Taylor v Hotel South Otago [2012] NZLLA 636 (7 June 2012)

Last Updated: 10 July 2012

[2012] NZLLA PH 636-637

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 070/OFF/4/2001 issued to CLUTHA LICENSING TRUST in respect of premises situated at 13 Clyde Street, Balclutha known as “Hotel South Otago”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number GM/1421/98 issued to WILLIAM ANDREW DE GEEST

BETWEEN THOMAS ALEXANDER TAYLOR

(Police Officer of Balclutha)

Applicant

AND CLUTHA LICENSING TRUST

First respondent

AND WILLIAM ANDREW DE GEEST

Second respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at BALCLUTHA on 28 May 2012

APPEARANCES

Senior Constable T A Taylor – NZ Police – applicant
Mr D Kenny – on behalf of first respondent
Mr W A De Geest – second respondent
Mrs C F Shaw – Clutha District Licensing Agency Inspector – to assist

DECISION OF THE AUTHORITY

[1] This decision relates to two enforcement applications. The first is brought under s.132 of the Act and sought the suspension of the off-licence issued to Clutha Licensing Trust. The second was brought under s.135 of the Act and sought the suspension of the General Manager's Certificate issued to Mr De Geest.

[2] At the hearing it was admitted that the licensed premises had been conducted in breach of s.155(1) of the Act (sale of liquor to a minor). It was also admitted in accordance with s.135(3) of the Act that the manager had failed to conduct the licensed premises in a proper manner in that a breach of s.155(1) of the Act had occurred.

[3] In each case the allegation was that on 23 December 2010 there was a controlled purchase operation as result of which liquor was sold at the off-licence to a female volunteer aged 16 years and 11 months. At the time Mr De Geest was the duty manager but was temporarily absent from the hotel (which would be a breach of s.115 of the Act).

[4] Accordingly, in each case the Authority accepts that the grounds in support of each application have been established.

[5] The issue is whether in terms of ss.132(6) and 135(6) of the Act it is desirable for orders to be made. In each case the Authority concludes that it is not desirable for orders to be made. The incident occurred on 23 December 2010. The s.132 of the Act application is dated 20 October 2011 – 10 months after the incident. The application for the suspension of the General Manager's Certificate is dated 9 November 2011 – almost 11 months after the incident. As the Authority has stated on many occasions the principle “justice delayed is justice denied” applies to proceedings before the Authority. The reason given for the delay in making the applications is a systemic one: lack of Police resources. That explanation by the Police has never been regarded by the Authority as satisfactory. It is for this reason that no orders will be made.

[6] The Authority notes that the off-licence is due for renewal on 23 July 2012. Whether the Police or the Inspector will agree to a renewal of the off-licence for a further three years has yet to be determined.

[7] In accordance with ss.132(6) and 135(6) of the Act no orders are made.

DATED at WELLINGTON this 7th day of June 2012

B M Holmes
Secretary

Hotel South Otago.doc(aw)