Horne v Surreal Bar Limited and Cox [2003] NZLLA 886 (26 November 2003)

Last Updated: 25 January 2012

Decision No. PH 886/2003 –
PH 888/2003

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 068/ON/49/02 issued to SURREAL BAR LIMITED situated at 7 Rees Street, Queenstown known as “Surreal Bar and Restaurant”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number 068/GM/35/00 issued to MELISSA COLLEEN KNOX

BETWEEN ANDREW JOHN HORNE
(Police Officer of Queenstown)

Applicant

AND SURREAL BAR LIMITED

First Respondent

AND MELISSA COLLEEN KNOX

Second Respondent

AND

IN THE MATTER of an application by SURREAL BAR LIMITED pursuant to s.18 of the Act for renewal of an on-licence in respect of premises situated at 7 Rees Street, Queenstown, known as “Surreal Bar and Restaurant”

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at QUEENSTOWN on 14 October 2003

APPEARANCES

Sergeant P R Stratford – NZ Police – applicant

Mr B A Boivin – for respondents and the applicant for renewal of on-licence

Ms T J Surrey – Queenstown-Lakes District Licensing Agency Inspector – in opposition to the application for renewal of on-licence

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority are three applications. The first two applications are to suspend the on-licence issued to Surreal Bar Limited in respect of premises situated at 7 Rees Street, Queenstown, known as “Surreal Bar and Restaurant” (Surreal), and to suspend the General Manager's Certificate issued to Melissa Colleen Knox. The third application is by Surreal Bar Limited to renew its on-licence.
[2] The first ground for the application for suspension of the on-licence is that the licensed premises have been conducted in breach of the following provisions of the Act:

• Section 164, (minors in supervised areas);
• Section 166, (sale or supply of liquor to intoxicated person),

• Section 167, (allowing person to become intoxicated),
  • Section 168(1)(a), (allows intoxicated person on licensed premises), and

Section 168(1)(b), (allowing disorderly conduct on licensed premises).

The second ground for the application for suspension of the on-licence is that the conduct of the licensee is such as to show that the licensee is not a suitable person to hold the licence.

[3] The ground for suspension of the General Manager’s Certificate is that the manager has failed to conduct the licensed premises in a proper manner.

[4] The Inspector and the Police also oppose the application for renewal of the on-licence.

[5] The Police rely on a series of 13 incidents between 13 April 2001 and 24 May 2003 to support a suspension application. Five of those incidents were also used in support of the application for suspension of the General Manager's Certificate. The incidents also form the basis of the opposition to the renewal application.

Background

[6] Timothy Campbell MacDonald is a Police Constable currently stationed at Lincoln. He was stationed in Queenstown from 1999 until 2003. At 1.54 am on Friday 13 April 2001 he found a minor sitting at a table in the premises of “Surreal”. He established that the minor was 17 years of age, and that he was an American tourist who had been in the country for eight months. Constable MacDonald issued him with an infringement notice. The duty manager at the time was Melissa Knox.
[7] At about 1.15 am on Wednesday 25 April 2001 (Anzac Day) Constable MacDonald went to “Surreal” and found that the premises were trading when they were required to be closed. There were approximately 60 persons present, none of whom were dining. He told the duty manager, Melissa Knox, that the bar was to be closed. When he returned 40 minutes later he found that the bar had been closed although staff drinks were taking place.
[8] On 7 May 2001 Constable MacDonald had a meeting with Ms Knox, Ms Surrey and Ms Rachel Evans from Civic Corp. Queenstown Lakes District Council contracts out its regulatory functions to Civic Corp. Sergeant A J Horne was also present. Constable MacDonald warned Ms Knox about the Anzac Day incident, and pointed out to her that he had been aware that a special licence had been applied for for Anzac Day, but as it was not for a genuine event the application had not been granted. He also advised Ms Knox that the provision in the Act for staff drinks was only for those who were working that night, and then it was only for one hour from the end of work.
[9] At about 2.30 am on Sunday 1 July 2001 Constable MacDonald was working with Constable Beth Ailsa Fookes when they were advised of an alleged drink spiking complaint at “Surreal”. A male had been seen acting suspiciously around a female’s drink. Constable MacDonald was unable to speak with the victim because “she was too drunk”, and he had to obtain information from her friend. An associate of the victim had poured out the drink. Constables MacDonald and Fookes spoke with an intoxicated male outside the premises who was the suspect for the alleged incident. He was clumsy, smelled strongly of liquor, and was very unsteady on his feet, to the point where he had to lean up against the wall to stay upright. Constable Fookes noted that his clothing was slightly dishevelled, his speech was slurred, and he also seemed slightly agitated. The constables told the doorman that the person was intoxicated and that he was forbidden to return to the bar. As there was insufficient evidence about the drink-spiking the matter was not taken any further. In his time in Queenstown Constable McDonald acknowledged that the bar was “pretty well run”. It was not known who the duty manager was at the time.
[10] Sean Charles Drader is a Police Constable stationed at Queenstown. Between 1.00 am and 3.00 am on Sunday 24 June 2001, he and Constable Burke observed two persons carrying an apparently unconscious female into “Surreal Bar”. When they spoke to the doorman about the woman he showed no interest in the matter and was unhelpful. They entered the bar and because it was so dark they had to use their torches to locate the woman and her friends. The Constables were told that that victim began to have seizures and was unconscious, and it was decided to carry the woman back into the bar. She was later taken to hospital where it was established that she was 17 years of age, and her symptoms pointed to an overdose of Ecstasy. The duty manager, Melissa Knox, was present during the incident.
[11] Constable Fookes said that at about 2.50 am on Saturday 28 September 2002, she located a 16 year old Brazillian male, named Victor Couto, on the premises of “Surreal”. He was walking out as Constable Fookes and Constable Hansen were walking in. Mr Couto told the Constables that he had not been asked for identification, but had simply walked in through the front door with a group of 18 year old friends. He provided a foreign identity card showing him to be 16 years of age. The Constable spoke with the duty manager who went and got the doorman. The doorman told the duty manager, Mr Stadler, in the presence of Mr Couto that Mr Couto had not entered through the front door. Mr Couto however, was adamant that he had entered through the front doors. He again explained how it had happened. The Constables noted that Mr Stadler seemed fairly unconcerned about the matter. Mr Couto was issued with an infringement notice.
[12] At 12.30 am on Monday 30 September 2002, Constable Karl Johann Hansen and Constable Fookes again visited “Surreal”. As they entered the bar from the back door there was a group of four people seated at a table. Three of them looked noticeably young. It was established that they were all aged 16 years. They were issued with infringement notices. They told the Constables that they had walked in through the unmanned front door without being asked for identification. The duty manager was Fiona Tilling, who told Constable Fookes that the staff were busy because the premises were busier than usual.
[13] Carl Johann Hansen is a Police Constable stationed at Queenstown. At about 2.40 am on Friday 28 February 2003 he arrested a 28 year old male for possession of cannabis. He claimed to have been given the cannabis by an unknown male in “Surreal Bar”. No such person was located.
[14] At about 12.45 am on Sunday 27 April 2003, Constable Hansen arrested a male for smoking cannabis near the back door of “Surreal”. He later established that the male was the DJ, and was working that night at “Surreal”.
[15] At about 1.35 am on Sunday 24 May 2003 Constable Hansen arrested an English tourist urinating at the rear door of “Surreal”. The man was intoxicated, smelled of alcohol, his face was flushed, and he had difficulty with his balance. He stated he had been drinking at “Surreal” for several hours. He did not say where else he had been drinking.
[16] John Paul Hedges is a detective at Queenstown. From 31 August 2001 to 23 September 2003 he was a Constable stationed at Queenstown. At about 1.30 am on Sunday 11 May 2003 he was on foot patrol with Constable Smale in Cow Lane, Queenstown. He located a male smoking cannabis outside the back door of “Surreal”. He subsequently established that the person was the chef from “Surreal” although he was not working there at that time. Because of the chef’s co-operation and the small amount of cannabis he was warned for that offence.
[17] At about 2.15 am on Sunday 24 May 2003 Constables Hedges and Smale were directed to attend an assault complaint at “Surreal”. They established that the doorman at “Surreal” had assaulted a patron when the doorman saw the patron put his arm around the doorman’s ex-girlfriend who was drinking in the bar. The doorman slapped the victim in the face and dragged him outside with the assistance of a second doorman who was not aware of the circumstances. While being dragged outside the victim was punched several times. The patron suffered some injuries as a result of the assault. The doorman was subsequently convicted of assault under the Crimes Act and was fined and ordered to pay reparation. The doorman was later dismissed from his employment with the security company as a result of that incident.
[18] Andrew Francis is a Police Constable stationed at Queenstown. At about 3.15 am on Thursday 15 May 2003 he spoke with a patron on the premises about his age. A male associate of the patron was abusive and obstructive, and interfered while the Constable was attempting to speak to the patron. The Constable noted that the patron’s associate was extremely intoxicated, he slurred his words, and when he eventually left the bar the Constable noted that he staggered badly. Constable Francis notified “Surreal” staff that the patron was intoxicated and disorderly, and suggested that he be removed. However, the staff said that he was all right, as the person was a local, and they knew his tolerance. The bar was in the process of being closed at the time.
[19] Andrew John Horne is the Liquor Licensing Sergeant for Queenstown. He said that he had included a number of incidents in his applications for suspension which began in 2001. He accepted that some of those incidents were somewhat historical, but he had included them to indicate a pattern of how the premises were being managed over a long period of time. He said the Police had also established a regular line of communication with Melissa Knox where issues were openly discussed in a reasonable and fair manner, and that attempts were made to resolve these issues without the need for prosecution action.
[20] On 7 May 2001 a further meeting was held at Civic Corp between Police, Ms Surrey and Melissa Knox,at which the attention of Ms Knox was drawn to an incident where a minor was found on the premises on 13 April 2001, and the bar had remained open after hours on 25 April 2001 (Anzac Day).
[21] On 10 July 2001 a meeting was again held at Civic Corp. The meeting was held between the Police, Ms Surrey, and Melissa Knox. The attention of Ms Knox was drawn to the incident on 24 June 2001 involving an unconscious 17 year old female being carried back into “Surreal”, and the alleged drink spiking complaint on 1 July 2001. At that meeting Ms Knox was made aware that breaches of Sale of Liquor Act 1989 could lead to a prosecution and an application for cancellation of her licence.
[22] On 15 August 2001 Sergeant Horne sent a letter to Ms Knox in which he referred to the above incidents. He commented on the need for more vigilance by the staff at “Surreal”, the disinterest shown by the doorman, and that improved lighting would also act as an added deterrent to such incidents.
[23] In October 2001 a new licence was issued for “Surreal”. Since then, Sergeant Horne believed that he had developed a “solid working relationship” with Ms Knox, and that they were working together to resolve any issues as they arose. He considered that communication was good, and she appeared receptive when he raised any issues with her regarding management of the premises. Although a number of breaches had been dealt with, he considered that as he and Ms Knox had a process for resolving any issues satisfactorily, there was no need to involve the Authority or the District Court. Therefore, the Police did not oppose “Surreal’s” application for renewal of its on-licence. The issue for the Authority is whether the incidents prior to the renewal date can now be relied upon by the Police to support the suspension of the licence and/or the manager’s certificate.
[24] At about 2.50 am on Saturday 20 July 2002 Sergeant Horne was on patrol with Constable Fookes when they arrested an extremely intoxicated man for theft of a café sign. He was placed in a holding cell at the Police Station. He fell asleep on the cold concrete floor and he could not be awakened to take his fingerprints.
[25] Three days later on 23 July 2002 Sergeant Horne was acting in his capacity as Diversions Officer when he interviewed the man regarding the theft of the café sign. The man told him that he had arrived at “Surreal” around 9.00 or 10.00 pm after having had a “skin full” beforehand. He told Sergeant Horne that he had stayed at “Surreal” until the time of his arrest, drinking gin and vodka all night. On 26 July 2002 Sergeant Horne sent a letter to Ms Knox drawing her attention to that incident.
[26] On 21 October 2002 Sergeant Horne sent a letter to Ms Knox drawing her attention to Police staff locating minors on the premises of “Surreal” over three consecutive nights. He advised Ms Knox that any further offences detected on her premises would result in an application for suspension of her licence. He said that it was, in effect, a final written warning.
[27] Sergeant Horne commenced prosecution against the two managers, Fiona Tilling and Erich Stadler, for breaches of s.164(1) of the Sale of Liquor Act 1989. Those prosecutions were subsequently withdrawn because the witnesses were overseas students who had returned home.
[28] On 12 November 2003 Sergeant Horne reported on an application for renewal of “Surreal’s” licence. As there had been no further incidents since his written warning to Ms Knox, he did not object to the renewal.
[29] On 24 November 2002 Sergeant Horne received a letter from Ms Knox requesting access to the licensing file for “Surreal”. On 3 December 2002 Sergeant Horne had a meeting with Ms Knox at Queenstown Police Station, where she read the file and they discussed a number of matters contained that file.
[30] In May 2003 Sergeant Horne received five further reports from Police officers relating to offending in and around the premises of “Surreal”. These related to staff of “Surreal” smoking cannabis near the back door of the premises as well as an unprovoked assault by a doorman on a patron inside the premises, an obstruction on Police in another unrelated incident.
[31] On Thursday 5 June 2003 Sergeant Horne held a meeting with Ms Knox at the Queenstown Police Station. He drew her attention to incidents from the end of February 2003 and he advised her that the matter was now likely to be referred to the Liquor Licensing Authority.
[32] Melissa Colleen Knox is the sole director and shareholder of Surreal Bar Limited. She said that she has considerable experience in the hospitality industry dating back to 1990. She has managed restaurants and bars in London, Andorra, Canada, Scotland and Queenstown. For the last six years she has been owner and operator of “Surreal” in Queenstown. She has held a manager’s certificate for 9½ years without incident. In addition to her experience in the hospitality industry she holds two bachelor degrees in nursing and business studies.
[33] In 1998 “Surreal” was a trading name and Ms Knox held the licence personally. In 1998 she formed the company Surreal Bar Limited and made a fresh application for the on-licence to be held by the company, and that was granted without opposition. Subsequently, the bar’s hours for trading were amended on a separate application to the District Licensing Agency, and increased from 2.30 am to 5.00 am. That application was also granted without opposition. She said that she has always had a close working relationship with the Inspectors and the Police in Queenstown.
[34] Ms Knox provided written explanations for each of the incidents that formed the allegations for suspension of the on-licence and her manager’s certificate. In respect of the incident on 13 April 2001, Ms Knox said the fact that she had not performed her routine check when the Police walked in was unfortunate, untimely, and unlucky, but that did not necessarily prove that there had been a dereliction of her duties. She said the incident was two years and five months ago, and since that date the Police have never found a minor on the premises under her management. In respect of the incident on Anzac Day 2001, Ms Knox said that she had been issued a series of special licences that included Anzac Day. After the special licence had been displayed at the front entrance the Licensing Inspector changed it for a special licence that did not include Anzac Day. At the time she was busy and forgot to check what had been changed. She agreed with the Inspector at the meeting on 7 May 2001 that it was her responsibility to ensure that the requirements of the legislation were being met. However, she said she would never knowingly put her career or her business or her licence in jeopardy. As a matter of “self-imposed punishment” and out of respect for the Inspector and the Police, she had never applied for a special licence again on Anzac Day.
[35] In respect of the incident on 24 June 2001, Ms Knox said that she was a registered nurse. When she became aware of the situation she said that immediate action was necessary. She was trying to ascertain if the woman was a diabetic or epileptic as she had no Medic Alert bracelet. She and the bartender had carried the girl into the lobby area whilst they were waiting for an ambulance. The Police had entered the premises, and had watched proceedings.
[36] Ms Knox supported the actions of her doorman whom she considered did a good job, and she was not prepared to dismiss the doorman simply because the Police did not like his personality or attitude. On the other hand, she appreciated the concerns that the Police had over the matter. Firstly, that the girl was under age, and secondly, the reason for her requiring medical attention. However, under the circumstances, Ms Knox said the girl was lucky there was someone, such as herself, with medical experience willing to help her. Ms Knox said that the Police report of the matter was somewhat inaccurate, and that the three women had not been drinking in the bar prior to the incident.
[37] In respect of the incident on 1 July 2001 Ms Knox took issue with Sergeant Horne’s letter to her on 15 August 2001, where he said that “Police found that the drink had been tipped away by one of your staff members, and as such we were unable to proceed any further with the complaint.” Ms Knox claimed that the drink had been tipped away by the Police who had confiscated a hip flask containing the potential “drug” for drink spiking. However, there seems to be some confusion over this matter because Constable Fookes’ evidence was that the drink had been poured out by an associate of the victim.
[38] Ms Knox referred to the incident of 20 July 2002 when a man was arrested for stealing a sign. She said that on that night the premises were pretty quiet compared to other night, and there were five bar staff and two security staff on duty, and she had serious doubts as to whether or not the person had actually been in “Surreal”. When an intoxicated person states where he or she has been drinking, the Authority will need more cogent supportive evidence before accepting such a statement as a basis for suspending a licence.
[39] Ms Knox said that when the Police entered the premises on 28 September 2002 and located a minor who was about to walk out onto the street via the back door, he had actually been escorted to the back door by Erich Stadler who had obviously got a bit concerned when he saw the Police walking in. Ms Knox claimed that Mr Stadler had performed his duties under s.164(3) of the Sale of Liquor Act. That defence was clearly not available because Mr Stadler had not taken reasonable steps to remove the person from the premises as soon as he became aware of the situation. It was also significant that Mr Stadler had not raised the defence when Constable Fookes spoke to him and the doorman in the presence of the minor.
[40] Ms Knox said that on 30 September 2002 the duty manager, Fiona Tilling, who has been involved in the hospitality industry for over six years, was very busy and did not have time to check the premises as much as she normally would have done. She said the fact that Ms Tilling had not checked the premises before the Police walked in. That situation was untimely and unfortunate, and did not necessarily prove a dereliction of Ms Tilling’s duties.
[41] Ms Knox said that on Friday 28 February 2003 there was no evidence that the male who was arrested and charged with possession of cannabis had bought or been given the cannabis at “Surreal”.
[42] In her oral submissions in support of the application under s.132 of the Act, Ms Surrey summarised the evidence. She said that while she accepted that the incidents involving the DJ smoking cannabis outside the premises, and the assault by the doorman employed by the security company were employment issues, all the incidents indicated the type of premises that “Surreal” was, and reflected on the licensee. Ms Surrey pointed to s.109(1) whereby the Authority may receive any such evidence as in its opinion may assist it to deal factually with any matter before it, whether or not it would be admissible in a Court of law. Ms Surrey also referred to a number of previous decisions of the Authority, in which it has stated that it regards incidents involving minors and intoxicated persons as most serious breaches of the Act, for which a period of suspension might be imposed.
[43] Sergeant Stratford submitted that the evidence showed that the premises had been conducted in breach of the Act and had been operated in an improper manner.
[44] Mr Boivin submitted that in respect of the application under s.135 of the Act, of the five allegations four were in 2001, the latest being on 1 July 2001, and the fifth incident was on 20 July 2002 when the intoxicated male was arrested for theft of a café sign. Mr Boivin submitted that as the General Manager's Certificate had been renewed in May 2001 those incidents were historic and their relevancy has diminished with time. The General Manager's Certificate was renewed on 9 May 2001 and therefore any incident occurring after that time were caught within the current renewal period. We believe that in fairness, if the incidents were so serious, it would have been preferable to have been dealt with within at least six months of their occurrence.
[45] Mr Boivin submitted that only the incidents on 24 June 2001, 1 July 2001, and 20 July 2002 had occurred since the manager’s certificate was renewed.
[46] He also noted that in 2002 Sergeant Horne had signalled that he was happy with the way the premises were generally being run.
[47] Mr Boivin submitted that it was doubtful that the various incidents were so serious as to warrant suspension of the on-licence. In particular, he noted that although on their face the various incidents showed a pattern of behaviour, on closer examination a lot of them could be eliminated. Mr Boivin submitted that there was no evidence that the person concerned in the theft of the café sign had been at “Surreal” apart from what the man had said. He also noted that in respect of the DJ smoking cannabis outside the premises and the assault by the doorman, both incidents involved sub-contractors and therefore they were not direct employees of the bar. He noted also that the chef who was smoking cannabis outside the premises was not working on the premises at the time. Mr Boivin said that when these matters were drawn to the attention of Ms Knox she immediately had lighting and a security gate installed outside the premises. He submitted that even the incident on 28 February 2003 in which a male was arrested and charged with possession of cannabis, which he claimed had been given to him by an unknown male in “Surreal”, was “stretching a breach of the licence”. Mr Boivin also submitted that the incident involving the English tourist was not supported by evidence that he had been drinking on the premises.
[48] Mr Boivin submitted that an examination of the 13 incidents showed at most only five which could be directly connected to the premises. He said even the most serious incident, which involved trading on Anzac Day, was over two years ago, and the application for suspension of the General Manager's Certificate was outweighed by the consequences of any suspension on Ms Knox’s career and her investment in the business. Mr Boivin submitted that an application for suspension of the on-licence was also beyond what was required, particularly having regard to the actions of Ms Knox as owner/operator. She had addressed each of the incidents and concerns when they were brought to her attention.

Authority’s Conclusion and Reasons

[49] Of the 13 incidents that comprise the application pursuant to s.132 of the Act, four occurred before the licence was due for renewal on 31 October 2002.
[50] Of those four incidents, the two on 13 April 2001 and 25 April 2001 would have justified an application for suspension of the on-licence. However, no such application was made.
[51] Sergeant Horne said that the Police chose not to oppose the application for renewal because a solid working relationship had developed between the Police and Ms Knox which did not require the intervention of the Court or the Authority. In those circumstances, although a pattern has been established, the Police have largely been estopped from advancing those matters well over two years later.
[52] In our view, suspension of a licence and/or manager’s certificate is a serious matter, and should be raised within a reasonable time of the events giving rise to the application.
[53] An examination of the other three incidents reveals that there was insufficient proof to justify an application for suspension of the manager’s certificate in respect of them. The explanation given by Ms Knox for the incident on 24 June 2001 was not challenged, and in any event there was no evidence to connect the young woman’s condition with anything that occurred on the premises.
[54] Likewise, there was insufficient evidence for the Police to pursue their enquiries in respect of that matter on 1 July 2001, and there was also insufficient evidence that the intoxicated suspect had been drinking on the premises.
[55] There was also insufficient evidence to connect the person in the incident on 20 July 2002, with the premises or to corroborate that he had been drinking there prior to his arrest. Of the remaining incidents, there was no evidence that directly connected the male who was arrested for possession of cannabis on 28 February 2003 to the “Surreal” apart from the offender’s unsubstantiated claim that he had had obtained the cannabis from an unknown person in that bar. On 27 April 2003 the DJ who was arrested for smoking cannabis near the back door of the premises was an independent contractor, and in the circumstances the event could not be connected to the way in which the premises had been conducted. Likewise, when the off-duty chef was located smoking cannabis outside the back door of the premises on 18 May 2003, was also an event that could not be linked to the way in which the premises had been conducted. The incident on 15 May 2003 involving the finding of an intoxicated person on the premises was one that involved the abuse of alcohol, and was directly related to the conduct of the premises. The incident on 24 May when the doorman on duty assaulted a patron at the premises was cited as a breach of s.168(1)(b) which states:

allows any violent, quarrelsome, insulting or disorderly conduct to take place on the licensed premises.

The word “allows” requires proof of mens rea: Murphy v Weir [1968] NZHC 25; [1968] NZLR 657. In the present case there was no evidence that the licensee had allowed the offence to take place on licensed premises. Secondly, the doorman was employed by a security firm which was contracted to supply services to the licensee. When the matter was brought to the matter of the doorman’s employer his services were terminated.

[56] The incident on 24 May 2003 involving the intoxicated English tourist who was urinating at the rear door of “Surreal” inferred three possible breaches of the Act, namely s.166 (selling or supplying liquor to an intoxicated person by the licensee or manager), or s.167 (allowing a person to become intoxicated on any licensed premises), or thirdly, s.168(1)(a) (allowing any intoxicated person to be or to remain on licensed premises). There was no evidence to substantiate that the licensee or manager had committed any of those offences.

[57] There were five incidents listed in the grounds for the application for suspension of the General Manager's Certificate. Of those five only the two incidents on 13 April 2001 and 25 April 2001 had any substance, and they occurred prior to Ms Knox’s General Manager’s Certificate being renewed. The remaining three matters on 24 June 2001, 1 July 2001, and 20 July had no relevance to the manner in which Ms Knox has conducted the premises.
[58] At issue then, is whether we are satisfied that the grounds pursuant to s.132 and s.135 of the Act have been established.
[59] For the reasons we have given we are not satisfied the grounds under s.135 that they have been established and the application is therefore refused.
[60] For the reasons expressed above, we are not satisfied that all the grounds of the application under s.132 of the Act have been established. However, we are satisfied that the incidents on 28 September 2002 and 30 September 2002 involving minors on the premises, and the incident on 15 May 2002 involving an intoxicated person found on the premises, has been sufficiently proved as to warrant consideration as to whether it is desirable to suspend the licence.
[61] We believe that in light of those incidents a short period of suspension is desirable. The issue therefore is the length of any suspension. In Jason Peter Loye v Supreme Enterprises Limited LLA PH 492/2003 the on-licence was suspended for 48 hours for two separate sales to two minors aged 16 years. In Jason Peter Loye v Brent Warrick Gore and Another LLA PH 710-712/2003 the on-licence was suspended for 48 hours for separate sales to two minors. Again, in Jason Peter Loye v Xtreme-West City Limited LLA PH 772-774/2003 there were two minors present on the premises although only one sale was made. In that case we considered that a nominal suspension was called for and the licence was suspended for 24 hours.
[62] In the present case, four minors were found on premises on two separate occasions and some eight months later an intoxicated male was found on the premises. His presence had been tolerated because the staff said that they knew him. In fixing the period of suspension, we are conscious of the fact that the premises are being closed during the busy tourist season.
[63] For the reasons we have given we make the following orders:

(1) On-licence 068/ON/49/02 issued to Surreal Bar Limited is suspended for three days from midday on Monday 6 December 2003.
(2) The application for suspension of the General Manager’s Certificate number 068/GM/35/00 issued to Melissa Colleen Knox is refused.
(3) On-licence number 068/ON/49/02 issued to Surreal Bar Limited is renewed for three years from 31 October 2002.

DATED at WELLINGTON this 26th day of November 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

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