Ōwhata Thirsty Liquor. Photo / File
A Rotorua bottle store has won a High Court battle to have suspensions overturned.
Justice Graham Lang ruled this week that there was not enough evidence an elderly man showed symptoms of being drunk when he bought liquor from Ōwhata Thirsty Liquor.
The man had slurred speech, bloodshot eyes and a stench of methylated spirits and was so intoxicated he soiled himself during police breath testing thirty minutes after he bought the alcohol.
The New Zealand Alcohol Regulatory and Licensing Authority in September ordered the manager be suspended for eight weeks and the store shut for 48 hours. But that decision has been overturned by the High Court and the business has been cleared of wrongdoing.
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The police case used evidence from four witnesses.
It said on December 10 last year, a "tall, older male looking dishevelled… who had wet marks on the front and back of his pants" was refused service at a liquor store in Rotorua.
The duty manager called the police, saying the man had driven into the gutter. He gave police the man's vehicle description when it headed east on Te Ngae Rd.
The man had been "mumbling nonsensically", swaying back and forth and had to lean on a shelf to support himself when he tried to buy rum, the finding said.
Soon after, an Ōwhata medical centre called police with concerns about the sobriety of a patient who was about to leave the centre.
Evidence from Sergeant Pauline Jones and CCTV footage shows that the man then drove to Ōwhata Thirsty Liquor after being refused service by the first liquor outlet.
Manager Jaswinder Singh sold him a one-litre bottle of Black Heart rum and 1.5-litre bottle of coke for $44.
Sergeant Peter Jones then stopped a car matching the description near the airport, with an "extremely intoxicated" driver with wet stains on the front of his pants.
He said the man then soiled himself upon getting out of the car for testing "and seemed unaware he had done so".
The driver failed a breath test which recorded 1017 micrograms of alcohol per litre of breath, more than four times the legal limit of 250 micrograms.
The man was suspended from driving and summoned to appear in the Rotorua District Court.
Evidence from Sergeant Pauline Jones, and CCTV footage "clearly showed that the male had a wet patch on the front of his pants" while in Ōwhata Thirsty Liquor.
Singh told the New Zealand Alcohol Regulatory and Licensing Authority the elderly man was a regular customer who purchased liquor two to three times a week.
"There was nothing about the man's behaviour or way of talking that was unusual or that indicated that he was unbalanced," he said.
Singh said the man looked the way he normally did, did not have problems using his Eftpos card, was talking to the customer behind him and the stain wasn't visible through the counter.
He said the man thanked him and did a sort of a bow as he left the store.
Singh said he noticed no slurring, incoherence, smell or unsteadiness.
He also said when the man arrived at the store two days later with bloodshot eyes and walking unsteadily he was refused service.
Tarsem Singh, the managing director of TS & RK Bhullar Ltd, the licensee, said Jaswinder Singh was "a hardworking, conscientious employee and was aware that his certificate had been suspended for serving a minor last February".
He said Jaswinder had been "very conscious not to repeat that failure" and in his view, the elderly man did not show signs of intoxication in the CCTV footage.
Tarsem Singh said he was also the owner and manager of a grocery business in Taupō, "which holds an off licence and has had no record of failures in 12 years".
Authority chairperson Judge Kevin Kelly ordered that Ōwhata Thirsty Liquor's off-licence be suspended for 48 hours from 9am on November 18 this year.
He suspended Singh's manager's certificate for 56 days from November 17 to January 11 2020.
However, Justice Lang has quashed those suspensions in a decision released on Wednesday.
He said there needed to be at least two "observable symptoms" of intoxication during purchase for the licenses to be suspended.
Lang said CCTV footage was the only "direct evidence" of the man's manner in the store.
He said the quality was "excellent" and positioned a "very short distance" from the elderly man and Singh.
Justice Lang ruled the manager could not have seen the wet patch on the man's trousers from the counter, and the elderly man had no trouble making the transaction.
He said the evidence supported Singh's version of events, with one exception - speech impairment.
Constable Jones and the duty manager of the first store where the elderly man tried to buy alcohol both said his speech was slurred, but there was no sound on the footage.
Lang concluded: "Impaired speech is unlikely, in my view, to suddenly disappear and then reappear within a matter of minutes."
But he said it wasn't possible to say from the footage that any other symptoms of intoxication were evident.
He therefore granted the appeal.
Thirsty Liquor's legal costs will now be covered by police.
In September, Rotorua Lakes Council said it had not received any complaints about Ōwhata Thirsty Liquor in the past five years.
In June and July last year Singh's certificate was suspended for 28 days by the licensing authority after he was caught selling alcohol to someone underage in February.
Rotorua district liquor licences
• 139 on-licence premises
• 42 off-licence premises
• 25 club licence premises
Source: National alcohol licensing authority register (last updated in May)
Lily Arabin, 34, died in a car crash on the Tauranga Eastern Link on June 26.