Nelson v Schooner Tavern Limited [2001] NZLLA 484 (7 November 2001)

Last Updated: 4 June 2010

Decision No. PH 484/2001 – PH 485/2001

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 cancellation of on-licence number 007/ON/234/2000 issued to SCHOONER TAVERN LIMITED in respect of premises situated at 10-14 Quay Street, Auckland City, known as “Schooner Tavern”

BETWEEN NIGEL STUART ROBERT NELSON (Police Officer of Auckland)

Applicant

AND SCHOONER TAVERN LIMITED

Respondent

AND

IN THE MATTER of an application by SCHOONER TAVERN LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 10-14 Quay Street, Auckland City, known as “Schooner Tavern”

BEFORE THE LIQUOR LICENSING AUTHORITY

Deputy Chairman: District Court Judge J P Gatley
Member: Mr J C Crookston

HEARING at AUCKLAND on 31 October 2001

APPEARANCES

Mr G S Whittle – Auckland District Licensing Agency Inspector – to assist
Sergeant M J Lopdell – NZ Police – applicant
Mr N Thinn for respondent

ORAL DECISION OF THE AUTHORITY

[1] By application pursuant to s.132 of the Act dated 7 August 2001, the Police seek cancellation of on-licence number 007/ON/234/2000 issued to Schooner Tavern Limited in respect of premises situated at 10-14 Quay Street, Auckland City, known as “Schooner Tavern” on the grounds that the premises have been conducted in breach of the following provisions of the Sale of Liquor Act 1989:-

[a] Section 155(1) – Supplies liquor to minors.
[b] Section 164(1) – Permits minors to be in a supervised area.
[c] Section 166(1) – Supplies liquor to intoxicated person.
[d] Section 167 – Allows person to become intoxicated.
[e] Section 168(1)(a) – Allows intoxicated person to be or remain on the premises.

[2] That application is before us together with an application by Schooner Tavern Limited pursuant to s.18 of the Act, for renewal of an on-licence in respect of the same premises.
[3] The application for renewal is opposed by the Police. The directors and 50 per cent shareholders in Schooner Tavern Limited are David Alan Cook and Frederick William Moore.
[4] Evidence was given by one minor who had purchased and consumed liquor at the Schooner Tavern, and by ten Police witnesses. The evidence of another Police witness was accepted in affidavit form, and that of a further Police witness by consent.
[5] The Police witnesses described:-

• Three minors being apprehended on the premises on 5 October 2000, issued with infringement notices and being returned to their parents.
• Police officers finding intoxicated and drunk persons on the premises, liquor being supplied to intoxicated persons, and intoxicated persons being allowed to remain on the premises.

[6] Evidence was given that on 25 May 2001, one of the intoxicated persons found on the premises was David Alan Cook, a director and 50 per cent shareholder in the licensee company. Mr Cook was not on duty at the time. Mr Moore was the then Duty Manager.
[7] Mr Neil Thinn, as counsel for the licensee, did not challenge the evidence of the Police witnesses and in submissions conceded:-

“the Police have provided sufficient evidence to support an order by the Tribunal cancelling or suspending the licence of the tavern in respect of –

(a) Section 115 – Supplies liquor to minors, confirmed by incident dated 5 October 2000.

(b) Section 164(1) – Permits minors in a supervised area, confirmed by incident dated 5 October 2000.

(c) Section 166(1) – Supplied liquor to intoxicated person, confirmed by Hikau and Whatu incident dated 25 May 2001 and 24 August 2001, set out in Constable Ambler’s evidence.

(d) Section 167 and s.168(1)(a) – Same position as in paragraph (c) above.”

[8] A statement by Mr D A Cook was produced by his counsel in which Mr Cook said that he accepted that on 25 May 2001, “There were some patrons who were intoxicated on the premises who should not have been there.”

[9] The statement included a comment that Mr Cook would be unable to be present at today’s hearing. When the Authority enquired as to the reason why Mr Cook was not present we were told by Mr Thinn that the reason was simply that Mr Cook was ashamed as to the events at the tavern described by the Police.
[10] Mr F W Moore was present at the hearing and accepted that on the majority of the occasions described by the Police he had been the Duty Manager. Mr Moore said that he accepted full responsibility, “for my actions or lack of them”.
[11] We are satisfied that the grounds of the Police application have been established.
[12] Mr Thinn asked us to consider suspending the licence or postponing any date of cancellation so as to allow the licence to remain in force pending a sale of the business to Dayal Holdings Limited.
[13] Mr G S Whittle, Auckland District Licensing Agency Inspector, informed the Authority that if Dayal Holdings Limited lodged an application for a new licence, a new licence could issue within 20 days of the date of application. In the light of that information we are not persuaded to postpone the effect of any order pursuant to subsection (6) of section 132 of the Act.
[14] The grounds of the Police application having been established to our satisfaction on the balance of probabilities, we are also satisfied that it is desirable that we should make an order under subsection (6) of section 132 of the Act cancelling the licence. We are further satisfied in terms of section 22(c) of the Act that the manner in which the licensee has conducted the sale and supply of liquor pursuant to the licence has been such as to warrant refusal of the application for renewal.

Order

[15] On-licence 007/ON/234/2000 issued to Schooner Tavern Limited is hereby cancelled with the order to take immediate effect. The application by Schooner Tavern Limited for renewal of its on-licence is refused.

DATED at WELLINGTON this 7th day of November 2001

W Newall
Deputy Secretary
Liquor Licensing Authority schooner.doc(aw)