Allison [1999] NZLLA 88 (29 January 1999)

Last Updated: 4 May 2014

Decision No. 088/99

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by BRYAN KEITH ALLISON pursuant to s.123 of the Act for renewal of a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum:

Mr R J S Munro

Mr J W Thompson

HEARING at CHRISTCHURCH on 16 November 1998

APPEARANCES

Mr G J Thwaites – for applicant

Sergeant P E Shaw – NZ Police – in opposition

Mr T Sullivan – Christchurch District Licensing Agency Inspector – to assist

DECISION

This is an application by Bryan Keith Allison for renewal of a General Manager’s Certificate. The application was opposed by the Police and set down for public hearing.

Mr G J Thwaites, for the applicant, told the Authority that the Police opposition arose from what he called an “academic difference of opinion” on the meaning of s.115 of the Act and the need for the holder of a General Manager’s Certificate to be present on the premises at all times.

Mr Allison, 52, told us he has been in the liquor industry for 26 years and has managed and controlled a number of premises. Following visits from the Police he had sought advice from the Hospitality Association of New Zealand and a lawyer and he now accepts that there needs to be a person who holds a General Manager’s Certificate under the Act present at all times when liquor is sold, unless the licensee, being a natural person, is present.

During visits by the Police to the Bishopdale Tavern earlier this year, the necessity for the holder of a General Manager’s Certificate to be present was not accepted by Mr Allison. The law requires that any person appointed as a manager hold a General Manager’s Certificate, as Mr Allison now accepts.

Under cross-examination by Sergeant Shaw, Mr Allison said he is not currently using his certificate. His change of view, he said, on the requirement for a manager on licensed premises, did not occur as a result of this hearing.

In answer to questions from Mr Sullivan, Mr Allison suggested that the presence of a general manager could be what he described as a “money making venture” for the Christchurch District Licensing Agency. In his view there was a need for greater “people skills and supervisory skills in training for the certificate”. He believed training was necessary to avoid compounding problems on licensed premises, particularly in regard to methods of refusal to serve.

In opposing renewal, Sergeant P N Shaw called Sergeant J Meldau who said that on

28 January 1998 the Police had visited the Bishopdale Tavern and found that a duty manager was not present.

Mr Allison is a director of Bishopdale Tavern Limited which has held an on-licence for premises at 333 Harewood Road, Christchurch, known as Bishopdale Tavern.

In a telephone discussion the following day with the Police, Mr Allison stated that he or a duty manager did not have to be on the premises at all times. As a result the Police forwarded a letter dated 5 February 1998 setting out what the Police believed to be the legal obligations.

On 23 April 1998 the Police also found that a duty manager was not present nor named as required by s.115 of the Act. On subsequent visits on 4 July 1998 and 22

July 1998, the Police again found that neither the licensee nor a duty manager was present at the tavern. Following a discussion between the Police, Mr Allison and a District Licensing Agency Inspector on 23 July 1998, the Police decided to commence an application for cancellation, suspension or variation of the on-licence, but the licensee was placed into receivership before the application was formally lodged.

Sergeant Meldau produced copies of the Police letters forwarded to Mr Allison. Conclusion and Reasons for Decision

It is apparent that by his actions, Mr Allison has been slow to follow what the Police believe to be the correct interpretation of s.115 of the Sale of Liquor Act. Section 115 provides:

“(1) At all times when liquor is being sold or supplied to the public on any licensed premises either the licensee or a manager shall be on duty and responsible for compliance with this Act and the conditions of the licence.

(2) At all times while any manager is on duty in respect of any licensed premises, the name of the manager shall be prominently displayed inside the premises so as to be easily read by persons using the premises; and the person so named at any time shall be deemed for the purposes of this Act to be the manager at that time.”

Mr Allison points out that the words “on duty” are not further defined in the Act. Whilst there were suggestions of support from the Hospitality Association for an

interpretation negating the requirement for a licensee (if a natural person) or a

manager to be present on licensed premises whenever liquor was sold, no submissions were made or documentary evidence adduced from the Hospitality Association on the point. In view of Mr Allison’s present understanding of the law, that was not surprising.

We have said in previous decisions that we will be slow to read down what we understand to be a clear attempt by Parliament to make certain that an identifiable natural person is both on duty and responsible for compliance with the law whenever liquor is sold under the Act to the public. That intention would be compromised if the responsible person was not in a position to effectively supervise the operation of the premises to ensure compliance with the Act and the conditions of the licence.

The key phrases in s.115 are “at all times” and “on duty and responsible for compliance

...”.

Part VI of the Act deals with the management of licensed premises. It establishes the need for managers to hold Manager’s Certificates, together with provisions for their grant and renewal, and establishes in ss.128 to 130 a regime for the appointment of temporary and acting managers and notification to authorities.

For periods not exceeding 48 hours there is considerable flexibility which avoids the requirement of formal notification, and in defined circumstances, allows an identifiable person to be deemed to be the holder of a Manager’s Certificate.

Such provisions considered in conjunction with the object of the Act (s.4) and the words “at all times” used in both s.115(1) and 115(2) suggest that an identifiable person “responsible for compliance with this Act and the conditions of the licence” is required to be physically present on licensed premises when on duty.

There would be an obvious gap in the scheme of the Act if being “on duty” was interpreted so that that identified natural person need not be at the licensed premises defined by section 2 of the Act. In Dormer Sherriff Crookston “Sale of Liquor” the authors say at 115.07 in relation to section 115 and “on duty”:

“Insofar as it does not specifically require that person to be present at all such times, the preferred view is that there is no obligation on that person to be on the premises for each and every minute of the day they are open.”

They make the further comment:

“It must inevitably be a question of fact to be determined on a case by case basis as to whether, in the circumstances of a particular absence, the licensee or manager can be said to be ‘on duty’. “

Clearly, by way of example, a manager might not merely be available by telephone at another location. Such an arrangement could not, in our view, accord with the intention of section 115 of the Act interpreted in context. During an absence from licensed premises of a substantive manager in circumstances where the requirement to be “on duty” is unable to be met there should be little difficulty in displaying the name of an acting manager in compliance with section 115(2). The appointment of acting managers and the display of the names of persons so appointed is a statutory responsibility but must not become such a casual or trivialised event so as to blur the line of accountability clearly intended.

It follows therefore that we do not accept the submission from Mr Thwaites that this is an “academic difference of opinion”; it is a matter of the utmost practical importance in the day-to-day control of licensed premises. Mr Allison, with his wide experience on licensed premises, should well understand this. In addition his reluctance to follow guidance repeatedly given by the Police, reflects adversely on his suitability to continue to hold a General Manager’s Certificate. Such conduct directly relates to a matter we must have regard to under s.126(c) of the Act:-

“the manner in which the manager has managed the sale and supply of liquor pursuant to the licence.”

Mr Allison now accepts the requirements of s.115. He retains an interest in Bishopdale Tavern Limited (in Receivership), Burwood Tavern Limited, Brykath Investments Limited and Avalon Trusts Nos. 1 and 2. Although he is not currently utilising his General Manager’s Certificate, it is possible he will do so in the future.

As we have said repeatedly in recent years, the Authority is gently raising the standards required to comply with the letter and spirit of the Act. The control of liquor abuse is obviously rendered much more difficult when experienced personnel such as Mr Allison, are not co-operative with the Inspectors and the Police. We would have expected a different stance from any responsible licensee with the experience of Mr Allison. As Mr Allison should know, higher standards are required in respect of licensees than holders of Manager’s Certificates; had the s.132 application proceeded and liquor abuse been demonstrated, the outcome in this application might well have been different.

A liquor licence and a manager’s certificate are both legal privileges; there is no

“right” to be granted one, or to have one renewed. That position applies even after

26 years in the industry.

Giving particular weight to Mr Allison’s lengthy experience, we have decided not to refuse renewal of the certificate at this time. In all the circumstances we will renew the certificate for 12 months only from the date of this decision and request that if renewal is again sought, the application be forwarded to our Secretary for consideration in the light of full reports then to be obtained.

The application is granted for 12 months from the date of this decision.

DATED at WELLINGTON this 29th day of January 1999

R J S Munro J W Thompson

Member Member

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