Walden v Thirsty Liquor Ti Rakau [2012] NZLLA 903 (10 August 2012)

Last Updated: 23 August 2012

[2012] NZLLA PH 903-904

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/3005/2012 issued to K. RISING GROUP LIMITED in respect of premises situated at Unit 2, 60 Ti Rakau Drive, Pakuranga, Auckland, known as “Thirsty Liquor Ti Rakau”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager's Certificate number GM/005/28/2009 issued to MING ZHAO

BETWEEN GARRY BOLES

(Police Officer of Auckland)

AND JUNE WALDEN

(Auckland District Licensing Agency Inspector)

Applicants

AND K. RISING GROUP LIMITED

First respondent

AND MING ZHAO

Second respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at PAPAKURA on 6 August 2012

APPEARANCES

Sergeant G J Campbell – NZ Police – applicant
Mr A Wilkinson – Auckland District Licensing Agency Inspector – applicant
Mr M Zhao – on behalf of respondents

DECISION OF THE AUTHORITY

[1] At the hearing of these two enforcement applications the following facts were admitted.

[2] At approximately 7.26 on 10 May 2012, in the course of a controlled purchase operation, two 15 year old persons entered the premises and purchased two 12 bottle boxes of Woodstock bourbon and cola. The minors were not asked their age or for any identification. Ming Zhao was the duty manager who effected the sale.

[3] At approximately 8.30 am the same day, in the course of the same operation, the same two minors entered the store and purchased another 12 bottle box of Woodstock bourbon and cola. They were not asked their age or for any identification. The sales person was Yunzi Li who is a student from China and who stated that he had only been working in the shop for two weeks. He did not hold a General Manager's Certificate and had not received any training in respect of sale of liquor matters.

[4] When the second incident occurred (8.30 pm, 10 May 2012) the named duty manager was Ming Zhao who was not present in the store. He arrived at the store some 30 minutes after the incident stating that he had been out shopping.

[5] Having admitted the foregoing facts, the licensee agreed that in accordance with s.132(3)(a) of the Act the licensed premises were conducted in breach of s.155 of the Act (selling liquor to a minor). In addition, it was admitted in accordance with s.132(3)(b) of the Act that the conduct of the licensee was such as to show that it was not suitable to hold the licensee.

[6] Ming Zhao, as manager, accepted that in accordance with s.135(3)(a) of the Act he had failed to conduct the licensed premises in a proper manner and that (in accordance with s.135(2)(b) of the Act) his conduct was such as to show that he was not suitable to hold the certificate.

[7] The applicants submitted that the licence should be suspended for seven days and that the General Manager's Certificate should be suspended for a minimum of 28 days.

[8] The Authority considers that it is desirable that the off-licence be suspended. In calculating the term of the suspension, it recognises that a first failed controlled purchase operation usually warrants a one day suspension. A second failed controlled purchase operation usually warrants a three day suspension. In this case, the failed controlled purchase operations have the aggravating feature of very young purchasers who managed to acquire a large amount of liquor. Further, the two incidents were very close together. Finally, the failure to have a duty manager present when the second incident occurred constitutes a breach of s.115 of the Act, which, again, is an aggravating feature. The Authority concludes that it is appropriate that the off-licence be suspended for six days.

[9] The general manager has failed one controlled purchase operation. His certificate has not been suspended before. An aggravating feature is the extreme youthfulness of the purchasers and the large amount of liquor they were able to acquire from him. The additional aggravating feature is his failure to be present on the premises when the second incident occurred. This constitutes a breach of s.115 of the Act.

[10] Accordingly:

• [a] The off-licence is suspended for six days commencing 7.00 am on 20 August 2012;
  
• [b] The General Manager's Certificate is suspended for six weeks commencing 7.00 am, 3 September 2012.
  

DATED at WELLINGTON this 10th day of August 2012

B M Holmes
Secretary

Thirsty Liquor Ti Rakau.doc(aw)