Kim [2012] NZLLA 1424 (21 December 2012)

Last Updated: 14 January 2013

[2012] NZLLA PH 1424

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by HAN OH KIM pursuant to s.118 of the Act for a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Members: Ms J D Moorhead
Mr R S Miller

HEARING at PAPAKURA on 26 November 2012

APPEARANCES

Mr R A McKelvin – for applicant
Mr A Wilkinson – Auckland District Licensing Agency Inspector – in opposition

DECISION OF THE AUTHORITY

Introduction

[1] This is an application by Han Oh Kim pursuant to s.118 of the Act for a General Manager's Certificate.

[2] The application had been previously adjourned on 19 June 2012 as counsel had requested a Mandarin interpreter for his client when in fact a Korean interpreter was required. A related matter, the application by Kyungha Kim (the father of Han Oh Kim) also for a General Manager's Certificate, was withdrawn at the hearing due to his difficulties with the English language.

[3] The application by Han Oh Kim was originally filed with the Auckland District Licensing Agency on 27 June 2011. Mr Kim is employed at “Southmall Liquor Bargain” in Manurewa. The business is family owned. A reference was provided by his father Kyungha Kim as co-director of Hankor Company Limited (although it appears to be incorrectly dated 23 June 2001). Mr Han Kim has been appointed a temporary manager since 27 June 2011.

[4] The Agency file notes that at the time the application was filed evidence as to qualifications, experience and the Licence Controller Qualification were yet to be provided. This may explain why the Inspector’s report is not dated until 7 February 2012. On the application form it was noted that the Licence Controller Qualification was “awaiting issue”. A copy of the required Licence Controller Qualification has now been provided.

[5] The Inspector’s report opposes Mr Kim’s application on the basis of a lack of suitability, mainly arising from an incident on 2 February 2012.

The Hearing

[6] Ms Gail Patricia Tagaloa is an Auckland District Licensing Agency Inspector. She gave evidence that on 2 February 2012 at approximately 4.55 pm while on her way to another venue in Manurewa, she observed an intoxicated male enter the premises known as “Southmall Liquor Bargain”. The person almost immediately came out of the store carrying nothing and went directly to a nearby money machine. She said that as he passed her she noticed that his eyelids were almost to the point of closing and that he was having difficulty in standing up and walking straight. She then observed the male re-enter “Southmall Liquor Bargain” with a female companion. Ms Tagaloa noted that the man passed within half a metre of her and that she also observed him inside the shop leaning on the young female. Ms Tagaloa was outside looking in.

[7] At approximately 5.05 pm Ms Tagaloa observed the male and female exit the shop both carrying alcohol. The male had a carton of “Ice” lager and the female a box of “Cody’s Ice”. Ms Tagaloa then entered “Southmall Liquor Bargain” and identified herself as a liquor licensing Inspector. She asked the applicant if he had just served a male whom she believed was intoxicated. The applicant admitted serving this person. Ms Tagaloa then asked if she could view the CCTV recording of the last transaction which Mr Kim agreed to.

[8] She said that the recording showed the male staggering backwards away from the counter which indicated to her that he was unsteady on his feet and could not stand in one place. She then viewed the male place his arm around the female and appeared to be holding himself up. She said that it appeared that when the male attempted to put his PIN number into the machine he was unable to complete the transaction without help from the female.

[9] After viewing the recording she asked Mr Kim if he thought the male was extremely intoxicated and he replied ‘no’. Ms Tagaloa informed the applicant that she would bring a senior adviser to the store the next day to view the recording. She returned to the store on 3 February 2012 with Mr Paul Radich who viewed the recordings and agreed that the male was extremely intoxicated. Mr Kim did not agree that the male was intoxicated but on this occasion said that he may have been “high”.

[10] Ms Tagaloa's evidence was that the applicant became extremely aggressive towards her and that he started to throw things around behind the counter, slam drawers and yell at the Inspector. The applicant then said that the Inspector only goes to that store to cause trouble and there are never any issues when they are not there. Ms Tagaloa advised the Authority that in fact this was only the second time that she had been there.

[11] Ms Tagaloa did not believe that this was the sort of behaviour expected of a general manager and in her opinion did not think the applicant was suitable to be the holder of a General Manager's Certificate.

[12] Mr Han Oh Kim is aged 25 years of age. On the application form he disclosed three convictions, the first in May 2005 for a person under 20 exceeding the breath alcohol limit and two convictions in June 2009 for operating a vehicle carelessly and driving with an excess breath alcohol level.

[13] There was no Police opposition to the application on the basis of these convictions. We would normally expect a stand down period of approximately three years with such a conviction history list. That point in time had just been reached when the application was made.

[14] Mr Han Oh Kim provided a written statement. He said that he had “owned” the business in South Auckland for a year now and that he worked 14 hours a day, seven days a week. Although when questioned about his hours by the Authority he said that he was in fact now working more limited hours and another general manager had been appointed.

[15] In relation to the 2 February incident Mr Han Oh Kim said that when the male walked through the door he looked at him and did not notice anything “abnormal”. Mr Kim said that he always asks customer about why they are shopping and whether they are going home and that this is to ascertain whether they are intoxicated to the point that their comprehension could be affected.

[16] In relation to the card transaction he said that the cardholder was presented to the male who swiped the female’s card through and that he knows this because the male turned back to his companion and asked her to enter her PIN number. He said that he believed the two customers were a couple and that they were playing around and being silly. He says that at no time did he come to the conclusion that either individual was intoxicated.

[17] Supporting evidence was given by Kyungha Kim in the form of an almost identical written statement. He required the aid of an interpreter to answer any questions. In his written statement he said that he was somewhat familiar with the male who frequents the shop from time to time and that he was familiar with his normal appearance and demeanour. He said that when the male walked through the door he looked at him and did not notice anything “abnormal”. He said that at no time did he come to the conclusion that either individual was intoxicated.

[18] We had the opportunity to observe Mr Han Oh Kim when he was giving his evidence. He presented as being very diffident and unsure. It was difficult to get responses from him. He did however, admit to losing his temper and throwing things around. He said that he could not recall exactly what he had said to the Inspector. Mr Kim also appeared to have difficulty responding to questions without reference to the interpreter.

[19] Mr McKelvin, counsel for the applicant, attempted to provide the Authority with a DVD of the CCTV footage from the incident. As we made clear to Mr McKelvin simply providing a DVD is not sufficient if we were not able to view the content. We had been unable to view the DVD at the hearing. Nevertheless, after some difficulty and much perseverance the Authority was able to view the footage. It confirmed the physical details given by Ms Tagaloa in her evidence.

Decision and Reasons

[20] The criteria that we must consider in determining an application for a General Manager's Certificate are set out in s.121(1) as follows:

(a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant:

(c) Any experience, in particular recent experience, that the applicant has had in controlling any premises or conveyance in respect of which a licence was in force:

(d) Any relevant training, in particular recent training, that the applicant has undertaken and evidence the applicant holds the prescribed qualification required under section 117A:

(e) Any matters dealt with in any report made under section 119.

[21] In terms of the convictions, we have already noted that there was no opposition from the Police on this basis. Given the time that has now elapsed, the previous convictions need not necessarily be a bar to the application.

[22] Mr Kim does have recent experience in controlling licensed premises having been appointed as a temporary manager since June 2011. He has also undergone relevant training and holds the prescribed Licence Controller Qualification.

[23] The matters that we are mainly concerned with are those of the character and reputation of the applicant as well as any matters dealt with in any report made under s.119 of the Act.

[24] We find on the balance of probabilities that sale, which took place on 2 February 2012, was made to an intoxicated person. To make a sale to an intoxicated person is an offence under the Act (s.166). Ms Tagaloa said in her evidence that when the person passed her his eyes were almost closed and he was having difficulty walking. While she did not give any evidence of other possible indications such as smelling alcohol or hearing him speak, he did pass very close to her and she continued to observe him in the shop. As a liquor licensing inspector she is required to assess intoxicated people as part of her job. Even if we are wrong in finding intoxication, we note Mr Kim’s statement to the Inspectors while denying the person was intoxicated, that the person may have been” high”. For him to say this there must have been evidence of impairment. While it is not an offence under the Act to sell liquor to a person impaired by drugs, as opposed to alcohol, it is something that in our view would still raise concern as to the judgment and suitability of the seller.

[25] What also gives us cause for concern is the actions of Mr Kim when dealing with the Inspectors. By his own admission he was angry, lost his temper and threw papers around. Such behaviour when dealing with the authorities is not what we expect of managers of licensed premises.

[26] We were also able to observe Mr Kim when he gave his evidence. We were not impressed. He appeared sullen and unresponsive. While this may have been due in part to his need to rely on the interpreter, that also raises another issue. Managers of licensed premises are expected to have a sufficient grasp of the English language that they can carry out their responsibilities under the Act.

[27] The onus is on Mr Kim as the applicant. In our view Mr Kim has not established his character and reputation in terms of suitability to hold a General Manager's Certificate. We are not satisfied that he will carry out his responsibilities under the Act. We must also take into account the object of the Act.

[28] The application is refused.

DATED at WELLINGTON this 21st day of December 2012

B M Holmes
Secretary

Han Kim.doc(aw)