Prendergast v Waters [2005] NZLLA 179 (5 April 2005)

Last Updated: 27 February 2010

Decision No. PH 179-180/2005

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for the suspension of General Manager’s Certificate number 033/GM/67/2000 issued to CATHERINE FRANCES WATERS

BETWEEN MATTHEW PHILIP JOSEPH PRENDERGAST

(Police Officer of New Plymouth)

Applicant

AND CATHERINE FRANCES WATERS

Respondent

An application by CATHERINE FRANCES WATERS 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 NEW PLYMOUTH on 10 March 2005

APPEARANCES

Sergeant M P J Prendergast - NZ Police - applicant and in opposition to application for renewal of manager’s certificate
Ms C F Waters - respondent and applicant for renewal of manager’s certificate

Mr M E Clearwater - New Plymouth District Licensing Agency Inspector - in opposition to application for renewal of manager’s certificate

ORAL DECISION OF THE AUTHORITY

[1] There are two matters before the Authority. The first is an application brought by the Police for the suspension of a General Manager’s Certificate issued to Catherine Frances Waters. The second application is inter-related and is made by Ms Waters for the renewal of her General Manager’s Certificate.

[2] Ms Waters was first granted a General Manager’s Certificate on 5 July 2004. The application for suspension is brought on the grounds that she has failed to conduct the licensed premises in a proper manner.

[3] The facts show that on Saturday 10 April 2004, Ms Waters was working as duty manager of the “Stables Café and Bar” which is situated in Bell Block, New Plymouth. This was Easter weekend, and the bar was required to close off service at midnight. As it happens the normal on-licence for the bar requires a closure at the same time. At 12.40 am on Easter Sunday 11 April 2004, the Police drove past the “Stables Café and Bar” and noted that it was still open. The Police observed the situation and noted that there were patrons who were dancing to loud music. The Police entered the premises. They said that there were 26 patrons in the bar who were still drinking and playing pool and dancing. There were some patrons who had full glasses of liquor in front of them.

[4] The Police asked to see the Eftpos receipts and noted that a sale had been made at 12.15 am. Ms Waters gave an explanation at the time that she was unfamiliar with the price of the new drinks, and was waiting to ask the licensee the price for those drinks. The licensee Carmel Elliot, had been working in the bar but when she finished, then she became a patron in her own establishment. This created a delay in getting the correct prices for the liquor. We understand that the sale was made on an off-licence basis, and that the liquor had been supplied on or before midnight.

[5] The response to the suspension application was that Ms Waters was only used from time to time as a temporary bar manager, and she had been called on on this occasion. She knew that the premises were required to close at midnight. In her view she closed the bar and ordered last drinks. She did dim the lights. However it was obviously a busy night and Ms Waters became occupied with the pokie machines, and with other issues involving clearing tables and so on, as well as finding out the price for the off sale. In the event Ms Waters lost track of time and persons continued to enjoy the premises after the 30 minute drink up time.

[6] As a consequence Ms Waters was prosecuted in the District Court for breaches of ss.171 and 167 of the Act. She was fined a total of $700 in respect of two offences and ordered to pay a further $260 by way of costs. Notwithstanding the maximum penalties available we would have thought that the fines themselves were a relatively severe penalty, particularly bearing in mind that there have been no other issues involving Ms Water’s ability to manage licensed premises.

[7] Ms Waters has given an explanation as to how the offending came about. Although it has been strongly argued that no sales were made after midnight, but that the management was lax in allowing patrons to continue their drink up period, the fact remains that the Sale of Liquor Act was breached and penalties were imposed. We are satisfied that the allegations have been established, and we believe it is desirable to make an enforcement order not just as a lesson to Ms Waters, but to the other holders of General Manager’s Certificates.

[8] We think it fair to bear in mind the fact that following her conviction Ms Waters has not worked a great deal as the holder of a General Manager’s Certificate. She has lost her main employment, and would have liked to have utilised her General Manager’s Certificate with other license premises, but has not done so pending the resolution of the application. These are matters that need to be taken into account in assessing an appropriate sanction. The Inspector has suggested that there may be a reduced renewal period, but in the light of the suspension which we intend to impose and the fact that a penalty has already been ordered by the District Court, we believe that notwithstanding the convictions, a full renewal is appropriate.

[9] The decision of the Authority therefore is to renew the General Manager’s Certificate for the normal period of three years. In respect of the application for suspension we propose to suspend the General Manager’s Certificate for one month. The period of suspension will commence on Thursday 10 March 2005.

DATED at WELLINGTON this 5th day of April 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

Catherine Waters.doc(aw)