Tutty and Davidson v Star Tavern Limited [2002] NZLLA 1 (9 January 2002)

Last Updated: 14 February 2010

Decision No. PH 1/2002 – PH 4/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of applications pursuant to s.132 of the Act for suspension of on-licence number 016/ON/9/2000 and off-licence 016/OFF/8/2000 issued to STAR TAVERN LIMITED in respect of premises situated at 58 Lyon Street, Kihikihi, known as "Star Tavern"

BETWEEN KARL JASON TUTTY

(Waipa District Licensing Agency Inspector)

AND EVAN DAVIDSON

(Police Officer of Te Awamutu)

Applicants

AND STAR TAVERN LIMITED

Respondent

AND

IN THE MATTER of applications pursuant to s.135 of the Act for suspension of General Manager's Certificate 016/05/00 issued to GLENN SARGENT

BETWEEN KARL JASON TUTTY

(Waipa District Licensing Agency Inspector)

AND EVAN DAVIDSON

(Police Officer of Te Awamutu)

Applicants

AND GLENN SARGENT

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at HAMILTON on 14 December 2001

APPEARANCES

Mr P D Swain –for the respondents
Mr K J Tutty– Waipa District Licensing Agency Inspector – applicant
Sergeant W F Robson – N Z Police – applicant

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] These are applications by the Waipa District Licensing Agency Inspector and the Police for suspension of the on and off-licences issued to Star Tavern Limited pursuant to s.132 of the Act. The applicants also seek suspension of the General Manager's Certificate issued to Glenn Sargent pursuant to s.135 of the Act.

[2] The grounds for the applications as stated in the application by the Inspector are "that the licensee has failed to conduct the licensed premises in a proper manner;" and in particular it is alleged as follows:

"(1) That on the 10th June 2001 the licensee allowed persons to become intoxicated on the premises known as the Star Tavern. Breach of s.167 sale of Liquor Act 1989.

(2) On the 10th June 2001 the licensee allowed intoxicated persons to remain on the premises. Breach of section 168(1)(a) Sale of Liquor Act 1989.

(3) The premises licence was not displayed on the above date.

(4) The Duty Manager's name was not displayed on the above date."

Background

[3] Paul Anthony Kelly, his wife Zelda Annette Kelly and Glenn Sargent are shareholders and directors in Star Tavern Limited. All three operate the Star Tavern. During the day Mr Kelly works as a registered electrician and Mr Sargent is now a prison officer. Mr and Mrs Kelly reside on the premises.

[4] The company has been operating the premises for 23 months. Initially it was operated under a number of temporary authorities until the on and off-licences were obtained.

[5] Mrs Kelly and Mr Sargent both hold manager's certificates. Mr Kelly does not hold a manager's certificate but is intending to apply for one next year.

[6] Mr and Mrs Kelly and their son live on the premises. On the night of 10 June 2001 at about 9.30 pm Mr and Mrs Kelly held a 21st birthday party for their son on the premises. Tables were set up in the bar with a large array of food so that guests and patrons could help themselves.

[7] During the evening guests moved between the residential area and the bar. Mr Sargent assisted behind the bar. He was serving both guests and patrons.

[8] At about 12.50 am, the Team Policing unit arrived on a routine visit. There were about 60 people in the bar. Of that number Mr Kelly estimates that about 25 persons were patrons.

[9] Senior Sergeant Simes, who was in charge of the unit, said Mr Sargent had informed him that he was the manager for the night. Mr Sargent's name was not displayed as being the Duty manager. Mr Sargent said that the sign with the Duty manager's name and the licences were away being laminated.

[10] Senior Sergeant Simes said he noticed a large number of intoxicated persons in the bar. Some of them he considered to be extremely intoxicated. He directed Mr Sargent to remove all intoxicated persons forthwith from the bar. The bar was then closed.

[11] Constable Patton said he positioned himself next to the exit door on the southern side of the building. He "observed approximately 60 patrons in the bar area, many were in various states of intoxication."

[12] After the intoxicated persons were removed and the premises were closed the Police left.

[13] At 2.00 am Senior Sergeant Simes and Constable Patton returned to the Star Tavern. They found a very drunk guest in the bar. He was removed from the premises. Senior Sergeant Simes informed Mr Kelly that on his earlier visit he had found that several breaches of the Sale of Liquor Act had occurred. These were that the Duty Manager's name, and the licence had not been displayed and there were a number of intoxicated persons on the premises.

[14] In the course of his evidence Mr Kelly said that he was confused about Mr Sargent's reference to the absence of the licences. A laminated copy of the on-licence was displayed immediately next to the bar, and the off-licence was on the inside of the door to the bottle shop.

[15] Sergeant Davidson interviewed Mr Sargent on 19 June at the Te Awamutu Police station. When he was asked about the absence of on-licence Mr Sargent said that he thought he was being asked about his Manager's Certificate which was away being laminated. He had his old certificate on display instead. Mr Sargent did not think he was doing anything wrong. He said there were definitely no under age people in the bar.

[16] On 19 July Sergeant Davidson interviewed one of the guests who had attended the 21st party at the Star Tavern on 10 June. His statement was produced by the Sergeant and was admitted by consent. The guest is 22 years of age. He said he did not remember much of what happened that night. He had had quite a bit to drink, mainly beer. He was pretty sure it was beer. He did not remember much of what happened that night. He did not remember being spoken to by the Police. He said, "I just drank heaps." He did not remember what time the bar closed. He went to a mate's place and woke up about 11.00 am or midday. Since then he now realises "that drinking has affected my memory and I haven't drunk anything since then."

[17] Mr Kelly said that this was the first such incident in nearly two years they have been at the tavern. If the party had been held in their private residence away from the tavern instead of in their residence at the tavern there would not have been a problem.

[18] Since that event, they have with the help of Mr Swain, ensured that all signage as required by the Act is displayed correctly. Now they also display their Host Responsibility Policy, telephone numbers of local taxis, as well as a sign that they do not serve minors or intoxicated persons.

[19] Mr Swain said that Mr and Mrs Kelly do not challenge the evidence of the Police.

[20] Mr Swain said that in terms of s.132(6) the Authority must first be satisfied that the grounds of the application have been established and secondly, it must be satisfied that an order should be made. Consequently, as the respondent has conceded that the grounds have been established Mr Swain directed his submissions at what order should be made.

[21] Mr Swain referred to the Authority's decisions in Penrose Tavern LLA 446-447/97 and Schooner Tavern. Those cases are distinguishable from the present case because there were continuing breaches of the Act, whereas the offences in present case took place on one isolated occasion. He said the offences did not involve the public per se but invited guests to a private social function.

[22] Mr Swain said the company had been operating for 23 months without blemish. The Inspector and the Police confirmed this. Mr Swain submitted that if the Authority accepted this was a one off incident, then it was not desirable to make an order under s.132(6) of the Act.

[23] Mr Swain suggested that the Authority issue a strong warning or adjourn the matter for a period so that the respondent and its directors can prove that it is a responsible licensee.

Authority's Conclusion and Reasons

[24] Section 132(3) and (6) provide:

" 132. Variation, suspension, or cancellation of licences other than special licences---...

(3) The grounds on which an application for an order under this section may be made are as follows:

(a) That the licensed premises have been conducted in breach of any of the provisions of this Act or of any conditions of the licence or otherwise in an improper manner:

(b) That the conduct of the licensee is such as to show that he or she is not a suitable person to hold the licence:

(c) The licensed premises are being used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public.

...

(6) If the Licensing Authority is satisfied that any of the grounds specified in subsection (3) of this section is established and that it is desirable to make an order under this section, it may, by order,—

(a) Vary or revoke any condition of the licence imposed by the Licensing Authority; or

(b) Impose any new condition (relating to any matter specified in section 14(5) or section 37(4) or section 60(2) of this Act); or

(c) Suspend the licence for such period not exceeding 6 months as the Licensing Authority thinks fit; or

(d) Cancel the licence."

[25] Having heard the evidence we are satisfied that the grounds of the application have been met in terms of s.132(3)(a).

[26] We now consider what order should be made.

[27] Mr Swain's submission that the offences did not involve the public per se is of course not entirely correct. The evidence showed that the food was set up in the bar so that patrons and guests could help themselves when they wished. Likewise, the Police and Mr Kelly estimated that there were about 60 persons in the bar when the Police arrived. Mr Kelly estimated that about 25 of them were patrons.

[28] In K Hann LLA 501-502/97 the Authority said:

"We have frequently said that having regard to the object of the Act, summarised as contributing to the reduction of liquor abuse, there can be no more serious breach of the Act than the offences of allowing persons to become intoxicated and selling or supplying liquor to an intoxicated person."

[29] Since that time Parliament has seen fit to double all penalties under the Act. In addition, a new section 132A was inserted into the Act. This section emphasises the seriousness of the sale or supply of liquor to minors, the unauthorised sale or supply of liquor, the sale or supply of liquor to intoxicated persons, and allowing persons to become intoxicated on licensed premises.

[30] As regards the failure to display the on-licence s.25(2) provides:

"Every holder of an on-licence shall ensure that there is displayed at all times a copy of the licence, and of the conditions of the licence, attached to the interior of the premises or conveyance so as to be easily read by persons entering through each principal entrance." (emphasis added)

[31] Mr Kelly said that:

"A laminated copy of the on-licence is immediately next to the bar and a laminated copy of the off-licence is on the inside of the door to the bottle shop."

[32] We accept that the on-licence was not displayed in accordance with s.25(2) of the Act, and further, that there was no display of the name of the manager on duty in accordance with s115(2) of the Act.

[33] While the display of the licences and the name of the duty manager have a role to play in the enforcement of the Act the breach of these requirements is far outweighed by the seriousness of allowing persons to become intoxicated. It is that type of offence that goes against the object of the Act.

[34] We note that the respondent through its directors has been completely co-operative and candid with the Inspector and the Police and in presenting its case to the Authority.

[35] Consequently, we balance that candour and the fact that it was a one-off 21st birthday party against the seriousness of the offences. Having taken in account all the matters presented to us we cannot ignore the nature of the offences. Therefore the respondent's on-licence number 016/ON/9/2000 and off-licence number 016/OFF/8/2000 shall be suspended for five days from 9.00 am Monday 28 January 2002 to 9.00 am Saturday 2 February 2002.

[36] Mr Glenn Sargent's General Manager's Certificate GM 016/05/00 is suspended for twenty-one days from Monday 28 January 2002.

DATED at WELLINGTON this 9th day of January 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

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