Taylor v Queens Ferry [2001] NZLLA 248 (3 July 2001)

Last Updated: 6 March 2010

Decision No. PH 248/2001

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 of on-licence number 007/ON/112/00 issued to CAMP INTERNATIONAL LIMITED in respect of premises situated at 12 Vulcan Lane, Auckland known as “Queens Ferry”

BETWEEN SCOTT LYALL TAYLOR
(Police Officer of Auckland)

Applicant

AND CAMP INTERNATIONAL

LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at AUCKLAND on 27 June 2001

APPEARANCES

Sergeant M J Lopdell – NZ Police – applicant
Messrs W J Clark and J J Lawrence - respondent – in opposition

RESERVED DECISION OF THE AUTHORITY

INTRODUCTION

[1] This is an application by Constable S L Taylor for the suspension of an on-licence issued in respect of a tavern situated on the ground floor at 12 Vulcan Lane in Auckland City and known as “Queens Ferry Tavern”. The grounds of the application are that the premises have been conducted in breach of the provisions of the Act.

[2] The application is opposed on the grounds that the breaches were technical in nature, and have since been remedied. The Authority is asked to exercise its residual discretion not to suspend the licence, on the grounds that there is no suggestion that the breaches would lead to any increase in liquor abuse.

[3] Further that there was nothing sinister or calculated behind the breaches. They were simply mistakes brought about by lack of adequate knowledge of the provisions of the Act, as they apply to the appointment of managers.

THE FACTUAL BACKGROUND

[4] Camp International Limited took over the business in Vulcan Lane in April 2000. The company was owned by Wayne John Clark and Jeremy James Lawrence equally. They were also its directors. Mr Lawrence was to be the manager.

[5] For a period of time he also managed a night-club called the ‘G.A.Y.E. night-club’. This business was solely owned by Mr Clark. The night-club backed on to the tavern. The night-club had an office which was used by Mr Lawrence from time to time.

[6] The respondent company made its first legal error when it failed to notify Mr Lawrence’s appointment as manager of the tavern. This omission went undetected for some eight months, until a notice was sent on 4 December 2000. It is not clear what prompted this to happen.

[7] From April 2000 to April 2001 there were no incidents in respect of the tavern or its management which were brought to Police attention.

[8] On 4 April 2001,at about 9.00pm. Constable S L Taylor visited the premises. He could not see any manager’s name displayed on the premises. He asked for Mr Lawrence but the staff were unable to contact him.

[9] It so happens that Mr Lawrence had gone next door to the office at about 7.30pm. He had then gone home for a shower before returning. He had appointed a Mr Christian Hill to be the temporary manager until his return at about 9.00am. He had asked Mr Hill to start his shift early to cover his absence.

[10] As the constable was leaving, he was approached by Mr Hill. Mr Hill said that he was the acting manager and was due to start work at 9.00pm. He didn’t mention the early start that had apparently been agreed with Mr Lawrence.

[11] The following evening the constable spoke with Messrs Clark and Lawrence. There was some concern about whether Mr Lawrence was still a shareholder and director, and whether he had the power to appoint a temporary manager. The evidence has satisfied us that Mr Lawrence was entitled to make the appointment. However, as will become apparent, we retain a healthy scepticism about whether the appointment had been made at all.

[12] It seemed to the constable that the two directors were confused about their responsibilities concerning the appointment of managers. He advised them that a suspension application would be lodged. He said that if they addressed the issue promptly it would be taken into account by the Authority.

[13] The constable visited the premises again on 11 April. Mr Thompson was correctly shown as the Manager on duty. He said that he was an acting or temporary manager and that he had applied to obtain his Manager’s Certificate.

[14] A week later Mr Thompson was again on duty. He said he had been appointed as a temporary manager to cover Mr Lawrence who was on leave for two weeks. He himself was going to be relieved by another person after a 4 hour shift. The Police did not receive notice of the appointment of any temporary manager to cover Mr Lawrence’s absence on leave as required by s.130 of the Act.

[15] When he gave evidence, Mr Lawrence stated that since the incident there was now a policy that at all times there is a manager on duty who holds a certificate. He said that all staff were in various stages of obtaining their certificates.

[16] He also confirmed that the sign displaying the manager on duty had been repaired and was on display.

THE RESPECTIVE ARGUMENTS

[17] There are four alleged breaches of the Act which give rise to this application.

(a) s.115 (1) states “ At all times when liquor is being sold or supplied to the public on any licensed premises a manager must be on duty and responsible for compliance with this Act and the conditions of the licence”.

(a) s.115 (2) states “ 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 shall be deemed for the purposes of this Act to be the manager at that time ”.

(b) s.130 (1) states “ A licensee must give notice in accordance with subsection (1A), of the appointment or the cancellation or termination of the appointment of any manager, temporary manager, or acting manager.

(c) s. 165 (1) states “ Every person commits an offence and is liable to the penalty set out in subsection (2) who, being the licensee or a manager of any licensed premises, sells or supplies liquor to any person at any time when the licensee is not authorised by the licence or this Act to sell to that person”.

[18] It will be noted that no proceedings were issued in the District Court under s. 172A of the Act. There are of course differing standards of proof in each jurisdiction. These allegations are to be decided on the balance of probability.

[19] Sergeant Lopdell relies on the case of AAA New Zealand Limited LLA 1150/2000. The Authority held that where no notice of the appointment of a manager had been made to the Police or the Authority or the District Licensing Agency, then all sales from the premises are unauthorised sales of liquor in terms of s.165. In other words the absence of notice of appointment automatically ensures that there is are ‘unauthorised sales’ until the notice is given.

[20] Messrs Lawrence and Clark argued that because an acting manager was present, at all times, there were no unauthorised sales. They submitted that because the appointments were for less than 48 hours, then pursuant to s. 130 (2) no notification was necessary.

CONCLUSION

[21] In this case we are satisfied that breaches of the Act have been proved. The absence of the name of the manager (prominently displayed) on the night of 4 April 2001 represents the first breach. There can be little argument about that.

[22] The absence of Mr Lawrence from the premises between 7.30pm and 9.00pm on the night of 4 April represents the second breach. In the light of the comments made by Mr Hill, we were not satisfied that a valid appointment of a temporary manager or an acting manager was made to cover Mr Lawrence’s absence. His statement to the police that he was due to start work at 9.00pm did not lie comfortably with Mr Lawrence’s subsequent explanation.

[23] The failure to notify Mr Lawrence’s original appointment means that there was a continuing breach of s.165 till December last year. It may well be that the subsequent appointments of acting managers were not required to be notified. However, if Mr Lawrence was away on leave for two weeks, then the appointment of a number of acting managers, each for less than 48 hours, would be an unusual if not undesirable way to cover his absence.

[24] Notwithstanding the breaches that have been outlined, we do not accept that it is desirable to suspend the licence for any period. We acknowledge the strong submissions made by Sergeant Lopdell. He asked us to take a firm line. He said that there was a continuous effort being made to increase the standards for managers and licensees. He submitted that the refusal of his application would send the wrong message.

[25] On the other hand there were no liquor abuse issues at all. We heard no evidence of any difficulty or trouble with the management of this business since it began operating thirteen months ago. Furthermore, we were impressed with the efforts which have since been made to rectify the mistakes. The lessons have been well and truly learned. There should never be a future need to appoint temporary or acting managers because all the staff should be certificated.

[26] If there was a hint of underhand activity; if we thought that the proprietors were playing fast and loose with the Act; if we considered that they had made a conscious decision to breach the Act, then we would have had no hesitation in suspending the licence. At the end of the day this is a business which does not appear to have a problem in terms of the objects of the Act.

[27] It is not easy to lay down rules for every situation but in this case, we would have thought it prudent to have given management a written warning in the first instance. If the problem persisted in the face of such a warning, then we would hope that action would then be taken. In those circumstances the Police would have every reason to expect the full support of this Authority.

[28] For the reasons we have given the application is refused.

DATED at WELLINGTON this day of July 2001

Judge E W Unwin Mr J C Crookston
Chairman Member

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