Kaglund and Jackson, re [2003] NZLLA 354 (26 May 2003)

New Zealand Liquor Licensing Authority

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Kaglund and Jackson, re [2003] NZLLA 354 (26 May 2003)

Last Updated: 27 March 2010

Decision No. PH 354/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by MARION AGNES KAGLUND and ROBERT JACKSON trading in partnership pursuant to s.9 of the Act for an on-licence in respect of premises situated at 9 Tainui Street, Greymouth, known as "Hogshead Bar & Grill"

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at GREYMOUTH on 14 May 2003

APPEARANCES

Ms M A Kaglund and Mr L R Jackson - applicants
Mr A T O'Connell – Grey District Licensing Agency Inspector – in opposition
Sergeant G A Eden – NZ Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Marion Agnes Kaglund and Robert Jackson for an on-licence in respect of premises situated at 9 Tainui Street, Greymouth, known as "Hogshead Bar & Grill". Ms Kaglund and Mr Jackson trade in partnership. They have had considerable experience in the conduct of licensed premises. For example, they ran the ‘Otira Hotel’ for some five years between 1990 and 1995. They took over the "Hogshead Bar & Grill" in October 1999, and have operated the licensed business for approximately three years. At some stage Ms Kaglund had a General Manager’s Certificate but this was allowed to lapse.

[2] On or about 26 August 2002, a reminder notice was sent to Ms Kaglund and Mr Jackson for them to renew their on-licence. The licence was due to expire on 16 October 2002. Regrettably both Ms Kaglund and Mr Jackson had some personal issues, and their business arrangements and organisation were not up to scratch. It appears that either they did not realise the seriousness of the need to apply for a renewal, or they mislaid the notice, or both.

[3] In any event, the licence was not renewed. As a consequence, they were advised on 21 October 2002 that the licence had expired. Over the last 6 ½ months they have traded without a licence. They have continued to sell food, and to run a café/restaurant. Over the holiday and tourist season, it is clear that they would have lost a considerable amount of revenue. From their point of view, the position is very serious. When Mr Jackson and Ms Kaglund made this fresh application for a new (replacement) on-licence, they were asked who the manager of the business would be. It was at that time that the reporting agencies became aware that neither of the partners had a current General Manager's Certificate.

[4] The matter became exacerbated when it was discovered that both partners had recent convictions for driving with an excessive breath alcohol content. On 30 April 2002, Ms Kaglund was convicted in the Greymouth District Court. Her breath/alcohol level was 629 micrograms of alcohol per litre of breath. As a consequence she was disqualified and fined. Ms Kaglund had no other relevant convictions. Mr Jackson was convicted in the Greymouth District Court on 24 September 2002. His breath/alcohol level was 530 micrograms of alcohol per litre of breath. He was also fined and disqualified. Mr Jackson had a previous conviction in 1998 for similar offending.

[5] Because of the convictions, Ms Kaglund and Mr Jackson were advised that they would be unlikely to obtain a General Manager’s Certificate. They were also advised that without a certificated general manager, the chance of them being granted an on-licence was very remote. It seems to us that on both counts, the advice they received was sound. The dilemma was very much a Catch 22 situation for them. In the light of the recent drink driving convictions, and the failure to renew the licence, the Police and the District Licensing Agency Inspector quite properly issued adverse reports. As a consequence, the application for a replacement on-licence was delayed until the Authority was able to arrange a public hearing in Greymouth. We would emphasise that the reporting agencies acted quite properly in requiring the matter to be dealt with by the Authority.

[6] The concern of both agencies was the somewhat ‘laissez-faire’ attitude by the applicants to their situation. After hearing from them, it may well be that they did not have a proper appreciation of the legal intricacies of the Act. They certainly have that now.

[7] The applicants have advised that they currently employ Miss Donna Blackburn on a part-time basis. She has completed a course of training and could apply for a General Manager’s Certificate at a moment's notice. Notwithstanding the recency of the drink driving convictions, it is our view that this is a somewhat unique situation. There has been no licence for over six months. There are a number of precedents that have enabled a business to be operated provided it is in the hands of a certificated manager. When Parliament amended s.115 of the Act, it provided for the management of licensed premises to be in the hands of certificated managers. In this case, we have taken into account the loss of the ability to trade. We have also noted that there have been no reported issues involving liquor abuse by members of the public.

[8] Accordingly, if Miss Blackburn obtains a General Manager’s Certificate and if she is appointed as a manager of the business, then an on-licence may be issued. The on-licence cannot issue until the appeal period has expired. Time may run from the day this decision was given.

[9] The form of the on-licence is a matter of some concern. When evidence was given before us, it was revealed that over 90% of the business has always been the supply of food. The applicants are prepared to amend the application so that the licence which will be issued will be a restaurant style licence without a designation. The change of style of the licence has been a major factor in our coming to this decision. The supply of liquor will be limited to the time when the restaurant is operating. Casual drinkers may be served during that time.

[10] The hours were not fixed at the hearing but have subsequently been advised by the applicants. Obviously they must be reduced from the hours previously enjoyed.

[11] Taking into account, the criteria listed in s.13 (1) of the Act, a restaurant style on-licence is granted.

[12] The hours of trading will be:

Monday to Sunday 11.00 am to 12.00 midnight

[13] A copy of the licence setting out the conditions to which the licence is subject, is attached to this decision. It will be a restaurant style licence. In other words liquor may only be sold when the premises are being operated as a restaurant or function centre. There will be no designation.

[14] The licence will not issue until:

(a) The expiry of 20 working days from 14 May 2003. That period is the time provided by s.140 of the Act for the lodging of a notice of appeal.

(b) All relevant clearances have been obtained. The applicant is not entitled to sell liquor until the licence issues.

[15] The applicant’s attention is drawn to s.25 of the Act obliging the holder of an on-licence to display:

(a) A sign attached to the exterior of the premises so as to be easily read by persons outside each principal entrance, stating the ordinary hours of business during which the premises will be open for the sale of liquor, and

(b) A copy of the licence, and the conditions of the licence, attached to the interior of the premises so as to be easily read by persons entering through the principal entrance.

[16] The issue then arises as to Mr Jackson's position. He is currently attempting to obtain a General Manager’s Certificate. He has completed a course of training with Tai Potene Polytechnic. He has been a licensee for many years, but he still found the course quite instructive. In view of theses particular circumstances, we believe that a slightly more merciful approach can be taken. We are fortified by the fact that the licence itself will be a restaurant style licence where the abuse of liquor is much less likely, than with a tavern style licence. We suggest that Mr Jackson obtain a certificate from the local health agency or a drug and alcohol clinic, to show that he has no residual issue with the use or abuse of alcohol. Subject to obtaining such a certificate, we suggest it might be appropriate for him to apply to obtain a manager's certificate at the expiration of 12 months from the date of his conviction. We anticipate that if there are no other issues, such an application may be successful.

[17] To summarise the matter we therefore grant waivers where necessary. An on-licence will issue once the District Licensing Agency advises the Authority that a manager has been appointed, and once that manager has been certificated.

DATED at WELLINGTON this 26th day of May 2003

B M Holmes
Deputy Secretary

Hogshead.doc (nl)