Horne v Malatesta [2003] NZLLA 804 (29 October 2003)

Last Updated: 23 January 2012

Decision No. PH 804/2003

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 suspension of General Manager’s Certificate number GM 1621/98 issued to DARREN PAUL MALATESTA

BETWEEN ANDREW JOHN HORNE
(Police Officer of Queenstown)

Applicant

AND DARREN PAUL MALATESTA

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at QUEENSTOWN on 16 October 2003

APPEARANCES

Sergeant P Stratford – NZ Police - applicant
Mr B Whiting – for respondent

Ms T J Surrey – Queenstown Lakes District Licensing Agency Inspector
– in support of applicant

ORAL DECISION OF THE AUTHORITY

[1] The object of the Sale of Liquor Act 1989 is to establish a reasonable system of control over the sale and supply of liquor to the public with the aim of contributing to the reduction of liquor abuse so far as that can be achieved by legislative means.

[2] In a recent decision from the Court of Appeal known as Christchurch District Licensing Agency Inspector and another v Karara Holdings Limited and others CA 178/02 the object was described in this way:

Parliament has declared that the Act’s systems of controls over the sale and supply of liquor should be administered so as to contribute to the reduction of liquor abuse in the community within the limits of their capacity to do so.

[3] One of the ways of establishing a reasonable system of control over the sale of liquor is to ensure that all managers have high standards. They are ultimately the people who are on duty at all times when liquor is being sold. They are therefore responsible for compliance with the Act and the conditions of the licence. The Authority has talked in the past about the need to encourage the raising of standards of those charged with the responsibility of supplying liquor to the public. At issue in this case is the example set by managers of licensed premises.

[4] On 18 August 2003, the Authority received an application from the Police for the suspension of a General Manager’s Certificate issued to Darren Paul Malatesta. The ground for the application was that Mr Malatesta had failed to conduct licensed premises in a proper manner. The particulars to support the ground referred to five incidents of which two could be described as very serious. That is not to say that the other three were not serious, but they were less serious. All five incidents related to intoxication of patrons in one form or another.

[5] Mr Whiting has appeared for Mr Malatesta and has acknowledged that the grounds have been established, and that a suspension order is desirable. He addressed us on a number of issues in an effort to persuade us that a significant period of suspension was neither appropriate nor reasonable. In particular Mr Whiting referred to three incidents. It should be recorded that all five incidents occurred within a period of 12 months.

[6] The first incident to which Mr Whiting made reference occurred on 26 November 2002. It was alleged that there were some patrons who were intoxicated. According to the respondent this was a staff party, at which fancy dress was being worn. Mr Malatesta had not seen the particular person identified by the Police as being intoxicated. A submission was made that it may have caused more trouble to have evicted that person rather than to have left her where she was with her other staff colleagues. No doubt in retrospect it will be appreciated that such inactivity can lead to a breach of the law.

[7] The second major incident occurred on 17 June 2003. Mr Whiting, on behalf of the respondent emphasised that the two persons who came to the bar had been drinking elsewhere. They arrived at about 1.00 am. It is unusual apparently, for persons to have reached that level of intoxication by that hour. They purchased two beers and also two glasses of Tequila, although the respondent contended that the glasses of Tequila were for some other patron. One of the patrons spilt his beer. In retrospect Mr Malatesta appreciated that the patrons should not have been served, and that he may have been wise to have ordered them off the premises at that time.

[8] One of the factors was that he was the sole person on duty, and although the premises were not large, there was no doorman. He was to some extent, isolated. Once again with the benefit of hindsight, there were several other options available to him which he did not take. In the event he noted that the two intoxicated patrons were annoying a third patron. He tried to stop them continuing in that way but regrettably an assault took place. It was a serious assault. Both men were charged with injuring with intent to injure. Mr Malatesta became involved and although he helped to protect the victim from more serious injury, it is clear that the damage had been done.

[9] Mr Whiting submitted that this premises has a 24 hour licence. As such it tends to get a number of patrons who have been drinking elsewhere. He says it is the tendency of visitors to the town and others, to gravitate from bar to bar. Because this is a late bar, it receives a number of people who may well have been drinking beforehand. It has been pointed out by the reporting agencies that this places a higher onus on the manager of licensed premises to maintain vigilance, to ensure that there are people who are available for security purposes, and to ensure that no intoxicated persons gain entry.

[10] It should be recorded that pursuant to s.115 of the Act, the licensee must take all reasonable steps to enable the manager to comply with his or her responsibilities, which is to comply with the law. If there are insufficient staff to maintain vigilance then the licensee can also be responsible.

[11] The third incident occurred in the morning of 7 August 2003. As the result of a public complaint, the Police visited the licensed premises known as “Bardeaux” at 7.45am. According to the application there were 40 or 50 people drinking. Drinks were being served and there were a number of people who were said to be intoxicated. There was a dispute on the facts as to that issue. Mr Malatesta through his counsel, has suggested that the bar had been closed, the lights were on, and people were about to leave. This was apparently an anniversary situation, the premises have been going some four years. Mr Malatesta had been working from 2.00 pm the previous afternoon. He was described in the application as being intoxicated. He admitted to having been drinking.

[12] We are not able to make a ruling on the issue, nor is it necessary. It is quite clear that Mr Malatesta appears to have lost control of the situation. Certainly he seemed to be unconcerned and displayed a lack of co-operation with the Police, and in our view, a lack of understanding of his responsibilities to the law and to his patrons.

[13] In his favour, Mr Whiting has referred to the fact that Mr Malatesta has 14 years experience in the hospitality industry. He worked at a well known licensed premises in Christchurch in 1997 through to 1999. He has also worked in Australia. In September 2001, he started working part time at “Bardeaux” where he works currently as its manager.

[14] In coming to a decision as to the appropriate length that the General Manager’s Certificate should be suspended, we have taken into account s.4(2) of the Act which reads:

The Licensing Authority, every District Licensing Agency and any Court hearing any appeal against any decision of the Licensing Authority shall exercise it’s jurisdiction, powers and discretions under this Act in a manner that is most likely to promote the object of this Act.

[15] We think a period of three months’ suspension is appropriate for the incidents which we described, taking into account Mr Malatesta’s 14 years exemplary record. On the other hand we have indicated in the past that where people show co-operation and acknowledge that things have gone wrong, and that they are prepared to change the system and the rules, then a discount should be given. We have stated that any discount should be reasonable. Part of our duty is to regulate the industry. If that means that people learn from their mistakes, then they should be encouraged to do so.

[16] In exercising our discretion, we are required not to be heavy handed. In view of the fact that this matter has been dealt with without the need to call witnesses, and to make findings of fact, we are prepared to discount the period that we think is otherwise appropriate.

[17] The decision of the Authority therefore is to suspend Mr Malatesta’s General Manager’s Certificate for a period of two months. The suspension will commence on 5 November 2003.

DATED at WELLINGTON this 29th day of October 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Malatesta.doc(afw)