Taylor v Ball Eden Co Limited [2002] NZLLA 112 (18 March 2002)

New Zealand Liquor Licensing Authority

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Taylor v Ball Eden Co Limited [2002] NZLLA 112 (18 March 2002)

Last Updated: 20 February 2010

Decision No. PH 112/2002 – PH 114/2002

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by BALL EDEN CO LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 28 – 36 Robert Street, Ellerslie, Auckland City, known as "Champion International Hotel"

AND

IN THE MATTER of an application pursuant to s.132 of the Act for cancellation of on-licence number 007/ON/160/94 issued to BALL EDEN CO LIMITED in respect of premises situated at 28 – 36 Robert Street, Ellerslie, Auckland City, known as "Champion International Hotel"

BETWEEN SCOTT LYALL TAYLOR

(Police Officer of Auckland)

Applicant

AND BALL EDEN CO LIMITED

Respondent

AND

IN THE MATTER of an application pursuant to s.135 of the Act for cancellation of General Manager's Certificate number GM 007/2005/01 issued to VINCHO VINCENT CHEUNG

BETWEEN SCOTT LYALL TAYLOR

(Police Officer of Auckland)

Applicant

AND VINCHO VINCENT CHEUNG

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 12 February 2002

APPEARANCES

Sergeant M J Lopdell for applicant
Mr J H Wiles for the respondents and applicant for renewal

Mr D W Sara – Auckland District Licensing Agency Inspector – in opposition to renewal
Mr G S Whittle – Auckland District Licensing Agency Inspector – to assist
Dr C J Mair – objector
Miss B T Garlick – objector

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority are three applications. The first is for renewal of the on-licence which has been issued to Ball Eden Co Limited, in respect of premises situated at 28 – 34 Robert Street, Ellerslie, Auckland, known as "Champion International Hotel" (the Champion Hotel).

[2] The second is an application pursuant to s.132 of the Act, for the cancellation of an on-licence in respect of the premises known as the "Champion International Hotel".

[3] The third application is pursuant to s.135 of the Act for the cancellation of a General Manager's Certificate issued to Vincho Vincent Cheung. The grounds for the application are that (a) the manager has failed to conduct licensed premises in a proper manner and (b) that the conduct of the manager is such as to show that he or she is not a suitable person to hold the certificate.

[4] The application for renewal attracted two objectors who are immediate neighbours of the premises. The application was opposed by Mr Sara, the District Licensing Agency Inspector and the Police.

[5] The allegations in support of the grounds for the s.135 application are the same as the allegations in support of the grounds for the s.132 application which are set out below.

[6] The four grounds for the application pursuant to s.132 are:

• [a] That the premises have been conducted:
  
  • [i] In breach of the provisions of the Sale of Liquor Act 1989, namely:

- Failing to display liquor licence (s.25).

- No manager on duty, no manager's name displayed (s.115)

- Failing to notify appointment of managers (s.130)

- Unlicensed person keeps, exposes and sells liquor (s.151)

- Unauthorised sale and supply of liquor (s.165).

- Allowing drunkenness or disorderly conduct on licensed premises (s.168).

- Allowing person on licensed premises outside licensing hours (s.171).

- Licensee's offences in respect of manager (s.172A).

- Failing to produce licence/provide information when requested (s.175).

[7] The second ground for the application is that the licence has been conducted in breach of condition (c) of the licence. This ground relates to unauthorised persons drinking on the premises outside the authorised hours. Condition (c) reads:

"(c) Liquor may be sold only on the following days and during the following hours:

(i) At any time on any day to any person who is for the time being living on the premises whether as a lodger or as an employee of the licensee, or otherwise.

(ii) Monday to Sunday 11.00 am to 1.00 am the following day, to any person who is present on the premises for the purpose of dining.

(iii) Monday to Saturday 11.00 am to 1.00 am the following day, to any person who is present on the premises for the purpose of attending any function."

[8] The third ground for the application is that the conduct of the licensee is such as to show that he is not a suitable person to hold the licence.

[9] The fourth ground for the application is that the licensed premises were being used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public.

[10] The grounds and the allegations in support of those grounds covered some twenty pages in the application.

Police Evidence

[11] Constable Harris said at approximately 4.45 am on Sunday 3 June 2001, he was working with Constable Paul Agnew. They attended a complaint of disorder at the Champion Hotel. When they arrived there, he noted there were approximately eight persons in the bar and the bar was still open. One or two of the patrons were mildly intoxicated but the remainder he described as being severely intoxicated.

[12] The constables unsuccessfully tried to locate a copy of the liquor licence for the premises to ascertain who was allowed to drink there, and what hours the premises were permitted to be open.

[13] The Constables spoke to a Mr Vaasuaga. He said he was the Duty Manager and that he held a Manager's Certificate. He was unable to explain why his name was not displayed as the manager on duty, nor could he produce his Manager's Certificate. He said half of the patrons were guests of the hotel, and the other half were there to consume liquor. Constable Harris noted that when the patrons left, two asked for rooms for the night and the rest left in taxis.

[14] Mr Vaasuaga was asked about the opening hours and the licence details in respect of the premises. He said that the bar stays open until there are no patrons left. Following their visit, Constable Agnew submitted a report to the Police Liquor Licensing Unit. Constable Agnew has since left the Police.

[15] Constable S L Taylor is attached to the Strategic Liquor Licensing Unit at Auckland Central. Constable Taylor produced Constable Agnew's report in evidence.

[16] In that report Constable Agnew noted that the majority of the patrons were heavily intoxicated. He said this was evident due to the manner in which the patrons were slurring their speech and stumbling around.

[17] Constable Taylor said that following the receipt of Constable Agnew's report, he made enquiries of the Auckland District Licensing Agency to determine if Mr Vaasuaga held a Manager's Certificate under the Sale of Liquor Act. At the same time he posted a nationwide request to all District Licensing Agencies requesting the same information. So far he has been unable to locate any record of Mr Vaasuaga having ever been appointed a manager.

[18] Constable Taylor said that around this time he started receiving complaints from neighbours about noise emanating from the bar of the Champion Hotel until the very early hours of the morning.

[19] At approximately 9.15 pm on Thursday 21 June 2001, Constable Taylor made an inspection of the Champion Hotel. The receptionist advised him that the duty manager, Vincent Cheung, was overseas and Adrian Boyd had been left in charge. Mr Boyd said that he was not the duty manager and that Mr Cheung was at home in Howick. He said that another manager named Andrew would be starting in an hour's time.

[20] Because of the different explanations given by the receptionist and Mr Boyd as to Mr Cheung's whereabouts, Constable Taylor requested Mr Boyd to telephone Mr Cheung. Mr Boyd said that he had been trying to contact Mr Cheung himself and had been unable to do so.

[21] Constable Taylor went to the principal entrance to inspect the liquor licence. In its place he found a renewal notice that was so badly faded it was unreadable. Mr Boyd was unable to produce a copy of the liquor licence when requested.

[22] Constable Taylor said that in the absence of the licence he was unable to determine what class of patrons were allowed to be present on the premises or whether there was any designation for the premises.

[23] Constable Taylor then noticed that the restaurant area adjacent to the bar was in darkness. He inspected the kitchen. He found that it was clean and cold. Mr Boyd said he had served chips at 8.00 pm that night.

[24] Several patrons were in the bar consuming liquor. The sign behind the bar stated that Andrew Vaasuaga was the Manager on Duty. Mr Boyd said that Andrew would be starting in an hour's time.
[25] At 9.00 pm on Thursday 5 July 2001, Constable Taylor made another inspection of the Champion Hotel. Approximately ten patrons were consuming liquor in the bar. The name of the manager on duty was not displayed.

[26] Constable Taylor ascertained that the manager on duty was Vincent Cheung. He was in his private accommodation at the rear of the hotel. Constable Taylor spoke to Mr Cheung. He said he was the Director of the licensee company and that he owned the entire hotel complex. He had obtained a Manager's Certificate in 1996. He did not know if his manager's certificate had been renewed. He was unable to produce his certificate or evidence of its renewal.

[27] Constable Taylor asked Mr Cheung to show him the liquor licence for the premises. Mr Cheung pointed to the unreadable renewal notice. Constable Taylor then explained the difference between a licence and a renewal notice. Mr Cheung was unable to produce the licence. He said that an unknown person at the Council told him that he only had to display a renewal notice.

[28] Although Mr Cheung had been the manager on duty since 9.00 am that day there was no sign displaying his name in the bar. He said that was because they were changing the signs over.

[29] Constable Taylor then warned Mr Cheung regarding a number of breaches under the Act.

[30] Following his visit to the Champion Hotel, Constable Taylor inspected the files of Auckland District Licensing Agency and Police in respect of the Champion Hotel. He was unable to find any record of Mr Cheung holding a Manager's Certificate. Nor was there any record of any manager having been appointed pursuant to s.130 of the Act.

[31] On Tuesday 10 July 2001, Constable Taylor posted a letter to Mr Cheung requiring him to produce a copy of his Manager's Certificate and current renewal of the certificate together with a list of all managers employed at the premises under the Act.

[32] At approximately 6.00 pm on Thursday 12 July 2001, Constable Taylor again inspected the Champion Hotel. Mr Cheung confirmed he had received the letter of 10 July 2001. He said that he was checking with the District Licensing Agency regarding his Manager's Certificate. He said that he had one other manager at the premises.

[33] The bar was open and patrons were present. Constable Taylor noted that the Manager on Duty sign was positioned behind a row of bottles on a shelf. It was totally unreadable.

[34] At approximately 8.20 pm on Thursday 30 August 2001, Constable Taylor made another inspection of the Champion Hotel. The liquor licence was still not displayed at the principal entrance. The renewal notice was still in place. The bar was operating and patrons were present. The barman said that the manager on duty was Mr Cheung and he had gone home. No temporary manager had been appointed to replace Mr Cheung and no manager's name was displayed in the bar.

[35] Constable Taylor spoke to Mr Cheung by telephone. Mr Cheung said that the barman was replacing him as the duty manager. Constable Taylor pointed out to Mr Cheung that his Manager's Certificate had expired in 1997. Mr Cheung said he was the licensee and he had done a course. Constable Taylor told him that the company was the licensee.

[36] At approximately 10.30 pm on Thursday 11 October 2001, Constable Taylor visited the Champion Hotel. The bar was open and in use. Behind the bar there was a sign indicating that Vincent Cheung was the manager on duty even though he was not on the premises. The barman told Constable Taylor that the manager on duty was Adrian Boyd.

[37] Mr Boyd was called from his accommodation at the rear of the hotel. He said he did not hold a Manager's Certificate. The manager on duty was Mr Cheung. Mr Boyd did not know Mr Cheung's whereabouts.

[38] Constable Taylor then had a discussion with Mr Boyd about his financial interest in the premises. Mr Boyd said he had leased the bar and conference facilities for six or seven months. He owned the liquor and took the profits from the bar and the conference business. He did not operate a bank account in his name or in the name of the company or anything like that and he did not have a liquor licence. He said that Mr Cheung has the liquor licence. He was then cautioned under the Bill of Rights Act. He said that he did not have any employees and the hotel paid the one employee. Mr Boyd said that he did not operate his business through a cheque account nor did he use cash or Eftpos for liquor purchases. The liquor was purchased from bar takings or on the hotel account. He said he did not have shares in Eden Ball Co Limited nor was he a director or shareholder of that company. He said profits from the bar till were banked into the licensee company's account. If he wanted cash he just took it out of petty cash.

[39] Constable Taylor went to reception where there was a copy of the liquor licence displayed. Mr Boyd confirmed that there was no manager, nor temporary or acting manager, on the premises.

[40] Constable Taylor then discussed the problem of noise with the neighbours. Mr Boyd said he could not help it if the patrons from the Cock & Bull came and drank at his premises when the Cock & Bull closed.

Evidence of District Licensing Agency Inspector

[41] On 12 June 2001 Mr Sara discussed with Mr Cheung the recent noise complaints that Auckland City Council had received in respect of the Champion Hotel. Mr Sara produced a schedule of noise complaints for the period of 3 February 2001 to 8 February 2002. During that time there had been 36 noise complaints. Of that 36, there had been nine verbal warnings and seven excessive noise directions issued. In 13 cases Armourguard reported there was no noise and on seven occasions the noise was not excessive. Mr Cheung said that lodgers who drank in the bar and used the jukebox, generated the noise.

[42] The sign in the bar indicated Andrew Vaasuaga was the duty manager. Mr Sara was unable to find any record of this person holding a Manager's Certificate.

[43] On 17 July 2001, the Auckland District Licensing Agency received an application for a Manager's Certificate from Vincho Vincent Cheung. Mr Sara noted the application form showed that Mr Cheung had held a General Manager's Certificate in 1994. On 5 September 2001, Mr Cheung was issued a Manager's Certificate.

[44] On 10 September 2001 Mr Sara received notification pursuant to s.130 of the Act from Ball Eden Co Limited signed by Mr Cheung of his appointment as a manager of the hotel as of 15 March 1994. Mr Sara advised Mr Cheung that the notification of appointment could not be backdated.

[45] On 13 September 2001, Mr Sara received a new notification pursuant to s.130 of the Act appointing Mr Cheung as manager of the Champion Hotel from 10 September 2001.

[46] Mr Sara said that on 22 August 2001, the Auckland District Licensing Agency had received an application for renewal of the liquor licence for the Champion International Hotel. The application form listed the managers as Mr Cheung and Mr Boyd. In each case where the form requested the Manager's Certificate number, the applicant had entered the word "processing".

Evidence of Dr Mair

[47] Dr Mair is an Anaesthetic Registrar. She owns a house which backs on to the Champion Hotel. She has lived at that address for approximately three years.

[48] Dr Mair said that prior to Christmas 2000/2001, there was the occasional party held at the Champion Hotel. The first party was usually finished around 9.00 pm or 10.00 pm and did not cause any problems. In October 2000, there was one really big party held at the hotel that went all night, was extremely noisy and disruptive.

[49] Dr Mair said that from the start of December 2000, parties were held at the hotel on Friday and Saturday nights that went through until 6.00 am. The main noise was heavy bass coming from either a DJ or a jukebox at the premises. It was so loud that the windows and crockery in her house shook. People were also outside yelling and shouting.

[50] All the windows in the conference area where the party was being held including the downstairs’ toilet block windows were left open. These windows back directly onto her premises which is only 30 metres away.

[51] When the patrons went to the toilet Dr Mair could hear their conversations clearly. As the night wore on the conversations became more drunken as people became further intoxicated. Dr Mair had previously worked for over a year in an Auckland bar. Consequently, she is familiar with the different stages patrons pass through as they get further intoxicated.

[52] The regular dumping of bottles from the bar into the wastebin directly beneath her bedroom has also kept Dr Mair awake. This could occur hourly when the parties were in full swing. Domestic arguments between patrons outside the premises have also kept her awake.

[53] On numerous occasions, after being kept awake by the noise, Dr Mair had been unable to contact someone at the hotel because her calls were answered by answer phone. When Dr Mair tried to contact the manager during normal business hours she was told he was always unavailable. Her calls were never returned.

[54] In about August 2001, Dr Mair spoke personally to Adrian Boyd and complained about the noise from the premises. He told her that since the law had changed it was within the law for people to come from the Cock & Bull after it had closed and to drink at his premises if they were staying. He said they could serve alcohol when they wanted and there was not much she could do about it.

[55] Dr Mair noted there were always a large number of patrons at the parties and the carpark was full of cars. However, she noted that when she woke up early in the morning there would be very few cars left in the car park.

[56] Dr Mair said that it was important that she had a good night's sleep because her work required her to be able to make split-second decisions so as to not cause harm to her patients. There have been occasions that she has had to take time off work due to fatigue so as not to risk the safety of her patients. That was because she had only been able to sleep for one or two hours on some nights.

[57] The noise problems had also caused a paying flatmate to move out of her house during the year.

[58] Dr Mair said that she had made numerous complaints to Auckland City Council in respect of the premises. These are reflected in the schedule produced by Mr Sara. She could have made more complaints, if not for the fact that she works a lot of nightshifts and quite often is not home. For example, she was very seldom at home from the beginning of September 2001 to the end of October 2001.

Evidence of Miss Garlick

[59] Miss Garlick's house is behind the hotel's dining room and bar. She purchased her residence in March 2000. When she purchased the property she was aware of the hotel and its potential for disturbance from vehicle movements or rowdy guests. Between March 2000 and Christmas 2000, the hotel was a "perfect neighbour" given its business use and activity.

[60] Miss Garlick now believes that the hotel is repeatedly and intentionally abusing the conditions of its licence. By November 2000, the hotel was holding weekend and weekday parties, many of which did not finish until 4.00 am.

[61] Miss Garlick said that there was noise generated from the parties either by a jukebox or a DJ. People singing and screaming above the music, as well as conducting loud exchanges at the rear of the buildings, created additional noise. Staff emptying bottle bins in the early hours of the morning only metres from her house added further noise.

[62] When she called the hotel to complain she kept getting the answerphone. Miss Garlick then started calling Auckland City Noise Control to have the disturbance stopped. She said the Noise Control Officers were powerless to stop the disturbance and were not in a position to address the drinking of alcohol and abuse of the liquor licence.
[63] The parties continued into the New Year and became more regular and noisier. The hotel appeared to be building a reputation as a popular party venue.

[64] On 4 May 2001, Miss Garlick decided to find out for herself whether these parties were for anyone or for guests staying at the hotel. She made enquiries of the manager as if she was a person interested in having a party at the hotel. The manager identified herself as "Serena". Serena said the hotel had a 24 hour liquor licence and that a party could continue as long as the bar was open. The hotel was happy to provide a jukebox or a DJ. Either would be okay as they had no noise restriction problems. Miss Garlick was surprised and asked if she had to be a guest to stay at the hotel. Serena confirmed that she did not need to be a guest to have a function.

[65] On 17 June 2001, at about 12.30 am, Miss Garlick drove past the hotel and noticed about twenty cars in the carpark. She drove in to see if she could contact the manager as the party music was loud. As she drove in, there were about six people leaving the hotel clearly intoxicated. She was deterred from entering the premises because the reception doors were shut, and she did not think that the other guests would welcome a "party pooper".

[66] When Miss Garlick tried to contact Noise Control there was no answer. She was awoken by the party at 2.45 am. At about 10.00am the next morning, Miss Garlick noted all the cars from the carpark were gone.

[67] In about June, when Miss Garlick complained to the General Manager, named "Adrian" about the noise he said that the functions and parties were very profitable. They were also "out of his control" because many people came from the "Cock & Bull" further down the street in the Ellerslie shops. The hotel had every right to have loud and long parties or functions. He claimed he was unaware of the problems because none of the neighbours had advised him personally. He admitted that the Noise Control Officer was a frequent visitor.

[68] Miss Garlick said although there had been a reduction in the number of parties and late functions since she had lodged her objection on 11 September 2001, they had not stopped. Miss Garlick made a complaint in person to the receptionist of the hotel on 2 January 2002 who did not appear to understand her request "to keep the music down."

Evidence of Mr Cheung

[69] Mr Cheung said that he is one of two directors of the licensee company. The other director and shareholder is his father, Wan Sang Cheung. In passing, we note that only Mr Vincho Vincent Cheung is registered as a Director at the New Zealand Companies Office.

[70] Mr Cheung said that they acquired the hotel in 1994. It was not until last year that there were noise complaints. These led to the present applications for cancellation or suspension of the licence and his Manager's Certificate.

[71] Mr Cheung frankly acknowledged the truth of much of the Police evidence and the omission on his part of ensuring that his General Manager's Certificate was not kept up to date. He acknowledged that he had failed to ensure that there was always a person on duty with a valid General Manager's Certificate. He did not fully appreciate the legal position and the implications with regard to having a certified General Manager on duty at all time.

[72] Mr Cheung said that as soon as it was drawn to his attention that his own certificate had lapsed, he renewed it in September 2001.

[73] Mr Cheung said that he assumed because he was living on the premises at all times that that would be sufficient even if he was not in the bar. Because of that understanding, he never checked as to whether Adrian Boyd had a General Manager's Certificate.

[74] It was intended that Mr Boyd would take a lease of the bar premises but formal implementation of that arrangement was never put into effect.

[75] Mr Vaasuaga had represented to him that he had a General Manager's Certificate. Mr Cheung was shown what he thought was a General Manager's Certificate. He later found out that the documents only certified that Mr Vaasuaga had taken an approved manager's course and that he had passed that course.

[76] Two certified General Managers were now available to be on the premises at all times when Mr Cheung is not there. It is now his practice almost invariably to be present in the bar area. He intends to employ another certified manager very soon.

[77] Mr Cheung said that the licence had been displayed but was removed by a patron and a replacement licence had to be obtained.

[78] He said that on the occasion of the Police visit of 3 June 2001, the half dozen or so patrons were all legitimate guests staying on the premises.

[79] He said it was not true that he was overseas on 21 June 2001.

[80] Mr Cheung claimed that the noise complaints emanated from the residents of two townhouses recently erected in proximity to the hotel premises. The townhouses were erected and occupied around the beginning of the year 2000. There had been no noise complaints prior to that time.

[81] Mr Cheung said that the present premises have been operating with a licence for some twenty years. No noise complaints have been received since 15 September 2001. The policy has now changed and the bar premises have closed at 1.00 am since September 2001.

[82] Mr Cheung said that the bar area is a very small space. It hardly caters for the general public at all. It is there for the benefit of hotel guests and lodgers. He produced photographs and a brochure of the premises.

[83] The two principal noise objectors talked to his wife in September 2001. They were assured that firm and positive steps had been taken to absolutely reduce noise levels. They were invited to contact he or his wife if they had any further complaints regarding noise. He and his wife have not heard from them since.

[84] On 25 January 2002 the company entered into an Agreement for Sale and Purchase to sell the premises. Mr Cheung produced a copy of the agreement. The agreement is subject to finance. The last day for arranging finance is 22 February 2002. Possession is scheduled for 1 March 2002.

Closing Submissions from the Police

[85] Sergeant Lopdell revisited the keypoints of the evidence and invited the Authority to find that each of the alleged breaches of the Act had been proved.

[86] He said that the application cited more breaches of provisions of the Act and conditions of licence than any that he appeared for in the past. He said that although the Authority has indicated in the past that such breaches are technical in nature, those breaches also go to the conduct of the licensee in regard to suitability to hold a licence.

[87] Sergeant Lopdell submitted that breaches of those provisions are fundamental to establishing a reasonable system of control of licensed premises. He submitted that non compliance with these sections make on the spot enforcement extremely difficult. Neither Constables Harris and Agnew nor the purported manager were able to determine the conditions or hours authorised by the licence when they visited the premises.

[88] Sergeant Lopdell drew attention to the provision of s.151 (unlawful sales), which carries the highest penalty under the Act. Likewise, s.165, which deals with unauthorised sales by a licensee carries the highest penalty in respect of a charge against a licensee.

[89] Sergeant Lopdell reminded the Authority that the issue of noise and how the licensee deals with local residents are matters that may go to the suitability of a licensee to hold a licence.

[90] Sergeant Lopdell concluded by saying that if the licence was cancelled then the renewal of a licence was no longer an issue. If the licence was not cancelled then the licence must be renewed.

Closing Submissions for the Respondent

[91] Mr Wiles submitted that the respondent had attempted to control the noise as he no longer remained open past 1.00 am. He agreed that the respondent could do a lot to improve communications with the residents and to ensure that noise was restricted.

[92] Mr Wiles said there had been no approach by the objectors to Mr Cheung personally. Complaints had greatly reduced since September 2001. He asked the Authority to give some credit to the licensee for achieving that.

[93] At the end of the hearing Mr Wiles sought to make written submissions because of the extent of Sergeant Lopdell's submissions which had apparently caught him by surprise.

[94] Later in the day, Mr Wiles delivered a letter to the Authority which had been copied to Sergeant Lopdell. That letter stated:

"On reflection, in view of Sergeant Lopdell's submissions generally, it is desired to file and serve submissions in reply as some of the inferences which the Authority is being asked to draw are tenuous should not go unchallenged."

[95] The Authority acceded to that request.

Written Submissions by the Respondent

[96] Mr Wiles noted that the premises did not come to the attention of the Police until the end of 2000 and that Miss Garlick stated in her evidence that "until Christmas 2000 the hotel was a perfect neighbour."

[97] It was evident that Mr Cheung's error had been in allowing Mr A Boyd to have some control and stewardship of the bar area during 2001 but only up until August or September 2001. Since then Mr Cheung has taken responsible steps to ensure that a certified duty manager was on the premises at all times. Accordingly, noise complaints have greatly diminished.

[98] Mr Wiles submitted that the noise concerns of the two objectors since September have been relatively minor, perhaps a little exaggerated. He noted that on 2 January Miss Garlick had visited the hotel at 8.00 pm and did not in fact have any complaint of noise thereafter.

[99] Mr Wiles said Mr Cheung has now correctly notified the names of managers holding certificates for his premises.

[100] In respect of the breaches of ss.25, 115, 130 and 175, he suggested they could be relegated to the category of being technical breaches, and were not in themselves deserving of cancellations.

[101] Mr Wiles said that s.115 was amended as from 1 April last year.(sic) Prior to that time it was necessary only for the licensee to be on duty. Therefore the breaches of ss.115 and 130 really only occurred from August or September onwards. Therefore, they are technical and less serious breaches as stated by this Authority in its decision Star Tavern Limited PH 1 – 4/2002 of 9 January 2002.

[102] In respect of the breach of s.151, Mr Wiles submitted that Mr Boyd was "big noting." According to Mr Cheung's evidence it was not true, that Mr Boyd owned or leased the bar and conference facilities or that Mr Boyd owned the liquor and took profits from the business. There was only hearsay evidence relating to Mr Boyd's conversations with the Police Officer.

[103] Mr Wiles submitted that if s.165 was breached it was only in a technical sense because Mr Cheung gave evidence that he was on the premises at all times. There is no evidence that any of the breaches have occurred since September 2001. In fact, the evidence is to the contrary because Mr Cheung has ensured that a certified duty manager has been on duty at all times since that time.

[104] Mr Wiles submitted that there is little concrete evidence as regards to intoxicated persons or allowing such persons to remain on the premises outside authorised hours in breach of ss.168 and 171. The hard evidence on intoxication was confined to Constable Harris' one visit. No detail or elaboration was provided at all.

[105] The Authority may be able to infer that some patrons were bona fide lodgers merely by referring to the presence or absence of cars at various times. However, Constable Harris did not ask any patrons present whether they were bona fide lodgers or not.

[106] Although the Police have a lesser onus of proof in these matters, they have a duty to discharge that onus properly.

[107] Constable Taylor gave no evidence of persons being intoxicated on several occasions he visited the premises. He visited at times when s.171 could not have been breached. The same submission could be advanced with regard to the alleged breach of condition (c) of the licence.

[108] Mr Wiles submitted that the company has effectively been the licensee and manager of the premises since 1994. Problems have only arisen during the relatively brief period of time last year when Mr Boyd was evidently given too much free rein. Therefore, cancellation of the licence and Manager's Certificate would be unduly harsh, given the steps taken since September 2001 to rectify those matters. Mr Wiles said that he would be hard put to submit that a period of suspension would not be an adequate condemnation of the breaches which have occurred.

Supplementary Submissions from the Police

[109] Sergeant Lopdell submitted that Mr Wiles' submission was incorrect that prior to 1 April 2000, it was necessary only for the licensee to be on duty. The respondent licensee is a company. A licensee company must appoint a manager in accordance with Part VI of the Act to conduct the sale and supply of liquor on the premises on behalf of the licensee.

[110] In Police v Photo Impact Technology Ltd (HC, Auckland, AP 221/95, Speight J, 4/12/95), His Honour confirmed that a corporate licensee could not appoint an acting manager.

[111] Accordingly, Sergeant Lopdell submitted that the company was in continual breach of ss.115 and 130 for the time the licence issued until the date that Mr Cheung was appointed on 10 September 2001. On that basis, all sales of liquor over those years were in breach of s.165.

[112] Sergeant Lopdell noted that the problems resulting from Mr Boyd's stewardship of the bar in 2001 were confirmed by Mr Wiles' submissions. However, Dr Mair's evidence, which was not challenged, was that the first problems occurred in October 2000 and continued each weekend through December 2000. Therefore, it is open for the Authority to find that the problems occurred for a twelve month period until September 2001 although evidence was given of complaints in 2002.

[113] Sergeant Lopdell said it was clear that Mr Boyd did not have a General Manager's Certificate. He appeared to be a full time residential manager whose only remuneration was board and lodging.

[114] The Police accepted that the only evidence of breaches of s.151 were the comments made by Mr Boyd to Constable Taylor. Sergeant Lopdell said that Mr Cheung's evidence indicated that Mr Boyd is still working at the premises. He suggested that Mr Boyd has a greater interest in the operation of the premises than was disclosed by Mr Cheung as could be inferred from the evidence.

[115] The evidence regarding intoxicated patrons being on the premises and two patrons checking into the hotel while the others left was not challenged. That evidence combined with the evidence of Dr Mair regarding the cars in the carpark added weight to the evidence of Constable Harris regarding non-lodgers being on the premises after 1.30 am in breach of the licence.

[116] Sergeant Lopdell referred the Authority to Michael John Lopdell v Audiophile Bar and Café Limited (18 February 2002, HC, Auckland, AP 81/01) where Patterson J held that the authorisation section of licences issued before 1 April 2000 remained in force until a new licence was issued. Hence, there is a strict prohibition on the sale of liquor to casual drinkers on these premises. Therefore, evidence of trading after 1.00 am was a breach of s.165.

[117] Sergeant Lopdell concluded by saying that a cancellation was warranted. Some breaches took place for a period up to and exceeding twelve months and others were for a period in excess of six years.

Authority's conclusion and reasons

First ground

[118] Under the 1962 Act there were so many different licences and conditions that it was difficult for enforcement officers to know what conditions applied to what premises. When submissions were made to the Working Party on Liquor ("the Laking Committee") in 1986, the Police recommended that a provision like s.25 "would be helpful, particularly in determining those parts of premises where minors may lawfully be present." At paragraph 4.44 of their Report the Laking Committee. adopted that proposal which subsequently led to the enactment of s.25.

[119] The purpose and value of that section was amply demonstrated by Constables Harris and Agnew during their visit to the Champion Hotel on Sunday 3 June and by Constable Taylor on 21 June when they sought to find out under what conditions the Hotel operated. The availability of the licence would have been helpful to Mr Vaasuaga who thought the bar could remain open until there were no patrons remaining. With the variety of licensed premises and trading hours that now exist under the current liquor licensing regime the requirements of s.25 are an important enforcement tool.

[120] With the liberalisation of the Sale of Liquor Act in 1989 and again through the Sale of Liquor Amendment Act 1999 the supervisory and enforcement controls provided by the Act have assumed greater importance. Hence, sound management is an important factor in ensuring the object of the Act is attained. That is:

"to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse, so far as that can be achieved by legislative means."

[121] To that end Parliament saw fit to provide an extensive management regime that includes ss.26, 115, 116, 128, 129, 130, and 172A.

[122] The respondent has admitted the breaches of ss.25, 115, 130, and 175. We find those breaches clearly proved. Evidence that Mr Cheung's manager's certificate expired in 1997 and another one was not issued until 10 September 2001 was not challenged. The Police and the Inspector were unable to find any evidence, at least until that date, that there was a certificated manager, acting manager or temporary manager properly appointed on the premises.

Section 151

[123] We find the alleged breach of s.151 not proved. The unsupported claims of Mr Boyd were tenuous. Mr Boyd was not called to give evidence. No evidence was provided that the proposed lease and financial arrangements with Mr Boyd were put into effect.

Section 165

[124] In Police v Peng [1992] NZAR 471 Smellie J held that the words in s.165 "at any time" are not confined to sale of liquor outside authorised trading hours. The respondent's licence states: "The authority conferred by this licence shall be exercised by the licensee (if an individual) or through a manager or manager appointed by the licensee in accordance with Part VI of the Act."

[125] Consequently, there were sales of liquor that did not occur through a manager or manager appointed by the licensee in accordance with Part VI of the Act. On the evidence, that situation existed at least between the expiry of Mr Cheung's manager's certificate in 1997 and 10 September 2001.

[126] Subsection (1) of s.115 was substituted as from 1 April 2000 by s.67(1) of the Sale of Liquor Act 1999. Prior to that change subs.(1) was in the following terms:

"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."

[127] Hence, prior to April 2000 the licensee company was required to have a manager on duty. At least from 1997 to 10 September 2001 there was no compliance either with the original provision of s.115 or with the section as amended from 1 April 2000. The evidence of Constables Taylor and Harris was that on the various visits to the premises there was no certificated manager on duty, nor any temporary or acting manager properly appointed under the Act.

[128] The Authority is satisfied on the evidence adduced at the hearing that the subject premises have been conducted in breach of the following provisions of the Act:

Section 165 Unauthorised Sale or Supply.

Section 172A Licensee fails to:

(a) Appoint a manager as required by s28:

(b) Ensure s115 is complied with:

(c) Comply with s130.

Sections 168 and 171

[129] We accept the evidence of Constables Harris and Agnew that there were intoxicated persons on the premises. Constable Harris said: "one or two of the patrons present were mildly intoxicated, however the remainder, I would describe as being severely intoxicated." Miss Garlick also referred to "about 6 people leaving, clearly intoxicated."

[130] The evidence of Constable Harris clearly showed that there were people on the premises at 4.45 am on 3 June 2001 who did not fall within any of the classes of persons who may be permitted to be on the premises at that time.

[131] On the evidence adduced we are satisfied the requirements of ss.168 and 171 have been met. We are satisfied that all of the alleged breaches (with one exception) that make up the first ground of the application have been have been made out. Consequently, the first ground has been satisfied.

Second Ground

[132] Having heard the evidence of Constables Harris and Taylor clearly we are satisfied that the second ground has been made out.

Third Ground

[133] The matters that went to satisfying the first ground are also matters that collectively and unequivocally demonstrate that the licensee is not a suitable person to hold a licence. Breaches of the Act that undermine enforcement of the Act and management of the licensed premises undermine the object and purpose of the legislation. Accordingly we are satisfied that this ground has been made out.

Fourth Ground

[134] "Disorderly" is defined in Collins Concise Dictionary as "1 untidy; irregular. 2 uncontrolled; unruly. 3 Law. violating public peace or order." "Obnoxious" is defined as "extremely unpleasant."

[135] Dr Mair and Miss Garlick describe the frequency of parties, the noise from the music that caused windows and crockery to shake, people screaming above the music, as well as people conducting loud exchanges from both inside and outside the premises. The evidence of Dr Mair and Miss Garlick describes a premise that was emitting uncontrolled noise aggravated by the dumping of bottles in the early hours of the morning in a bin close to their respective properties. When Miss Garlick complained to Adrian Boyd about the noise he said that the functions and parties were very profitable. They were also "out of his control". Dr Mair referred to the number of complaints she made and the fact that the windows had been left open allowing the noise to escape.

[136] Mr Sara said of the 36 noise complaints there had been nine verbal warnings and seven excessive noise directions that had been issued.

[137] We have said in Paihia Saltwater (2001) Limited (LLA 391/2001)

"It is our view that no-one should have to put up with persistent interference with their sleep patterns. We do not think it is sufficient to submit that a true test is the number of calls to the licensed premises or the Noise Abatement Officer. We have heard enough evidence to suggest that making such calls in the early hours of the morning is unpleasant and often unrewarding.

Noise is not just a resource management issue. The escape of noise (particularly music) is an example of bad management. The Authority takes the view that if no attempt is made to prevent the escape of, or reduce noise, then it is the Authority's duty to monitor the hours of opening, if not the existence of the licence."

[138] Dr Mair and Miss Garlick certainly found making those calls in the early hours of the morning unpleasant and unrewarding. The situation was so bad that Dr Mair lost a paying flatmate. We have no hesitation in finding this ground of the application also satisfied.

[139] It follows from the evidence adduced that the premises have been conducted in breach of the Act over a long period of time. However, the extent of those breaches did not become apparent until the Police and the Inspector started taking an interest as result of the noise complaints. The schedule produced by Mr Sara shows that those noise complaints did not start until 3 February 2001. The difference with the Audiophile Bar & Café Limited case is that in this case warnings were given and not heeded. The omissions were more extensive. Furthermore, the variety of breaches of the Act is much more extensive.

[140] Mr Wiles has submitted that given that the licensee company was first issued a licence in 1994 cancellation of the licence would be unduly harsh. He attached the blame for the complaints on Mr Boyd being "given too much free rein." We do not accept that all the blame should be attached to Mr Boyd. Mr Cheung was a principal in the company. He was also living on the premises.

[141] The evidence adduced by the Police satisfies us that all but one of the grounds have been made out. The evidence also shows a blatant disregard of the requirements of the Act by the licensee company through Mr Cheung. In Deejay Enterprises Limited LLA 531 – 532/97 the Authority said;

"The law and human desires of patrons frequently tug in different directions. The Police cannot be everywhere. Little but a licensee's or manager's character and suitability may stand between upholding the law and turning a blind eye. Self imposed standards in accordance with the law must be set by licensees and holders of General Manager's Certificates who control and manage licensed premises."

[142] We have said on a number of occasions, that the Sale of Liquor Amendment Act 1999 has reinforced the requirement for such standards. On the evidence available to us, cancellation of the on-licence could be justified. However, in view of the limited number of instances of liquor abuse, we propose to suspend on-licence 007/ON/160/94 for two months commencing on Friday 29 March 2002.

[143] We retain reservations about the current licensee. Accordingly, the on-licence will only be renewed for 18 months from 15 September 2001 to 15 March 2003. This will give the Police and the District Licensing Agency Inspector and the public ample opportunity to monitor the company's suitability to sell and supply liquor.

[144] Furthermore, because of the noise complaints condition (c)(i) of the licence will be altered to provide that the sale of liquor to lodgers and employees will cease at 1.00 am.

[145] It follows from the catalogue of events adduced in the evidence that Mr Cheung has shown himself to be totally unsuitable to be the holder of a General Manager's Certificate. It follows from the above that in terms of subs.(6) of s.135 we are satisfied that both grounds under subs.(3) have been made out. General Manager's Certificate GM/007/2005/01 is hereby cancelled.

DATED at WELLINGTON this 18th day of March 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

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