in which he has approached his responsibilities as a duty manager. It was not impressed with his explanation of the profligate manner of granting credit to Brandon and other customers without appropriate enquiry. Likewise, he seemed unconcerned when a mother of one of the minors sought to remonstrate with him concerning allegations of sales to minors. He displayed no comprehension of the basic statutory requirements or obligations of a duty manager. He was not concerned to make sure that his actions in any way complied with the object of the Act as set out in s.4. It seemed to the Authority that his actions over a period of time in respect of his dealings with Brandon and Mr Hone were such that he was encouraging these young men in liquor abuse.

[29] Not only was there the evidence relating to the transactions undertaken by Brandon and Mr Hone over a period of time, but also there was other evidence available that Mr Sayed had been actively selling alcohol to minors without checking as to identification over quite some time. Thus there is the specific evidence that relates to Adam Stanley and Mr Hone. However there is the peripheral evidence, which in itself is not enough to establish an application for suspension, but which adds to the overall unsavoury flavour of the situation.

[30] In summary, therefore, Mr Sayed’s approach to his responsibilities as a duty manager under the Act leave a great deal to be desired. He has sold liquor to minors without checking as to identification. He has allowed minors to purchase liquor on credit which has the effect of enabling them to purchase more liquor than they might otherwise do if the credit facility was not available. He has permitted minors to enter the supervised area of the premises without making any effort at all to check as to their identification. He has known that the liquor being sold in his premises would be consumed by minors but has shown no interest or concern about this.

[31] The Authority concludes that all of these matters indicate a total unsuitability on the part of Mr Sayed to hold a General Manager's Certificate.

[32] This is not a case where a mere suspension will suffice. It is apparent from what Mr Sayed himself told the Authority in evidence that he has no understanding of his responsibilities under the Act. It is unlikely that a suspension would encourage him to make amends. This is a case where cancellation of the General Manager's Certificate is appropriate. Accordingly the General Manager's Certificate of Raymond Arthur Sayed is cancelled with effect from 14 May 2010.

Application for Suspension or Cancellation of the Off-licence

[33] The grounds alleged in the application are that the licensed premises have been conducted in breach of the provisions of ss.155(1) and 165 of the Act. The specific allegations have already been discussed in respect of the application to suspend the General Managers’ Certificates of both Mrs Crawford and Mr Sayed. In addition, of course, there is the fact that there has previously been a suspension of the off-licence for 24 hours as a result of a successful controlled purchase operation involving a 16 year old volunteer (see NZLLA 848/2009). This suspension occurred when the respondents were absent overseas and an acting manager had been appointed. This particular incident had no weight in our decision making.

[34] There is no need for the Authority to repeat the various comments it has made in respect of the application to suspend Mr Sayed’s General Manager's Certificate. Nor need there be a repetition of the poor management practices as set out in paragraph [13]. All these comments apply in respect of this application as well. It was apparent on the evidence that the principal of the licensee partnership is Mr Sayed. By virtue of her partnership, Mrs Crawford becomes tainted with the way in which the licensee has operated. The Authority does not know how much she is aware of Mr Sayed’s dubious behaviour as she was not asked specific questions about this.

[35] Regardless, when referring to s.132(3) of the Act it is obvious that the licensed premises have been conducted in breach of the provisions of the Act. Further, the conduct of the licensee partnership is such as to show that they are not suitable persons to hold the licence.

[36] The remedial portion of the section is found in subs.(6). In considering whether or not it is desirable to either suspend or cancel the off-licence, it is useful to have regard to Te Awamutu Wines and Spirits (1988) Ltd v Greenwood [2009] NZHC 410; [2009] NZAR 394. The Greenwood decision related to an appeal against cancellation of an off-licence which had failed four controlled purchase operations within a relatively short period of time. The cancellation was upheld by the High Court.

[37] The situation in this case is somewhat different. It is not simply the two incidents of 6 November 2009 and 29 December 2009 which are of concern to the Authority. In addition, first, there is the history of the relationship between the young man Brandon and Mr Hone in respect of a number of previous purchases indicating systemic sales of liquor to young persons; or, at least, permitting them to be in the supervised area unaccompanied.

[38] Second, if a failure of four controlled purchase operations constitute “a bad case”, as in Greenwood, then it seems to the Authority that the negative and uncompromising attitude of Mr Sayed in respect of his responsibilities under the Act make this a worse case. Given Mr Sayed’s total lack of understanding of his social responsibilities as set out in the Act, the Authority has no confidence at all that the off-licence can improve its ways if a suspension were imposed.

[39] As Gendall J said in The Mill Liquorsave Ltd v Vernor [2004] NZAR 263 at [23]:

“I have no doubt at all general deterrents (i.e. ‘to discourage’ others) from selling to minors, as well as special deterrents to the licence before the Authority, is a relevant consideration and squarely within the objects of the Act. A reasonable system of control of the supply of liquor includes the need to be able to secure compliance with licence conditions and the law, through the exercise of discretionary disciplinary powers specifically given to the Authority by Parliament.”

[40] As was stated by Allen J in the Greenwood decision at [34]:

“The Onehunga Wines and Spirits [2002] NZAR 281 decision made it clear that systemic failures by a licensee, leading to multiple supplies to minors, would be likely to lead to cancellation.”

[41] The Authority has no confidence in the ability of Mr Sayed to manage the license in such a way as would reduce liquor abuse. Indeed, the management of the licensee to date plainly has encouraged liquor abuse by minors.

[42] In these circumstances, the only appropriate remedy is cancellation of the off-licence.

[43] The off-licence is cancelled and cancellation takes effect from 10.30 am Friday 14 May 2010.

DATED at WELLINGTON this 27TH day of April 2010

Judge J D Hole
Chairman

Pauline Crawford.doc(aw)