Wellesley Land Co Limited - Saints and Sinners [2000] NZLLA 1222 (27 October 2000)

Last Updated: 16 February 2012

Decision No. PH 1222 – 1223/2000

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by WELLESLEY LAND CO LIMITED pursuant to s.16 of the Act for variation of the conditions of an on-licence in respect of premises situated at 34 Dee Street, Invercargill, known as "Saints and Sinners"

AND

IN THE MATTER of an application by GREGOR FAIRBAIRN WEIR pursuant to s.118 of the Act for a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Quorum:

Chairman: District Court Judge J P Gatley
Mr J W Thompson

HEARING at INVERCARGILL on 12 October 2000

APPEARANCES

Mr L M W Crimp – applicant for variation of condition
Mr G F Weir – applicant for a General Manager's Certificate
Sergeant A R Christie – NZ Police
Ms D M McDonald – Invercargill District Licensing Agency Inspector
Mr W J Watt – Secretary, Invercargill District Licensing Agency

DECISION

Variation of Condition

1. By application dated 19 July 2000 Wellesley Land Co Limited seeks a variation of conditions of on-licence 073/ON2/2000 held in respect of premises situated at 34 Dee Street, Invercargill, known as "Saints and Sinners". The change in conditions sought is an extension of trading hours, currently Monday to Sunday 8.00 pm to 3.00 am the following day, to 24 hours a day, seven days a week. Reasons given for seeking the change in trading hours were "we want to open later and close at later times to let patrons stay longer if they wish".
   
2. Public notification of the application attracted an objection resulting in the matter being set down for public hearing.
   
3. Following an earlier hearing at Invercargill on 3 May 2000, Decision No. PH 702/2000 on an application by Wellesley Land Co Limited for renewal of its on-licence in respect of "Saints and Sinners" issued:-
   

"The following is a minute of the decision of the Authority delivered orally by the Chairman on 3 May 2000:

"This is an application by Wellesley Land Co Limited for renewal of an on-licence in respect of premises situated at 34 Dee Street, Invercargill, known as 'Saints & Sinners'. The applicant had sought a variation of the terms and conditions of the licence to close at 5.00 am 'the following day' instead of 3.00 am. That part of the application was opposed by the Police and an Inspector.

The Authority has met with the parties in Chambers. Counsel for the applicant has indicated that his client will accept renewal of the licence for a period of 12 months on the same terms and conditions, that is without any extension of trading hours.

Concerns as to the manner of operation of the premises were addressed in evidence presented by the Police. That aspect of the hearing is left to be dealt with by way of the Police bringing a s.132 application for variation, suspension or cancellation of the licence if they have any concerns as to the manner in which the sale and supply of liquor is undertaken. In the event of the Authority receiving such an application we would promptly travel to Invercargill to deal with the matter."

4. At the hearing before the Authority on 12 October 2000 Mr L M W Crimp appeared on behalf of the applicant company but he did not have any prepared brief of evidence or submissions, as required in the notice of hearing. In response to questions from the Authority Mr Crimp said he did not want Saints and Sinners to trade 24 hours a day but merely to have the flexibility to do so as required, to avoid the necessity to obtain special licences. Mr Crimp said the premises only trade on Friday and Saturday evenings. The applicant said two hotels in Bluff and three Invercargill Licensing Trust premises in Invercargill have 24 hours licences, "Why not us?".
   
5. A Police report dated 28 August 2000 on the complete file for the application included:-
   

"On 3 May 2000 the Liquor Licensing Authority heard an application of renewal and variation of hours in respect of the above named premises.

As a result of a meeting in Chambers, the Authority, with the acceptance of the Licensee, renewed this licence for a further 12 months on the same terms and conditions, that is without any extension of trading hours. (Decision No. PH 702/2000).

As is known the Police had concerns about the manner of operation of these premises. The Police however had no concerns about the Authority renewing the licence on the same terms and conditions.

The Police consider that these premises should not gain extension of hours and the matter should be re-looked at after the expiry of 12 months as per the Authority's decision.

Accordingly the Police object to the variation of hours and request that the matter be referred to the Liquor Licensing Authority for a decision."

6. At the hearing on 12 October last evidence was given by Sergeant A J Harris of visiting Saints and Sinners at 12.45 am on Friday 14 April 2000 and finding Mr Louis Crimp "standing adjacent to the bar drinking directly from a bottle. He was extremely intoxicated.
   

Mr Weir became aware of my concerns and said to me that Mr Crimp was drunk and he was about to take him home".

7. Mr Crimp is now on notice that his suitability to have an interest in any company holding a liquor licence is in issue. Having accepted in May last that the on-licence for Saints and Sinners would be renewed for a term of 12 months expiring on 3 May 2001 "without any extension of trading hours" the licensee has failed to adduce any evidence warranting a change in conditions.
   
8. The application for variation of conditions is refused.
   

Manager's Certificate

9. By application dated 11 May 2000 Mr Gregor Fairbairn Weir seeks a General Manager's Certificate. Mr Weir has been employed as a Manager at Saints and Sinners.
   
10. A report on the application from Ms D M McDonald as Invercargill District Licensing Agency Inspector dated 15 June 2000 concluded:-
    

"In person Gregor gives the impression of being a responsible and conscientious person. However, due to the short time he has been an understudy to the Manager at Saints and Sinners, I feel that he needs to gain more experience before granting this application."

11 Two Police reports on the application were on the complete file:-

"9 June 2000

Enquiries have been completed into this application.

The applicant's management experience consists of on the job training since mid-April 2000. In late April 2000 the premises received a warning for intoxication and disorder. This applicant was seen to be on duty at this time.

On 14 April 2000 Mr Weir was spoken to at the rear of Saints & Sinners, and as a result received a written warning for the smoking of cannabis.

The Police consider that the experience the applicant has had (two months) is insufficient and would oppose this application until he has had at least six months experience in managing these premises."

"6 September 2000

Police have opposed this application on the grounds of a lack of experience.

Since notifying the District Licensing Agency other matters have come to note regarding this applicant.

Police now advise further grounds for opposing this application are that while acting in his capacity as a Temporary Manager, pursuant to Section 128 of the Sale of Liquor Act 1989, he has failed to conduct licensed premises in a proper manner."

12. At the hearing Constable G B Pay gave evidence of visits to "Saints and Sinners" when Mr Weir was on duty as Acting or Temporary Manager. On 9 June 2000 at about 1.00 am the Constable found off-duty staff at the nightclub "particularly intoxicated".
    
13. At 0040 hours on 4 August 2000 Constable Pay found:
    

"Two females lying on the footpath in full view of the doorstaff of the nightclub. Both of the females were inebriated to the point where they were unable to stand. I ascertained they had come from inside the premises where they had been drinking ... Mr Weir being the Manager on duty at the time".

14. Constable Pay described another visit at about 1.45 am on Sunday 17 September 2000 when:-
    

"A drunk patron was pointed out to Mr WEIR who agreed he shouldn't be in the premises. The patron was unable to walk in a straight line, had difficulty focussing, couldn't form his words properly and wasn't comprehending. Mr WEIR spoke with the patron and told him he had to drink water. WEIR told me he had arranged for the patron to be removed by his friends within ten minutes. I told him I wasn't particularly happy with the arrangement because he was likely to lose the patron in the crowd. He assured me he would keep an eye on the patron himself.

At 2.30am I returned to Saints & Sinners. I found the drunk patron from earlier leaning against the bar servery. He was drinking from a stubbie bottle of Jack Daniels bourbon.

When I asked Mr WEIR what he had done with the patron he asked me if he was still inside. He eventually admitted he had lost him in the crowd.

...

WEIR is facing a charge in the District Court for an offence against Section 168 of the Sale of Liquor Act."

15. Since the hearing our Secretary has been advised by a letter from a Department for Courts Officer dated 19 October 2000 that on 17 October 2000 Mr Weir was convicted of an offence under s.168(1)(A) of the Sale of Liquor Act 1989 in that 'being the Manager of licensed premises known as Saints and Sinners and situated at 34 Dee Street, Invercargill, allowed an intoxicated person to remain on these licensed premises'. He was fined $750 and ordered to pay Court costs of $130.
    
16. At the hearing before the Authority Mr Weir was unable to answer satisfactorily questions as to the consequence of the on-licence for "Saints and Sinners" including a designation of the premises as "supervised".
    
17. In D L Page v NZ Police (HC Christchurch, 24 July 1998, AP 84/98) Panckhurst J said at page 9:-
    

"Section 13(1)(a) provides that the applicant for an on-licence must demonstrate his or her suitability. In other words what is required is a positive finding. That implies an onus upon the applicant to demonstrate suitability."

18. An applicant for a General Manager's Certificate must similarly be able to demonstrate suitability. After having regard to the Police reports in opposition, evidence of incidents at "Saints and Sinners" when Mr Weir has been the Duty Manager and his recent conviction for allowing an intoxicated person to remain on licensed premises, we are not satisfied at this stage that Mr Weir has demonstrated suitability to hold a General Manager's Certificate.
    
19. The application by Gregor Fairbairn Weir for a General Manager's Certificate is refused.
    

DATED at WELLINGTON this day of 2000

_____________________________
Judge J P Gatley
Chairman

saints.doc(sh)