Sargent v Coyle [2010] NZLLA 452 (30 April 2010)

Last Updated: 7 May 2010

Decision No.PH 452/2010-
PH 454/2010

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number 046/GEN/0043/09 issued to ROBERT COYLE

AND

IN THE MATTER of an application pursuant to s.132 of the Act for suspension of off-licence number 046/OFF/0009/05 issued to RDH INVESTMENTS LIMITED in respect of premises situated at Whitby Mall, Discovery Drive, Whitby, Porirua, known as “Whitby New World”

BETWEEN STEPHEN DENNIS SARGENT

(Police Officer of Porirua)

Applicant

AND ROBERT COYLE

First Respondent

AND RDH INVESTMENTS LIMITED

Second Respondent

AND

IN THE MATTER of an application by RDH INVESTMENTS LIMITED pursuant to s.41 of the Act for renewal of an off-licence in respect of premises situated at Whitby Mall, Discovery Drive, Whitby, Porirua, known as “Whitby New World”

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Dr J Horn

HEARING at WELLINGTON on 26 April 2010

APPEARANCES

Senior Sergeant S D Sargent - NZ Police - applicant and in opposition to renewal of off-licence
Mr D Story – on behalf of second respondent and applicant for renewal of off-licence
Mr Robert Coyle – first respondent
Mr M Horua – Porirua District Licensing Agency Inspector - to assist
Mrs J Parris – on behalf of Medical Officer of Health - to assist

ORAL DECISION OF THE AUTHORITY

[1] The Authority has before it three applications. First there is an application pursuant to s.135 of the Act for the suspension of a General Manager's Certificate issued to Robert Coyle.

[2] Second there is an application brought by the Police pursuant to s.132 of the Act for the suspension of the off-licence issued to RDH Investments Limited in respect of premises known as “Whitby New World”.

[3] There is also an application by RDH Investments Limited pursuant to s.41 of the Act for the renewal of the off-licence in respect of the premises known as “Whitby New World”.

[4] In respect of the application for suspension of the General Manager's Certificate the grounds of the application are that the general manager failed to conduct the licensed in the proper manner and accordingly is not suitable to hold the certificate.

[5] In respect of the application to suspend the off-licence the grounds of the application are that the licensed premises were conducted in breach of s.155(1) of the Act and also that there was a breach of the condition of the licence whereunder the licensee was required to ensure that the provisions of the Act relating to the supply of liquor to prohibited persons are observed.

[6] In respect of the application for the renewal of the off-licence the Police and the Inspector opposed the application on the grounds that on 10 October 2009 the licensee sold liquor to a minor. Accordingly issues arise as to the licensee’s suitability and the manner in which the licensee has conducted the sale and supply of liquor.

[7] The facts on which the Police rely for their two applications and the opposition to the renewal are that on 10 October 2009 they conducted a controlled purchase operation in respect of the licensed premises. At 8.55 pm the 16 year old volunteer visited the premises and purchased a six pack of Montieth’s lager beer. The young checkout operator asked him if he had any identification to which he responded in the negative. Thereupon she asked the duty manager, Mr Coyle, if she should serve him, the duty manager authorised the sale which then proceeded.

[8] At that stage Mr Coyle had had his manager’s certificate for five weeks and accordingly was in his probationary period. Mr Coyle was completely frank with the Authority at the hearing. He says that he made a poor judgement call. He says that at the time he looked at the volunteer to determine whether or not he thought he was over the age of 18. He appreciates now that he should have looked at the volunteer and endeavoured to determine whether or not he was over the age of 25.

[9] Mr D Story gave evidence on behalf of the licensee company of which he is its sole director. He stated that the licensee accepted full responsibility for what had happened. He stated that he personally had spent 16 years in the Police and was well aware of the effects of the abuse of alcohol. He was very disappointed to find the licensee in the situation in which it was. He pointed out that the licensee had owned the “Whitby New World” for some five years and that this was its first breach of the Act.

[10] What particularly impressed the Authority was the proposed procedural changes which the licensee has made since the incident. In particular now no sales of liquor by checkout operators can take place without the involvement of a supervisor. All staff have been retrained in respect of sale of liquor matters especially checkout operators and duty managers. Duty managers are required to sign off on policy at the start of shifts and quiz supervisors as to their responsibilities under the Sale of Liquor Act.

[11] In the course of the hearing Mr Story was asked if it was proposed that in the future all supervisors should hold a General Manager's Certificate. He pointed out that such a blanket policy was impractical due to staff changes. However, he did state that henceforth the licensee would aim to ensure that any supervisor should have made an application for a General Manager's Certificate within three months of appointment as a supervisor. The Authority was impressed with the licensee’s commitment in this regard.

[12] The Authority considers that it is desirable that suspensions occur in respect of both applications. In respect of the application to suspend the General Manager's Certificate issued to Robert Coyle, other than his inexperience at the time and the total frankness which he portrayed to the Authority, there are no particular extenuating circumstances. In those circumstances Mr Coyle’s General Manager's Certificate will be suspended for a period of 30 days commencing Monday 3 May 2010.

[13] Generally in an instance such as this there would be a suspension of the off-licence for a minimum period of five days. However, given the very favourable impressions that the Authority has gained concerning the operation of the licensee, how it has improved its procedures since the incident and the commitment to endeavour to have supervisors obtain General Manager’s Certificates within a very short period of time, the Authority has concluded that an appropriate period for suspension would be 48 hours. Accordingly the off-licence issued to RDH Investments Limited will be suspended for a period of 48 hours commencing Saturday 8 May 2010.

[14] Generally given the history of this applicant and in particular the incident of 10 October 2009 the Authority would be prepared to renew the off-licence but only for a probationary period of 12 months. In reaching its decision the Authority has regard to s.45 of the Act which sets out the criteria which it must have regard to in considering applications such as this.

[15] For the reasons which have already been expounded the Authority considers that notwithstanding the incident of 10 October 2009 the applicant is suitable to hold an off-licence and that it is unlikely that a similar incident will occur in the future. The Authority is bound to have regard to the manner in which the licensee has conducted the sale and delivery of liquor but recognises that the incident of 10 October 2010 constitutes but one blemish in what is otherwise a good record.

[16] Taking these factors into account the Authority sees no need for there to be a further probationary period. Accordingly the off-licence issued to RDH Investments Limited in respect of the “Whitby New World” premises is renewed for a further term of three years.

DATED at WELLINGTON this 30TH day of April 2010

B M Holmes
Deputy Secretary

Whitby New World.doc(aw)