Robert Johnson Vineyards – undertaking

South Australia’s consumer watchdog has warned wineries and cellar doors to adhere to their obligations under the Liquor Licensing Act 1997 (SA), after a cellar door in the Adelaide Hills allegedly sold wine without a licence.

UNDERTAKING
Liquor Licensing Act 1997
Section 119A(1)

Undertaking given to the Liquor and Gambling Commissioner for the purposes of section 119A(1) of the Liquor Licensing Act 1997 by:

Robert James Johnson

Persons giving this undertaking

1. This undertaking is given to the Liquor and Gambling Commissioner (“the Commissioner”) by Robert James Johnson of 125 Bartschs Road, Eden Valley in the State of South Australia for the purposes of section 119A(1) of the Liquor Licensing Act 1997 (“the Act”) .

Background

2. Robert James Johnson (“the licensee”) is a natural person.

3. The licensee has held a Producer’s Licence, number 50804690 (“the licence”), pursuant to Section 39 of the Act since 19 November 1998 in respect of the premises known as Robert Johnson Vineyards.

4. The premises address on the licence is listed as 2/59 Bridge Street, Kensington in the State of South Australia .

Conduct of concern

5. From 30 January 2016 to 25 February 2017 the licensee sold his wine produce from a cellar door located at 3C Main Street, Lobethal in the State of South Australia in circumstances in which the licensee did not hold any licence or authorisation under the Act to sell liquor from the cellar door.

Contraventions of the Liquor Licensing Act 1997

6. The Commissioner considers, and the licensee acknowledges, that by engaging in the conduct described in paragraph 5, the licensee contravened section 46(1) of the Liquor Licensing Act 1997.

7. The Commissioner considers that there is proper cause for disciplinary action pursuant to section 119(1)(b)(i) of the Act on the basis that the licensee sold or supplied liquor contrary to the Act or without proper authority under the Act.

8. Upon being made aware of the Commissioner’s concerns, the licensee:

8.1. Agreed to provide an undertaking to the Commissioner pursuant to Section 119A(1) of the Act;

8.2. Indicated a willingness to ensure future compliance with sections 46(1) and 119(1)(b)(i) of the Act.

Undertaking

9. The licensee undertakes to ensure that his wine produce will only be sold or supplied with proper authority under the Act in compliance with sections 46(1) and 119(1)(b)(i) of the Act.

10. The licensee undertakes to obtain authorisation under the Act for any operational change to his business, including submitting any required application for a new licence or to have the licence altered.

Commencement of undertaking

11. This undertaking comes into effect when :

11.1. The undertaking is executed by the licensee; and

11.2. The Commissioner accepts the undertaking so executed .

Acknowledgments

12. The licensee acknowledges that:

12.1. CBS will make this undertaking publicly available including by publishing it on CBS’ public register of undertakings on its website;

12.2. CBS will , from time to time, make public reference to the undertaking including in news media statements and in CBS publications; and

12.3. This undertaking in no way derogates from the rights and remedies available to any other person arising from the alleged conduct.

Executed as an undertaking

Executed by the licensee, Robert James Johnson.

Signed undertaking (PDF 112/KB)

Statement (PDF 92KB)


The Corner Bistrot – undertaking

A Leigh Street restaurant has entered into a legally enforceable undertaking with South Australia’s liquor licensing authority after allegedly breaching its licence conditions and the Liquor Licensing Act.

UNDERTAKING

Liquor Licensing Act  1997

Section 119A(1)

Undertaking given to the Liquor and Gambling Commissioner for the purposes of section 119A(1) of the Liquor Licensing Act 1997 by:

Mr Vittorio Larosa

Licensee

Person Giving this Undertaking

1. This undertaking is given to the Liquor and Gambling Commissioner (the Commissioner) by Vittorio Larosa in respect of Premises The Corner Bistrot, located at Shop 7/13 Leigh Street in the State of South Australia for the purposes of section 119A(1) of the Liquor Licensing Act 1997 (the Act).

Background

2. Mr Vittorio Larosa (the licensee) has held a Restaurant Licence pursuant to section 34 of the Act since 26 February 1998 in respect of the premises The Corner Bistrot.

Conduct of Concern

3. From 4 February 2016 to 21 May 2017 the licensee supplied liquor to patrons for consumption on a regulated premises which was unlicensed contrary to section 129(2) of the Act by supplying liquor to patrons and allowing patrons to consume such liquor in the outdoor area of the premises in circumstances in which the licensee did not hold a valid outdoor dining permit from the Adelaide City Council.

4. From 4 February 2016 to 21 May 2017 the licensee failed to properly conduct, supervise or manage the business contrary to section 119(1)(b)(viii) of the Act by allowing patrons to consume liquor in the outdoor area of the premises in circumstances in which the licensee did not hold a valid outdoor dining permit from the Adelaide City Council.

Contraventions of the Liquor Licensing Act 1997

5. The Commissioner considers, and the licensee acknowledges, that by engaging in the conduct described in paragraphs 3 , the licensee contravened section 129(2) of the Act.

6. The Commissioner considers that there is proper cause for disciplinary action pursuant to section 119(1)(b)(viii) of the Act on the basis that the business has not been properly conducted, supervised or managed in accordance with the Act or any other Act.

7. Upon being made aware of the Commissioner ‘s concerns, the licensee:

7.1 Agreed to provide an undertaking to the Commissioner pursuant to section 119A(1) of the Act;             and

7.2 Indicated a willingness to ensure that the licensee would take action to ensure future                              compliance with sections 129(2) and119(1)(b)(viii) of the Act .

Undertaking

8. The licensee undertakes to ensure that at all times when the business is open to the public, it will not supply liquor to patrons for consumption unless consumption of liquor occurs in an area approved under the licence, and in accordance with any applicable local council

9. The licensee  undertakes  to  ensure  that  the  business  will  be  properly  conducted, supervised or managed in compliance with section 119(1)(b)(viii) of the Act.

Commencement of Undertaking

10. This undertaking comes into effect when:

           10.1 The undertaking is executed by the licensee and Mr Larosa; and

           10.2 The Commissioner accepts the undertaking so executed.

Acknowledgments

11. The licensee acknowledges that:

11.1 CBS will make this undertaking publicly available including by publishing it on CBS’ public register of undertakings on its website;

11.2 CBS will, from time to time, make public reference to the undertaking including in news media statements and in CBS publications; and

11.3 This undertaking in no way derogates from the rights and remedies available to any other person arising from the alleged conduct.

Executed as an Undertaking

Executed by Mr Vittorio Larosa in his personal capacity as licensee.

Signed undertaking (PDF 114KB)

Statement (PDF 105KB)


Wilted spinach – undertaking

South Australia’s consumer watchdog has warned restaurant owners to adhere to their obligations under the Liquor Licensing Act, after a café on the Fleurieu Peninsula was found in breach.

UNDERTAKING

Liquor Licensing Act  1997

Section 119A(1)

Undertaking given to the Commissioner for Consumer Affairs given for the purposes of section 119A(1) of the Liquor Licensing Act 1997 by:

Wilted Spinach Trading Pty Ltd

and

Mr Benjamin Lawrence Johnston

 

Persons Giving this Undertaking

1. This undertaking is given to the Liquor and Gambling Commissioner (the Commissioner) by Wilted Spinach Trading Pty Ltd in respect of Premises One Little Sister at 48 Main Road, Normanville in the State of South Australia and the sole director Benjamin Lawrence Johnston for the purposes of section 119A(1) of the Liquor Licensing Act 1997 (“the Act”).

Background

2. Wilted Spinach Trading Pty ltd (“the licensee”) has held a Restaurant Licence pursuant to Section 34 of the Act since 5 November 2013 in respect of the premises One Little Sister.

3. Mr Benjamin Johnston (“Mr Johnston”) is the sole director of Wilted Spinach Trading Pty Ltd.

Conduct of Concern 

4. On 2 September 2016 at 15pm, the licensee’s business was trading without the supervision and management of a Responsible Person contrary to s 97(1)(a) of the Act.

Contraventions of the Liquor Licensing Act 1997

5. The Commissioner considers, and the licensee acknowledges, that by engaging in the conduct described in paragraph 4, the licensee contravened:

5.1 Section 97(1)(a) in relation to the Liquor Licensing Act 1997;

6. The Commissioner considers, and Mr Johnston acknowledges, that Mr Johnston is vicariously liable for the actions of the licensee pursuant to s 134 of the Act.

7. Upon being made aware of the Commissioner’s concerns, the licensee and Mr Johnston:

7.1 Agreed to provide an undertaking to the Commissioner pursuant to section 119A(1) of                                   the Act; and

7.2 Indicated a willingness to ensure that the licensee would take action to ensure future                                      compliance with s 97(1)(a) of the Act.

Undertaking

8. The licensee undertakes to ensure that at all times when the business is open to the public, it will be personally supervised and managed by a Responsible Person in compliance with s 98(1)(a) of the Act.

9. Mr Johnston undertakes that, as sole director of the licensee, he will ensure that the licensee complies with s 97(1)(a) of the Act.

Commencement of Undertaking

10. This undertaking comes into effect when:

10.1 The undertaking is executed by the licensee and Mr Johnston; and

10.2 The Commissioner accepts the undertaking so executed.

Acknowledgment

11. The licensee and Mr Johnston acknowledges that:

11.1 CBS will make this undertaking publicly available including by publishing it on CBS’                                      public register of undertakings on its website;

11.2 CBS will, from time to time, make public reference to the undertaking including in news                               media statements and in CBS publications; and

11.3 This undertaking in no way derogates from the rights and remedies available to any                                        other person arising from the alleged conduct.

Signed undertaking (PDF 102KB)

Statement (PDF 91KB)


Eric Seed Holdings Pty Ltd – undertaking

South Australia’s consumer watchdog has warned hotel owners to adhere to their obligations under the Gaming Machines Act 1992, after a hotel in Dublin was found in breach.

UNDERTAKING

Gaming Machines Act 1992

Undertaking given to the Liquor and Gambling Commissioner for the purposes of the

Gaming Machines Act  1992 by:

Eric Seed Holdings Pty Ltd and Ms Lesley Mary Seed

 

Persons Giving This Undertaking

1. This Undertaking is given to the Liquor and Gambling Commissioner  (the Commissioner) by Eric Seed  Holdings Pty  Ltd in respect  of  Premises  New  Dublin Hotel at 26 Old Port Wakefield Road, DUBLIN, in the State of South Australia and the sole director Ms Lesley Mary Seed for the  purposes  of the  Gaming Machines Act 1992 (The Act).

Background

2. Eric Seed Holdings Pty Ltd (the licensee) has held a Hotel and Gaming Machine Licence since 15 November 2006 for the New Dublin Hotel, approved under the Liquor Licensing Act 1997 and Gaming Machines Act 1992, Licence number 50101270.

3. Ms Lesley Seed is the Sole Director of the Licensee, Eric Seed Holdings Pty Ltd. ACN : 121721962

Conduct of Concern

4. During a routine inspection conducted at the New Dublin Hotel on 13 April 2017 the following breaches were identified:

4.1 The last recorded management review of the internal reporting of suspected problem  gamblers occurred on 20 March 2017. This management review must be recorded on a                                 fortnightly basis in accordance with the requirements of clause 42(2) and (3) of the  Gambling Codes of Practice Notice 2013 (GCOP) which states:

(2) A gambling provider must ensure that a manager (however described)-

(a) reviews the record of suspected problem gamblers on regular basis; and

 (b) documents, as part of the record­  –

 (i) the fact of the review; and 

(ii) any steps taken to intervene in suspected problem gamblers’ gambling  behaviour.

 (3) Reviews will be regarded as being conducted on a regular basis, for the purposes of sub- clause (2)(a),

 (a) the reviews are conducted fortnightly or more frequently.

This is the second occasion this review has not been recorded on at least a fortnightly basis and has been identified as a breach.  The first occasion was detected during a previous routine inspection conducted on 15 September 2015. On that occasion a warning letter was sent, dated 24 September 2015.

4.2 The licensee failed to display a condensed warning message and the national gambling  helpline number at the cashier in accordance with the requirements of clause 45A(2)(a) of                           the GCOP which states:

 (2) A gaming provider must-

(a) ensure the prominent display of the condensed warning message and the national  gambling helpline number 1800 858 858 on or near-

(i) each automated coin dispensing machine in or near a gaming area; and

 (ii) each customer service point at which money is exchanged for coins, for tickets or for credit on a recognised account based cashless gaming system.

This is the third occasion where the absence of this sign has been identified as a breach. The first and second occasions were detected during previous routine inspections, conducted on 27 October 2014 and 15 September 2015. On these occasions warning letters were sent dated 13 November 2014 and 24 September 2015 respectively.

4.3 There was not a quantity of gambling helpline cards available aUnear each ATM, auto coin dispenser, cashier & aUnear each gaming machine in accordance with the                                                requirements of clause 45A(2)(b) of the GCOP  which states:

(2) A gaming provider must-

(b) ensure that a quantity of helpline cards is available at or near-

(i) each ATM; 

(ii) each automated coin dispensing machine in or near gaming area;

 (iii) each customer service point at which money is exchanged for coins, for tickets or for credit on a recognised account based cashless gaming system; and

 (iv) each gaming machine.

This is the second occasion the absence of these cards have been identified as a breach. The first occasion was detected during a previous routine inspection, conducted on 27 October 2014. On that occasion a warning letter was sent dated 13 November 2014.

4.4 There was no A3 multi-lingual sign, containing information about the availability of free, confidential and professional help with gambling problems and related issues, displayed in the gaming area in accordance with the requirements of clause 45(3) of the GCOP which states:

(3) A gaming provider must place in a prominent position in each gaming area at least one A3 equivalent sign (“multi-lingual sign“)-

(a) containing information about the availability of free, confidential and professional help with gambling problems and related issues; and

(b) expressed in-

(i) English, Arabic, chinese, greek, italian and vietnamese (the “core languages“).

4.5 As the Gaming Manager on duty, Lesley Seed, ID #13698, failed to complete advanced training in accordance with the requirements of clause 70(1)(b)(i) of the GCOP which states:

70(1) A gaming machine licensee must ensure that­

(b) each gaming manager–

(i) within the 3 months before or after starting, completed basic training (if the gaming manager has not already completed basic training) and advanced training; and

(ii) at intervals of no more than 2 years after first completing advanced training, commences and completes further advanced training.

Contraventions of the Gaming Machines Act 1992

5. The Commissioner considers, that by engaging in the conduct described in paragraph 4, there is proper cause for disciplinary action against the licensee pursuant to s 36(1 )( da) of the Gaming Machines Act 1992.

6. The Commissioner considers, and Ms Seed acknowledges, that Ms Seed is vicariously liable for the actions of the licensee pursuant to S85 of the Act.

7. Upon being made aware of the Commissioner’s concerns, the licensee and Ms Lesley Seed:

     7.1 Agreed to enter into an undertaking with the Liquor and Gambling Commissioner;

Undertaking

8. The licensee and Ms Seed undertake to:

      8.1 Ensure future compliance with all aspects of the Gambling Codes of Practice Notice 2013. Commencement of Undertaking

9. This undertaking comes into effect when:

9.1 The undertaking is executed by the licensee and Ms Lesley Seed; and

 9.2 The Commissioner accepts the undertaking so executed.

Acknowledgements

10. The licensee and Ms Lesley Seed acknowledges that:

10.1 CBS may make this Undertaking publicly available including by publishing it on the  CBS public register of Undertakings and on its website;

10.2 CBS may, from  time  to time,  make public  reference to the Undertaking including in  news media statements and in CBS publications.

10.3 This undertaking in no way derogates from the rights and remedies available to any  other person arising from the alleged conduct.

Signed undertaking (PDF 145KB)


Vivek Chhabra – Kajraare event – undertaking

UNDERTAKING

Liquor Licensing Act 1997

Undertaking given to the Liquor and Gambling Commissioner for the purposes of s119A of the Liquor Licensing Act 1997 by:

Mr Vivek Chhabra

Persons Giving This Undertaking

1. This Undertaking is given to the Liquor and Gambling Commissioner (the Commissioner) by Mr Vivek Chhabra of 11A Parsons Grove PARK HOLME SA 5063, in the State of South Australia for the purposes of section 119A of the Liquor Licensing Act 1997 (“the Act”).

Background

2. Mr Vivek Chhabra (the Licensee) applied and was granted a limited licence authorising the sale of liquor on a temporary basis for a Bollywood event “Kajraare”. This event was held in the Upstairs Function Room of Phonatic Restaurant, located at 171 Hindley Street Adelaide on Saturday 11 March 2017.

Conduct of Concern

3. On 10 February 2017, the Bollywood event “Kajraare” was advertised on the “Downunder Adelaide Events” Facebook page. The advertisement stated: “TICKETS $15 PER PERSON. LADIES $10 BEFORE 11:OOPM.” This advertisement promoted and offered a discounted admission price for ladies contrary to clause 9(2) of the General Code of Practice which states:

“A licensee must not conduct or permit gender-based promotions involving free or discounted liquor on the licensed premises including free or discounted entry to the licensed premises”.

4. As a result of the conduct set out in paragraph 3 the Licensee has failed to comply with the conditions in accordance with the requirements of section 42(1) of the Act which states:

“It is a condition of every licence that the licensee must comply with the Commissioner’s codes of practice”.

Contraventions of the Liquor Licensing Act 1997

5. The Commissioner considers, and the Licensee acknowledges, that by engaging in the conduct described in paragraph 3, the Licensee has contravened:

5.1 Section 42(1) of the Act; and

5.2 Section 9(2) of the General Code of Practice.

6. Upon being made aware of the Commissioner’s concerns, the Licensee:

6.1 Indicated a willingness to enter into an undertaking with the Commissioner pursuant                                    to section 119A of the Act;

6.2 Agreed to not hold or advertise events which contravene the Code of Practice;

Undertaking

7. Mr Chhabra undertakes to:

7.1 Comply with the General Code of Practice, and

7.2 In particular, Mr Chhabra undertakes that he will not conduct or permit gender­ based                                  advertising (including promotions) on a licensed premises, including free or                                                    discounted entry to a licensed premises.

Commencement of Undertaking

8. This undertaking comes into effect when:

8.1 The undertaking is executed by Mr Vivek Chhabra; and

8.2 The Commissioner accepts the undertaking so executed (‘the commencement date’).

Acknowledgements

9. Mr Chhabra acknowledges that:

9.1 CBS may make this Undertaking publicly available including by publishing it on the CBS                             public register of Undertakings and on its website; and

9.2 CBS may, from time to time, make public reference to the Undertaking  including in news                             media statements and in CBS publications.

Signed undertaking (PDF 105KB)


8 Diamonds Pty Ltd and Ms Ly Thi Truc Tran – undertaking

UNDERTAKING

Liquor Licensing Act 1997

Section 119A(1)

Undertaking given to the Liquor and Gambling Commissioner for the purposes of s 119A(1) of the Liquor Licensing Act  1997 by:

8 Diamonds Pty Ltd

and

Ms Ly Thi Truc TRAN

Persons Giving This Undertaking

  1. This Undertaking is given to the  Liquor   and  Gambling  Commissioner  (the Commissioner) by 8 Diamonds Pty Ltd (ACN 164176845) and Ms Ly Thi True TRAN of 3  Monmouth  Street  RIDLEYTON  SA  5008,  in  the  State  of  South  Australia  for  the purposes of section 119A(1)(ii) of the Liquor Licensing Act 1997 (the Act”).

Background

2. 8 Diamonds  Pty  Ltd,  ACN:  164176845  is the  Licensee  for  the  Phonatic  Restaurant (“Phonatic”), approved under the Liquor Licensing Act 1997, Licence number 50628052 .

3. Ms Ly Thi Truc Tran is the Director for the Licensee 8 Diamonds Pty Ltd.

Conduct of Concern

4. On 10 April 2017, an event known as “Dante’s all Male Revue” was advertised on the facebook Events This event was scheduled to be held at Phonatic on Saturday  15 April 2017. This advertisement promoted that entertainment that would be provided and stated the associated admission fees contrary to condition 10 of the Restaurant  Licence which states:

”The premises  will not  promote  themselves  as  an  entertainment  venue,  collect  door charges or create queues for patrons waiting to enter the premises”.

5. The Licensee was issued a warning letter on 16 November 2016 for similar conduct.

6. As a result of the conduct set out in paragraph 4 the Licensee has failed to comply with the conditions of the Restaurant Licence in accordance with the requirements of section 45(a) of the Act.

7. On 15 April 2017 an event known as “Dante’s all Male Revue” was held at Phonatic . This event involved the provision of prescribed entertainment , namely entertainment of a sexually explicit nature. The licensee did not have the consent of the Commissioner to provide such entertainment and therefore contravened section 105(2) of the Act.

Contraventions of the Liquor Licensing Act  1997

8. The Commissioner considers, and the Licensee acknowledges, that by engaging in the conduct described in paragraph 3, the Licensee has contravened:

8.1 Section 45(a) of the Act; and

8.2 Section 105(2) of the Act.

9. The Commissioner  considers,  and Ms Tran acknowledges,  that  Ms Tran is vicariously liable for the actions of the Licensee pursuant to s 134 of the Act.

10. Upon being made aware of the Commissioner’s concerns, the Licensee:

10.1 Indicated a willingness to enter  into an undertaking  with  the  Commissioner pursuant to                          section 119A of the Act;

10.2 Ceased advertising events outside of its licence conditions;

10.3 Removed all existing advertising of the events listed.

11. Will not provide prescribed entertainment without the appropriate consent.

Undertaking

12. The Licensee undertakes to:

12.1 Comply with  all  of  the  conditions  of  the  Licence,  including  not  advertising events                                 outside of its licence conditions; and

12.2 Not use  any  part  of  the  licensed  premises  for  the  purposes  of  providing prescribed                               entertainment without the consent of the Commissioner

13 Ms Tran undertakes  that,  as  sole  director  of  the  Licensee,  she  will  ensure  that  the Licensee complies with the undertakings in 12.1 and 12.2.

Commencement  of Undertaking

14. This undertaking comes into effect when:

14.1 The undertaking is executed by the Licensee and Ms Tran; and

14.2 The Commissioner      accepts      the     undertaking      so     executed     (‘the                                                      commencement  date’).

Acknowledgements

15. The Licensee and Ms Tran acknowledge that:

15.1 CBS may make this Undertaking  publicly available including by publishing  it on the CBS                            public register of Undertakings and on its website; and

15.2 CBS may,  from  time  to  time,  make  public  reference  to  the  Undertaking including in                             news media statements and in CBS publications.

Signed undertaking (PDF 122KB)


East West Venture Pty Ltd – undertaking

UNDERTAKING

Liquor Licensing Act 1997

Section 119A

Undertaking to the Liquor and Gambling Commissioner; given for the purposes of s 119A of the Liquor Licensing Act  1997: 

East West Venture Pty Ltd [ACN 609 698 017]

Persons Giving this Undertaking

  1. This undertaking  is given to the  Liquor and Gambling  Commissioner  by East West Venture Pty Ltd of 22 Heathfield Road, Bellevue Heights in the State of South Australia for the purposes of section 119A of the Liquor Licensing Act 1997 (“the Act”).

Background

2. East West Venture Pty Ltd (“EWV”) is a proprietary company limited by shares.

3. East West Venture Pty Ltd has held a Restaurant Licence pursuant to Section 34 of the Act since 28 September 2016 in respect of the premises The Crane Japan Restaurant.

4. Mr Kwee Lin Yee (“Mr Yee”) is the sole director of East West Ventures Pty Ltd.

Conduct of Concern

5. That between the  period  14 December  2015  to 27 August  2016,  in the  course  of conducting  the  business  of The  Crane  Japan  Restaurant ,  EWV sold liquor without holding a licence under the Act.

Contraventions of the Liquor Licensing Act 1997

6. The Commissioner considers, and EWV acknowledges, that by engaging in the conduct described in paragraph 5, EWV contravened:

6.1 Section 29 of the Liquor Licensing Act

7. Upon being made aware of the Commissioner’s concerns, EWV:

7.1 Agreed to  provide  an  undertaking  to  the  Liquor  and  Gambling  Commissioner pursuant to section 119A of the Liquor Licensing Act 1997.

Undertaking

8. EWV undertakes to ensure that it will:

8.1 Not sell liquor without a licence; and

8.2 Comply with the conditions of the Restaurant Licence 50627048 .

Commencement of Undertaking

9. This undertaking comes into effect when:

9.1 The undertaking is executed by EWV; and

9.2 The Liquor and Gambling Commissioner accepts the undertaking so executed .

Acknowledgments

10. EWV acknowledges that:

10.1 CBS will make this undertaking publicly available including by publishing it on CBS’ public register of undertakings on its website;

10.2 CBS will, from time to time, make public reference to the undertaking including in news media statements and in CBS publications;

10.3 This undertaking in no way derogates from the rights and remedies available to any other person arising from the alleged conduct.

Signed undertaking (PDF 86KB)


Waimea Pty Ltd – undertaking

 UNDERTAKING

Australian Consumer Law (SA)

Section 218

Undertaking to the Commissioner for Consumer Affairs given for the purposes of Section 218 of the Australian Consumer Law (SA) by:

Waimea Pty Ltd, ACN 008 091 870, trading as Cheap as Chips

 1. PERSONS GIVING THIS UNDERTAKING

1.1 This Undertaking is given to the Commissioner for Consumer Affairs by Waimea Pty Ltd, in the State of South Australia for the purposes of section 218 of the Australian Consumer Law (SA) (‘the ACL’), which is adopted by the Fair Trading Act 1987.

2. BACKGROUND

2.1 Shane Radbone, Richard Facioni, Neil Plummer, Thomas Krulis and Gary Levin are current directors of the company Waimea Pty Ltd, trading as Cheap as Chips, ACN 008 091 870.

2.2 Shane Radbone, Richard Facioni, Neil Plummer, Thomas Krulis and Gary Levin are also directors of Palcove Pty Ltd, previously trading as Cheap as Chips, ACN 055 118 404.

2.3 Cheap as Chips supply a variety of discount goods, including a variety of cosmetic products.

2.4 Prior to the conduct of concern Consumer and Business Services (‘CBS’) had identified a number of potential breaches that had been dealt with administratively by way of warning and expiation and through removal of the relevant products.

3. CONDUCT OF CONCERN

3.1 On 21 April 2016, Compliance and Investigations Officers from CBS attended Cheap as Chips located at Shop 5, 130 Valetta Road, Fulham Gardens, South Australia, where they inspected 17 cosmetic products available for supply that were not labelled with their ingredients, namely:

3.1.1 Rimmel London Stay Glossy lip gloss, item code AA12107;

3.1.2 Loreal Hip Color presso lip gloss, item code AA10098;

3.1.3 Maybelline Shine Sensational lip gloss, item code AA10099;

3.1.4 Revlon Just Bitten Lip Stain + Balm, item code AA10097;

3.1.5 Rimmel London Spark it Up eye liner, item code AA12107;

3.1.6 Maybelline Cool Effect eye shadow/liner, item code AA10099;

3.1.7 Revlon Photoready Kajal eye liner + brightener, no barcode or item code attached;

3.1.8 Loreal Hip Kohl Eyeliner, item code AA10098;

3.1.9 Loreal Wear Infinite eyeshadow, item code AA10098;

3.1.10 BMC Accessories Professional Hair Chalk – 6 colours, no item code or barcode on product;

3.1.11 Rimmel London Glam Eyes Quad Eye Shadow, item code AA12935;

3.1.12 Rimmel London Glam Eyes HD Quad Eye Shadow, item code AA13156;

3.1.13 Allora Lip Gloss, item code AA11976;

3.1.14 BYS Bubble Balm, item code AA13042;

3.1.15 Loreal nail polish, item code AA10098;

3.1.16 Rimmel London lasting finish pro nail polish, item code AA12712; and

3.1.17 Maybelline Color Show nail polish, item code AA12711.

3.2 The products listed in 3.1.1-3.1.17 are classified as cosmetic products as defined in the applicable mandatory information standard for cosmetic products, Trade Practices (Consumer Product Information Standards) (Cosmetics) Regulations 1991.

3.3 The products listed in 3.1.1-3.1.17 do not show their ingredients as is required in Section 5 of the applicable mandatory information standard for cosmetic products.

4. RELEVANT PROVISIONS

4.1 Section 106 of the ACL prohibits a person in trade or commerce from supplying, offering for supply, or manufacturing, possessing or having control of, consumer goods of a particular kind if a safety standard for goods of that kind is in force, and the goods do not comply with the standard.

4.2 Section 118 of the ACL prohibits a person in trade or commerce from supplying, offering for supply, or manufacturing, possessing or having control of, consumer goods of a particular kind if an interim ban on consumer goods of that kind is in force in the place where the supply occurs, or a permanent ban on consumer goods of that kind is in force.

4.3 Section 136 of the ACL prohibits a person in trade or commerce from supplying, offering for supply, or manufacturing, possessing or having control of, goods of a particular kind if an information standard for goods of that kind is in force, and the person has not complied with that standard.

4.4 The Trade Practices (Consumer Product Information Standards) (Cosmetics) Regulations 1991 is the applicable mandatory information standard for cosmetic products.

4.5 Section 3 of the mandatory information standard states that cosmetic products are substances or preparations intended for placement in contact with any external part of the body for the purpose of altering the odours of the body, changing the appearance of the body, cleansing the body, maintaining the body in good condition, perfuming the body, and protecting the body.

4.6 Section 5 of the mandatory information standard states that the ingredients in a cosmetic product must be listed on the container or, if the product is not packed in a container, on the product. If the product’s size, shape or nature prevents the ingredients from being listed on the product or its container, the ingredients must be shown in another way that ensures that a consumer can be informed about the ingredients in the product.

4.7 Section 6 of the mandatory information standard states that the list of ingredients must be prominently shown, clearly legible, and in English.

4.8 The products purchased from Cheap as Chips and listed in 3.1.1-3.1.17, are captured by the definition of a cosmetic product. The ingredients were not displayed on the products, on their packaging or in any other way visible to CBS Officers.

 5. COMMENCEMENT OF UNDERTAKING

5.1 This Undertaking comes into effect when:

5.1.1 the Undertaking is executed by Waimea Pty Ltd; and

5.1.2 the Commissioner for Consumer Affairs accepts the Undertaking so executed.

6. UNDERTAKING BY WAIMEA PTY LTD FOR THE PURPOSES OF SECTION 218 OF THE ACL

6.1 In response to the concerns raised by CBS on behalf of the Commissioner for Consumer Affairs, Waimea Pty Ltd hereby provides an undertaking to the Commissioner that:

6.1.1 Waimea Pty Ltd will not breach the product safety provisions contained within the ACL.

6.1.2 Waimea Pty Ltd will not supply goods that do not comply with an applicable safety or information standard, in accordance with the requirements of the ACL.

6.1.3 Waimea Pty Ltd will not supply goods that are covered by an interim or permanent ban in accordance with the requirements of the ACL.

6.1.4 Waimea Pty Ltd will implement a written product safety compliance program to ensure that:

6.1.4.1 new stock does not get offered or otherwise advertised for sale until Waimea Pty Ltd is satisfied that it is not in breach of safety standards, information standards, or bans under the ACL;

6.1.4.2 current stock is regularly audited to ensure that it is not in breach of safety standards, information standards, or bans under the ACL;

6.1.4.3 Waimea Pty Ltd will nominate a person responsible for the implementation and maintenance of the product safety compliance program;

6.1.4.4 Waimea Pty Ltd will implement and conduct training for relevant staff within four months of signing this Undertaking, and then annually, to ensure that the product safety compliance program is understood and applied; and

6.1.4.5 Waimea Pty Ltd will maintain a register of staff signatures to confirm that they have undertaken the training mentioned in 6.1.4.4 and Waimea Pty Ltd will provide this to CBS within one month after the initial training has been completed.

 7. ACKNOWLEDGEMENTS

Waimea Pty Ltd acknowledges that:

7.1 CBS will make this undertaking publicly available including by publishing it on CBS’ public register of Undertakings on its website;

7.2 The Australian Competition and Consumer Commission (‘ACCC’) may make this undertaking publicly available by publishing it on the ACCC website and the ACCC Product Safety Australia website;

7.3 CBS may, from time to time, make public reference to the undertaking including in news media statements and in CBS publications;

7.4 This undertaking in no way detracts from the rights and remedies available to any other person arising from the alleged conduct; and

7.5 This undertaking may be produced to any Court in respect of any proceedings alleging any future contraventions of the ACL.

Signed public undertaking (PDF 238KB)


Sunil and Rani SURI (trading as All in One Discount Store) – undertaking

UNDERTAKING

Australian Consumer Law (SA)

Section 218

Undertaking to the Commissioner for Consumer Affairs given for the purposes of Section 218 of the Australian Consumer Law (SA) by:

Sunil SURI and Rani SURI:

  • trading as All in One Discount Store;
  • Australian Business Register trading name ‘All in One’, ABN 90 145 279 005;
  • Australian Securities and Investments Commission registered business name ‘All in One Bargain Store’;

herein after referred to as ‘All in One Discount Store’.

 1. PERSONS GIVING THIS UNDERTAKING

1.1 This Undertaking is given to the Commissioner for Consumer Affairs by Sunil SURI and Rani SURI of (…) in the State of South Australia for the purposes of section 218 of the Australian Consumer Law (SA) (‘the ACL’), which is adopted by the Fair Trading Act 1987.

2.BACKGROUND

2.1 Sunil Suri and Rani Suri are trading as All in One Discount Store, ABN 90 145 279 005.

2.2 Sunil Suri and Rani Suri trade through two stores, one located within the Marden Shopping Centre, cnr Lower Portrush Road and Payneham Road, Marden, South Australia, and the other at 430 Brighton Road, Brighton, South Australia.

2.3 The businesses supply a range of household consumer goods, including a variety of children’s toys and aquatic products.

 2.4 Prior to the conduct of concern Consumer and Business Services (‘CBS’) had identified a prior potential breach that was dealt with administratively by way of warning and through removal of the relevant product.

3. CONDUCT OF CONCERN

3.1 On 7 October 2015, Compliance and Investigations Officers from Consumer and Business Services (‘CBS’) attended All in One Discount Store, located in the Marden Shopping Centre, Marden, South Australia, where they located a Love & Learn Infant Gift Set.

3.2 The Love & Learn Infant Gift Set is captured by the applicable mandatory safety standard toys for children up to and including 36 months of age.

3.3 The Love & Learn Infant Gift Set was subjected to indicative testing by Compliance and Investigations Officers in accordance with the applicable mandatory safety standard, which it failed.

3.4 On 16 February 2016, Compliance and Investigations Officers from CBS attended All in One Discount Store, located at 430 Brighton Road, Brighton, South Australia, where they located a Bestway Splash and Play Baby Pool in breach of the applicable safety standard under the ACL.

4. RELEVANT PROVISIONS

4.1 Section 106 of the ACL prohibits a person in trade or commerce from supplying, offering for supply, or manufacturing, possessing or having control of, consumer goods of a particular kind if a safety standard for goods of that kind is in force, and the goods do not comply with that standard.

4.2 Section 118 of the ACL prohibits a person in trade or commerce from supplying, offering for supply, or manufacturing, possessing or having control of, consumer goods of a particular kind if an interim ban on consumer goods of that kind is in force in the place where the supply occurs, or a permanent ban on consumer goods of that kind is in force.

4.3 Section 136 of the ACL prohibits a person in trade or commerce from supplying, offering for supply, or manufacturing, possessing or having control of, goods of a particular kind if an information standard for goods of that kind is in force, and the person has not complied with that standard.

4.4 The Consumer Protection Notice No. 14 of 2003 – Consumer Product Safety Standard: Toys for children up to and including 36 months of age is the applicable mandatory safety standard for children’s toys.

4.4.1 The mandatory safety standard is based on Australian Standard AS/NZS ISO 8124.1:2002 Safety of Toys, Part 1: Safety aspects related to mechanical and physical properties. AS/NZS ISO 8124.1:2002 is a voluntary standard except for those sections specifically called into the mandatory standard.

4.4.2 In the Schedule of the mandatory safety standard for toys it states “…toys for children up to and including 36 months of age, being objects manufactured, designed, labelled or marketed as playthings, including, but not limited to:

(a) rattles, toy dummies, teethers and squeeze toys;…”

4.4.3 Section 5.2 of AS/NZS ISO 8124.1:2002 sets a minimum required size for toys, or any removable component, or liberated component of a toy.

4.4.4 Section 5.24.2 of AS/NZS ISO 8124.1:2002 sets test specifications by way of a drop test that should not liberate parts that are less than the minimum size set in Section 5.2.

4.4.5 The Love & Learn Infant Gift Set is a three piece rattle set, and is captured by the mandatory safety standard for toys.

4.4.6 The Love & Learn Infant Gift Set was subjected to indicative testing by Compliance and Investigations Officers in accordance with 5.24.2 of AS/NZS ISO 8124.1:2002, which it failed.

4.4.7 In communication with Aman Suri, on behalf of Sunil Suri and Rani Suri, he advised that evidence was not able to be provided to confirm that the Love & Learn Infant Gift Set had been tested and meets the mandatory safety standard for toys.

4.5 The Consumer Goods (Portable Swimming Pools) Safety Standard 2013 is the applicable mandatory safety standard for portable swimming pools.

4.5.1 Section 5 of the mandatory safety standard for portable pools defines a portable swimming pool as “…a swimming pool that is:

(a) intended for personal, domestic or household use: and

(b)one of the following:

(i)an inflatable swimming pool, of any depth;

(ii) a soft-sided swimming pool, of any depth;

(iii) a rigid-sided swimming pool that is not deeper than 300mm.

4.5.2 Section 6 of the mandatory safety standard for portable pools requires portable pools to display a permanent warning message and sets the wording, placement and sizing of the warning message.

4.5.3 Section 7 of the mandatory safety standard for portable pools requires the retail packaging of portable pools to display a permanent waning message and sets out the wording, sizing and requires the placement of the warning message to be on the front of the retail packaging.

4.5.4 Section 8 of the mandatory safety standard for portable pools requires a portable swimming pool to display a certain safety sign.

4.5.5 The Bestway Splash and Play Baby Pool is captured by the definition of a portable swimming pool. The Bestway Splash and Play Baby Pool did not display the warnings as required by Section 6, 7 and 8 of the mandatory safety standard for portable pools.

 5. COMMENCEMENT OF UNDERTAKING

5.1 This Undertaking comes into effect when:

5.1.1 the Undertaking is executed by Sunil Suri and Rani Suri; and

5.1.2 the Commissioner for Consumer Affairs accepts the Undertaking so executed.

6. UNDERTAKING BY SUNIL SURI AND RANI SURI FOR THE PURPOSES OF SECTION 218 OF THE ACL

6.1 In response to the concerns raised by CBS on behalf of the Commissioner for Consumer Affairs, we Sunil Suri and Rani Suri hereby provide an undertaking to the Commissioner that:

6.1.1 We will not breach the product safety provisions contained within the ACL.

6.1.2 We will not supply goods that do not comply with an applicable safety or information standard, in accordance with the requirements of the ACL.

6.1.3 We will not supply goods that are covered by an interim or permanent ban in accordance with the requirements of the ACL.

6.1.4 We will implement a written product safety compliance program to ensure that:

6.1.4.1 new stock does not get offered or otherwise advertised for sale until we are satisfied that it is not in breach of safety standards, information standards, or bans under the ACL;

6.1.4.2 current stock is regularly audited to ensure that it is not in breach of safety standards, information standards, or bans under the ACL;

6.1.4.3 we will nominate a person responsible for the implementation and maintenance of the product safety compliance program;

6.1.4.4 we will implement and conduct training for relevant staff within three (3) months of signing this Undertaking, and then annually, to ensure that the product safety compliance program is understood and obeyed; and

6.1.4.5 we will maintain a register of staff signatures to confirm that they have undertaken the training mentioned in 6.1.4.4. and I will provide this to CBS within one month after the initial training has been completed.

 7. ACKNOWLEDGEMENTS

We, Sunil Suri and Rani Suri, acknowledge that:

7.1 CBS will make this undertaking publicly available including by publishing it on CBS’ public register of Undertakings on its website;

7.2 The Australian Competition and Consumer Commission (‘ACCC’) may make this undertaking publicly available by publishing it on the ACCC website and the ACCC Product Safety Australia website;

7.3 CBS will, from time to time, make public reference to the undertaking including in news media statements and in CBS publications;

7.4 This undertaking in no way detracts from the rights and remedies available to any other person arising from the alleged conduct; and

7.5 This undertaking may be produced to any Court in respect of any proceedings alleging any future contraventions of the ACL.

Signed public undertaking (PDF 324KB)


Chuan Jiang (trading as Kawaii $2.80 / Everything Elizabeth / Kawaii Fashion)- undertaking

 UNDERTAKING

Australian Consumer Law (SA)

Section 218

Undertaking to the Commissioner for Consumer Affairs given for the purposes of Section 218 of the Australian Consumer Law (SA) by:

Chuan JIANG, Director of Kawaii Fashion Holdings Pty Ltd (ACN 158 866 016) and Kawaii Tradings Pty Ltd (ACN 167 959 962), trading as Kawaii $2.80, Kawaii $2.80 Everything Elizabeth and Kawaii Fashion

 

1. PERSONS GIVING THIS UNDERTAKING

1.1 This Undertaking is given to the Commissioner for Consumer Affairs by Chuan JIANG of (….) in the State of South Australia for the purposes of section 218 of the Australian Consumer Law (SA) (‘ACL’), which is adopted by the Fair Trading Act 1987.

 

2. BACKGROUND

2.1 Chuan Jiang is a sole Director of companies Kawaii Fashion Holdings Pty Ltd (ACN 158 866 016) trading as Kawaii Fashion and Kawaii Tradings Pty Ltd (ACN 167 959 962) trading as Kawaii $2.80 and Kawaii $2.80 Everything Elizabeth.

2.2 The businesses supply a range of personal and household goods, including a variety of cosmetic products, sunglasses and toys.

2.3 Prior to the conduct of concern Consumer and Business Services (‘CBS’) had identified a number of potential breaches that had been dealt with administratively by way of warning and through removal and re-labelling of the relevant products.

 

3. CONDUCT OF CONCERN

3.1 On 18 November 2015, Compliance and Investigations Officers from CBS attended Kawaii $2.80 located at 66 King William Street, Adelaide, South Australia, where they located four (4) cosmetic products that were not labelled with their ingredients in English, namely:

3.1.1 ‘Tattoo Seal Angel Wings’, barcode 4 582186 037996;

3.1.2 ‘Loujene 12 Colours Eye Shadow Palette 03’, barcode 4 980299 044403;

3.1.3 ‘Crayon touch-me’, barcode 4 965412 230635; and

3.1. 4 ‘All in one’, barcode 4 965412 226263.

3.2 On 14 April 2016, Compliance and Investigations Officers from CBS attended Kawaii $2.80 Everything Elizabeth located at Elizabeth Shopping Centre, 50 Elizabeth Way, Elizabeth, South Australia, where they located one (1) type of cosmetic product that was not labelled with its ingredients in English, namely two flavours of a product named ‘Loujene Moisture Lip Cream’, barcodes 4 980299 011429 and 4 980299 011443.

3.3 The products listed in 3.1.1-3.1.4 and 3.2 are classified as cosmetic products as per the definition supplied in the applicable mandatory information standard for cosmetic products.

3.4 The products listed in 3.1.1-3.1.4 and 3.2 do not show their ingredients in English as per the requirements of the applicable mandatory information standard for cosmetic products.

 

4. RELEVANT PROVISIONS

4.1 Section 106 of the ACL prohibits a person in trade or commerce from supplying, offering for supply, or manufacturing, possessing or having control of, consumer goods of a particular kind if a safety standard for goods of that kind is in force, and the goods do not comply with that standard.

4.2 Section 118 of the ACL prohibits a person in trade or commerce from supplying, offering for supply, or manufacturing, possessing or having control of, consumer goods of a particular kind if an interim ban on consumer goods of that kind is in force in the place where the supply occurs, or a permanent ban on consumer goods of that kind is in force.

4.3 Section 136 of the ACL prohibits a person in trade or commerce from supplying, offering for supply, or manufacturing, possessing or having control of, goods of a particular kind if an information standard for goods of that kind is in force, and the person has not complied with that standard.

4.4 The Trade Practices (Consumer Product Information Standards) (Cosmetics) Regulations 1991 is the applicable mandatory information standard for cosmetic products.

4.5 Section 3 of the mandatory information standard states that cosmetic products are substances or preparations intended for placement in contact with any external part of the body for the purpose of altering the odours of the body, changing the appearance of the body, cleansing the body, maintaining the body in good condition, perfuming the body, and protecting the body.

4.6 Section 5 of the mandatory information standard states that the ingredients in a cosmetic product must be listed on the container or, if the product is not packed in a container, on the product. If the product’s size, shape or nature prevents the ingredients from being listed on the product or its container, the ingredients must be shown in another way that ensures that a consumer can be informed about the ingredients in the product.

4.7 Section 6 of the mandatory information standard states that the list of ingredients must be prominently shown, clearly legible, and in English.

4.8 The products purchased from Kawaii $2.80 and Kawaii $2.80 Everything Elizabeth and listed in 3.1.1-3.1.4 and 3.2 are captured by the definition of a cosmetic product. The products did not show their ingredients in English on their packaging or in any other way visible to CBS Officers.

 

5. COMMENCEMENT OF UNDERTAKING

5.1 This Undertaking comes into effect when:

5.1.1 the Undertaking is executed by Chuan Jiang; and

5.1.2 the Commissioner for Consumer Affairs accepts the Undertaking so executed.

 

6. UNDERTAKING BY CHUAN JIANG FOR THE PURPOSES OF SECTION 218 OF THE ACL

6.1 In response to the concerns raised by CBS on behalf of the Commissioner for Consumer Affairs, I Chuan Jiang, hereby provide an undertaking to the Commissioner that:

6.1.1 I will not breach the product safety provisions contained within the ACL.

6.1.2 I will not supply goods that do not comply with an applicable safety or information standard, in accordance with the requirements of the ACL.

6.1.3 I will not supply goods that are covered by an interim or permanent ban in accordance with the requirements of the ACL.

6.1.4 I will implement a written product safety compliance program to ensure that:

6.1.4.1 new stock does not get offered or otherwise advertised for sale until I am satisfied that it is not in breach of safety standards, information standards, or bans under the ACL;

6.1.4.2 current stock is regularly audited to ensure that it is not in breach of safety standards, information standards, or bans under the ACL;

6.1.4.3 I will nominate a person responsible for the implementation and maintenance of the product safety compliance program;

6.1.4.4 I will implement and conduct training for relevant staff within three (3) months of signing this Undertaking, and then annually, to ensure that the product safety compliance program is understood and obeyed; and

6.1.4.5 I will maintain a register of staff signatures to confirm that they have undertaken the training mentioned in 6.1.4.4 and I will provide this to CBS within one (1) month after the initial training has been completed.

 

7. ACKNOWLEDGEMENTS

I, Chuan Jiang, acknowledge that:

7.1 CBS will make this undertaking publicly available including by publishing it on CBS’ public register of Undertakings on its website;

7.2 The Australian Competition and Consumer Commission (‘ACCC’) may make this undertaking publicly available by publishing it on the ACCC website and the ACCC Product Safety Australia website;

7.3 CBS will, from time to time, make public reference to the undertaking including in news media statements and in CBS publications;

7.4 This undertaking in no way detracts from the rights and remedies available to any other person arising from the alleged conduct; and

7.5 This undertaking may be produced to any Court in respect of any proceedings alleging any future contraventions of the ACL.

Signed public undertaking (PDF 281KB)