Tutty v Piccadilly Holdings Limited [2003] NZLLA 423 (16 June 2003)

Last Updated: 7 April 2010

Decision No. PH 423/2003 –
PH 424/2003

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 variation, suspension, or cancellation of on-licence number 016/ON/16/98 issued to PICCADILLY HOLDINGS LIMITED in respect of premises situated at 20 Arawata Street, Te Awamutu, known as “Rose and Thorn – Bar & Cafe”

BETWEEN KARL JASON TUTTY

(Waipa District Licensing Inspector)

Applicant

AND PICCADILLY HOLDINGS

LIMITED

Respondent

AND

IN THE MATTER of an application by PICADILLY HOLDINGS LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 20 Arawata Street, Te Awamutu, known as “Rose and Thorn – Bar & Café”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at Hamilton on 29 May 2003

APPEARANCES

Mr R W Murphy – agent for respondent and applicant for renewal
Mr K J Tutty – Waipa District Licensing Inspector - applicant, and in opposition to
application for renewal
Sergeant E Davidson – NZ Police – in opposition
Mr R G Henderson – Medical Officer of Health – in opposition

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are two opposed applications before the Authority. The first is an application by Mr K J Tutty for the variation, suspension or cancellation of an on-licence issued in respect of a tavern situated at 32 Arawata Street, Te Awamutu, known as “Rose and Thorn - Bar & Café”. The on-licence was first issued to Piccadilly Holdings Limited on 4 December 1998.

[2] The second application is by Piccadilly Holdings Limited, and is for the renewal of its on-licence.

[3] The grounds for the application for variation, suspension or cancellation of the on-licence are as follows. First, it is alleged that the licensed premises have been conducted in breach of ss.155, 164, 165, 166, 167 and 168 of the Act. Secondly, it is alleged that the licensed premises have been conducted in breach of one of the conditions of the licence by trading outside the authorised hours. Thirdly, it is alleged that the premises have been conducted in an improper manner. Fourthly, it is alleged that the conduct of the licensee has been such as to show that it is not a suitable entity to hold the licence. Finally, it is alleged that the licensed premises have been used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public.

[4] The allegations relate to ongoing concerns following a variety of incidents involving alleged drunkenness and disorder by patrons of the “Rose and Thorn - Bar & Café”. The incidents also form the basis for the objections to the renewal of the licence.

[5] Prior to the hearing, there were meetings between the Police, District Licensing Agency Inspector, and Mr J T Dill on behalf of the licensee. Mr Dill and his wife, Mrs L B Dill, are the shareholders of Piccadilly Holdings Limited. Mr Dill is the sole director. In an attempt to alleviate the concerns of the reporting agencies, he agreed to a variation of the hours of trading. The closing time would be pegged back from 3.00 am to 2.00 am. In exchange, the NZ Police and the Inspector and the Medical Officer of Health agreed that the on-licence could be renewed, but only for twelve months. It will again fall due for renewal on 4 December next. This will give the reporting agencies the opportunity to monitor the premises, and in particular confirm that the steps being taken by the licensee are effective.

[6] The only issue therefore is whether the on-licence should be suspended, and if so, the length of such suspension. The applicant argues that because the incidents involve liquor abuse, a significant period of suspension is warranted. Mr Dill and Mr Murphy contend that the respondent has taken a number of remedial steps. Having agreed to the variation of hours and a shorter term of renewal, they submit that it is undesirable to make any further orders.

The Factual Background

[7] There were a large number of incidents relied upon by the Inspector. There are obvious procedural problems when there are so many allegations. For example the numbering process employed to answer each allegation was confusing, as it did not refer to the briefs of evidence but the reports. It may be thought that if there are enough incidents, then an order should be made. However each incident must be proved. In this case, it has not been possible to do justice to each and every allegation. For example, some of the incidents had taken place after the Inspector’s last report. Consequently, Mr and Mrs Dill were not aware of the more recent allegations. It had not been possible for any meeting to take place to discuss them. Although we gave them the opportunity to meet with Mr Murphy, to discuss the more recent complaints, we have not relied on such incidents to support any action being taken.

[8] There were a significant number of allegations of intoxication. Clearly it is preferable for the Police or Inspector to point such persons out to the licensee or the manager, to see if they can be removed and trespassed from the premises. A bald assertion that a person is intoxicated without explaining why, is unlikely to be sufficient for the suspension of a licence. On the other hand in this case, there was a surfeit of proof that a number of the patrons of the “Rose and Thorn – Bar & Cafe” had been drinking to excess. There was a period when it seemed to us, that the Dills had lost the ability to control what was going on. For their part, they placed the blame on a short period of time when, for reasons beyond their control, they had too few trained staff.

[9] In the case of the concerns raised by the Medical Officer of Health, Mr Henderson indicated that he was satisfied with the proposals put forward by Mr Dill. His main concern was the alleged levels of intoxication at the premises.

[10] Mr K J Tutty is the Waipa District Licensing Agency Inspector. The first incident relied upon by him involved the application for renewal. He was concerned that the application was in Mr Dill’s name rather than the company. Furthermore, the public notices were late, and appeared in a regional rather than a local paper. Mr Dill was able to show that his lawyer was at fault, and that the application had been re-advertised. We would not regard this incident as having sufficient probative value to warrant any order.

[11] The second incident occurred on 20 December 2002. At 11.12 pm, Mr Tutty observed a group of seven people walking on to Arawata Street from Sloane Street. Two were drinking from bottles. They were having difficulty in walking. All were able to gain entry to the “Rose and Thorn – Bar & Cafe”. Mr Dill stated that he had severe staffing difficulties over the summer leading up to Christmas 2002. He was let down by security staff, some of whom did not turn up for work. Some sent other family members with no training in their place. He said that some nights they were training people on the job. He thought it was totally unacceptable, and acknowledged that the lack of security staff had led to breaches of the Act. It will be noted that the group had been drinking elsewhere.

[12] At 11.20 pm that night, Mr Tutty observed two groups of people leave the premises. Seven of the people had bottles, or glasses, or opened RTD’s with them. Mr Dill disputed that he had lost any glasses from the premises. He said that when cleaning up the following day, they have found bottles of a type which are not sold in the bar. He said that his staff are vigilant to stop liquor leaving the premises. In this case he appeared to accept that the drink should have been confiscated, but he was hampered by lack of staff.

[13] At 11.30 pm, on the same night, Mr Tutty observed four young women leave the premises. Two were carrying opened RTD’s. He thought they were intoxicated. One woman whose eyes were glazed and her speech slurred, urinated in a public garden. She indicated that she had done so because of the state of the toilets in the “Rose and Thorn – Bar & Cafe”. Mr Dill stated that the toilet facilities are monitored regularly. He suggested that the girls may have been evicted because of intoxication.

[14] At 1.15 am the following morning, Mr Tutty observed numerous patrons leaving the premises. In his view many appeared to be intoxicated, and some were still drinking. Five were seen to urinate in a nearby alleyway, and three vomited in gardens or other areas. Bottles were smashed or left lying about. Mr Dill argued that one of the problems in the town was the inadequate taxi service which meant that people tended to congregate because they had to wait to get home. He stated that they used to run a BBQ until 2.00 am, but it was closed down. It was his belief that were he able to provide food throughout the night, then the risk of intoxication would be lowered. It is clear that the Dills have had an ongoing problem with the proprietor of the local taxi service who also owns a burger bar close by.

[15] On 22 March 2003, Mr Tutty received a complaint about persons urinating at the rear of the “Rose and Thorn – Bar & Cafe”. He visited the premises at 10.30 pm. A “bus pub crawl” was taking place. Mr Tutty observed a number of persons leaving the premises. He thought that two of them needed to be assisted because of their level of intoxication. He noted that many of them had their bottles removed by door staff. Two of the tour party urinated on the footpath, and two urinated in the gutter. A third vomited in the garden. Yet another removed his clothes and ran down the footpath.

[16] Mr Tutty went to enter the “Rose and Thorn – Bar & Cafe” and met Mr Dill. He told Mr Dill what had happened. Mr Dill said they sometimes had problems with rugby teams. Mr Tutty went into the bar where he observed three patrons who he believed were intoxicated. One appeared to be almost in a stupor, and had to lean on the bar for support. He observed a drunk man being allowed onto the premises. The doorman was challenged on the issue, but said that the patron was going to the back door. The patron did not leave the premises. Mr Tutty identified the intoxicated patrons to Mr Dill, who did not agree that they were intoxicated. During the hearing, it became obvious that Mr Dill had his own somewhat unique belief in the definition of a intoxication. He thought that a patron was intoxicated when he had lost his faculties, and could not stand. It is precisely that type of thinking at which the Act is aimed.

[17] Mr Tutty produced the last drink survey for the Waipa District Council. This showed that on 17 August 2002, and 24 August 2002, two persons were stopped and breath tested. They displayed readings of 813 and 700 micrograms of alcohol per litre of breath. Both stated that they had had their last drink at the “Rose and Thorn – Bar & Cafe”. The survey appears to have covered the period from 30 July to 28 September 2002. Mr Dill stated that previous surveys have not raised concerns for the bar/cafe. Furthermore, he argued that since his premises had the greatest number of patrons, the fact that there were two incidents over two months should not be seen as a failure to promote host responsibility.

[18] Finally, Mr Tutty gave evidence that on 22 February 2002 and on Anzac Day 2002, the premises had traded beyond the hours specified in the licence. On both occasions a letter of warning had been written. On the first occasion, a staff function was being held. The Dills had decided not to apply for a special licence because they did not expect it to be granted. Mr Dill was not present when the premises were open on Anzac Day. He noted that the licence had not been amended to bring it up to date with the provisions of s.14(2) of the Act.

[19] Sergeant D J Simes had sworn a brief of evidence which was accepted by Mr Murphy, although much of the brief contained hearsay items. Sergeant Simes has been Sergeant in charge of the Te Awamutu Police Station since October 2002. There was an allegation concerning two intoxicated males leaving the premises on 8 November 2002. Mr Dill confirmed that their behaviour had been noted in the incident book, but there was no evidence that the men were intoxicated.

[20] It was noted that a Justice of the Peace presiding in the District Court had commented on the number of people appearing before him who had been at the “Rose and Thorn – Bar & Cafe”. Mr Dill asked the Authority to note that the “Rose and Thorn – Bar & Cafe” was the busiest social venue in town. Half of the business is concerned with the supply of food from a well respected café. The bar caters for all ages with the focus on entertainment. Because of the number of patrons attracted to the venue, the premises are statistically more likely to attract adverse attention. Despite this, he also asked the Authority to note that there had been no public opposition to the application for the renewal of the on-licence, bearing in mind that the renewal application had been advertised more than necessary. Both he and Mrs Dill asked the Authority to reflect on the five years that they have been operating the premises without appearing before it.

[21] On 6 December 2002, the Police visited the “Rose and Thorn – Bar & Cafe” at approximately 11.40 pm. There was no security staff at the rear door, which was wide open. There were a large number of patrons on the premises a number of whom were suspected of being intoxicated. In addition, the Police found two minors on the premises. They were aged 16 and 17. Both were issued with infringement notices. Both stated that they had not been asked for identification whilst purchasing alcohol. Observations were made of patrons leaving with bottles in their hands. A 23 year old male was arrested for disorderly behaviour. He was believed to be intoxicated. He was released from the Police Station on condition he not return to licensed premises. He was then re-arrested at the “Rose and Thorn – Bar & Café”.

[22] Later, at 2.35 am, a large fight took place outside the bar. Two persons were arrested. At the rear of the premises, two persons were found in an extreme state of intoxication. One could not walk at all. Sergeant Simes believed that at this time, Mr Dill had lost control of the premises. In other words, the bar was far too busy, and security was virtually non existent. Sergeant Evan Davidson who appeared at the hearing on behalf of the Police, confirmed that he had always found Mr and Mrs Dill very good to deal with.

[23] Mr Dill noted that the incidents happened at a time when they were experiencing severe staffing shortages, and other problems hiring sufficiently qualified people. This was the night when the annual “Midnight Madness” would have been held. It had been cancelled, but it appears that the community had reacted against the ban. Mr Dill said that he was caught unawares. Nevertheless, he did not accept that the patrons were intoxicated. He said that following the incident, at the suggestion of the Police, the back door is now locked so that all patrons must enter through the front entrance. He noted that the 16 year old had admitted sneaking in the door while his friends were being asked for identification. He also asked the Authority to note that they have problems with people drinking in the car park at the rear of the premises.

[24] Sergeant Simes gave evidence of patrons leaving the premises at 12.15 am on Christmas Day contrary to the provisions in the Act requiring the premises to close at midnight. In addition, there were incidents of disorder and possession of bottles outside the premises. Mr Dill did not seem to be aware of the requirement to close at midnight, and thought he had half an hour “drink up” time.

[25] In summary, there were a number of incidents where breaches of the Act and the conditions of the licence have been proved. The majority have taken place over a seven week period. Mr Murphy stressed that this was the festive season which coincided with greater numbers, warmer weather, the closure of the BBQ, and the establishment of the two businesses in the immediate vicinity creating congestion of people.

Remedial action taken

[26] Mr Dill confirmed that following the first meeting with the Police, they had closed the back door so that security staff could monitor only one door. Staff have now been advised that if the taxi is delayed for over 20 minutes, they are to ring the Hamilton taxi service. All members of staff have been assessed, and those with insufficient experience and qualifications have been replaced. They now try and maintain more members of staff than they need. He submitted that this was not easy in a small town with a transient population. He had asked the Police and the Inspector to provide regular staff training.

[27] The respondent had reinstated the BBQ after the kitchen closes. They did so after obtaining confirmation that it was “legal”. The use of banning patrons had been increased. Mr Dill stated that he believed that the problems were symptomatic of the community, and could only be solved by the community working together. He believed it was unreasonable to place the blame on his establishment. He did not believe that there was a need for more toilets. In summary, Mr Dill believed that many of the issues raised by the authorities had been resolved. Mr Murphy referred to other decisions of the Authority such as Prebbleton Hotels Limited LLA PH 14-15/2003 where he suggested that the problems were significantly more serious.

Decision

[28] Pursuant to the first ground of the application, Mr Tutty must satisfy us that the licensed premises have been conducted in breach of ss.155, 164, 165, 166,167 and 172 of the Act. An analysis of the evidence discloses that in many cases there has been a lack of proof of the essential elements of each alleged offence.

[29] Section155 of the Act states:

Every person commits an offence and is liable to the penalty set out in subsection 2A who, being the licensee or a manager of any licensed premises, sells or supplies any liquor, or allows any liquor to be sold or supplied, on or from the licensed premises to any person who is under the age of 18 years.

[30] There was a suggestion that the minors had been sold liquor because of what they said to the Police. However, there was no proof that this had happened, as we did not hear from the minors or the Police witnesses. Furthermore, it will be noted that there must be proof that it was the manager or the licensee. If there was a manager on duty (other than Mr or Mrs Dill) then he or she will be responsible for any illegal sales. In that event, the licensee would not be culpable because of the provisions in s.181 of the Act. If Mr Dill was the manager, then because he is effectively the licensee, the charge could be proven against licensee and manager. In our view, it is important to establish the circumstances of the sale or supply and the name of the person on duty.

[31] Section 164 of the Act states:

Every person commits an offence and is liable to a fine not exceeding $2,000 who, being the licensee or manager of any licensed premises, allows any person who is under the age of 18 years to enter or remain in any restricted area or supervised area on the licensed premises in contravention of section 163 of the Act.

[32] According to the on-licence, every bar is designated as supervised. There was no proof given that the minors were found in a bar. The brief of evidence which was accepted stated that the minors were found “on the premises”. Furthermore, there is a difficulty in establishing who the manager was at the time, or whether it was a licensee offence, as detailed in paragraph [30] above.

[33] Section 165 of the Act states:

Every person commits an offence and is liable to the penalty set out in subsection (2) who, being the licensee or a manager of any licensed premises, sells or supplies liquor to any person at any time when the licence is not authorised by the licence to sell to that person.

[34] Once again there was no proof of any illegal sale or supply on 22 February 2002 or Anzac Day 2002. On both occasions it was the Police who discovered the alleged breach. They reported to Mr Tutty who wrote to the licensee. That is not proof of unauthorised sale and supply. Mr Tutty relied upon this section to cover the incidents of sale for consumption off the premises. In our view this would require proof that the barperson who made the sale of liquor was aware that the liquor was going to be consumed off the premises. This would be very difficult to establish. In our opinion, the removing of bottles for consumption off the premises, goes to the conduct of the premises.

[35] Section 166 of the Act states:

Every person commits an offence and is liable to the penalty set out in subsection (4) who, being the licensee or manager of any licensed premises, sells or supplies liquor to any other person who is already intoxicated.

[36] There is no specific evidence that an intoxicated person was served liquor. The only way that such an allegation can be proved is by drawing an inference from the facts. In this case, no such inference is reasonably possible. One of the worst examples of bad behaviour by patrons was the “bus pub crawl”. There is no question that Mr Dill was both manager and licensee at that time. It was difficult to establish when the bus arrived and when it left and where the participants had been beforehand. It may well be that some of the patrons who were showing obvious signs of intoxication had been served liquor while at the “Rose and Thorn – Bar & Café”, but if we are to make an order suspending a licence, we need to ensure that the grounds have been established.

[37] Section 167 of the Act states:

Every person commits an offence and is liable to the penalty set out in subsection (2) who, being the licensee or a manager of any licensed premises, allows any person to become intoxicated on the licensed premises.

[38] In this case there are a number of proven breaches. We believe that a reasonable inference can be drawn that the woman with glazed eyes and slurred speech had been allowed to become intoxicated while on the premises on 6 December 2002. However, there was no evidence given about who was on duty. On 22 March 2003 (the “bus pub crawl”), a number of patrons had been allowed to become intoxicated. This is obvious from their behaviour on leaving. Mr Dill was present, and although he disputed that the patrons were intoxicated, he did not see all of them, and it is clear that his perception of intoxication needs to be revised if his patrons are to be safe.

[39] In the same way the incidents on 6 December 2002 (the night of “Midnight Madness”), formed a sufficient basis for the allegations to be proved. A male was arrested for disorderly behaviour. One of the patrons could not walk. Mr Dill was present at the time.

[40] Section 168 of the Act states:

Every person commits an offence and is liable to a fine not exceeding $4,000 who, being the licensee or a manager of any licensed premises, allows any intoxicated person to be or remain on the licensed premises.

[41] It is clear from the evidence that the comments made in respect of s.167 of the Act apply to incidents where intoxicated patrons were allowed to be or remain on licensed premises. On 22 March for example, an intoxicated person was allowed to enter the premises, and no action was taken.

[42] The second ground for the application (trading outside authorised hours) has not been proved as there was no evidence of sale or supply. Reference has also been made to this issue in paragraph [34] above.

[43] There is no doubt in our minds that the premises did trade in an improper manner as alleged in the third ground of the application. The same comments can be made in respect of the allegation of unsuitability. Under these headings we have taken into account the removal of bottles from the premises; the fact that intoxicated people and minors had gained entry to the premises; the patrons who vomited after leaving the premises; and the incident on Christmas Day 2002.

[44] Finally, it was these same actions of the patrons on leaving the premises, which satisfied us, that the premises had been used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public.

[45] Accordingly, and in summary, the licensed premises have been conducted in breach of ss.167 and 168 of the Act. Furthermore, the company’s conduct has fallen below acceptable standards. Unsuitability to hold a licence has been established. The premises have been used in a disorderly and an improper manner. Once such matters have been proved, the Authority must then determine whether it is desirable to make a suspension order. The Authority also has the option of adjourning the application to give the respondent the opportunity to remedy any matters required by the Authority. We considered this latter option, but have decided against it. The company has had the benefit of some warnings, and there have been a few meetings with the reporting agencies. At any event the incidents are too serious in our view for them to be ignored.

[46] Mr Murphy urged us not to make an order in case it interfered with current attempts to market the property. We would have thought that any potential purchaser would see that the lessons of the past have been learned. In this case, we accept that the incidents happened over a short period of time although there had been previous concerns expressed. We acknowledge that some of the problems resulted from the inability to obtain and retain competent staff. We accept that the Dills are very proud of what they have achieved, and the contribution the ”Rose and Thorn – Bar & Café” makes to the community. It must be very disappointing for Mr and Mrs Dill to have worked so hard over the past five years, to be faced with such action. We believe that the short renewal period is a very expensive way to be reminded about one’s obligations to host responsibility.

[47] Of course we are guided by s.4 of the Act and the requirement that our decision must reflect the object of the Act to reduce liquor abuse. Taking into account the reduced period of renewal, and bearing in mind that many of the allegations were unproven, we have decided to suspend the on-licence for five days.

[48] Accordingly, and for the reasons we have articulated, we make the following orders.

(a) The on-licence number 016/ON/16/98 issued to Piccadilly Holdings Limited will be suspended for five days from 6.00 am on Sunday 13 July 2003 to 6.00 am on Friday 18 July 2003.

(b) The on-licence will be renewed for 12 months to 4 December 2003.

(c) The hours of trading will be varied, and will be Monday to Saturday from 6.00 am to 2.00 am the following day. Other authorised hours of trading will remain unchanged.

DATED at WELLINGTON this 16th day of June 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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