Cox and Long v Fresh and Save [2010] NZLLA 826 (9 August 2010)

Last Updated: 12 August 2010

[2010] NZLLA PH 826-827

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 010/OFF/04/2009 issued to FRESH AND SAVE LIMITED in respect of premises situated at 231-235 Manukau Road, Pukekohe, known as “Fresh and Save”

BETWEEN STEPHEN GOODHALL COX

(Police Officer of Manukau)

AND TERENCE NORMAN LONG

(Franklin District Licensing Agency Inspector)

Applicants

AND FRESH AND SAVE LIMITED

Respondent

AND

IN THE MATTER of a resumption of a hearing of an application by NARAY TRAN pursuant to s.118 of the Act for a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at PUKEKOHE on 2 August 2010

APPEARANCES

Sergeant G J Campbell - NZ Police - applicant and in opposition to application for General Manager's Certificate
Mr T N Long - Franklin District Licensing Agency Inspector - applicant and in opposition to application for General Manager's Certificate
Mr N Tran - on behalf of respondent and applicant for General Manager's Certificate

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] This decision relates to two applications. The first application is a joint application by the Police and Inspector for the suspension or cancellation of the off-licence issued to Fresh and Save Limited in respect of premises situated at 231-235 Manukau Road, Pukekohe, known as “Fresh and Save”.

[2] The second application is brought by Naray Tran pursuant to s.118 of the Act for a General Manager's Certificate.

[3] On 26 June 2009 the Authority adjourned an application brought by Mr Tran for a General Manager's Certificate in order that he might obtain the requisite experience in the industry (see NZLLA PH 634/2009)

[4] Mr Tran and Mr Chanfen Nou are both directors of Fresh and Save Limited which is the licensee in respect of premises situated at 231-235 Manukau Road, Pukekohe. The licence issued to Fresh and Save Limited is dated 11 August 2009. Thus, at the date of hearing it had been in existence for less than one year and would have become due for renewal on 11 August 2010.

Admitted facts

[5] The licensee and Mr Tran admitted that at approximately 2.10 pm on 11 December 2009 a controlled purchase operation was conducted at the premises. A minor aged 16 years entered the premises and purchased six cans of ‘Lion’ beer. She was not asked her age. She was not asked for any identification. The named duty manager, Robert Francis Holst was not on the premises and could not be located. It transpired that Mr Holst was the only certificated duty manager and was only present on the licensed premises for a small period of time each day.

[6] It was also admitted by the licensee and Mr Tran that on 10 June 2010 another controlled purchase operation was carried out at the premises. A 17 year old minor entered the premises and purchased six cans of Tui beer. She was not asked her age. She was not asked for any identification.

[7] After hearing evidence, it was established that at the time Mr Tran was meant to be the duty manager but was not present on the premises. A Christine Ng, who held a General Manager's Certificate, was present on the premises but was not named as the duty manager and was not acting in that capacity. While Mr Tran admitted that he was not on the premises at the time, he stated that he thought that Ms Ng would act as duty manager in his absence. It seems that this was not Ms Ng’s understanding of the position.

Authority’s decision and reasons

[8] Section 132(3) of the Act sets out the grounds on which an application for an order for suspension or cancellation of a license may be brought. Those relevant are:

(a) That the licensed premises have been conducted in breach of any of the provisions of this Act or of any conditions of the licence or otherwise in an improper manner:

(b) That the conduct of the licensee is such as to show that he or she is not a suitable person to hold the licence:

[9] Section 115(4) is relevant. It reads:

At all times when liquor is being sold or supplied on licensed premises the licensee must take all reasonable steps to enable the manager to comply with this section.

[10] There are four statutory breaches alleged: two of those relate to breaches of s.155 of the Act (sale or supply of liquor to minors). The other two are breaches of s.115 of the Act (requiring a manager to be on duty and the licensee to make sure of his or her compliance).

[11] At the time of these statutory breaches the licence had been in force for less than one year.

[12] Whilst the licensee made some effort to employ a general manager to act as its duty manager, it is apparent that Mr Holst in his capacity as a duty manager visited the premises rarely and seems to have been on the premises for one or two hours each day. This was in contrast to the assurances given to the Inspector prior to the issue of the licence and is clearly in breach of s.115 of the Act.

[13] In the circumstances, the Authority is satisfied that the grounds for the application for suspension or cancellation have been made out.

[14] Section 132(6) of the Act provides that where the grounds have been made out and the Authority considers that it is desirable to make an order it may (inter alia) suspend the licence for such period not exceeding six months as it thinks fit; or cancel the licence.

[15] Given the gross breaches, the Authority is satisfied that it is desirable to make orders in terms of s.132(6) of the Act.

[16] On 15 June 2010 the Inspector met with the directors of the licensee. At that time they considered surrendering the licence but then decided to continue selling liquor from the premises because they claimed that their customers expected that service. Since that time they have improved their checkout software so that identification can be checked before sales are made.

[17] At the hearing, Mr Tran gave an undertaking that if the licence was not cancelled only cooking wine (as defined in condition (b)(vii) of the licence) would be sold.

[18] The Authority has considered the possibility of suspending the licence on the basis that the undertaking would be performed. However, the short but very poor history of this licensee indicates clearly to the Authority that the Authority should not be confident that this licensee is capable of performing its statutory obligations even if only cooking wine were sold. The Authority considers that the licensee does not have the ability of preventing further statutory breaches to occur and it is satisfied that its conduct throughout the term of the licence to date is such as to show that it is not a suitable person to hold the licence.

[19] In these circumstances the licence is cancelled as from 1 September 2010.

[20] As was indicated by the Authority in its decision dated 26 June 2009, Mr Tran’s application for a General Manager's Certificate will only be considered by the Authority if he is working in the industry. As a result of this decision, it is clear that Mr Tran in the short term is unlikely to be employed in the industry. Further, his record as a director of the licensee has established that he is not a suitable person to hold a General Manager's Certificate. Section 121 of the Act requires the Authority to have regard to his character and reputation. His record as a director of the licensee, as detailed in this decision, indicates that he should not be the holder of a General Manager's Certificate in the foreseeable future.

Conclusion

[21] Off-licence 010/OFF/04/2009, issued to Fresh and Save Limited, in respect of premises situated at 231-235 Manukau Road, Pukekohe, known as “Fresh and Save” is cancelled as at 1 September 2010.

[22] The application by Naray Tran for a General Manager's Certificate is refused.

DATED at WELLINGTON this 9TH day of August 2010

B M Holmes
Secretary

Fresh and Save.doc(aw)