Whittle v Liquor and Tobacco [2011] NZLLA 861 (10 August 2011)

Last Updated: 31 August 2011

[2011] NZLLA PH 861

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 number 007/OFF/9027/2001 issued to LIQUOR AND TOBACCO CITY LIMITED in respect of premises situated at 45 Victoria Street West, Auckland known as “Liquor and Tobacco City”

BETWEEN GARY SELWYN WHITTLE

(Police Liquor Licensing Administrator of Auckland)

Auckland

AND LIQUOR AND TOBACCO CITY LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Member: Ms J D Moorhead

HEARING at AUCKLAND on 27 July 2011

APPEARANCES

Mr G S Whittle – NZ Police – applicant
Mr S Patel – on behalf of respondent

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] In accordance with s.132(3)(b) of the Act, in its application for the suspension or cancellation of the respondent’s off-licence, the applicant alleges that the conduct of the licensee is such as to show that it is not suitable to hold the licence. In particular it was alleged that after the Police had informed the licensee that the sale of ‘Kronic’ indicated a licensee’s unsuitability, the respondent continued to sell ‘Kronic’.

[2] ‘Kronic’ is a synthetic cannabinoid. It has the effects of causing those persons who inhale it to vomit, become drowsy, sustain chest pain, palpitations and become disassociated from reality. It is a product that has recently come on to the New Zealand market.

[3] The proceedings before the Authority have been brought by the Police as a test case. No order is sought against the respondent in terms of s.132(6) of the Act. However, the Police are seeking a ruling from the Authority as to whether or not licensees should sell ‘Kronic’.

The Evidence

[4] Four witnesses gave evidence for the Police. Two of the witnesses gave evidence concerning the promotion for sale of ‘Kronic’ by the respondent and how he had been asked to desist making sales. Mr Andrew Galloway who is employed by the Alcohol Advisory Council of New Zealand indicated that ALAC is opposed to ‘Kronic’ being sold in licensed premises. In support of his evidence he produced a number of media cuttings which were intended to show the Authority some of the dangers arising from the inhalation of ‘Kronic’. Whilst this evidence was helpful as far as it went, the Authority treats it with caution as hearsay press reports can be unreliable. The final witness for the applicant was Tom Claunch who is the co-founder and clinical director of Capri Hospital. He is a certified addiction counsellor and hospital administrator with over 35 years’ experience in the addictive disease field. His organisation is opposed to the sale of party pills, herbal smoking products or other “alternative substances” which can result in “synthetic highs”. He considered it was important to discourage and separate alcohol and gateway drugs where possible and practical. He was concerned that synthetic cannabinoids and similar substances can have antiemetic effects. An antiemetic is a drug that is effective against vomiting and nausea. Taken with alcohol the nausea and vomiting reflexes can be suppressed. Thus, the use of alcohol in combination with synthetic cannabinoids can, on occasions, be deadly. Finally, Mr Claunch deposed that reduced inhibitions, poor judgement, and risk taking are well known alcohol induced behaviours. Thus, a person who has partaken of excessive amounts of alcohol becomes more uninhibited and accordingly is more likely to take ‘Kronic’ than if he were sober. The converse also applies. The consumption of ‘Kronic’ can cause impaired perception, loss of control and poor judgement leading to the excessive consumption of liquor. He stated that if someone takes ‘Kronic’ then there is a high chance that that person will abuse alcohol.

[5] Mr Patel, for the respondent, called no evidence relating to the properties of ‘Kronic’. He was concerned that he had been told by the Police that he was to cease selling ‘Kronic’ when the Police failed to produce any evidence that he should do so.

Decision of Authority and reasons

[6] ‘Kronic’ is not illegal. As far as the Authority is aware, there has been no definitive ruling that the sellers of ‘Kronic’ are unsuitable in terms of the Sale of Liquor Act. Accordingly, for the Police to take the law into their own hands and insist that a licensee not sell ‘Kronic’ on those grounds is unjustified. The proper course for the Police, which they ultimately took, is to make an application to this Authority for a ruling.

[7] The only direct evidence supporting the Police’s position comes from Mr Claunch. He is an expert in addictions and is well qualified to make the statements which he did. In particular, the Authority accepts his evidence as to how the consumption of ‘Kronic’ can cause a loss of inhibitions or judgment, which, when combined with liquor, can result in the excessive consumption of liquor.

[8] The grounds for the application are contained in s.132(3)(b) of the Act whereunder it is contended that the conduct of the licensee was such as to show that it was not suitable to hold the licence. When considering “suitability”, it is appropriate to refer to s.4 of the Act which sets out its object:

4 Object of Act

(1) The object of this Act is to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse, so far as that can be achieved by legislative means.

(2) The Licensing Authority, every District Licensing Agency, and any Court hearing any appeal against any decision of the Licensing Authority, shall exercise its jurisdiction, powers, and discretions under this Act in the manner that is most likely to promote the object of this Act.

[9] When considering a licensee’s suitability, the Authority is required to exercise its jurisdiction, powers and discretions in a manner most likely to promote the object of the Act. The object of the Act is the establishment of a reasonable system of control over the sale and supply of liquor with the aim of contributing to the reduction of liquor abuse. If the sale of ‘Kronic’ is likely to lead to the excessive consumption of liquor, as Mr Claunch deposed, then its sale in licensed premises constitutes liquor abuse.

[10] Accordingly, in reliance on Mr Claunch’s evidence, the Authority considers that the sale of ‘Kronic’ (or any other mind altering substance likely to lead to the excessive consumption of liquor (other than liquor itself)) in licensed premises is evidence of a licensee’s unsuitability in terms of s.132(3)(b) of the Act as this involves liquor abuse.

[11] The Authority is satisfied that the grounds for the application have been established. However, in terms of s.132(6) of the Act (given that this was a test case) the Authority concludes that it is not desirable that any order be made.

DATED at WELLINGTON this 10TH day of August 2011

B M Holmes
Secretary

Liquor & Tobacco City.doc(aw)