Verner v Jays Bar and Cafe [2002] NZLLA 589 (14 October 2002)

Last Updated: 24 November 2010

Decision No. PH 589/2002 –
PH 590/2002

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 049/ON/86/2001 issued to JAYS BAR AND CAFÉ LIMITED in respect of premises situated at 103-105 Johnsonville Road, Johnsonville, Wellington, known as “Jays Bar & Café”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM 2095/97 issued to LIONEL JOHNATHAN KEA

BETWEEN GRANT DAVID VERNER
(Police Officer of Wellington)

Applicant

AND JAYS BAR AND CAFÉ
LIMITED

First Respondent

AND LIONEL JOHNATHAN KEA

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at Wellington on 20 August and 14 October 2002

APPEARANCES

Sergeant G D Verner – New Zealand Police – applicant
Mr K I Jefferies – for the first and second respondents
Mrs G Bareta – Wellington District Licensing Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are two applications before the Authority for determination. Both applications are brought by Sergeant Grant David Verner. The first application is for the suspension of an on-licence, issued in respect of a tavern situated at 103–105 Johnsonville Road, Johnsonville known as “Jays Bar & Cafe”. The licence is held by Jays Bar and Café Limited.

[2] The second application is for the suspension of the manager’s certificate issued to Lionel Johnathan Kea. Mr Kea was the duty manager in charge of "Jays Bar & Café" when two of the incidents are alleged to have happened.

[3] There are four grounds for the application to suspend the on-licence. They are:

(a) That the licensed premises have been conducted in breach of s.166 (1) of the Act, (Selling or supplying liquor to a person who is already intoxicated).

(b) That the licensed premises have been conducted in breach of s.167 of the Act, (Allowing any person to become intoxicated on licensed premises).

(c) 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).

(d) That the licensed premises have been conducted in breach of a condition of the licence. The condition alleged to have been breached is “that the licensee must ensure that the provisions of the Act relating to the sale and supply to prohibited persons are observed.”

[4] The ground for the application to suspend the manager’s certificate is:

(a) That the manager has failed to conduct the licensed premises in a proper manner. In particular it is alleged that he allowed intoxicated persons to be sold or supplied with liquor. Further, that he allowed persons to become intoxicated on licensed premises. And finally, that he allowed intoxicated persons to be or remain on licensed premises.

[5] The two applications for suspension have evolved from virtually the same sets of facts. In short, it is alleged that on 11 May 2002, an intoxicated patron was seen to leave the premises. He was subsequently breath and blood tested, with the final result being twice the allowable limit to drive.

[6] On 19 May 2002, it is alleged that a number of people who had been drinking at Jays Bar & Café, were arrested for disorderly behaviour. Furthermore, it is alleged that a large number of the patrons at the bar were intoxicated.

[7] On 9 June 2002, it is alleged that three intoxicated persons were found inside the premises. It is alleged that Mr L J Kea was the duty manager when the incidents occurred on 18/19 May, and 9 June.

[8] The respondents argue that the Police have been unable to prove the allegations to the required standard. They also argue that there were extenuating and mitigating circumstances. Reference was made to the contribution made by the bar to the community. It was suggested that the number of incidents should be viewed against the total number of patrons who use the premises. If the breaches have been proved, Mr K I Jefferies argues that suspension orders would be out of proportion to the alleged conduct. In the alternative, it is suggested that an adjournment of the proceedings under ss.132 (7) and 135(7) would be appropriate.

The first incident on which the s.132 application for suspension is based

[9] On Saturday morning 11 May 2002, at about 2.00 am, Constable B S Macdonald was on patrol in Johnsonville. He saw a male person stagger from "Jays Bar & Café". The patron was Graeme Michael Thomas. Mr Thomas walked or staggered some 50 metres to his car. As he drove out on to Johnsonville Road, he was stopped. It was noted that he was unsteady on his feet, and smelt of alcohol. He admitted to drinking three or four pints at "Jays Bar & Café". Mr Thomas was then put through the breath testing procedures. He requested that a blood sample be taken. On analysis, the blood specimen contained 164 milligrams of alcohol per 100 millilitres of blood. This was double the allowable limit.

[10] Mr Thomas’ brief of evidence was accepted by consent. He said that he remembered going to the bar to watch a game on the big screen. He said that he had a number of drinks, and that towards the end of the evening he was “getting drunk.” He thought he bumped into someone. He said he was then asked to leave by a Maori or Polynesian member of staff. Ms Toni Gwynne Binks was the duty manager that night. The Authority did not hear from her. She had been briefed to give evidence, but became unavailable. Nor did the Authority hear from the person who apparently asked Mr Thomas to leave.

The second incident on which the applications for suspension are based

[11] On Sunday morning 19 May 2002, at about 2.40 am, the Wellington Team Policing Unit was called to assist a Police patrol in the carpark at the rear of "Jays Bar & Café". Constable Steven Mark Boyd saw a group of people standing around a patrol car. On advice received, he arrested a person named Steven Dickson and charged him with disorderly behaviour. The charge was subsequently withdrawn. The Constable stated that Mr Dickson was moderately intoxicated. Mr Dickson was described as very aggressive, and was slurring his words. He was said to have bloodshot eyes, which he was unable to keep focused on the Constable.

[12] Mr Dickson admitted that he had been drinking at "Jays Bar & Café". The Constable then entered the bar. He found a patron asleep at a table. The patron had trouble in staying upright. He told the Constable he had had a dozen beers at home, and then gone to the rugby club. After he left the rugby club, he went to "Jays Bar & Café". The Constable assessed the patron as being extremely intoxicated. He was escorted from the bar.

[13] The Constable then noticed a patron leave the bar. The patron then began jumping up and down on a sign around the corner from the bar entrance. The patron appeared to be extremely intoxicated. He was unable to stand still and kept laughing and talking nonsense. He was arrested for disorderly behaviour.

[14] The Constable’s memory and credibility was tested by way of cross-examination. A video showing the happenings at the entrance to the premises was available. The respondents placed some weight on the video, as it showed certain patrons being refused entry. It also showed some of the patrons leaving before they were arrested. The video was not that clear. The bar operates a multi channel video system recording events from nine different cameras. Although the frames have been separated, the result did not provide a great deal of assistance. On the other hand, we record that the Constable had a good memory of the events. He was an impressive witness.

[15] Sergeant James Edward Lee was the officer in charge of the Wellington Team Policing Unit. He first dealt with the disturbance in the carpark. After speaking with his officers he directed them to arrest four persons. He was advised that they had been drinking at "Jays Bar & Café". He then made a licensing check on the bar. He said he was shocked by the state of the patrons. He considered that there were 80 to 100 people in the bar, and that the majority of them were moderately to extremely intoxicated. However, he decided not to remove any of them, partly because of the numbers, and partly because the bar had been closed. People were leaving at any event. He simply observed, and did not speak with anyone. He also corroborated the evidence given by Constable Boyd about the extreme level of intoxication of the person kicking the sign.

[16] The night in question was a big night for the bar. The Johnsonville Rugby Club had been celebrating, and a large number of supporters came to "Jays Bar & Café" after leaving the club. Mr Laifa Ta’ala plays rugby for the Johnsonville RFC. He estimated that there were 60 to 70 members of the club at the bar. He neither drinks nor smokes. He used to be a part-time doorman. He was concerned at the way some of his friends were treated by the Police. However, in terms of the applications, the evidence about the arrests in the car park did not play a significant part in our deliberations.

[17] In addition to the rugby club’s attendance, there had been a super 12 semi-final that night. Mr William Bilton, a director of the company holding the licence, said that the figures for the day were above average. Mr Lionel Johnathan Kea worked as a DJ until 9.00 pm. He took over from Ms Toni Binks as the duty manager at about 2.00 am. In his view there was a good party atmosphere. No one was showing signs of intoxication. He pointed to the videotape which showed that no one leaving the bar had to be assisted. He recalled one male being taken outside by the Police. He confirmed that he would have removed him had he been aware of his intoxication.

[18] A patron by the name of Barry Marsh was also at the bar that night. His brief was admitted by consent. He stayed at the bar until about 2.00 am. Accordingly, he missed the visit by the Team Policing Unit. What happened was that the local police made a visit shortly before 2.00 am. It may be that they took a different view of the bar culture than their city colleagues. They expressed no concerns to the management.

[19] Mr Bilton pointed out that the tapes showed that between 11.30 pm and 3.12 am, three people were refused entry, and one person who was the subject of a trespass order, was removed. He argued that Mr Steve Dickson was not staggering, when he was shown at the entranceway on two occasions.

The third incident on which the applications for suspension are based

[20] At about 2.30 am on Sunday 9 June 2002, the Wellington Team Policing Unit responded to a call from "Jays Bar & Café". There had been a problem removing two of the patrons. However, by the time the Police had arrived, the patrons had gone. They were located a short distance away, and were arrested. Both were extremely intoxicated. As this was happening, another patron left the premises and started to interfere. He was also arrested. He was extremely intoxicated.

[21] Sergeant J E Lee then made a licensing check of the premises. Three further patrons were removed because they were intoxicated. It appears that one was allowed to return. In his 2½ years of monitoring bars, Sergeant Lee expressed the opinion that he had not encountered a bar which was so ineffectually run. A chart was produced which showed that on the three mornings in question, a total of ten people were arrested. All had been drinking at "Jays Bar & Café" beforehand. The intoxication level of most of the people was described as moderate or extreme. We have excluded the four people who were arrested on 12 May, as the incidents had not been referred to as part of the grounds for the suspension applications.

[22] Mr Nathan Arana MacLean is a security guard employed by First Contact Security. He has been working at "Jays Bar & Café" since 24 May 2002. His job includes checking for intoxicated people and removing those who have had enough. He has 1½ years experience in this role. He recalled the night of 8/9 June last. He had removed a male patron at about 2.00 am because of intoxication. He also remembered the difficulty in removing the male and female patrons. It was his view that the male was drunk. He disputed that one of the three spoken to by the Police was intoxicated.

[23] Mr L J Kea was the duty manager that morning. It was he who called the Police for assistance in removing two intoxicated patrons. He disputed some of the evidence given by Sergeant Lee. However the tape which was produced confirmed that it was the Police who brought the patron outside. It was outside the bar, that Mr Kea spoke with him. Mr Kea argued that he did everything in his power to see that the bar was run properly. He said that he could not control people drinking in the car park. He suggested that some of the patrons had also accessed alcohol from the 24 hour supermarket or the Goanna Bar nearby.

[24] Although Mr Kea has been working in the hospitality industry for about seven years, he did not seem to us, to appreciate the need to address the ‘binge drinking culture’, which can be found from time to time in licensed premises. Nor did he seem to comprehend his responsibilities under the Act to provide a safe drinking environment. He said:

“I believe with our current situation with the Police at present it has had an enormous effect on how our staff look at our patrons. We feel now that if someone is enjoying themselves or having a good time they have to leave."

[25] Mr W Bilton was in "Jays Bar & Café" on the night of 9 June last. He had become involved in the arguments with the couple who had been asked to leave. He also tended to blame the Police for his company’s predicament. He said that he had lost trade as a result of the press statements. He said:

“We consider that the level of incidents has been increased by the nature of the Police relationship with the public and the manner of approach of the Police to the public.”

[26] Mrs Susan Lynette Bilton is also a director of the company which holds the on-licence. She confirmed that the business had opened in 1998. She said that the bar employed 30 people, and turned over approximately 1,000 meals each week. She said that the emphasis of the bar was to provide a friendly meeting place for families and local people in the area. Since the incident on 18/19 May the company had employed a new and more professional security firm. She and Mr Bilton and Mr Kea had attended a number of meetings with the enforcement agencies. Staff training and host responsibility had been revised and renewed. She and her husband pointed out the previous good record of the company, and the number of times the Police had visited on earlier occasions, without taking any action, or making any adverse report.

[27] When the applications for suspension were filed, the company sought the assistance of Mr Brett Ardron Jones of Brett Jones and Associates Limited, liquor licensing consultants. He carried out an inspection of the premises. He noted the training manuals, and systems focused on compliance matters. He has since carried out monthly audits to ensure that the business is compliant with the Act and the licence. He produced minutes of the staff meetings to show that the company is committed to staff training. He noted that the company now provides for a 15 minute overlap between day and night managers, so that there can be a briefing on the nature and state of the customers. His overall impression was:

“A well run establishment that has the capacity and desire to develop and operate good systems to ensure high standards of self regulation, compliance with the Sale of Liquor Act and the conditions of the licence.”

[28] The Authority heard final submissions from counsel and the other two parties. Both the Sergeant and the District Licensing Agency Inspector sought periods of suspension because management had failed to identify intoxicated patrons and take appropriate action. It was noted that even after a meeting with the Police on 23 May 2002, there had been a further incident involving intoxicated persons.

[29] Mr K I Jefferies acknowledged that the present procedure was the traditional approach despite the High Court ruling in Karara Holdings Limited and others v The District Licensing Agency Inspector and another High Court, Christchurch (AP 14/02). 8 July 2002. He submitted that the evidence had failed to reach the threshold necessary to justify suspension. In particular he noted the lack of identification. He relied on the defence in s.168(2) of the Act. He asked the Authority to take into account the contribution made by the bar to the community. He submitted that any breaches should be viewed against the number of patrons who use the premises. He noted that there had been 27 licensing visits from the Police since 9 June last. He argued that there was no evidence of sale or supply to intoxicated persons, and that any penalty imposed would be out of all proportion to the alleged conduct.

Decision

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

[31] 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."

[32] As we have stated in other decisions, the assessment of intoxication is a subjective test. In this case, the Police had the added advantage of a blood specimen of one of the patrons having been analysed by the Institute of Environmental Science and Research. When patrons are found to be intoxicated, it is better to have them identified as such by the duty manager, so that he or she can then tell them to leave, and not return. In our view it is not sufficient to say that ‘a majority of the patrons were intoxicated’. Having said that however, we had little difficulty in this case, in accepting that there had been breaches of the Act.

[33] On 11 May 2002, a man was seen to stagger from "Jays Bar & Café". His level of alcohol subsequently tested shows that he was quite intoxicated. The inference we draw from the evidence, was that the manager allowed him to become intoxicated on the premises. Furthermore, the manager allowed him to be or remain on the premises. In terms of s.168(2), the evidence produced on behalf of the respondents, failed to satisfy us that reasonable steps were taken to remove the patron or take him to a place of safety, as soon as the employee became aware of the situation. At his level of intoxication, the situation would have been apparent for some considerable time.

[34] The duty manager’s responsibility is derived from s.115(1) of the Act:

115. Licensee or manager to be on duty at all times---(1) 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.

[35] Although Mr Kea was not on duty on 11 May last, this breach is a qualifying ground for suspension of the licence.

[36] Equally we are satisfied that on 19 May last, a patron was found to be asleep at the bar. He was extremely intoxicated, as was the patron who left the bar and started to destroy a sign. In our view, the state of intoxication of both patrons showed clearly that ss.167 and 168 had been breached. Because one of the men was escorted from the premises, the manager could not avail himself of the defence provisions contained in s.168 (2) of the Act. We make no finding about Mr Dickson who was arrested in the car park. We accept that there was no evidence of any actual sales to an already intoxicated person.

[37] As to the events of 9 June last, we make no findings of any breaches of the Act. As a matter of fairness, we took the view that the patrons had not been identified, and that there had been no description of any behaviour or conduct leading to a conclusion of intoxication. There was no evidence that the manager had been formally notified about each of the individuals, and asked for his opinion. In other words, as we have already intimated, the statement made by the Sergeant, “three further intoxicated patrons were removed from the premise”, is insufficient to warrant a suspension order, unless there is evidence given to support that opinion, and unless a manager or a resonsible employee, is given the opportunity to comment.

[38] However, looking at the overall conduct of the manager, we note that the three people who were arrested outside the premises, had been drinking at "Jays Bar & Café". They were assessed as extremely intoxicated.

[39] In terms of s.132(6) of the Act, we are satisfied that the licensed premises have been conducted in breach of ss.167 and 168 of the Act. There were a total of three breaches. We accept that there was no proof that the condition of the licence had been breached, because there was no proof of sale or supply.

[40] In terms of s.135(6) of the Act, not only were there two proved breaches of the Act, but the evidence of disorderly behaviour outside the premises over the two mornings, more than satisfied us that the manager had failed to conduct the premises in a proper manner. Effectively he appears to have lost control. The evidence disclosed a pattern of conduct in much the same way as a pattern can be revealed by the results of a last drinks survey. Whether this happened, as a result of apathy or negligence or complacency, we are unable to say. However, we are more than satisfied that the proprietors and the manager have been subjected to a major learning curve. We were impressed with the steps that have been taken to ensure that similar incidents are not repeated.

[41] The question in this case is whether it is desirable that the licence and/or the certificate be suspended. So far as the manager is concerned, we believe that a period of suspension is appropriate. Although he has the 100% support of the directors, we retained a residual concern about his approach to his responsibility. We need to point out that we are governed by s.4(2) of the Act. Our duty is to exercise our discretion in a manner that is most likely to promote the object of the Act. There can be few more graphic forms of liquor abuse, than intoxication.

[42] So far as the company is concerned, we also believe that a period of suspension is appropriate. In this case, given the time and energy which has been devoted to resolving the problems, a minimum period of suspension is called for.

[43] For the reasons given, on-licence 049/ON/86/2001 issued to Jays Bar and Café Limited is hereby suspended for 24 hours from 6.00 am on Wednesday 6 November 2002.

[44] Manager’s certificate GM 2095/97 issued to Lionel Johnathan Kea is hereby suspended for two weeks from 6.00 am on Wednesday 6 November 2002.

DATED at WELLINGTON this 22nd day of October 2002

Judge E W Unwin Mr J C Crookston
Chairman Member

JaysBar&Cafe.doc(nl)