Pillay v Express Liquor [2011] NZLLA 1256 (2 November 2011)

Last Updated: 2 December 2011

[2011] NZLLA PH 1256-1257

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.123 of the Act for suspension or cancellation of off-licence number 008/OFF/60/2009 issued to NIR HOLDINGS LIMITED in respect of premises situated at Unit 3, 2 Growers Lane, Mangere, Auckland known as “Express Liquor”

BETWEEN THEVINDIREAN PILLAY

(Police Officer of Manukau)

Applicant

AND NIR HOLDINGS LIMITED

Respondent

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager's Certificate number GM/08/19/2010 issued to TANMAY RAMBHAI PATEL

BETWEEN THEVINDIREAN PILLAY

(Police Officer of Manukau)

AND PAUL ANTHONY RADICH

(Auckland District Licensing Agency Inspector)

Applicants

AND TANMAY RAMBHAI PATEL

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at PAPAKURA on 25 October 2011

APPEARANCES

Constable T Kopyl – NZ Police – applicant
Mr P A Radich – Auckland District Licensing Agency Inspector – applicant
Mr P D Swain – agent for respondents

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are two enforcement applications before the Authority. The first has been brought pursuant to s.132 of the Act and seeks the suspension or cancellation of the off-licence issued to Nir Holdings Limited in respect of premises known as “Express Liquor” at Mangere. The application alleges pursuant to s.132(3)(a) of the Act that on two occasions on 26 February 2011 the licensed premises were conducted in breach of s.155 of the Act in that liquor was sold to a minor. In particular, at approximately 11.00 am on 26 February 2011 a controlled purchase operation was conducted at the premises. A minor aged 15 entered the store and selected a six pack of 250 millilitres cans of “NV Vodka” . Each can contains an alcohol content of seven percent. He took the liquor to the counter where he was served by Tanmay Rambhai Patel who was the duty manager. He was not asked his age, date of birth or for any identification. Shortly thereafter Constable Kopyl confronted Mr Patel with the sale.

[2] At approximately 11.40 am on the same day another controlled purchase operation was conducted at the premises. Mr Patel was the duty manager. A 17 year old boy managed to purchase two four packs of 250 millilitre cans of “Vodka Pulse”. The alcohol content of these cans is seven percent. He was not asked his age, date of birth or for any identification. Mr Patel effected the sale.

[3] The allegations set out in the application were admitted at the hearing on behalf of the licensee.

[4] The second application was brought under s.135 of the Act. It alleges that on two occasions on 26 February 2011 Mr Patel, as manager, failed to conduct the licensed premises in a proper manner in that s.155(1) of the Act was breached. The allegations, which were admitted by Mr Patel, are the same as those pertaining to the first application.

Evidence

[5] As the facts alleged in both applications were admitted by the respondents, it was not necessary for evidence to be given on behalf of the applicants.

[6] Mr Morar, a director of the licensee was not present at the hearing. The Authority was advised by Mr Swain, who represented the licensee, that Mr Morar was unable to attend the hearing because he was obliged to act as a duty manager in respect of other premises as two other staff members with General Managers' Certificates had reported in sick. It seems that he was not prepared to close the other premises to attend the hearing. Thus, the only witness heard by the Authority was Mr Patel.

[7] Mr Patel deposed that he had been employed as a duty manager at the premises since December 2009. He is Mr Morar’s nephew. When he became employed by the licensee he was told the rules by Mr Morar. He has no explanation for the two sales to minors on 26 February 2011. He stated that he has asked for identification on numerous occasions and has refused service on numerous occasions. He purported to take sole responsibility for the incidents claiming that the licensee should not suffer any penalty.

[8] Under cross examination he did not deny saying to Constable Kopyl after the second incident: “You just checked me ten minutes ago”. He could not recall making the comment. He agreed that both volunteers looked alike and he thought they were Pacific Islanders.

[9] To the Authority he advised that he is still employed by the licensee in the same liquor store as where he was on 26 February 2011. He stated that usually there are two persons employed on the premises although when further questioned indicated that he was the only staff member with a General Manager's Certificate employed at the premises. A security person assists at the premises during the busy periods. When the incident occurred the only staff member present on the premises was Mr Patel. When asked when he should ask for identification, he prevaricated. Initially he indicated that he should ask all persons who appeared to be under the age of 30 for identification. He then changed this to all persons under the age of 25. He then reverted to suggesting that all persons under the age of 30 should be asked for identification. He then suggested that persons over the age of 18 should be requested to produce identification. The Authority was unimpressed with the plainly self serving answers to this line of questioning.

[10] He informed the Authority that there is a prompt on the till to remind him to ask for identification. The prompt consists of two separate signs. The prompt is not in the software. The signs are always there.

[11] He stated that he works seven days per week on the premises and is its only duty manager.

[12] He stated that his General Manager's Certificate expired on the date of the incident, namely 26 February 2011. He had previously applied for its renewal which had been granted prior to the incident.

Licensee’s History

[13] The history of the licensee is not good. On 18 July 2008 it failed at the premises a controlled purchase operation: Lally and Radich v Nir Holdings Limited and Morar NZLLA 1252-1253/2008.

[14] On 17 April 2009 (less than a year after the first incident) the licensee again failed a controlled purchase operation: (see NZLLA PH 1258 – 1260/2009).

[15] Thus, the licensee has failed four controlled purchase operations within three years.

[16] In the 2009 decision the Authority stated:

“He (Mr Morar on behalf of the licensee) acknowledged the facts as they have been recounted above. He made a plea for some leniency given the cooperation subsequently taken by the company. There are now signs up to remind staff to check identification, and an incident book is now in force. Mr Morar has been made well aware of the fact that he still faces an application for renewal of the off-licence. He appreciates that the business could well be placed at risk if there is reoffending, or a repeat of the type of behaviour which has just been recounted.”

Decision of Authority and Reasons

[17] There is no evidence that since the Authority’s 2009 decision that the licensee has taken further steps to avoid a repetition of sales to minors, notwithstanding that the licensee’s systems had proved inadequate on two occasions in 2008 and 2009. The same prompts remain by the till. Software has not been changed and no physical action is required by the cashier to remind him or herself to ask for identification. For quite a considerable portion of each day the only staff member is the duty manager whose ability to deal with a number of customers at any one time and fulfil his statutory responsibilities must be difficult if not impossible.

[18] In addition, Mr Patel displays to the Authority inadequate appreciation of his statutory responsibilities. He plainly had no idea whom he should ask for identification and when. Indeed, the fact that within 40 minutes on 26 February 2011 he made sales to two underaged boys speaks for itself. The fact that he did not deny informing Constable Kopyl after the second occasion “You just checked me ten minutes ago” is a further indication that on the second occasion he deemed it safe to make the sale without seeking identification. These facts indicate that Mr Patel was totally unsuitable to act as a duty manager of the premises and this must have been known to the licensee.

[19] The unsuitability of the licensee is further compounded by:

• (a) The failure of Mr Morar to attend the hearing. For a licensee in the predicament of Nir Holdings Limited, this was a very important hearing. The explanation for Mr Morar’s absence indicates that the licensee is more concerned with revenue gaining activities than with preserving its business at “Express Liquor” in Mangere.
  
• (b) There is no evidence that any disciplinary action was taken by the licensee against Mr Patel.
  
• (c) There is no evidence that the licensee has required Mr Patel to undertake additional training as a result of the incidents.
  
• (d) There is no evidence that the licensee has done anything since the incidents to improve its systems to prevent further incidents occurring.
  

[20] Both applicants seek cancellation of the licence. They referred to the decision of Te Awamutu Wines and Spirits (1998) Limited and G L Reed v Christopher Ron Greenwood and Another CIV 2009-419-141 Hamilton High Court 3 April 2009. However, both applicants appreciated the possibility of a suspension of the licence rather than its cancellation and referred to Jay and H Company Limited (Patumahoe Four Square) decision number NZLLA PH 1239-1240/2009.

[21] The facts of this case do not disclose conduct on the part of the licensee as serious as that which was disclosed in Te Awamutu Wines and Spirits (1998) Limited or, indeed, R A Sayed v N P McGlone (HC) Tauranga CIV 2010-470-397, 26 June 2010.

[22] The facts of this case are similar to those disclosed in the Patumahoe Four Square decision. That case involved a grocery store which had a liquor licence. The licensee had failed three controlled purchase operations. On the last occasion two young girls entered the premises attempting to purchase RTDs. Because this was a grocery store, RTDs were not available. They left the premises. They subsequently returned and purchased some beer. The licence was suspended for a period of 12 weeks as a result.

[23] This case is worse than Patumahoe Four Square. Here there were two separate boys who were able to effect sales. The claim (made in Patumahoe Four Square) that the seller thought that one of the girls was over the age of 18 is not available in this case. Further, the total transgression by the licensee amount to four failed controlled purchase operations in less than three years. Then there are the matters set out in paragraph 19.

[24] If this off-licence was in respect of a grocery store, then the Patumahoe Four Square decision would indicate that a suspension of between five and six months was warranted. However, it is not a grocery store but is a stand alone liquor retail business. Its only source of income is the sale of liquor (unlike a grocery store). In those circumstances, to achieve much the same effect as would have been achieved if the business were a grocery store and recognising that any suspension means the closure of the business, the Authority concludes that an appropriate suspension is for a period of one month.

[25] Accordingly, the off-licence issued to Nir Holdings Limited in respect of “Express Liquor” at Mangere is suspended for 30 days commencing 21 November 2011.

[26] As previously indicated in this decision, the conduct of Mr Patel in respect of these two incidents indicates that he is totally unsuitable to hold a General Manager's Certificate. To suspend his certificate would invite a repetition of sales by him to young persons. If, in the future, he is to be put in the position of acting as a duty manager then he requires significantly more education and training. This cannot be achieved in the context of a suspension. Cancellation of his certificate is the only option.

[27] The General Manager's Certificate issued to Mr Patel is cancelled with cancellation to take effect from 14 November 2011. If the certificate’s cancellation were to take effect at an earlier date, this would place an unreasonable burden on the licensee.

DATED at WELLINGTON this 2rd day of November 2011

B M Holmes
Secretary

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