Muir v Thriftway Four Square Discount [2012] NZLLA 1129 (11 October 2012)

Last Updated: 7 November 2012

[2012] NZLLA PH 1129-1130

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 of off-licence number 045/OFF/006/2001 issued to G M VIRBHAVANI CO LIMITED in respect of premises situated at 16 Seaview Road, Paraparaumu known as “Thriftway Four Square Discount”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number 045/GM/923/2011 issued to DIANE JOY REID

BETWEEN JACQUELYN LEE MUIR

(Police Officer of Paraparaumu)

AND G M VIRBHAVANI CO LIMITED

First respondent

AND DIANE JOY REID

Second respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge J D Hole
Members: Mr D E Major
Mr R S Miller

HEARING at WELLINGTON on 4 October 2012

APPEARANCES

Sergeant J L Muir – NZ Police – applicant
Mrs R Patel – on behalf of first respondent
Mrs D J Reid – second respondent

DECISION OF THE AUTHORITY

[1] The first application has been brought under s.132 of the Act. It alleges that, pursuant to s.132(3)(a) of the Act on 31 July 2012 the licensed premises were conducted in breach of s.155(1) of the Act – sale or supply of liquor to a minor; and in breach of the condition of the licence which requires a licensee to ensure that the provisions of the Act relating to the sale and supply of liquor to prohibited persons are observed.

[2] The second application is brought under s.132 of the Act. It alleges that Mrs Reid, as general manager on 31 July 2012 failed to conduct the licensed premises in a proper manner and that her conduct as a general manager was such as to show that on that occasion she was not a suitable person to hold a General Manager's Certificate. Sections 135(3)(a) and (b) of the Act are relied on.

[3] The agreed facts are that at approximately 1.20 pm on 31 July 2012, whilst Mrs Reid was employed as the duty manager at the licensed premises, there was a controlled purchase operation. Mrs Reid sold the underaged volunteer a bottle of wine without asking the volunteer her age or for identification. Mrs Reid stated that she thought the volunteer looked about 27.

[4] The only issue arising out of each application is whether it is desirable to make an order.

[5] Mrs Reid has held her General Manager's Certificate since 21 December 2011. She is still within the “probationary” year. It is evident that she knew what her obligations in terms of the Act were but allowed herself to be distracted by her impression that the volunteer was a mature customer.

[6] In her case, there are no extenuating circumstances.

[7] This is the second time within 12 months that the licensee has failed a controlled purchase operation. The Authority notes:

• [a] The licensee failed to personally ascertain that its new general manager was adequately trained in respect of her obligations under the Act;
  
• [b] Failed to have any prompt on the till to assist a duty manager;
  
• [c] Failed to have any other systems in place to avoid inadvertent sales to underaged persons.
  

[8] Since the incident “Foodstuffs” have required the licensee to replace the till system with a point of sale that includes a prompt on the till.

[9] However, the impression the Authority gained of the licensee is that it has been somewhat cavalier in ensuring that its responsibilities under the Act in respect of sales to underage persons are carried out.

[10] The licensee has placed itself in a precarious position. Two failed controlled purchase operations within 12 months is a bad record. Should the licensee fail another controlled purchase operation then it is inevitable that its licence will be in jeopardy.

[11] Accordingly:

• [a] Mrs Reid’s General Manager's Certificate is suspended for 30 days commencing 29 October 2012;
  
• [b] The licensee’s off-licence is suspended for seven days commencing 7.00 am Monday 29 October 2012.
  

DATED at WELLINGTON this 11th day of October 2012

B M Holmes
Secretary

Thriftway 4 Square.doc(aw)