Knight v Golddiggers [2010] NZLLA 443 (28 April 2010)

Last Updated: 30 April 2010

Decision No.PH 443/2010 –
PH 444/2010

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 of off-licence number 012/OFF/2/2009 issued to LION LIQUOR RETAIL LIMITED in respect of premises situated at 135 Normanby Road, Paeroa, known as “Golddiggers Paeroa”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number GM/123/91 issued to MICHAEL GARNET SULLIVAN

BETWEEN REX ANTHONY KNIGHT

(Police Officer of Waihi)

Applicant

AND LION LIQUOR RETAIL LIMITED

First Respondent

AND MICHAEL GARNET SULLIVAN

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WAIHI on 12 April 2010

APPEARANCES

Senior Sergeant R A Knight - NZ Police - applicant
Mr D P Craig - on behalf of first respondent
No appearance by or on behalf of second respondent
Mr P J Lynch - Hauraki District Licensing Agency Inspector - to assist

ORAL DECISION OF THE AUTHORITY

[1] This decision relates to two applications dated 8 December 2009. The first is brought under s.132 of the Act for the suspension of off-licence 012/OFF/2/2009 issued to Lion Liquor Retail Limited in respect of premises situated at 135 Normanby Road, Paeroa, known as “Golddiggers Paeroa”.

[2] The second application is brought under s.135 of the Act for the suspension of General Manager's Certificate number GM/123/91 issued to Michael Garnet Sullivan.

[3] Mr D P Craig who is the manager of the licensee appeared on behalf of the first respondent. There was no appearance by or on behalf of Mr Sullivan.

[4] The facts giving rise to each application are the same. On 3 December 2009 at about 2.50 pm a 16 year old boy was sold by the licensee and the duty manager, a box of 12 bottles of Lion Red beer. At about 4.30 pm on the same day a young woman aged 16 years was sold four bottles of Jack Daniels bourbon and coke by the same person.

[5] The facts were admitted by Mr Craig on behalf of the licensee. It is clear that the grounds for each application have been made out. In respect of the application for the suspension of the off-licence the licensed premises were conducted in breach of the provisions of the Act and accordingly the conduct of the licensee on that occasion was such as to show that it was not a suitable person to hold the licence.

[6] In respect of the s.135 application the manager Mr Sullivan failed to conduct the licensed premises in a proper manner and accordingly his conduct was such as to show that he is not a suitable person to hold the certificate.

[7] Referring first to the manager Mr Sullivan. As a result of the two incidents he was dismissed from his employment. He is aware of the application but has chosen not to appear today. Given that there were two failed controlled purchase operations occurring on the same day it is appropriate that his certificate be suspended. Accordingly the General Manager's Certificate number GM/123/91 issued to Michael Garnet Sullivan, is suspended for a period of 62 days commencing 7.00 am on Monday 3 May 2010.

[8] Turning to the s.132 application affecting the licensee, a number of points were made on its behalf. First Senior Sergeant Knight indicated that up until the two incidents before the Authority today this licensee has had, as the Senior Sergeant put it, an exemplary record. Second Mr Craig for the licensee recorded that Mr Sullivan was a mature man in his 60s who has had over 26 years experience in the industry without blemish. In these circumstances the licensee was entitled to rely upon him to carry out his duties in accordance with the Act. As a result of the two incidents the licensee dismissed Mr Sullivan.

[9] This indicates, as indeed Mr Craig submitted, that the licensee takes its obligations under the Sale of Liquor Act very seriously. Indeed he noted that there are two checks on the till to make sure that identity is checked in respect of each sale to a person who appears to be under the age of 25 years.

[10] Mr Craig told the Authority that when Mr Sullivan was asked to give an explanation for his actions he advised that he was having a bad day. The Authority noted Mr Craig’s submission to the effect that all employees of the licensee are obliged to have General Managers’ Certificates. This is another example of a licensee endeavouring to carry out its obligations under the Act in a conscientious way. Mr Craig also indicated that Mr Sullivan had been a former manager of the off-licence and again that was a good reason for the licensee to trust him in carrying out his obligations appropriately.

[11] In dealing with applications under s.132 of the Act the Authority must first determine whether or not the grounds for the application have been made out. If they have then the Authority must consider in terms of s.132(6) of the Act as to whether it is desirable to make any of the orders set out in that subsection.

[12] The Authority considers that this case is an unusual one. We have asked ourselves if there was anything more the licensee could have done to protect its position. The answer in this case is that we consider that there is nothing more that the licensee could have done to have prevented the two unsuccessful controlled purchase operations occurring.

[13] In these circumstances the Authority has concluded that it is not desirable to make any order under s.132(6) of the Act. This effectively means that the grounds for the application have been made out, but that the Authority intends to take no punitive action in respect of the licensee.

[14] One further matter should also be mentioned. When Mr Craig was making his submissions it appeared to the Authority that there was at least a possibility that the licensee could have defended this application on identification grounds. Quite properly and appropriately the licensee chose not to take these steps. The licensee is to be commended for the attitude which it took in respect of the way it proceeded with this hearing.

DATED at WELLINGTON this 28TH day of April 2010

B M Holmes
Deputy Secretary

Golddiggers Paeroa.doc(aw)