Marsh v Pescado [2012] NZLLA 504 (21 May 2012)

Last Updated: 25 June 2012

[2012] NZLLA 504-505

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 on-licence number 007/ON/9002/2012 issued to PESCADO NORTH WHARF LIMITED in respect of premises situated at Tenancy W1, 39-47 Jellicoe Street, Auckland, known as "Pescado"

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM/007/137/07 issued to METIN TUMER

BETWEEN ANITA LEE MARSH

(Auckland District Licensing Agency Inspector)

Applicant

AND PESCADO NORTH WHARF LIMITED

First respondent

AND METIN TUMER

Second respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

DECISION

We have before us applications by Ms A L Marsh, Auckland District Licensing Agency Inspector dated 16 January 2012, for suspension of an on-licence and a General Manager’s Certificate.

The grounds for the applications are: that the premises have been conducted in breach of the provisions of ss.165 and 172A of the Act – unauthorised sale or supply of liquor and licensee’s failure in respect of a manager; and that the manager has failed to conduct the licensed premises in a proper manner.

On Saturday 14 January 2012 Agency Inspectors undertook a compliance check in licensed premises known as “Pescado”. They identified themselves to a staff member and asked to speak to the duty manager, identified by signage as the second respondent. The Inspectors were advised that he was not present. The business was trading and patrons were consuming liquor.

It transpires that no acting or temporary manager had been appointed, thereby causing a breach of s.115 of the Act. It follows, therefore, that any liquor sales made absent a manager would have been unlawful in terms of s.165 of the Act.

The respondents do not dispute the grounds for the applications and they have agreed to suspension of the on-licence and manager’s certificate. Accordingly, we make the following orders by consent:

(a) On-licence number 007/ON/9002/1012, issued to Pescado North Wharf Limited, is suspended for 24 hours from 7.00 am on Tuesday 29 May 2012.

(b) General Manager’s Certificate number GM/007/137/07, issued to Metin Tumer, is suspended for two weeks from 1 June 2012.

DATED at WELLINGTON this 21st day of May 2012

B M Holmes
Secretary

Pescado & Metin Tumer.doc(ab)