Holmes v Europa Limited and Ozbeger [2004] NZLLA 783 (11 November 2004)

Last Updated: 23 January 2012

Decision No. PH 783/2004 –
PH 785/2004

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 variation, suspension or cancellation of on-licence number 007/ON/429/2002 issued to EUROPA LIMITED in respect of premises situated at 18 Customs Street West, Auckland Central, known as “Europa Café & Bar”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager’s Certificate number GM/007/579/00 issued to ADNAN OZBEGER

BETWEEN LISA JANN HOLMES
(Police Officer of Auckland)

Applicant

AND EUROPA LIMITED

First Respondent

AND ADNAN OZBEGER

Second Respondent

AND

IN THE MATTER of an application by ADNAN OZBEGER pursuant to s.123 of the Act for the 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 AUCKLAND on 7 and 8 September 2004

Closing submissions in support to be filed 29 September 2004
Closing submissions in reply to be filed by 13 October 2004
Final submissions from applicant to be filed by 20 October 2004

APPEARANCES

Inspector R B Lindsay - NZ Police – applicant and in opposition to application for renewal of manager’s certificate

Mr D G Scott - agent for respondents and applicant for renewal of manager’s certificate
Mr R B Hunt – Auckland District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] There are three applications for consideration by the Authority. The first application is brought by the Police pursuant to s.132 of the Act. The Police seek the variation, suspension or cancellation of the on-licence issued to Europa Limited. This company is owned and directed by the second respondent, Adnan Ozbeger. The premises which are the subject of the licence, are situated at 106 Customs Street West in the Viaduct Basin in Auckland City. The business trades under the name of “Europa Café & Bar” (hereafter called “Europa”). The on-licence was issued on 27 September 2001, and allows for trading at any time on any day.

[2] The application is based on the following grounds:

• (a) That the licensed premises have been conducted in breach of the following provisions of the Act
  

Section 167 (Allowing any person to become intoxicated on licensed premises)

Section 168(1)(a) (Allowing any intoxicated person to be or to remain on licensed premises)

Section 168(1)(b) (Allowing any violent, quarrelsome, insulting, or disorderly conduct to take place on licensed premises)

(b) That the licensed premises have been conducted in an improper manner.

(c) That the conduct of the licensee is such as to show that it is not a suitable entity to hold the licence.

[3] At the hearing, the Inspector sought leave to amend the application to include a fourth ground:

(d) That the licensed premises are being used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public.

[4] On the basis that there would be no change to the evidence to be adduced, Mr D G Scott as agent for the first respondent, offered no objection to the amendment.

[5] The particulars relied upon to support the application are set out in 13 pages of allegations in respect of some seven incidents which are alleged to have occurred between 31 August 2003, and 3 April 2004. References are made in the allegations to the conduct of doormen working at the premises, as well as the conduct of patrons attending and leaving the bar. Fights, assaults, and intoxication are included in the allegations. The application for variation, suspension, or cancellation of the licence was filed on 9 July 2004.

[6] The second application is brought pursuant to s.135 of the Act. The Police seek the suspension or cancellation of the General Manager’s Certificate issued to Adnan Ozbeger. The grounds for the application are that Mr Ozbeger’s conduct has been such as to show that he is not a suitable person to hold the certificate.

[7] The particulars relied upon to support the application refer to an incident on 14 March 2004, when a member of the public is alleged to have been assaulted and injured by two doormen, in the presence of, and with the tacit approval of Mr Ozbeger.

[8] The third application is made by Mr Ozbeger. His General Manager’s Certificate was first issued on 17 August 2003, and fell due for renewal on 17 August 2004. The Police opposed the application because of the pending enforcement applications against Mr Ozbeger and his company. They submitted that it was appropriate that all applications be heard together.

[9] Initially it was hoped that the applications would be heard simultaneously with a similar enforcement application brought by Mr R B Hunt, an Auckland City District Licensing Agency Inspector. In the event, the present applications were not filed in time. The Authority heard Mr Hunt’s application for the variation, suspension, or cancellation of the licence on 22 July 2004. The decision dated 11 October 2004 was issued under number LLA 706/2004.

[10] During the course of the one and half days of hearing, we heard a considerable amount of factual evidence. Much of the evidence was disputed. In some cases it was difficult for us to determine where the truth lay. In the light of the evidence adduced by and on behalf of the respondents, the applicant faced the challenge of establishing on the balance of probabilities, the allegations referred to in paragraphs [2], [3], and [6] above.

The Background Facts leading to the Application

[11] “Europa” is Mr Adnan Ozbeger’s creation. He built the bar in 2001, and has operated it ever since. As with many licensed premises in the area, the business is permitted to sell and supply liquor at any time on any day. Mr Ozbeger has tapped into a market for young people who like to dance, and who like to stay out late. He currently opens his business on only two nights a week. His trading hours are Friday 10.00 pm to 5.00 am the following day, and Saturday 10.00 pm to 7.00 am the following day.

[12] By choosing to operate in this way, Mr Ozbeger’s business will inevitably attract persons from other bars which have been required to close at 3.00 am. The evidence was that the majority of licensed premises in the Viaduct area close at 3.00 am. Consequently, the people who arrive at “Europa” are likely to have been drinking, as well as being tired. It is equally inevitable that if such persons are turned away because of lack of identification, or early signs of intoxication, then anti-social behaviour is likely to occur. The site of the premises is such that people are able to sit in their cars and drink before entering the bar.

[13] Over the last five years, the Viaduct area has become a mixture of bars, restaurants, and apartment buildings. In our experience based on a number of hearings involving licensed premises in the Viaduct, the mixture of those who wish to enjoy inner city living, and those that offer entertainment, has lead to a fundamental tension between the two groups. This tension has escalated as more apartments have become occupied, and as some of the businesses have expanded.

[14] Inspector Robert Bruce Lindsay has been an enforcement officer for 25 years. He is responsible for beat policing and community policing of the inner city. He is therefore heavily involved in liaison work with the Auckland City Council. Over the past 12 to 18 months, he has received numerous complaints from Viaduct area residents, Viaduct area businesses, the Auckland City Council, and his own staff about the activities of two licensed premises known as “Mojos” and “Europa”. Both were owned and operated by Adnan Ozbeger. The complaints have related to noise, violence and disorder. His staff’s biggest concern is with the activities in and around the “Europa” bar. Concerns were also expressed about “Mojos”, but this has recently been sold, and disorder in and around those premises, is no longer a problem.

[15] Inspector Lindsay has had a number of meetings with Mr Ozbeger. In assessing the intelligence which the Police have gathered over a period, together with his own observations, the Inspector came to the “strong” view that the problems in Market Place were directly attributable to “Europa’s” activities, the type of clientele it attracts, and its operating hours. In his opinion, many of the bar’s patrons (or their friends) had violent tendencies when fuelled by alcohol.

[16] Furthermore, the Inspector has formed the view that Mr Ozbeger has little control over his staff, particularly his doormen, and consequently, the premises have not been run in an orderly fashion. He began to question Mr Ozbeger’s suitability to manage the premises. He reached the opinion the area had achieved such a reputation, that controls were needed in order to curb the activities of the bar.

[17] In particular, the Inspector contended that the on-licence should not be able to trade after 3.00 am in the morning. He attempted to get Mr Ozbeger to agree to such a proposal, but Mr Ozbeger argued that this voluntary closure would be uneconomic, as most of his patrons arrived after 3.00 am. Mr Ozbeger was adamant that what happened outside his bar was not his responsibility, or attributable to his patrons.

[18] Matters came to a head when there were two serious assaults alleged to have been committed by doormen employed by “Europa”. Accordingly, the applications for suspension or cancellation were brought. The Inspector noted that the most desirable outcome from the Police perspective was a reduction of the trading hours. On the other hand, in order to achieve such a result, the Police would be required to prove that the Inspector’s opinion was supported by proved facts.

[19] The applications were filed in July. As stated earlier, a large quantity of evidence was heard from a variety of witnesses. It is necessary to traverse all the evidence in respect of each incident, and make findings based on the credibility of the witnesses, and the inferences which can reasonably be drawn, based on such findings.

The Incident on 31 August 2003

[20] On 31 August 2003 at 2.45 am, Constable Lisa Jann Holmes was working night shift with Constable Dean. They were called to a fight in Market Street near “Europa”. Constable Holmes observed 25 to 30 males fighting in a driveway opposite the bar. There were three disparate groups fighting. The participants were mainly Polynesian males. She also observed two bouncers from “Europa” involved in a struggle with another male.

[21] The Constable stated that the situation was volatile as groups of intoxicated patrons had spilled out from “Europa”, and some of them had joined in. She thought they were intoxicated by the way they walked, and the fact that they were carrying bottles. She gave evidence that the Constables watched for a while, and then attempted to do something about the chaotic scene even though they were heavily outnumbered. Mr Ozbeger persisted in speaking with Constable Dean, but was warned to leave. According to Constable Holmes, she gained the impression that he felt responsible for what had happened. She disputed any suggestion that he wanted his doormen to assist the Police.

[22] The Constables used batons and pepper spray in order to try and break up the fights. It was impracticable to arrest anyone as they were surrounded by a large number of intoxicated and aggravated people. Reinforcements arrived, and Constable Holmes was able to speak with the DJ who worked at “Europa”. He identified an individual who had punched a “Europa” doorman from behind. This person was arrested for fighting having admitted an involvement. He said that the doorman had hit him first. The Constable had great difficulty in getting the offender to the Police car. She said that a total of seven people were arrested that morning. Constable Holmes was questioned at length, but in our view she was a very objective observer whose evidence was unshaken.

[23] The respondents called a number of witnesses to give their version of the incident. It seemed to us that their main purpose in giving evidence was to counter any suggestion that patrons from “Europa” were involved in the fracas. For example we heard from Mikaele Fale who has been employed as a DJ by Mr Ozbeger for the past two years. He was transferring equipment from “Mojos” to “Europa” at the time. He saw one of the fights start. At one stage there were 10 people assaulting one individual. He saw security people from “Europa” attempting to break up the fight, after which they were attacked. He said that to his knowledge none of the customers from “Europa” were involved. He thought the Constable who warned Mr Ozbeger was very aggressive. On the other hand, he agreed that the situation was chaotic.

[24] Mr V F V Tomuli is a doorman who has been employed at “Europa” for the last 12 months. He also saw a fight starting, and went over to break it up. His evidence was that the instigators of the fight immediately turned on him. Another fight then started, and he and his colleagues tried to break that up, before the participants turned on them. He confirmed that a large crowd had gathered. He did not see any customers coming out of “Europa”, and said that a doorman was still on the door to ensure that people stayed inside for their own safety.

[25] Mr Adnan Ozbeger was working at his other premises known as “Mojos” at the time. He went outside to observe the large crowd which had gathered. He considered that the Police were outnumbered. He said that he offered assistance, but Constable Dean became aggressive and accused him of creating the problems. He also confirmed that a doorman was at “Europa” to ensure that no one was allowed out for his or her own safety.

[26] Ms Leeanne Alma Grobler has been employed at “Europa” as a doorperson/receptionist for the past 15 months. She sits adjacent to the principal entrance to the premises. She became aware of the disturbance. She observed security people leave the premises. She said that there were customers queuing to get in. She said that she stopped people from leaving. She said that at no stage was any customer of “Europa” involved in the incidents, although it soon became apparent that she was in no position to make such a statement. Furthermore, she stated that all the door staff and security had done was to assist to resolve the problem.

[27] What does all this mean? First, it is extraordinary how much detail can be recalled after twelve months. Secondly, in terms of credibility, we have little hesitation in accepting Constable Holmes’ evidence. She is a Police Officer trained to observe. She is required to take notes about her observations. She was the subject of a vigorous cross-examination from which she emerged unscathed in terms of credibility and objectivity. We have very little doubt that some of “Europa’s” patrons were involved either as witnesses or participants in the events. Indeed, it could be argued that it would be almost natural to watch what was happening so close to the bar.

[28] But, having said that, it could not be said that any particular patron was intoxicated, or that the Act was breached in some way. It is quite probable that the initial fight was started by persons unconnected to the bar. All the evidence does, is support to a limited extent Inspector Lindsay’s contention that the area in question is something of a staging post for a number of people who gather to drink in cars.

The Incident on 26 October 2003

[29] On 26 October 2003, Ms N M Jones was hosting her “hens” night out. She and her friends had visited five licensed premises over a period of four hours, and she had had a drink at each one. After spending an hour at “Mojos” the group moved on to “Europa” at about 2.00 am. Ms Jones was wearing a veil and tiara for the occasion. She was allowed inside by the first doorman, but the second doorman told her to take off her tiara.

[30] She and the doorman then argued. She wanted to take off the tiara in the bathroom. He wanted her to remove it there and then. The result was that according to her, the doorman pulled at the tiara, and she fell back on her friends. According to her, the doorman then punched her, resulting in a bruise to her cheek. She said that a series of fights then developed inside and outside the bar. Although she reported the matter to the Police straight away, no further action was taken.

[31] Ms L A Grobler remembered the evening. She blamed the members of the “hens” night out, and said that they had become aggressive, argumentative, and quarrelsome. She suggested that the doorman might have put out a hand to help Ms Jones when she was falling. She stated that one of the group had assaulted another patron, and had subsequently been convicted of assault. Ms N McDade, the victim, confirmed the assault.

[32] Mr Ozbeger was present at the premises but did not see the incident. He spoke with the doorman, who told him that he had used the excuse of the tiara to prevent Ms Jones entering the premises, because she appeared to be intoxicated. Mr Ozbeger stated that the doorman’s employment had subsequently been terminated. Although Ms Jones was an impressive witness, (after all she is the holder of a General Manager’s Certificate), the fact that no Police action was taken is significant. The incident, on analysis, does not provide any foundation for any of the actions requested by the applicant.

The Incident on 23 November 2003

[33] Sergeant P R O’Neill gave evidence that at 5.30 am on 23 November 2003, he had arrested a person and was on his way to the Central Watchhouse. He was then diverted to attend a “large scale” fight said to be occurring on Customs Street outside “Europa” and “Mojos”. On arrival he found a large group of persons including security staff and patrons. According to the Sergeant many of the people were intoxicated. Two persons were pointed out as the main instigators of the fight. Both were apprehended and arrested for fighting. Both men were said to be intoxicated in that they smelled of alcohol, slurred their words, had glazed eyes, staggered, and were aggressive. Both said they had been drinking at “Europa”.

[34] The men were placed in the Police van in which they later assaulted and robbed the first prisoner, and were subsequently charged with aggravated robbery. Police reinforcements arrived, and a woman was also charged as she was said to have been involved in the fight.

[35] Mr I A Vili has been employed on door security at “Europa” since November 2003. He was present in the area on 23 November 2003 although not employed at the time. He noticed two men cross the road and sit outside “Mojos” where they consumed cans of beer. He did not think they came from “Europa”. They were asked to move on, but a fight started with an employee from “Mojos”. Mr Ozbeger refuted any suggestion that the two men had come from “Europa”. He said that their standard of dress would have prevented their entry to the premises.

[36] There is little probative evidence in this incident which could be said to bring the management of “Europa” into question. Indeed, the evidence would suggest that the incident happened outside “Mojos”. While it may be that the two men had stated that they had been drinking at “Europa”, there was no evidence as to when they started or finished such drinking. In our view, the incident could not be relied upon as a ground to suspend or cancel the licence or vary its conditions.

The Incidents in December 2003

[37] Inspector Lindsay gave evidence of two incidents in December 2003. He found a party bus parked in an alleyway close to “Europa” with a lot of people and alcohol on board. He noted that the bus patrons were in various states of intoxication and were drinking in the street. He observed them freely entering and leaving “Europa”. He took steps to remove the liquor from the bus in view of the liquor ban. It will be noted that no prosecutions were commenced.

[38] If an applicant is seeking to establish that a respondent has allowed an intoxicated person to be or remain on licensed premises, (s.168(1)(a) of the Act), then it is not sufficient simply to state that there were intoxicated patrons who were seen on the premises, or in this case entering and leaving. In our view, proof of intoxication should involve a discussion with the patron, to establish which of the patrons’ faculties have been impaired. The finding of intoxication should where practicable, be confirmed by a second officer, and the manager.

[39] On a second occasion in December, the Inspector noted that at the feet of a number of door staff outside “Europa” were a number of empty or partly empty alcohol containers and glasses. He spoke with the doormen who denied any knowledge as to how the containers had got there, and picked them up and took them inside.

The Incident on 13 March 2004

[40] In a number of ways this incident was the most serious of all. It led to two doormen employed by “Europa” being charged with serious violent offending. However, by the time of the hearing, the trial had not been held. The accused had been independently advised not to give evidence before the Authority on the basis that any evidence given by them could seriously jeopardise their defence. They were effectively exercising their right against self-incrimination. In an effort to dispose of the matter, Inspector Lindsay agreed that the brief of one of the accused could be accepted without cross-examination. Although this concession was helpful in having the matter disposed of, the Authority was placed in a position where we could not therefore make any conclusive assessment of the facts. The evidence of the accused had to be accepted.

[41] Prima facie, the evidence was that a group of five family members had attended a wedding, and then gone nightclubbing. They had had a couple of drinks at the “Soul Bar”, and had arrived at “Europa” about 1.30 am on the Sunday morning 13 March 2004. One of them paid $25 as the cover charge for the whole group. Mr Walter Engle was visiting from Australia, and was with his sister and cousins. He was the last member of the group to enter the premises. However, he was refused permission to enter because, he had no identification, and presumably, appeared to be under age. When they discovered that Mr Engle would not be admitted into the bar, the rest of the group decided to leave. An argument then developed over a refund of the cover charge.

[42] The management at “Europa” was prepared to refund the fee to Mr Engle, but not for the group because they had already gone inside. A sign at the door stated that no refunds would be given. Mr Engle’s sister was referred to the owner, Mr Ozbeger, who was present at the entry to the premises.

[43] Mr Engle then advanced on Mr Ozbeger. It may be that he believed that he was trying to protect his sister who was by this time involved in an angry confrontation with Mr Ozbeger. We did not hear from him. He ended up being placed in a headlock by one of the doorman, and dragged around the corner. While he was incapacitated and out of breath, the other doorman punched him in the head. He ended up on the ground where he was kicked or stomped on the face. He was taken to hospital by ambulance. He suffered a broken nose, a fractured left cheekbone, and severe bruising and swelling to his cheeks and eyes. On a prima facie basis, there was serious violent thuggery by the two doormen. The issue is whether Mr Ozbeger was in anyway involved.

[44] Mr Ozbeger, who was initially present at the entranceway, recalled Mr Engle being taken into a headlock. He said that Mr Engle had been aggressive towards him, and had swung punches which had missed. He said that the group and the two doormen had then moved around the corner and out of sight.

[45] Mr V F V Tomuli is one of the accused. As stated, his brief was accepted by the Police without the need for cross-examination. He has been employed as a doorman and security officer at “Europa” for 12 months. He recalled Mr Engle being held in a headlock by his colleague while a group of females were harassing his colleague. He tried to get the females to move away. According to him, his colleague then released Mr Engle whereupon he, (Mr Engle), immediately attacked him from behind. He said that he instinctively reacted and hit Mr Engle twice, causing him to fall to the ground. He denied that he kicked or stomped on anyone, and claimed that he acted in self-defence.

[46] Ms Grobler was also able to remember this incident. She remembered telling Mr Engle’s sister to speak with Mr Ozbeger about getting a refund. She saw Mr Engle attacking Mr Ozbeger by swinging a punch at him and grabbing him by the shirt. She saw the doorman dragging Mr Engle away from the door followed by Mr Ozbeger who was still being held by the shirt. She then pulled Mr Ozbeger inside so that he would not be involved in the disturbance.

[47] Was this a case where the two doormen assaulted Mr Engle with intent to injure him by punching him in the face as he was being held, and then stomping on him? Or was it a situation where Mr Engle was the aggressor, his injuries being caused by the two men acting in self-defence? The jury will be able to decide whether to accept the word of the persons who were in the group, or whether to accept the evidence given by Mr Tomuli and his colleagues, or whether they are left in a state of reasonable doubt as to what happened. On the evidence we heard, there appeared to be an act of gratuitous violence perpetrated by two doormen in retaliation for what they saw was an attack on the owner of the bar.

[48] There is no question that some of the witnesses were remarkably persuasive. However, in the absence of evidence from the two accused persons, it would be inappropriate for us to make any decision on the main issue of credibility. So far as Mr Ozbeger is concerned, there is no direct evidence that he saw or condoned the alleged assault. The only matter of concern was the written statement made by Mr Ozbeger on 4 April 2004. He was being interviewed as a potential witness to the assault. In his statement he said:

“The only incident I know of that night involved a male who had no identification. The door staff wouldn’t let him in ... I remember some females trying to pull the guy with no identification inside and the doormen pulling him outside. They all ended up outside. I remained inside and couldn’t see what was going on out there ... I’m not even sure which doorman it was.

[49] When he gave evidence before us, Mr Ozbeger gave an explanation for his lack of candour and assistance. However, it was quite clear to us that Mr Ozbeger was covering up his and his staff’s involvement in the fracas. His lack of co-operation with the Police is not what we would expect from the holder of a General Manager’s Certificate.

The incident on 20 March 2004

[50] At about 2.00 am on 20 March 2004, Ms M Kerehoma visited “Europa” with her sister and brother-in-law. They had been drinking. She said that her brother-in-law was not allowed to enter the premises because he did not have the correct footwear. She said that she approached the doorman to argue that she had seen others enter the premises with similar footwear. Her sister then gave the doorman “a bit of lip” and was then subjected to verbal abuse. She said that her brother-in-law then remonstrated with the doorman who offered to fight him.

[51] Ms Kerehoma stated that a brawl developed outside the premises. During the course of the brawl, she said she was knocked out twice, and had to fight her way back to her husband.

[52] Mr Tomuli gave evidence that he was on duty that morning and remembered speaking with the women. He denied any form of bad language. Ms Grobler was on duty as receptionist and also recalled the incident. She remembered that there were a large number of people who were queuing to get in, as well as others who had been refused entry because of intoxication. She recalled skirmishes outside and made the observation that the crowd outside was out of control. She disputed any suggestion that the staff of “Europa” were involved in any fight or brawl.

[53] More importantly, Mr Ozbeger had no recollection or knowledge of the incident. Once again, although the evidence is clear that the nature of the operation attracts a large number of intoxicated patrons, there was insufficient evidence of any breach of the Act on which to found an enforcement application.

The Incident on 21 March 2004

[54] On the morning of Sunday 21 March 2004, Constable B English was requested to attend a disorder incident at Market Place in the Viaduct. On arrival he noted a large number of cars with people on the footpath in varying stages of intoxication. He said that a confrontation between the Police and the public resulted in two persons being arrested for disorderly behaviour and resisting arrest. Both persons said that they had been drinking at “Europa” prior to their arrest. They were each said to be highly intoxicated and aggressive.

[55] Mr Ozbeger had no knowledge of the incident because the two alleged patrons were not brought to him for comment. He disputed any suggestion that customers would be allowed to become intoxicated. He was supported by Ms Grobler who also firmly denied any suggestion that patrons of “Europa” would be permitted to become intoxicated. She said that she was acutely aware of her employer’s required standards as to intoxication, and the bar’s host responsibility.

The Incident on 3 April 2004

[56] Constable S C Leyland gave evidence that at about 5.30 am on 3 April 2004, she was required to assist her staff in a fight with some intoxicated males. She said that two males were arrested and informed the Police that they had been drinking at “Europa” just prior to the fight taking place. They were said to be in an advanced state of intoxication.

[57] Apart from the “hearsay” aspect of the evidence, it also suffers from the fact that the evidence has been given by persons who are said to be intoxicated. There is no detail about when they left the premises in relation to when they were arrested. The evidence given by Mr Ozbeger is pertinent. He said:

“We are forever struggling with the problem that people who leave other licensed premises in the area and want to come to our premises are refused because they are slightly intoxicated and they become aggressive, quarrelsome, obnoxious, argumentative and create nothing but problems. In addition those people who purchase liquor from bottle shops and sit in their cars and drink it before coming into our premises, are likewise refused entry if we see any person carrying liquor towards our entry.”

The Authority’s Decision and Reasons

[58] At the conclusion of the hearing, the parties requested and were granted the opportunity to make written submissions. In his submissions, Inspector Lindsay confirmed what he had said in his evidence, and his opening remarks. He said:

“There is no intention to cause undue hardship to the licensee Mr Adrian Ozbeger (sic) and it is not the intention of the applicant to push for suspension or cancellation of the licence or the manager’s certificate. The Applicant leaves that in the hands of the Authority to decide. It is however the intention of the applicant to request a variation in the licence for the Europa Café & Bar as outlined in item 6, the application Section 132 item B and that is a closing time of 3.00am.

The applicant sees this as the first step in attempting to solve the problem and the intention is not to put the licensee out of business or cause undue hardship but to protect the public from disorderly, violent and obnoxious offending in and around Customs Street/Market Road vicinity.

[59] This statement effectively sums up the Police case. In his evidence, the Inspector gave his professional opinion that the Viaduct Harbour area with its residential mix and medium rise buildings is an area that needs controls placed on it in relation to operating hours of licensed premises. It was his view that “Europa” did not need to, and should not, be in operation past 3.00 am.

[60] As Mr Scott pointed out in his very detailed and well-researched reply, surely this is a Council and planning issue. The quotation from Mr Ozbeger’s evidence in the paragraph [57] above, neatly illustrates the dilemma which is faced by the Police, the Auckland City Council, and the other users of the Viaduct. We heard evidence from a former security worker who had been employed to enforce the liquor ban in the Viaduct. It seems that such enforcement was almost non-existent. It is regrettable that no accord has been able to be reached with all the parties. It is also regrettable that there appears to be no liquor policy with respect to hours of operation in the Viaduct.

[61] We accept that the combination of the late closing hours and the entertainment offered by “Europa”, may be the indirect cause of much of the disorder said to occur after 3.00 am. However, there is no proof of any of the matters set out in s.132 of the Act which would provide the trigger for any variation of the hours of trading currently incorporated in the licence.

[62] In any application brought under ss.132 and/or 135 of the Act, the Police carry the onus of proving the allegations. In assessing the weight of the evidence, we are conscious that the allegations must be proved on the balance of probabilities. When the existence of a licence or a General Manager’s Certificate rests on findings of fact we will always be concerned to ensure that what is alleged, is proved. As Mr Scott pointed out, all the evidence refers to incidents which happened outside the premises. There was no evidence of unruly behaviour or breaches of the Act inside "“Europa". There was no evidence which directly linked any of the incidents to Mr Ozbeger’s management of the premises.

[63] While the Act allows the introduction of hearsay evidence, that evidence will still be examined to test its probative value. If the evidence is disputed on oath, then unless the witness is not capable of being believed, it is unlikely that the hearsay evidence will form the basis of an enforcement order. Some of the evidence which was given in this case, is comparable to the evidence often received by way of a last drink survey. In other words its probative value depends on whether we accept that the intoxicated person is telling the truth, when he or she states that the last drink prior to the arrest was at a particular licensed premises.

[64] Sections 132 and 135 of the Act require a two step approach. First the evidence must be examined to see whether the Authority is satisfied that the allegations have been established. If that is the case, the Authority must then decide whether it is desirable than an enforcement order is made.

[65] We accept that “Europa’s” late closing hour will attract other drinkers to the area, and this will create problems. However, if the Police are seeking a reduction in the closing hour, then the evidence of intoxicated and disorderly behaviour should relate to the period after 3.00 am. In this case, of the eight incidents referred to above, only two occurred at 5.30 am. We commend to Mr Ozbeger a proposal that he impose a ‘lockdown’ period at 3.00 am. In other words that from that time, no member of the public will be allowed in, but that patrons may leave at any time. Experience has shown that such a proposal has an immediate impact in terms of disorder. Once members of the public become aware that the premises are effectively closed at 3.00 am, there will be no reason to congregate outside, and they will tend to arrive earlier.

[66] We have not dealt in detail with Mr Scott’s submissions because, as indicated in our comments in respect of each incident, there is insufficient material for us to be satisfied that the grounds have been established. There were no proved breaches of the Act. Disregarding the assaults which have yet to be determined in the District Court, the major criticism would be that some of the door staff were over zealous. On the other hand, there was no link to Mr Ozbeger in any of their activities. So far as the assaults were concerned, there was insufficient evidence that Mr Ozbeger encouraged, condoned, or ignored the gratuitous violence which took place.

[67] Taking into account the evidence given on behalf of the respondents, the incidents would not justify a conclusion that the premises had been operated in an improper manner. Nor could it be said that the Police have established that Mr Ozbeger and his company are unsuitable to hold a licence. Indeed, the Inspector has virtually conceded this fact in his final submissions.

[68] We turn to the allegation that the licensed premises are being used in a disorderly manner so as to be obnoxious to neighbouring residents or to the public. In order to succeed in their applications, the Police must prove a number of ingredients.

[69] First, that the premises have been used in a disorderly manner. Proof of this would be required to show a certain level of awareness by management and staff. There would have to be proof that incidents of disorder were allowed to happen on a persistent and regular basis on the premises. Secondly, there would have to be proof that the regular disorderly behaviour was obnoxious to the public or the neighbours. In this case, we did not hear from any member of the public (other than the Police). We accept that there were a number of obnoxious incidents, but there was no link between the incidents and the use of the premises except by implication. In the light of the evidence given by Mr Ozbeger and his employees, this is not enough.

[70] Accordingly, and for these reasons, we have not been satisfied that the grounds for the applications have been established.

[71] In the third application, Mr Ozbeger applies for the renewal of his General Manager’s Certificate. The criteria to be considered by the Authority on a renewal application are contained in s.126 of the Act. The section reads:

In considering any application for the renewal of a manager’s certificate, the Licensing Authority shall have regard to the following matters:

(a) The character and reputation of the applicant:

(b) Any convictions recorded against the applicant since the certificate was issued or last renewed:
(c) The manner in which the manager has managed the sale and supply of liquor pursuant to the licence with the aim of contributing to the reduction of liquor abuse:

(d) Any matters dealt with in any report made under section 124 of this Act.

[72] In an application for renewal, Mr Ozbeger must prove that he has satisfied the criteria listed above. In this case he was well supported by his staff although their objectivity could be open to question. Insofar as his application for renewal is concerned, Mr Ozbeger’s case was sufficiently strong for us not to refuse it. He has never been convicted of any matter involving intoxication or under age drinking.

[73] For the reasons given we make the following orders.

• (1) The application to vary, cancel or suspend on-licence number 007/ON/429/2002 issued to Europa Limited is refused.
  
• (2) The application to cancel or suspend General Manager’s Certificate number GM/007/579/00 issued to Adnan Ozbeger is refused.
  
• (3) The application by Adnan Ozbeger for the renewal of his General Managers Certificate is granted.
  

DATED at WELLINGTON this 11th day of November 2004

Judge E W Unwin Mr J C Crookston
Chairman Member

Europa.doc(nl)