Sargent v Kumar [2010] NZLLA 458 (3 May 2010)

Last Updated: 7 May 2010

Decision No.PH 458/2010 –
PH 459/2010

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/0064/08 issued to ARVIND KUMAR

BETWEEN STEPHEN DENNIS SARGENT

(Police Officer of Porirua)

Applicant

AND ARVIND KUMAR

Respondent

AND

IN THE MATTER of an application by ARVIND KUMAR pursuant to s.123 of the Act for renewal of a General Manager's Certificate

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 application for renewal of General Manager’s Certificate
Mr A Kumar - respondent and applicant for renewal of General Manager's Certificate
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] This decision relates to two applications. The first is an application brought by the Police pursuant to s.135 of the Act for the suspension of General Manager's Certificate issued to Arvind Kumar. The second application is brought by Arvind Kumar pursuant to s.123 of the Act for the renewal of his General Manager's Certificate.

[2] In respect of both applications the evidence from the Police has been admitted by consent. The concern of the Police is that on 10 October 2009 there was a controlled purchase operation conducted at “Henrys” at 12 Paramoana Street, Porirua.

[3] The 16 year old volunteer selected a four pack of ‘Vodka Cruisers’ and took it to the checkout. The checkout operator was Mr Kumar. He affected a sale of the item to the volunteer without asking for identification or checking in any way to ascertain how old the volunteer was.

[4] Mr Kumar acknowledges that he made the sale. At the time he had been obliged in the course of his duties to suddenly undertake the role of duty manager. He was also the manager of “Pack ‘N’ Save” which as the Authority understands it is part and parcel of the overall operation. Apparently one staff member had just left and accordingly there some degree of concern on the part of Mr Kumar to make sure that he undertook all his duties satisfactorily. As it happens he failed on this occasion in respect of his obligations under the Sale of Liquor Act.

[5] In respect of the application for suspension the Authority accepts that on this instance Mr Kumar as manager failed to conduct the licensed premises in a proper manner. In those circumstances s.135(6) applies. The Authority considers that this is an appropriate case and indeed it is desirable that there should be an order under that section.

[6] Accordingly Mr Kumar’s General Manager's Certificate is suspended for a period of 28 days commencing on Monday 3 May 2010.

[7] When considering whether or not the General Manager's Certificate should be renewed s.126 of the Act is relevant. It sets out the criteria for renewal. In this case the particular criterion is that contained in s.126(c) which relates to the manner in which the manager has managed the sale and supply of liquor. In this regard there is the failed controlled purchase operation which occurred during Mr Kumar’s probationary year.

[8] The conclusion of the Authority is that this is an appropriate case to renew the General Manager's Certificate but only for a period of 12 months. In other words there will be another probationary year to see how Mr Kumar manages to conduct himself during that period.

DATED at WELLINGTON this 3RD day of May 2010

B M Holmes
Deputy Secretary

Arvind Kumar.doc(aw)