Verner v James [2003] NZLLA 32 (3 February 2003)

New Zealand Liquor Licensing Authority

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Verner v James [2003] NZLLA 32 (3 February 2003)

Last Updated: 16 February 2010

Decision No. PH 032/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act, for cancellation or suspension of a General Manager's Certificate GM 049/GM/158/2001 issued to CALLUM HUGH JAMES

BETWEEN GRANT DAVID VERNER

(Police Officer of Wellington)

Applicant

AND CALLUM HUGH JAMES

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at WELLINGTON on 22 January 2003

APPEARANCES

Sergeant G D Verner – New Zealand Police – applicant
Mr C H James – respondent
Mr R S Putze – Wellington District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority is an application to cancel or suspend a General Manager's Certificate. The ground for the application is that the manager has failed to conduct licensed premises in a proper manner. The application is based upon a Police visit to an inner city bar and restaurant. The visit revealed the presence of three minors aged 17 years and one intoxicated person in the bar. One of the minors had been able to purchase a round of drinks without being asked for identification. None of the minors had been checked for identification when they entered the premises, or while they were there.

The Factual Background

[2] On Saturday night 13 July 2002, at about 1.45 am, the Police Strategic Response Group visited the licensed premises known as Opera Restaurant and Bar on the corner of Blair Street and Courtenay Place, Wellington. About 100 patrons were present at that time. Constable Stephen Michael Cavanagh saw three females who appeared to be under 18 years of age. He asked them for identification. They said they did not have any identification. Constable Cavanagh invited them outside where he established that they were all aged 17 years. All three indicated that they had entered the premises through the main door. They had arrived at the premises before the Police arrived, but in time to purchase a round of drinks..

[3] Laura is aged 18 years, having been born on 21 October 1984. On the 13 July 2002 she was 17 years of age. She and her two friends, also aged 17 years went to the Opera Restaurant and Bar. When they approached the door the doorman was talking to a woman. Laura and her friends walked into the bar. The doorman looked at them but did not ask them for identification. Laura bought drinks for herself and her friends. The drinks were a bourbon and coke, a vodka lime and lemonade, and a “shaker” which is a mixture of different drinks. The bar person did not question her age or ask for identification. Laura said that she wore no extra makeup, nor did she do anything to make herself look older. It was after she had bought the drinks that the Police entered the bar. When the Police took Laura and her friends outside, Laura admitted that she was 17 years of age. She produced her driver’s licence. She and her friends were issued with Liquor Infringement Notices.

[4] Constable Hamish Kyle Blackburn was also a member of the Strategic Response Group. He found a Mr Kean who was intoxicated. He took him outside and assessed him as extremely intoxicated. He had slurred speech, glassy eyes, a lack of co-ordination and unsteadiness on his feet. Mr Kean said that he had gone into the bar to look for a friend’s handbag. Constable Blackburn said that when he found the intoxicated person he was on his own. Constable Blackburn brought the man to the attention of Mr James who was the duty manager on the evening of 13 July 2002. Mr James trespassed him from the premises. Mr James was shown a Police Licensing Visit form which recorded the finding of the three minors and Mr Kean. He acknowledged that record by signing the form.

[5] Callum Hugh James has held a General Manager’s Certificate since 18 May 2002. He no longer works as a manager of licensed premises. He said they were very busy on the night of 13 July. They were short of one staff member. Consequently, Mr James was working behind the bar instead of overseeing the premises. He said that he did not see any problems until he was asked by the Police to go outside. He said that he had seen Mr Kean earlier. The barman had pointed him out. He said that Mr Kean was intoxicated, but not sufficiently so for him to be removed immediately. The doorman later told Mr James that Mr Kean had come back into the premises to look for a handbag left by a friend, and that he had been watching Mr Kean. We do not accept this explanation. We note that when Mr Kean was discovered he was on his own and that neither Mr James or the doorman mentioned those facts when Mr Kean was trespassed.

[6] Mr James said that they had two doormen on duty that night. One was apparently inside with Mr Kean and the other was inside to deal with fights. The minors must have walked into the premises at that point. He said that he did not know what happened. He just had to take the doorman’s word for it. On the other hand Laura gave evidence that there was a doorman on duty.

[7] Mr James said that he and the other general manager had spoken to bar staff about serving minors. They were told not to rely on the door staff checking identification. He said it was not easy to watch staff serving drinks because the “Opera Bar” was very dark. He acknowledged that it would have been prudent to reduce the numbers in the bar and to improve the lighting, but he would have lost his job had he done so.

[8] Mark McGuinness had previously employed Mr James at the “Bull and Bear” in Plimmer’s Lane. He has known Mr James for a number of years, and had brought him to Wellington from Palmerston North to manage the “Bull and Bear”. He said Mr James had proved to be a responsible and vigilant manager. In Mr McGuinness’s opinion Mr James had been the victim of understaffing. The owner at the time had sold the business. That is why the licensee was not prosecuted. It is not uncommon for licensees when selling a bar to reduce staff and expenses before the sale.

[9] Mr Darryl John Walter Stonnell’s company provides door staff for four licensed premises. He currently employs Mr James as a doorman. He regards Mr James as one of his more reliable staff. It was his observation that Mr James had to bear the brunt of a series of failures. It was his opinion that minors will do anything to get into licensed premises. He said that the minors do not realise what a problem they are causing to licensees and managers. On the other hand, in this case, the minors were able to access liquor without any form of subterfuge.

[10] Sergeant Verner submitted that the presence of three minors on the pemises, and that one was able to purchase liquor, combined with the presence of an intoxicated person showed that the premises were not being operated in a proper manner by the manager. He pointed out that s.115(1) requires:

(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.

[11] He submitted that a manager must actively manage the premises, and ensure that all staff are aware of their obligations and responsibilities.

Authority’s Conclusion and Reasons

[12] Having heard the evidence we are more than satisfied that the three young women gained entry to the premises through the main door without being asked for identification. There was a doorman on duty who looked at them as they went past but he did nothing more. Mr James suggested that the event occurred at the time one of the doormen was allegedly dealing with the intoxicated patron, Mr Kean. Clearly that was not so. We have no hesitation in accepting the evidence of Laura. Having easily gained entry, Laura had no difficulty in purchasing drinks, and making an Eftpos transaction.

[13] Mr James told us that the darkened bar made observation of the bar difficult. Mr McGuinness opined that Mr James was the victim of circumstance. We do not accept that proposition. It was Mr James responsibility (as it is for all managers) to actively manage the premises.

[14] Mr Kean, had been in the premises earlier. His condition had been such that the barman drew it to Mr James attention. Mr James chose to ignore the situation because the man was not creating a nuisance, and was enjoying himself. It was alleged that Mr Kean had left, and then returned to look for a handbag left behind by a friend. It was alleged that he was allowed entry under the supervision of a doorman to look for that bag. Yet, Mr Kean was alone when located by Constable Blackburn. There was no suggestion that a doorman was present, and no such person approached the Constable to give that explanation. Certainly this explanation was not raised when Mr James signed the Police Licensed Premises Visit form.

[15] In Doyle LLA PH 482/2002 we said:

“[16] When Parliament passed the Sale of Liquor Amendment Act 1999, it amended s.115(1) to emphasise the fact that a manager must be on duty at all times when liquor was being sold or supplied. In the future all managers would be responsible for ensuring that the premises complied not only with the Act, but also with the conditions of the licence.

[17] The reasoning behind the amendment, was to encourage the drive to raise the standards of those charged with the responsibility of supplying liquor to the public. The expectation was that management of licensed premises would be conducted only by persons of integrity, committed to supervising the sale and supply of liquor lawfully, and concerned to give new meaning to the term 'host responsibility'. The ultimate aim was to achieve the Act's objective of reducing the incidence of liquor abuse.”

[16] The ability of three minors to gain entry to licensed premises so easily is a matter of serious concern. Mr Stonnell said that minors will do anything to gain entry to licensed premises, inferring that they will resort to a variety of subterfuges to do so. But that was not the case here.

[17] Mr James’ casual attitude to the presence of an intoxicated person on the premises is also of great concern. When Mr Kean was removed his condition was assessed as “extremely intoxicated”. Allowing an intoxicated person to be or to remain on the premises is a serious matter pursuant to s.168 of the Act. The law does not recognise degrees of intoxication. The fact that a person is intoxicated is enough.

[18] These are matters of managerial responsibility. As we said in Doyle (supra):

“[24] Managing licensed premises requires skill, knowledge, and commitment. A manager controls and directs the way the business is run. If failures occur, they can generally be traced to lax systems of control, and/or training. Some times there will be 'one-off' lapses. We accept that no matter how good the training, people are human. Barmen, doormen, security people and check out operators will occasionally let the manager down. We accept that the 'system of control' we are assisting to establish under s.4 of the Act, must be 'reasonable'.”

[19] In the present case Mr James exhibited a proven failure to exercise control. That lack of control should have consequences where potential liquor abuse is concerned. In Doyle’s case there were six young people, five of whom were under 18 years or age. One was asked for identification. They entered the premises in two groups to play pool. None of them purchased alcohol. The present case is much worse. We considered cancellation but in view of the evidence given in support by Messrs McGuinness and Stonnell we felt that the period of suspension would be in line with other decisions.

[20] For these reasons Mr James’ manager’s certificate is suspended for four months from the date of this decision.

DATED at WELLINGTON this 3rd day of February 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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