McIlraith v Ceasefire Enterprises Limited [2002] NZLLA 449 (23 August 2002)

Last Updated: 17 April 2010

Decision No. PH 449/2002 – PH 452/2002

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/53/95 issued to CEASEFIRE ENTERPRISES LIMITED in respect of premises situated at 336 Great South Road, Otahuhu, Auckland, known as "Milestone Bar"

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number GM 3123/99 issued to HELLEN ANNETTE PARK

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number GM 007/142/00 issued to CLINTON BRYCE LE NOEL

BETWEEN MICHAEL McILRAITH

(Police Officer of Manukau City)

Applicant

AND CEASEFIRE ENTERPRISES LIMITED

First Respondent

AND HELLEN ANNETTE PARK

Second Respondent

AND CLINTON BRYCE LE NOEL

Third Respondent

AND

IN THE MATTER of an application by CEASEFIRE ENTERPRISES LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 336 Great South Road, Otahuhu, Auckland, known as "Milestone Bar"

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 6 August 2002

APPEARANCES

Mr R R Ladd - for Ceasefire Enterprises Limited and second and third respondents

Sergeant M J D McIlraith - NZ Police - applicant and in opposition to the renewal

renewal application
Mr G S Whittle – Auckland District Licensing Agency Inspector - to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are four applications before the Authority for determination. The first application is brought by Sergeant Michael John D'Arcy McIlraith. It is for the suspension of an on-licence issued in respect of a tavern situated at 366 Great South Road in Otahuhu known as "Milestone Bar". The licence is held by Ceasefire Enterprises Limited. The second and third applications are also brought by the Sergeant. He applies for the suspension of the manager's certificates issued to Hellen Annette Park and Clinton Bryce Le Noel. Ms Park and Mr Le Noel are respectively the manager and assistant manager of the Milestone Bar. The fourth application is by Ceasefire Enterprises Limited and is for the renewal of its on-licence.

[2] The ground for the application to suspend the on-licence is:

"That the licensed premises have been conducted in breach of s.168(1)(a) of the Act. (Allowing an intoxicated person to be, or to remain, on licensed premises)."

[3] The ground for the applications to suspend the manager's certificates is:

"(a) That the managers have failed to conduct the licensed premises in a proper manner. In particular it is alleged that they allowed intoxicated persons to be, or to remain, on licensed premises."

[4] The ground for opposing the renewal of the on-licence concerns the manner in which the licensee has conducted the sale and supply of liquor pursuant to the licence. The opposition is based on the above allegation. That is, allowing intoxicated patrons to be, or remain on, licensed premises.

[5] The three applications for suspension, have evolved from an identical set of facts. In short, it is alleged that on three occasions on 8, 14, and 15 February 2002, five intoxicated patrons were found on the premises known as Milestone Bar. It is these same allegations which have brought the renewal of the on-licence into question.

[6] The respondents argue that four of the patrons were not intoxicated. They say that the Police have misinterpreted the actions and conduct of those patrons. In respect of the fourth patron, it is argued that there were extenuating and mitigating circumstances. If the breaches have been proved, Mr Ladd argues that suspension orders, or a decision to refuse to renew the licence, would be out of proportion to the alleged conduct.

The First Incident on which the Applications for Suspension are Based

[7] On Friday 8 February 2002, Constable M B Hassall was on duty as a member of the Counties-Manukau Team Policing Unit. At about 11.30 pm, the Unit conducted a routine liquor licensing visit to the Milestone Bar. Constable Hassall noticed a male Maori person who appeared to be intoxicated. The person was standing at a bar leaner with his head down as if to nod off to sleep. His name was Lance.

[8] The Constable took Lance outside. He noted that the Lance's speech was slurred, his eyes were glazed and he was unsteady on his feet. In particular he had to take short steps to steady himself. The Constable described Lance's level of intoxication as medium. The range of levels used by the Police, are light, medium, heavy, and unconscious. The Constable refuted any suggestion that Lance was in the process of being led out of the premises, when he first saw him.

[9] The manager on duty was Hellen Annette Park. She was asked to inform the intoxicated person to leave the premises. She did so. She was then formally warned by the Constable for allowing an intoxicated person to remain on the premises.

[10] Ms Park said that Lance was a regular patron. She described him as a 'light' drinker, with a reputation for drinking slowly. She said he was a shift worker, who is always extremely dishevelled. She said that Lance had been in the bar for about two hours. She saw him being served one jug of beer at 9.30 pm. At 11.15 pm she noted that Lance was starting to fall asleep.

[11] She instructed the security person (Aina Masina) to speak with him with a view to inviting him to leave the bar. She was advised by Mr Masina, that Lance had agreed to go when he had finished his beer. Ten minutes later she noted that Lance was still there, and again nodding off. At that time she decided that it was in Lance's best interests if he left the bar. She said that Mr Masina was in the act of removing him when the team policing unit arrived.

[12] Mr Masina gave evidence that Lance 'woke up' when he first tapped him on the shoulder. He had agreed that Lance could stay to finish his beer. He thought it was about twenty minutes later, when he again noticed that Lance was falling asleep. He said that he was in the act of escorting Lance out when the police entered the premises. Both he and Ms Park believed that it was Lance's 'lazy eye' condition, and dishevelled look, which had caused the Police to make the finding of intoxication.

[13] Constable Hassall took Ms Park outside. This procedure is used by the Police, to confirm with the duty manager, that one of the patrons is intoxicated. The manager is then asked to tell the patron not to return. The manager is then warned. When that happened, Ms Park did not mention anything about what had happened prior to the Police arriving. She did say that she had told the Sergeant about what had happened when she spoke with him inside the bar. She said that it was not in her interests to argue with him. She said that he had suggested that it was a coincidence that the Police had arrived, at the same time as she had decided to act. The Sergeant had no recollection of such conversation.

[14] Ms Park stated in her evidence, that she did not believe that Lance was intoxicated, but just tired. If that was the case the questions might well be asked: Why she had arranged for him to be asked to leave twice? Why her belief as to his sobriety was not mentioned to the constable outside the premises? Why the patron himself did not object to the procedure? Why she finally told Lance to leave?

The Second Incident on which the Applications for Suspension are Based

[15] Constable Matthew Knowsley was part of the unit with Constable Hassall. When he was about to enter the premises on 8 February last, he noticed an intoxicated female outside the premises. She had heavily glazed eyes, was shuffling, and 'stunk' of alcohol. Her name was Annette. She proceeded to walk back into the premises without being challenged. She was removed by the Constable. He accepted that she was upset, but no more than any other intoxicated person. He described Annette's level of intoxication as heavy. It was put to the Constable that the Annette had run past him to go outside as he was entering the bar. He said that he was comfortable with the sequence of events that he had given in evidence.

[16] The manager on duty was Ms Park. She was taken outside and asked to inform the intoxicated person to leave the premises. She did so. She was then warned.

[17] Ms Park argued that Annette was not intoxicated either. She said that Annette was a regular patron and a moderate consumer. She stated that when she warned Annette outside the premises not to return, her speech was not slurred, she was not staggering, and she did not smell of alcohol. She noted that during the course of the evening Annette had become increasingly agitated with the person with whom she had been drinking. At the time the Police arrived she had rushed from the bar.

[18] Ms Park's belief that Annette was not intoxicated was to some extent supported by Mr Aina Masina. Mr Masina holds a part time security position with the Milestone Bar. Mr Masina gave evidence that he was aware of Ms Park's concern about Annette's rising agitation. He said there was nothing about Annette's appearance or her drinking that had caused him any concern.

The Third Incident on which the Applications for Suspension are Based

[19] On Thursday 14 February 2002 at about 6.45pm, the Police team policing unit conducted a further routine liquor licensing visit to the Milestone Bar. Sergeant M J D McIlraith was part of the unit. Inside the premises he noticed a male who appeared to be intoxicated. The person's name was Aua. The Sergeant noted that Aua's speech was slurred, and that he was unsteady on his feet. The Sergeant described Aua's level of intoxication as medium.

[20] The manager on duty was Clinton Bryce Le Noel. Mr Le Noel was advised that an intoxicated patron had been taken outside the premises. He was requested to ask the patron to leave. Mr Le Noel did so. He was then warned. Aua did not protest the request to leave and not return. Mr Le Noel did not protest the warning.

[21] When he gave evidence, Mr Le Noel said that Aua had entered the premises just before the 'happy hour' was due to finish at 6.00 pm. He purchased a jug of export beer. Aua has a distinctive appearance in that he is generally dishevelled, and has medical problems with his eyes. Mr Le Noel stated that Aua often sways when standing. He said that he was surprised to see that Aua had been taken outside, as he did not think he was intoxicated. However, as requested by the police, he issued an appropriate warning telling Aua not to return.

[22] Ms Lynette Elizabeth Herewini is a bar person employed at the Milestone Bar. She remembered serving Aua with a jug of beer. She said that she had no reason to believe that Aua was intoxicated. She had spoken with him on two occasions over a period of an hour or so. There was nothing in his speech or manner that suggested that he had reached the stage where his safety would be compromised.

The Fourth Incident on which the Applications for Suspension are Based

[23] The team policing unit returned to the bar a few hours later on Friday morning 15 February, just after midnight. At that time Sergeant McIlraith noticed another male who appeared to be heavily intoxicated. This person’s name was Nuke. Nuke was described by the Sergeant as heavily intoxicated. He had to concentrate on negotiating his way from the bar to his table, he was unsteady on his feet, and he fixed the Sergeant with the 'long blink'. That is, while swaying, he closed his eyes for a period before opening them.

[24] The Sergeant arranged for Nuke to be taken outside. The duty manager was still Mr Le Noel. Mr Le Noel was asked to come outside to be made aware of the intoxicated patron, and to ask him not to return to the premises. Mr Le Noel did so. He was then warned by the Police.

[25] Mr Le Noel confirmed that he had served Nuke at about 9.00 pm with a jug of beer. He had seen Nuke go into the gaming room for 45 minutes. He had then served him with a second jug. Nuke had then eaten a substantial meal, and left at about 10.00 pm. The next time he saw Nuke was when he was being escorted from the bar.

[26] Mr Le Noel argued that Nuke's appearance after midnight was markedly different than when he had seen him earlier. He accepted that at the later time, Nuke was moderately intoxicated. He suggested that Nuke may have been drinking when he had gone home before returning to the bar.

[27] Ms Herewini remembered that Nuke had returned to the bar at about 11.30 pm. She had served him with a jug of beer and did not consider that he was intoxicated. She noted that he was upset, and he told her that he had been in an argument with his partner.

The Fifth Incident on which the Applications for Suspension are Based

[28] Constable Rachel Jean Dolheguy was part of the team policing unit which visited the bar earlier on 14 February 2002. She returned with the unit just after midnight. On the second visit, she noticed a female person who was heavily intoxicated. The woman's name was Hilda. She escorted Hilda outside. She said that Hilda had trouble standing. She said that during the discussion outside, Hilda was holding on to her arm. She had noticed Hilda in the bar five hours earlier. The Constable was, for some reason, questioned at considerable length. However, she retained her professional composure throughout. Her opinion of Hilda's level of intoxication was vindicated when we heard from the witnesses for the respondents.

[29] The duty manager was Mr Le Noel. The Constable advised him that Hilda had had enough. He agreed. At the Constable's request he told Hilda that she was no longer welcome due to her intoxication. Mr Le Noel accepted that Hilda was intoxicated. He acknowledged that he had made an error of judgement. He explained that on 2 February 2002 a patron of the premises had been stabbed to death in the car park about half a kilometre from the bar. The alleged killer had not been apprehended by 15 February.

[30] During the period of time between 2 February and 15 February management and patrons were frightened and nervous. Instructions were given that no one was to be allowed to leave the premises unaccompanied. Hilda had been expecting to be taken home by her sister, but the arrangement had been cancelled. Hilda had telephoned her husband to pick her up. There was tension between the two. When he arrived, Hilda's husband decided to stay. Mr Le Noel stated that he was reluctant to ask Hilda to leave and wait outside on her own. Although she was being served with water, it was clear to Mr Le Noel, that Hilda should not have been allowed to stay. He said that his conduct was affected by the high level of concern over the unsolved homicide, and the instructions to staff not to allow unaccompanied patrons to leave the premises. We accept that there were extenuating circumstances, and had this been the only incident, no further orders would be made.

The Application for Renewal of the On-licence

[31] Ceasefire Enterprises Limited has held the on-licence for the Milestone Bar since 1996. Mr Patrick Francis Williams is a director of the company. He has been involved in the hospitality industry for 37 years. He expressed considerable faith in the manager and the assistant manager. As a result of the incidents he has attended meetings with the Police aimed at reviewing issues such as safety and security.

[32] He confirmed that in March 2002 his company had installed security lighting in the alleyway between the licensed premises and the TAB. This was because of troubles which had occurred in this particular area of South Auckland. The company had also installed a video camera in the car park at the rear of the premises.

[33] As a consequence of the applications, Mr Williams confirmed that a review of the management and operation of the premises had been undertaken. Certain improvements in staffing levels had been effected. It was his view that the staff employed at the premises, and the calibre of management, were doing a good job in the circumstances. He suggested that the lessons had been learned. He submitted that any suspension or refusal to renew the licence would be a disproportionate penalty. Constable Dolheguy is responsible for liquor licensing in the Otahuhu area. She acknowledged that the actions taken by the company since February had shown a responsible attitude to the company's duty to provide a safe drinking environment for its patrons.

Decision

[34] In applications brought under ss.132 and 135, the Police carry the onus of proving the allegations. In a recent High Court decision, Waitakere Licensing Trust v 3MI Choices Limited AP 109-PL01, His Honour Justice Fisher discussed s.132 of the Act. In paragraph [49] of his judgment. He said:

"Here is a classic situation in which the legal burden lies on the Police or Inspector, not on the licensee."

[35] In assessing the weight of the evidence, we are conscious that the allegations must be proved on the balance of probabilities.

[36] We note the decision of Spring v King LLA 1414/93 in which the Authority said:

"When assessing the evidence on a Police application for cancellation or suspension of a manager's certificate the Act does not require that the Authority be satisfied beyond a reasonable doubt as to the alleged wrong doing. However, when the result of the Authority being satisfied that someone is not suitable to hold a manager's certificate can be a loss of employment, then the seriousness of the consequences of the Police succeeding on such an application means the standard of proof must be very close to that of a criminal prosecution."

[37] The assessment of intoxication is a subjective test. The judgement of members of the Police, is enhanced by their training and experience. When they gave evidence, the witnesses showed a level of objectivity which added value to what they had to say. The descriptions they gave of the behaviour of the patrons, accurately resembled the actions of intoxicated people. In contrast, much of what was said by the witnesses for the respondents was self serving and subjective. We found it hard to accept that if they had been as diligent as they contended, that five people would have been asked to leave. In terms of credibility we had little doubt that the patrons were intoxicated. We accept that such findings would have been less likely in the District Court with a different standard of proof. We do not accept that the Police witnesses were mistaken as was suggested.

[38] If the patrons had not been intoxicated, we find it hard to accept that they had agreed to be 'trespassed' from the bar without demur. We were surprised that the managers, when warned by the Police did not at that time express some form of disagreement. We accept that at that time they did not know that these applications might follow.

[39] Such findings bring into question the suitability of the licensee, and the two managers. The question in this case is whether it is desirable that the licence and/or the certificates be suspended.

[40] In his final submissions to us the Sergeant accepted what Mr Williams had said about suspensions being a disproportionate penalty. He submitted that if adverse finding were made, then the Authority might like to consider 'the most minimal penalty available'. He suggested that the premises may well have had a bad week. He accepted that the 'lessons had been taken on board'. The main concern of the Police was to ensure that the managers carried out their responsibilities to the law and properly 'managed' the premises. The Sergeant obviously felt that the applications by themselves, had helped to ensure that this happened.

[41] The criteria to be considered by the Authority on the renewal of the licence are contained in s.22 of the Act. These criteria are:

(a) The suitability of the licensee:

(b) The conditions attaching to the licence:

(c) The manner in which the licensee has conducted the sale and supply of liquor pursuant to the licence:

(d) Any matters dealt with in any report made under section 20 of this Act.

[42] We accept that it was appropriate to oppose the renewal because of the applications for suspension. However, apart from the incidents which took place over the week in question, there have been no other incidents affecting this licence since it was last renewed on 4 April 1999. The company is entitled to bring its otherwise good record into account.

[43] In the light of the action we propose to take in respect of the applications for suspension, the on-licence will be renewed for three years.

[44] It is noted that it is now six months since the incidents. Pursuant to ss.132 (7) and 135 (7) the three applications are now adjourned for six months. This period of time will give the licensee and the managers the opportunity to further remedy issues

of liquor abuse, by ensuring that no patrons are allowed to become intoxicated on the premises, and that no intoxicated patrons are allowed to be, or remain, on the premises. If such incidents occur within the six month period, then these applications will be returned to the Authority for a further hearing, and possibly further orders. If no such incidents occur, then the applications will lapse.

DATED at WELLINGTON this 23rd day of August 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

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