Fouhy v Ranford [2003] NZLLA 909 (27 November 2003)

Last Updated: 25 January 2012

Decision No. PH 909/2003 –
PH 910/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to section 132 of the Act for suspension or cancellation of on-licence number 041/ON/40/2002 issued to BRENT JOHN RANFORD in respect of premises situated at 54 Main Street, Eketahuna, known as “Hotel Eketahuna”

BETWEEN CARROL FRANCES FOUHY (Tararua District Licensing Agency Inspector)

Applicant

AND BRENT JOHN RANFORD

Respondent

AND

IN THE MATTER of an application by KIM-MAREE JUDITH HOOPER pursuant to section 123 of the Act for renewal of a General Manager's Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at PALMERSTON NORTH on 22 October 2003

APPEARANCES

Mrs C F Fouhy – Tararua District Licensing Agency Inspector – applicant and in opposition to the application for renewal of General Manager's Certificate

Mr R W Murphy – agent for respondent and applicant for renewal of the General Manager's Certificate
Constable P E Knight – NZ Police – to assist and in opposition to the application for renewal of a General Manager's Certificate

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are two applications before the Authority for determination. The first application is brought by Mrs C F Fouhy for suspension or cancellation of an on-licence issued in respect of an hotel situated at 54 Main Street, Eketahuna, known as “Hotel Eketahuna”. The licence is held by Brent John Ranford. The second application is brought by Kim-Maree Judith Hooper for renewal of her General Manager's Certificate.
[2] The grounds for the application to suspend the on-licence are:

• [a] That the licensed premises have been conducted in breach of the following sections of the Act:
  • - Section 164 (permitting minors to be in restricted or supervised areas).
  • - Section 166 (sale or supply of liquor to intoxicated person).

- Section 168(1)(a) (allows any intoxicated person to be or to remain on the licensed premises).
- Section 168(1)(b) (allows any violent, quarrelsome, insulting, or disorderly conduct to take place on the licensed premises).

• [b] That the conduct of the licensee is such as to show that he is not a suitable person to hold the licence.

[3] The application referred to two incidents on 5 April 2003 and another incident on 5 July 2003. In a letter accompanying the application or suspension or cancellation Mrs Fouhy also referred to a fourth incident which occurred on 25 December 1999, when the licensee was operating the “Pongaroa Tavern” at 2.00 am in breach of s.170 of the Act.

The First and Second Incidents on which the Application for Suspension or Cancellation is Based

[4] On Saturday 5 April 2003 at about 11.00 pm, Mrs Carrol Frances Fouhy arrived at the “Hotel Eketahuna”. Two males were in the middle of the road, each holding a glass and a bottle of beer. They were waving, yelling, and very unsteady on their feet, and when Mrs Fouhy stopped her vehicle one male slumped through the window and asked her, in a very slurred manner, if she could give them a ride home. They smelled very strongly of liquor. When she asked them where they had been they replied, “In the hotel”, and pointed to the premises.
[5] When Mrs Fouhy entered the hotel two males approached her and fell all over her. One of them was known to her. They were both intoxicated and very unsteady on their feet. They smelled strongly of liquor, and their speech was very slurred.
[6] Mrs Fouhy noted that the licensee, Brent Ranford, was drinking with a group of people, and he appeared very unsteady on his feet. Mrs Fouhy spoke to the duty manager, Kim-Maree Hooper, and told her that there were intoxicated people in the bar. Mrs Fouhy told Mrs Hooper that she needed to stop serving the intoxicated people and remove them from the premises. Mrs Fouhy discussed Mr Ranford’s condition with Mrs Hooper, and told her that the licensee wasn’t setting a very good example, and it would be in her best interest to remove him from the premises. Mrs Hooper agreed that there were intoxicated persons present and asked Mrs Fouhy if her boss could overrule her when she was the duty manager.
[7] Mr Ranford then approached Mrs Fouhy and she told him that he had had too much to drink and he was not setting a good example. He disputed her assessment. He swore loudly at her, and he was very angry with her. His speech was slurred, and he smelled very strongly of liquor. Mrs Hooper’s request to Mr Ranford to be quiet was ignored. Mrs Fouhy was unable to talk to Mr Ranford because of his condition and aggressive manner. Because the focus of patrons in the bar was coming on to her Mrs Fouhy decided to leave and get assistance. Before doing so, Mrs Fouhy told Mrs Hooper that the intoxicated patrons needed to be removed from the bar, including Mr Ranford. In the short time she was in the bar she observed at least six extremely intoxicated patrons.
[8] At 11.55 pm Mrs Fouhy returned to the premises with Constables Glassey and Nicholson. On entering the bar she noted that one patron was having difficulty standing on his feet, and in focussing and keeping his eyes open. The intoxicated patrons that she had observed earlier and asked to be removed, were still present. Mrs Fouhy also noticed another patron, who was very unsteady on his feet, walk up to the bar. He was served a small bottle of bourbon by Mrs Hooper. Mrs Hooper said that she had not removed Mr Ranford because he had refused to go.
[9] On 7 April 2003 at about 7.30 pm Mrs Fouhy telephoned Mrs Hooper and discussed what had happened on the previous Saturday night. Mrs Hooper told Mrs Fouhy that she should not have let the patrons get so intoxicated, and that it was her fault, and that she would have to learn the hard way. Mrs Fouhy asked her how many patrons she thought were intoxicated, and Mrs Hooper replied, “Heaps, about 15”. Mrs Fouhy asked Mrs Hooper why she enquired whether her boss could overrule her call when she was acting as duty manager. She replied that on some occasions she had refused service to patrons and Mr Ranford had served them. On one occasion she had removed her name as duty manager and replaced it with Mr Ranford’s as he continued to serve patrons that she had refused.

The Third Incident on which the Application for Suspension or Cancellation is Based

[10] On Saturday 5 July at about 10.30 pm, Mrs Fouhy visited the “Hotel Eketahuna” accompanied by Constables Knight and Brown. On entering the bar she observed a male who appeared to be intoxicated. He was very unsteady on his feet and having difficulty consuming liquor from his glass. He also appeared to be having difficulty focusing. The licensee, Brent Ranford, who was also consuming liquor, was standing beside him.
[11] Mrs Fouhy and Constable Knight went to the bar to discuss the matter with the duty manager, Mrs Kim-Maree Hooper. The bar was busy, and by the time they spoke to Mrs Hooper the person concerned had left the bar.
[12] While they were in the bar a person known to Mrs Fouhy as Glen Rowden spoke to her. His speech was slurred and he smelled strongly of liquor. He was very unsteady on his feet, and he said he was going to get a drink. Mrs Fouhy told him that he had had enough and he should go home. He agreed with Mrs Fouhy and he left soon after.
[13] Shortly before leaving the premises Mrs Fouhy noticed another male who was very unsteady on his feet. He was being supported by another patron. He was consuming liquor from a bottle. Mrs Fouhy spoke with Constable Brown about this person’s condition and then spoke to Mrs Hooper, who said that she would take the person upstairs and provide him with a bed.
[14] On Tuesday 8 July 2003 Mrs Fouhy visited the “Hotel Eketahuna” to deliver renewal applications to Mr Ranford. While she was there Mrs Fouhy discussed her previous visit with Mrs Hooper. Mrs Hooper said that after Mrs Fouhy and the Police had left the premises Mr Ranford walked around the bar and removed some people whom he took upstairs. Mrs Hooper said that Constable Brown had told her that she had a minor in the bar. Mrs Hooper said she had asked the minor for his identification and when she checked it she thought it was all right. However, the minor was due to turn 18 in October 2003.

The Fourth Incident

[15] On 31 January 2000 Mr Fouhy received a letter from Constable M J Rolfe of the Pongaroa Police who said that he had been called to a fight outside the “Pongaroa Tavern” at 4.30 am on 25 December 1999. He arrested a person who told him that he had been drinking in the “Pongaroa Tavern” until around 2.00 am to 3.00 am. Later that day Constable Rolfe spoke to Mr Ranford who admitted that he had closed the hotel at 2.00 am. Constable Rolfe warned Mr Ranford for breaching the hours of his licence.

Police Evidence

[16] Peter Edward Knight is a Police Constable stationed at Pahiatua. He holds the liquor licensing portfolio for the Pahiatua area.
[17] On 28 April 2003 he took a statement from Kim-Maree Judith Hooper regarding the incidents that occurred on 5 April 2003 at the “Hotel Eketahuna”. In that statement Mrs Hooper corroborated Mrs Fouhy’s evidence in that Mr Ranford had shouted at Mrs Fouhy and that he was intoxicated. Mrs Hooper also acknowledged that there were other intoxicated people on the premises and that she had possibly served some of them. There had been occasions when she was not going to serve people but Mr Ranford had overruled her decisions. Mrs Hooper said she took full responsibility because she was the manager on duty.
[18] On 5 July 2003 Constable Knight visited the “Hotel Eketahuna” with Constable Shane Brown and Mrs Carrol Fouhy. Mrs Fouhy pointed out to Constable Knight a person who appeared to be intoxicated. The person was talking to Mr Ranford who also appeared to be very intoxicated. Constable Knight said that when they went to advise the duty manager, Kim-Maree Hooper, of the situation the person concerned left the bar before they could talk to Mrs Hooper. Constable Knight said he had spoken briefly to Mr Ranford who was quite happy, and was showing signs of being intoxicated.
[19] After talking to Mr Ranford, Constable Knight noticed another male who was standing by the bar, who appeared to be intoxicated. Constable Brown went and spoke to this person and to the duty manager.
[20] Constable Knight considered that Mr Ranford’s behaviour and his general disregard for the Sale of Liquor Act indicated he was an unsuitable person to be a licensee of licensed premises. Constable Knight produced sworn affidavits from Constables Glassey, Brown, and Nicholson. Although Mr Murphy did not oppose the admission of the affidavits, we were not inclined to rely on them to any great extent, because of the respondent’s inability to cross-examine the witnesses.

Respondent’s Evidence

[21] Brent John Ranford was granted an on and off-licence for the “Hotel Eketahuna” on 28 November 2002. Mr Ranford resides on the premises. He employs certificated staff to assist him with the running of the licensed premises. He is also the licensee of the “Pongaroa Tavern” and was granted an on and off-licence for those premises on 26 August 1999. Mr Ranford employs a full-time manager to operate the “Pongaroa Tavern”. Mr Ranford is also the holder of a General Manager's Certificate which was issued on 13 November 2000. He allowed it to expire and he was subsequently issued with a new manager’s certificate on 29 November 2002.
[22] Mr Ranford referred to the incident on 25 December 1999 at Pongaroa, and said that he was surprised that the matter had been brought up. It was nearly four years ago, and the licences have since been renewed. He said at the time he was new at the trade, and he has since learned from that incident.
[23] On 5 April 2003, Mr Ranford said his rugby team had been successful that day and they were having some drinks at the hotel. He said that some of the patrons had engaged in what was called “bouncing boxing” that involved a blow-up boxing ring with large boxing gloves in the bar. He suggested that some of the patrons whom the Police or Mrs Fouhy assumed were intoxicated, were in fact exhausted from taking part in this activity.
[24] He said that Mrs Hooper was the manager on duty because during the rugby season he always has Saturdays off. He had approached Mrs Fouhy and started talking to her. He told her of his “ups and downs”, and the fact that the business was struggling. When she pointed out to him there were intoxicated persons in the bar, he tried to discuss this with her. He said the pressure got to him, and he basically told her that she wasn’t helping his business. He accepted that he swore at her, and he has since apologised to Mrs Fouhy for doing so. He said he honestly believed that it sounded a lot worse than what he intended.
[25] Mr Ranford said that when Mrs Fouhy returned to the premises at 11.55 pm, the so-called intoxicated people were not served. He said they had arrived at the premises in that condition where they had been drinking “shots”. As they were friends of his he put them upstairs, which is what people do in small communities.
[26] He said that when Mrs Fouhy arrived with the Police he was present in the bar with a drink in his hand. When the Police spoke him to he understood that the Police thought that he was all right. However, he noted that they have since changed their opinion. He noted that in the Police file notes there was a statement that he had overruled his duty manager and was serving intoxicated persons. He said that he was socialising with his friends, and he did not have any influence over her decisions. He said that he knew the rules, and he did not recall being told by his manager to leave the bar.
[27] As regards the incident on 5 July 2003, Mr Ranford said that it was another rugby weekend, with rugby people in the hotel. He said a couple of people were already quite intoxicated. He was not aware if they were served. He said that he was trying to get them to go upstairs, but they kept coming back down into the bar again. He even took one of them home in the courtesy vehicle. He said Mrs Fouhy had arrived with the Police at the same time as the sober driver was about to take one of the intoxicated persons home.
[28] Mr Ranford said that when Glen Rowden, a patron, walked up to Mrs Fouhy and told her that he was intoxicated and asked her what she was going to do about it, Mrs Fouhy seemed to accept it because she knew him from family occasions. Mr Ranford said he knew that Mr Rowden had not been served in the bar at that stage.
[29] Mr Ranford said that he had drunk only two quart bottles that night, and he was not “well on the way”, but was just his usual loud self. He said that he now drinks very little on the premises, and he does most of his socialising out of town. He said he never drank while being the manager on duty.
[30] Mr Ranford said that when Mrs Hooper checked the identification of the minor on the premises, she overlooked his date of birth by a month. He said that the minor was not served by Mrs Hooper, but “his coach was getting the beers in for a celebration.” Mr Ranford also complained that Mrs Fouhy had stopped a patron from being served who had had only two beers “down the road”. Mr Ranford said that the patron had not even had a drink at his premises. Mr Ranford did not believe that the patron was intoxicated, but the patron’s friendly nature could be easily misinterpreted.
[31] Mr Ranford said that because of some of the incidents in the hotel, his bar lady had resigned after she had been convicted and sentenced to 30 hours community service. He said that he could not recall overruling any of her decisions.
[32] Mr Ranford said that his licence and manager’s certificate were due for renewal in November, and he would be happy to agree to a further probationary period of one year renewal.
[33] Mr Ranford said that since these incidents he has engaged Mr Murphy to conduct an audit of the premises and help him to change the operation of the premises. He said that he has now learned from his mistakes, and he believes that he could operate the premises in a responsible manner. Mr Ranford produced a large number of character references. Other significant changes made by him included increased signage, removal of liquor and glassware, and in-house training seminars every six months.
[34] Nicola Howe was formerly employed at the “Hotel Eketahuna”. She has held a manager’s certificate for five to six months and had been working at the hotel about ten months before that. She said that Mr Ranford had never overruled any of her decisions, although on one occasion he had questioned her decision, and then when she explained her reasons he agreed that she had acted properly. Ms Howe said that Mr Ranford didn’t drink on the premises, and that his attitude was the same whether he was intoxicated or sober. She said that he is happy, loud, laughs and swears a lot, but is excellent to work with.
[35] Ms Howe said that she was on the premises on the night of 5 April when the “bouncing boxing” was taking place. She said that she did not observe anything that was out of place. She said on the other occasions she was not working on the premises, but she is a regular patron at the premises.
[36] Paula Jane Cooper lives in Eketahuna. She had done the Hospitality Institute training course about four to five months ago. She had never seen Mr Ranford overrule the other general managers’ decisions. His demeanour was always jovial and happy.
[37] Ms Cooper said on the night of the “bouncing boxing” she observed two people particularly, who were in the boxing ring for some four minutes. When they came off they were completely exhausted and did not even pick up their drinks. Ms Cooper had worked at the hotel for about two months prior to the hearing.
[38] Kim-Maree Judith Hooper was working in the “Hotel Eketahuna” before Mr Ranford became the licensee of the hotel. She said that on 5 April 2003 she was the duty manager. There were about 20 or more people in the bar. Mr Ranford was present but he was not working. He was quite intoxicated.
[39] When Mrs Fouhy came into the bar for an inspection she saw Mr Ranford go up and speak to her. He started to talk to her nicely then he became very abusive and was shouting and swearing at her. Mrs Hooper said that she told Mr Ranford to “back off”. Mrs Hooper said that Mrs Fouhy told her to stop serving him, and to cut back on serving the other patrons. Mrs Fouhy told her there were other people in the bar whom she thought were intoxicated. She then left the premises and returned some time later with two Police Constables. Some of the people who Mrs Fouhy had pointed out earlier were still in the bar.
[40] Mrs Hooper spoke to one of the officers. She told him that she had had problems when she refused to serve people whom she felt were intoxicated, and Mr Ranford had overruled her decisions. This had caused her to serve people she would not normally serve.
[41] She said Mr Ranford’s behaviour towards Mrs Fouhy on the night was not right, and that he was “out of line”.
[42] Mr Murphy submitted that the incident on 25 December 1999 at Pongaroa should be disregarded in the context of the present case. He noted that the licence for Pongaroa had since been renewed, and Mr Ranford had also been issued with the licences for the “Hotel Eketahuna”.
[43] In respect of the events on the night of 5 April 2003, Mr Ranford was not on duty and he was socialising with his friends and rugby mates. Mr Murphy said the manager was responsible for the sale and supply of liquor, and the manager on duty was Kim-Maree Hooper who had admitted her role in allowing intoxication.
[44] Mr Murphy submitted that the only direct incident involving Mr Ranford’s suitability was his alleged intoxication and abuse to the Licensing Inspector. Mr Ranford had shown obvious remorse and had separately apologised to the Inspector and the Authority. Mr Murphy said that although some of the intoxicated persons had had drinks served to them in the hotel the evidence was that many that turned up intoxicated had also been refused. He noted that some of the persons who were allegedly intoxicated were also very tired from the “bouncing boxing” and there was no proof that the intoxicated persons were allowed to become intoxicated.
[45] In respect of the incident on 5 July 2003, Mr Murphy submitted there was very little evidence regarding signs of intoxication, and there was no evidence that the intoxicated persons were served on the premises. He acknowledged that Mr Ranford was in the bar drinking and socialising but he was not intoxicated.
[46] Mr Murphy noted that the minor who was found on the premises had not been served liquor, and was only one month under the age of 18 years. The manager had made a mistake in her calculations.
[47] On 14 and 15 October 2003 he met with Mr Ranford on the premises to discuss the case. While he was on the premises Mr Murphy made some observations which he repeated to the Authority. The next day he conducted an audit of the premises regarding the requirements of the Sale of Liquor Act and host responsibility. He produced a report of the matters that needed rectification.
[48] Mr Murphy submitted that in many cases the patrons arrived at the premises intoxicated but they were not served alcohol while they were on the premises. He suggested that although some were allegedly intoxicated they showed minimal classic signs of intoxication. He said the intoxicated persons who were allowed to remain on the premises were refused service and allowed to sleep on the premises. They were not causing any trouble. Mr Murphy said that the only quarrelsome behaviour that had occurred on the premises was that exhibited by Mr Ranford on one occasion. He noted that there was only one incident whereby a minor was allowed onto the premises, but he was not served and did not stay long.
[49] Mr Murphy submitted that although Mr Ranford held the on-licence for the premises, ultimately the responsibility for the operation of the premises lay with the manager. Mr Murphy submitted it was coincidental there were only two occasions in which the Police or the Inspector arrived to find intoxicated persons on the premises.
[50] He submitted that the altercation between the Inspector and Mr Ranford had started amicably but with ensuing discussions about the difficult times, and the allegations that were made to him, something snapped when it should not have. He submitted that although one of the main issues was intoxicated persons on the premises, there was little evidence that related to people showing the classic signs of intoxication.
[51] Mr Murphy also submitted that Mr Ranford has never drunk while he has been on duty, and there is only one occasion where he could be considered to have had too much to drink. He said this is a small community where the licensee is expected to be social and active. Mr Ranford did not agree that he had overruled the bar manager serving intoxicated persons, and there is no evidence the other staff or managers had been put in that position.
[52] Mr Murphy submitted that the application did not warrant a cancellation of the licence. The factors for the Authority to take into account were; the remorse of Mr Ranford, the manager had been dealt with in the District Court, the audit, the cost of hearing and representation, and the difficult economic times. He submitted that cancellation of the licence would be catastrophic and the issues in this case did not justify that penalty. The cost of cancellation would not only be borne by Mr Ranford and his parents, but also staff would be out of work in a community which does not have a lot of employment opportunities. Also, it would ultimately affect his other licensed premises. Mr Murphy asked that the application be adjourned for twelve months to see if the shock of the proceedings to Mr Ranford and the audit that has been undertaken, have any value. He submitted that the licence, which is due for renewal, could be renewed for a further probationary period of one year, and the cost of filing another application should be taken into account.
[53] Mr Murphy referred to three decisions. The first was Jason Connell Peters v Glastonbury Holdings Limited LLA 446 – 447/97 (“Penrose Tavern”) where the licensee had undertaken several steps to ensure that the problems were not repeated. In Michael John Lopdell v Quay Taverns Limited LLA PH 666-670/2003 the incidence of intoxicated persons were of a much more serious nature than in the present case. There was also a further incident after the licensee was put on notice for the suspension applications. The Authority imposed a suspension of 14 days. Mr Murphy submitted that of more relevance was the judgment of Panckhurst J in Dennis Lindsey Page v New Zealand Police (High Court, Christchurch, 24 July 1998 AP 84/98) where His Honour said at page 9:

“Section 13(1)(a) provides that the applicant for an on-licence must demonstrate his or her suitability. In other words what is required is a positive finding. That implies an onus upon the applicant to demonstrate suitability. Such suitability is not established in a vacuum but in the context of the particular case; for example the place, the intended business (here in a difficult central city location), the nature of the business itself, the hours of operation and the intended activities, provide the basis for the assessment of the individual.”

In this case however the onus is reversed. It is for the Inspector to demonstrate a lack of suitability or breaches of the Act.

Authority’s Conclusion and Reasons

[54] Section 4(1) and (2) of the Act read:

4 Object of Act

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

[55] Intoxication is a form of liquor abuse. Allowing a person to be or to remain, or to become intoxicated in licensed premises are among the more serious examples of a failure to contribute to the reduction of liquor abuse.
[56] In Alan Robert Lyon LLA PH 57/2003 we commented that:

“New Zealand’s drinking culture has become defined by many factors and social changes. Its manifestation is often seen in binge drinking, or drinking harmfully. If the object of the Sale of Liquor Act is to be taken seriously, then eventually standards of good drinking behaviour will have to be set. Because people are inclined to be tolerant of alcohol abuse, then the focus must inevitably fall on the law. If the law becomes tolerant towards such behaviour, then the object of the Act will lose credibility. If managers of licensed premises are shown to lack discipline, then why should patrons take the issue seriously. The behaviour currently exhibited by younger drinkers is but a symptom of the malaise.”

[57] The principal issues in this case are whether persons have become intoxicated on the premises or intoxicated persons were allowed to be or to remain on the premises or such people have been sold or supplied liquor. From the evidence we are satisfied that some intoxicated persons were served liquor on the premises and that intoxicated persons were allowed to be or to remain on the premises. The combined evidence of an experienced District Licensing Agency Inspector and the Police whose work brings them constantly into contact with intoxicated persons and where they have to make judgements on such matters, was telling. It was also notable that Mrs Hooper who was the duty manager on the night of 5 April, acknowledged that there were intoxicated persons on the premises, including the licensee.
[58] In respect of 5 July 2003, there were two intoxicated persons on the premises, one of whom was drinking at the time he was spoken to. We therefore have no hesitation in finding in the circumstances, that the grounds in respect of s.166, 168(1)(a) and s.168(1)(b) of the Act, have been proved.
[59] In respect of the incident on 5 July when a minor was found on the premises, Mrs Hooper said that she had checked the minor’s identification but had miscalculated the date. When the Police checked the minor’s identification they found that his birthday was in October 2003, some three months later, and not the one month that was suggested by Mr Ranford. In the circumstances we are satisfied that that ground has been proved, although we accept that the minor was simply found in the bar and had not been served, nor was he drinking liquor. It was a matter of concern that Mr Ranford had sought to mitigate the situation by saying that the minor had not been served by Mrs Hooper but the minor’s rugby coach “was getting the beers in for a celebration” as if that made the situation more acceptable.
[60] The final ground in the application was pursuant to s.168(1)(b) of the Act, which makes it an offence for any licensee or manager to allow any violent, quarrelsome, insulting or disorderly conduct to take place on the licensed premises. In the present case it was the licensee who had exhibited the violent, quarrelsome, insulting or disorderly conduct towards the Inspector. The mischief aimed at by s.168(1)(b) is where a licensee or manager allows another person to conduct themselves in that manner. However, we regard such behaviour as unbecoming of a licensee and cannot be countenanced, particularly towards any Inspector. Although we find that ground has not been proved, we regard such behaviour towards an Inspector as reflecting on the suitability of a licensee to hold an on-licence.
[61] It seemed from the overall evidence that intoxication was tolerated on the premises. It was also disturbing that the licensee, even though he was off duty, turned a “blind eye” to what was going on around him. Mr Murphy submitted that there is a distinction between a manager and a licensee. That, of course, is highlighted by s.181 of the Act which provides:

The licensee of any licensed premises shall not be responsible for any offence against this Act committed by any manager of those premises except where the licensee is a party to the offence.

In the present case it is clear that Mr Ranford was on the premises at the time that the breaches of the Act were taking place and he chose to ignore those breaches. In fact, he went further, and swore at Mrs Fouhy venting his anger upon her.

[62] We have also taken into account the steps taken by the licensee to rectify the problems disclosed by the present application.
[63] As regards the incident on 25 December 1999 we are disinclined to accept that as a ground for suspension for several reasons, First, Constable Rolfe warned Mr Ranford for breaching his licence. Secondly, the licence for the “Pongaroa Tavern” has been renewed since that incident. Thirdly, Mr Ranford was also granted an on and off-licence for the “Hotel Eketahuna” on 28 November 2002.
[64] We are satisfied, for the reasons we have expressed, that the grounds of the application pursuant to s.132 of the Act has been established. We are therefore required to decide whether it is desirable to make any orders. The comments we made in Alan Robert Lyon LLA PH 57/2003 are directly relevant to the present applications, as well as the following comments from the Court of Appeal’s decision at paragraphs 26, 40 and 41 of Christchurch District Licensing Agency Inspector v Karara Holdings Limited and Another (CA 178-179/02, 13 June 2003) where the Court said:

“[26] Section 4 expresses a philosophy ... that reflects the underlying policy of the Act. Parliament has declared that the Act’s system 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. ... The licensing bodies which administer the licensing system, and the Courts on appeal, are required by s.4(2) of the Act to exercise their respective functions in a manner that is most likely to promote the underlying object.

...

[40] That last proposition however, assumes that the s.132 process is criminal in nature. That is not the case. The purpose of the power of suspension and cancellation under the Act, as it indicated, is to enforce proper standards of conduct by licensees of the licensed premises in the public interest.

[41] The purpose of Part VI in general and s.132 in particular in the scheme of the Act is to maintain the integrity and effectiveness of the licensing system through management compliance standards.”

[65] Therefore, it is our view that the application for suspension of the on-licence is established and that it is desirable to make an order under s.132(6) of the Act. We need to point out that we are governed by s.4(2) of the Act. Our duty is to exercise our discretion in a manner that is most likely to promote the object of the Act. There can be few more graphic forms of liquor abuse, than intoxication.
[66] It is also our view that cancellation of the licence would be an unreasonable response to the established facts. Consequently, the application for cancellation is refused.
[67] We are also satisfied that most of the grounds for the application for suspension of the on-licence also took place under the management of Mrs Hooper. Pursuant to s.115(1) of the Act, she was the manager who was on duty and responsible for compliance with the Act and the conditions of the licence. It was a matter of some surprise that there was no application to suspend her manager’s certificate.
[68] Ordinarily, such actions by a manager would justify a period of suspension if not cancellation of the manager’s certificate. We accept that Mrs Hooper was placed in difficult circumstances, vis-a-vis her working relationship with the licensee. We accept her evidence that she had been overruled on occasions. We have taken into account all of those matters, including the fact that she is currently out of the industry for health and other reasons. In the circumstances we believe that she should have a final opportunity to remain in the industry. We therefore make the following orders:

(1) On-licence number 041/ON/40/2002 issued to Brent John Ranford will be suspended for four days from 7.00 am on Monday 8 December 2003 to 7.00 am on Friday 12 December 2003.

(2) General Manager's Certificate number GM/041/59/2002 issued to Kim-Maree Judith Hooper will be renewed for 18 months only, and will therefore expire on 23 May 2004.

DATED at WELLINGTON this 27th day of November 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

HotelEketahuna.doc(aw)