B.A.R. Investments Limited, re [2004] NZLLA 194 (24 March 2004)

Last Updated: 27 February 2010

Decision No. PH 194/2004 –
PH 195/2004

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by B.A.R. INVESTMENTS LIMITED pursuant to s.9 of the Act for an on-licence in respect of premises situated at 88A Dickens Street, Napier, known as “Mossy’s Bar and Café”

AND

IN THE MATTER of an application by ROY BURNE pursuant to s.118 of the Act for a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at NAPIER on 11 March 2004

APPEARANCES

Mr M J Wenley - for applicant
Mrs A M Carr - Napier District Licensing Agency Inspector - to assist
Senior Sergeant J H Lovatt - NZ Police - in opposition

ORAL DECISION OF THE AUTHORITY

[1] There are two matters before the Authority. The first matter is an application by B.A.R. Investments Limited for an on-licence in respect of premises situated at 88A Dickens Street, Napier, known as “Mossy’s Bar and Café”. In an application of this nature the Authority is bound to take into account certain criteria which are listed in s.13 of the Act.

[2] In this case the only real criteria to which objection has been taken is the suitability of the applicant. The applicant company is owned and operated by Mr Roy Burne. Mr Burne is the applicant in the second application which is for the grant of a General Manager’s Certificate. In relation to the second application, the Authority is governed by the criteria set out in s.121 of the Act. In regard to the second application, the concerns of the reporting agencies relate to his character and reputation, and the convictions recorded against him.

[3] Mr Burne’s company took over the premises on 29 November 2002. He had been employed at the premises for a month or two prior to the take over. He has traded pursuant to temporary authorities ever since. Prior to his involvement in the hospitality industry he had worked full time in a hardware and plumbers supply shop. There is no question that his lack of experience led to some initial problems in the running of the business.

[4] The two applications were set down for a hearing on 30 April 2003. At that time, the applications were opposed, both by the Police and the District Licensing Agency Inspector. One of the grounds for the opposition was an alleged sale which had been made in the premises to a minor.

[5] Mr Wenley appeared for the company and for Mr Burne at the first hearing. He advised that the allegation was to be tested in the District Court. As a consequence an adjournment was requested and granted.

[6] The District Licensing Agency Inspector, Mrs A M Carr, thought that the adjournment would have certain advantages in that firstly, the outcome of the prosecution would become known, and secondly monitoring of the business would be able to be continued.

[7] The decision granting the adjournment is referred to in LLA PH 344-345/2003. It is unfortunate that it has taken the best part of ten months for the application to be resumed. To some extent that period of time has been a time of consolidation for Mr Burne’s company, as well as an opportunity for him to establish that he can operate a licensed premises without breaching the Act or the conditions of the base licence.

[8] In the interim period of time a conviction in respect of the under age sale was recorded. The charge against the company was dismissed in the Napier Court on 12 May 2003. The facts show that this was a controlled purchase operation using a volunteer aged 16 years and 10 months at the time of the operation. The minor was served by an employee of Mr Burne’s company. The employee was prosecuted but was diverted. It will be noted that at the time of the sale, Mr Burne was not the manager although he may have been acting as a temporary manager.

[9] The other adverse matters raised by the Police concern the fact that when Mr Burne filed his application for a General Manager’s Certificate, he acknowledged that he had previous convictions. He referred to a charge of driving with excess breath or blood alcohol in 1999 to 2000, and a charge of driving without a licence in the same period. In fact Mr Burne had a much larger number of convictions, most of which were of a historical nature.

[10] These convictions went back to 1985. In the five years prior to the application, Mr Burne was convicted of driving with excessive breath alcohol content, the level being 519 micrograms of alcohol per litre of breath. On 28 January 1999 Mr Burne was convicted of theft as a servant and was sentenced to non residential periodic detention for three months. On 9 June 1999, Mr Burne was convicted for driving while disqualified. On that occasion he was sentenced to community service.

[11] The Police took the view that the failure to disclose the dishonesty conviction, and the wrong description of the charge of driving while disqualified went to Mr Burne’s character and his reputation. Since he was the owner of the licensee company, then the consequential lack of suitability could affect the outcome of the application.

[12] The Authority has said from time to time that it takes a relatively serious view of any failure to disclose completely a person’s convictions. In this case the explanation given by Mr Burne did not give the Authority a great deal of confidence that this was an innocent mistake.

[13] On the other hand it must be acknowledged that Mr Burne’s partner is the current manager of the premises. She is the holder of a General Manager’s Certificate. Although Mr Burne has been acting from time to time as a temporary manager, the business can be run by a competent manager. The way that the law has been amended means that the emphasis on obeying the law is placed on the shoulders of the holder of a General Manager’s Certificate. It is quite possible, and indeed the High Court has ruled, that provided the manager is satisfactory and competent, then any blemishes as to character and reputation of a licensee can in certain circumstances be overlooked by the Authority.

[14] Since the applications were adjourned in April 2003, Mrs Carr has monitored the premises assiduously. The business operates primarily as a café although it holds a tavern style licence. There is a full working kitchen. The position is that there is a large room at the back of the building capable of holding up to 120 people. This room was initially leased out by Mr Burne and used for functions. These functions were a matter of some concern to the reporting agencies. The applicant wishes to maintain the tavern style licence in order to utilise this room from time to time for functions, in particular weddings and/or birthday parties.

[15] On the other hand, Mr Burne stated that he is keen to develop a particular style for the business. He believes that the emphasis is on the café restaurant side, and he does not intend to use the premises beyond midnight. We therefore propose to adopt the suggestion made by the Inspector that for the first 12 months of operation, the hours of operation will be limited to midnight.

[16] Therefore, in terms of suitability we make the following observations. There was just the one matter which happened over 18 months ago. The incident did not personally involve Mr Burne. There is a manager available to manage the business who has a General Manager’s Certificate. Accordingly, we believe that the positive aspects of the application outweigh the negative ones. Mr Burne’s company has had an adequate preparatory period to prove its worth, and in our view it has done so.

[17] Taking into account the considerations set out in s.13(1) of the Act, we propose to grant the on-licence. The licence will be for a period of 12 months. The hours of operation will be from 7.00 am until midnight Monday to Sunday. The licence will be a tavern style licence, and the back bar will be designated as a supervised area.

[18] We turn to the application by Mr Burne for a General Manager’s Certificate. While we accept that the application has been overtaken by time, and that the last conviction occurred nearly five years ago, we feel compelled to note that the convictions were not set out in detail. It is true that many people wish to put the past behind them. Mr Burne has done reasonably well during the time that the applications have been adjourned, and for that reason we propose to adjourn his application for six months.

[19] If after six months time, there are no other reported incidents or adverse comments about him, the application will be granted on the papers. He will be able to be a temporary manager in the interim period. If there are further incidents or adverse reports, consideration may have to have a further public hearing.

[20] The above orders are made accordingly.

DATED at WELLINGTON this 24th day of March 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Mossy’s Bar and Café.doc(afw)