Sara v The Lazy Lounge [2003] NZLLA 517 (9 July 2003)

Last Updated: 23 November 2010

Decision No. PH 517/2003 –
PH 518/2003

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 suspension of on-licence number 007/ON/107/2000 issued to NICHOLAS JAMES SAUNDERS and PATRICK GEORGE THOMPSON in respect of premises situated at 139 Oceanview Road, Oneroa, Waiheke Island known as “The Lazy Lounge”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager’s Certificate number GM/007/1448/01 issued to JASON MICHAEL FALEVA’AI

BETWEEN DONALD WILLIAM SARA

(Auckland District Licensing Agency Inspector)

Applicant

AND NICHOLAS JAMES SAUNDERS and PATRICK GEORGE THOMPSON

First Respondent

AND JASON MICHAEL FALEVA’AI

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at AUCKLAND on 9 July 2003

APPEARANCES

Mr D W Sara – Auckland District Licensing Agency Inspector - applicant
Mr N J Saunders – for first respondent
Mr J M Falevai'ai – second respondent

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority two applications for suspension. Both applications are brought by Mr Donald William Sara, an Auckland District Licensing Agency Inspector. The first application is to suspend an on-licence issued to Nicholas James Saunders and Patrick George Thompson trading in partnership in respect of premises situated at 139 Oceanview Road, Oneroa, Waiheke Island known as “The Lazy Lounge”.

[2] The grounds for the application are that the premises have been conducted in breach of ss.165 and 172A(c) of the Act. The breach of s.165 of the Act, refers to the sale and supply of liquor in an area which is not part of the licensed premises. In other words it refers to a grassed area where patrons have been seen to be drinking outside. The ground for the application for suspension of the General Manager’s Certificate is on the basis that the manager has failed to conduct the licensed premises in a proper manner. Pursuant to s.172A(c) of the Act the licensee has a duty to notify the Authority of the appointment of a manager. The same set of circumstances arises in each case.

[3] The facts show that in 1999 Messrs Saunders and Thompson applied for an on-licence in respect of the premises known as “The Lazy Lounge”. The application was opposed both by members of the public, and the Police. The application was accordingly scheduled for a public hearing before the Authority. In the report leading up to the hearing the Inspector wrote that sliding glass doors open out onto a large grassed area that is used by young children and parents during the summer months. She stated that this area was not part of the defined licensed premises, and the partnership was aware of the fact that no liquor was to be consumed in the outdoor area.

[4] The decision was given by the Authority under PH 680/2000. The Authority stated:

“It is hoped that the partnership has learnt from what appears to have been very obvious errors in the past that they must sell and supply liquor in a responsible manner in accordance with the conditions of both the licence and resource consent. If problems arise then applications to vary, suspend or cancel the licence may be quickly made by an Inspector or the Police. In any event on renewal if concerns remain that issue may be considered again at a further public hearing before this Authority.”

[5] When the licence was due for renewal in 2001 concerns were expressed by the neighbours. Meetings were held. One of the concerns was the fact that patrons had been seen to be drinking in the grassed area. The licence was renewed, but it was decided that the resource consent conditions would be monitored by council officers.

[6] Subsequently there was monitoring of noise issues and further complaints made by members of the public. The matter came to a head in January of this year when a petition was signed by 32 residents, and presented to the Auckland District Licensing Agency. A number of photographs were taken by residents over the previous two months. On 1 February 2003, two Inspectors visited the premises. They were satisfied that liquor was being supplied in the grassed area. These applications for suspensions followed. It was revealed that Mr Jason Michael Faleva’ai was the manager on duty at the time. Pursuant to s.115 of the Act he carries the responsibility of ensuring that the provisions of the Act and the conditions of the licence are complied with.

[7] In this case the matter has been mediated rather than dealt with in an adversarial public hearing. It is quite clear that the premises have been conducted in breach of s.165 of the Act. Indeed the respondents have acknowledged this. In other words the licensee manager has sold or supplied liquor to any person at any time when the licensee was not authorised by the licence to sell to that person. The unauthorised sales arise from the fact that supply has taken place in the area which is not licensed, and not authorised by the resource consent.

[8] The further ground relates to the fact that the appointment of Mr Faleva’ai as duty manager has never been notified officially to the District Licensing Agency Inspector.

[9] In the course of the mediation process Mr Saunders explained to us that he appreciated the position the business had got into. He had been waiting until the sewerage system had been connected before he could make an application for the grassed area to become part of licensed premises. The first requirement is for the resource consent to be considered. An application has been made and a public hearing is due to be held. Mr Saunders has given an undertaking that no liquor will be supplied in the grassed area until such time as such supply has been authorised by way of resource consent, and redefinition of the licensed premises. He is fully aware and will no doubt advise his partner that if that undertaking is broken then that will be a further ground for showing unsuitability. Any further application will if established, result in a much longer period of suspension and/or cancellation of the licence. The Authority has held in the past that continued breaches of the Resource Management Act or the conditions of the licence or the Act, can result in a finding of unsuitability.

[10] Mr Saunders has also undertaken that immediately following this hearing he will accompany Mr Sara to complete a s.130 notice of the appointment of Mr Faleva’ai. Both Mr Faleva’ai and Mr Saunders have conceded that the grounds are established, and that it is desirable to make orders under ss.132 and 135 of the Act. Mr Saunders, in particular, has offered to have the on-licence suspended for a period of five days. In the view of this Authority that is a reasonable period of time and an order will be made accordingly. Mr Faleva’ai is the only authorised manager and it has been deemed appropriate that although he is the person responsible for compliance with the Act, his manager's certificate will be suspended for the limited period of the five days.

[11] Accordingly, and for the reasons stated, on-licence number 007/ON/107/2000 issued to Nicholas James Saunders and Patrick George Thompson and General Manager’s Certificate GM/1007/1448/01 issued to Jason Michael Faleva’ai will be suspended from 6 am on Monday 4 August 2003 to 6 am on Saturday 9 August 2003.

DATED at WELLINGTON this 30th day of July 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Lazy Lounge.doc(nl)