Ardern v Pete's Place [2005] NZLLA 603 (9 September 2005)

Last Updated: 24 November 2010

Decision No. PH 603-604/2005

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 013/ON/2/2002 issued to the partnership of PETER MALCOLM UTTINGER and DIANNE FAY UTTINGER in respect of premises situated at 59-61 Arawa Street, Matamata, known as "Pete’s Place”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension of General Manager's Certificate number GM/1817/94 issued to PETER MALCOLM UTTINGER

BETWEEN DAVID ROSS ARDERN

(Police Officer of Morrinsville)

Applicant

AND The partnership of PETER MALCOLM UTTINGER and DIANNE FAY UTTINGER

First Respondent

AND PETER MALCOLM UTTINGER

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at HAMILTON on 29 August 2005

APPEARANCES

Sergeant K Reid – NZ Police – applicant
Mr P M Uttinger – representing himself and Mrs D F Uttinger - respondents
Mr P Challis – Matamata Piako District Licensing Agency Inspector – to assist

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Before the Authority are two applications. The first application is brought by the Police pursuant to s.132 of the Act. It is for the suspension of an on-licence in respect of the premises situated in Matamata known as "Pete’s Place”. The licence is held by Mr P M Uttinger and his wife, Mrs D F Uttinger. They operate the business in partnership.

[2] The second application is also brought by the Police. It is brought pursuant to s.135 of the Act, and is for the suspension of a General Manager's Certificate issued to Peter Malcolm Uttinger.

[3] There are three grounds to suspend the on-licence. They are:

(a) That the licensed premises have been conducted in breach of ss 165(1), and 171 of the Act:

(b) That the licensed premises have been conducted in breach of the condition of the licence specifying that liquor may be sold only on the following days and during the following hours:

Monday to Sunday 11.00am to 3.00am the following day, and 11.00am to 12.00 midnight on the Thursday before Good Friday.

(c) That the conduct of the licensees has been such as to show that they are not suitable persons to hold the licence.

[4] The allegations in support of those grounds are that the partnership had traded unlawfully on two occasions being Good Friday 25 March 2005, and on 23 April 2005, contrary to the provisions of the Act, and the condition of the licence.

[5] The ground for the application to suspend the manager’s certificate issued to Peter Malcolm Uttinger is:

That Mr Uttinger’s conduct has been such as to show that he is not a suitable person to hold the certificate.

[6] The allegations in support of this application are largely the same as for the application in respect of the on-licence. In Mr Uttinger’s case, the underlying inference is that either he was the duty manager at the time the premises traded unlawfully, or alternatively as the proprietor, he allowed the premises to operate in an improper manner.

[7] Mr Uttinger refuted any suggestion that he had knowingly broken the law or the conditions of his licence. With respect to the first incident, he argued that some of the patrons were his immediate family and staff, and the remainder had finished their drinks, and were waiting for a taxi. With respect to the second incident, he contended that he had been wrongly identified, and that the Police had entered his premises illegally, and had been mistaken for guests.

The First Incident

[8] Mr and Mrs Uttinger have ten years experience in the hospitality industry. Mr Uttinger was granted a General Manager’s Certificate on 11 August 1994. On 8 March 2002, the partnership was granted a tavern style licence in respect of premises situated in Matamata known as “Pete’s Place”. The hours of trading were Monday to Sunday 11.00 am to 3.00 am the following day. The “Karaoke Bar” was designated as supervised. Because the premises were classified as a tavern, the licence specified that no liquor could be sold on Good Friday, Easter Saturday, Christmas Eve, or before 1.00 pm on Anzac Day.

[9] Mr Peter Challis is a Licensing Inspector for the Matamata Piako District Council. On Thursday 24 March 2005, at about 4.30 pm, he called to the premises known as “Pete’s Place” to remind Mr Uttinger that he would need to close at midnight as the following day was Good Friday. The premises were not open, but he spoke with Mr Haumu who has the licensed premises next door. Mr Haumu advised the Inspector that Mr Uttinger would not be opening at all that weekend because it was his daughter’s wedding.

[10] At about 1.08 am on Good Friday 25 March 2005, two Police Constables made a visit to “Pete’s Place”. As they approached the alleyway leading to the main entrance, they could hear music and voices. There was a doorman on duty. They entered the bar, and both noticed four or five people standing near the bar service area and another 15 to 20 people standing or seated around tables in the bar. Most of the people were drinking alcohol from bottles or glasses. Constable W Watts recognised some of the people he had met when he visited another bar in Matamata just before midnight. There was no evidence of any money being paid over.

[11] Constable C L T Smith spoke with Mr Uttinger. The first thing Mr Uttinger said was “Yeah, I’m just trying to get rid of them”. He then began ushering the patrons outside. The Constable noted that everyone seemed happy to leave, and that some of them left their drinks behind. Mr Uttinger explained that he had been trying to get rid of the patrons since midnight. He also stated that four or five people at the bar were family or private guests. When he spoke with the Constable, Mr Uttinger seemed to think he had an hour ‘drink-up’ time, although when he gave evidence, he acknowledged that the patrons should have been out by 12.30 am.

[12] Mr Uttinger claimed that the estimate of 15 to 20 people was grossly exaggerated. He contended that one of the guests was his future son-in-law from South Africa, and that he and his friends were staying at the backpackers accommodation upstairs, which Mr Uttinger owned at that time. He argued that the only reason that people had stayed on was because he was entertaining his future in-laws and their friends. He believed that the smaller group consisted of his immediate family and staff. Mr Uttinger alleged that the remaining people were visitors from Auckland, and were waiting for a taxi. He disputed the claim that some of them had not finished their drinks when they left. Contrary to the Police evidence, he claimed that public drinking had stopped at 12.30 am.

[13] Mr Uttinger argued that the bar was not being operated when the Constables arrived, and that any other people who were present, were staff. Mr Uttinger’s evidence was supported by Mr Wally Haumu (aka Haumai). Mr Haumu was the doorman on duty when the Constables entered.

The Second Incident

[14] The evidence showed that there is a licensed restaurant at the front of the building known as the “Manakia Bar”. The two premises are connected internally and share the same toilet facilities. There also seems to be a sharing of staff between the two enterprises. The “Manakia Bar” is leased from Mr Uttinger. On Saturday 23 April 2005, two Constables were deployed in a covert operation to carry out observations of licensed premises. They were not wearing Police uniform. There was a private birthday party being conducted at “Pete’s Place” that night, but Constable D Bennett had received information that this was to finish at midnight.

[15] At about 2.35 am, Constable Bennett was in the “Manakia Bar” with Constable J Taaka. He walked down the hallway and into “Pete’s Bar”. He noted that the private function was still continuing. He observed that there were 10 to 12 people in the bar, and that there was one barman whose name was Barry. He was joined at about 3.00 am by Constable Taaka. At about 3.15 am, Mr Uttinger approached the people at the karaoke machine and asked that it be shut down. He was starting to clean the bar area.

[16] At 3.34 am, Constable Bennett approached the bar and purchased two 330ml bottles of beer from a person whom he identified as Mr Uttinger. He observed that others were purchasing alcohol as well. At 3.45 am, he noted that Mr Uttinger left the bar. At 4.15 am, he and Constable Taaka were each gratuitously given a bottle of 330ml beer by the barman. They stayed drinking until about 5.00 am and then left. They had not been asked to leave.

[17] Mr Uttinger confirmed that on the night in question his premises were the venue for a 50th birthday party. At some stage the decision was made to continue the function past midnight. However, he argued that he had been on the front door to prevent other patrons from entering, and that there had been a sign advising of the private nature of the function, on the back door which led into the internal hallway and the shared toilets. He firmly disputed any suggestion that he had made the sale at 3.34 am because he said that he had left the bar at 3.20 am. Mr Uttinger submitted that the Police entry had been illegal. In addition he argued that the two members of the Police had been innocently identified as members of the lessee’s family.

[18] Mr Uttinger called three witnesses all of whom did their best to support his contentions. The picture which evolved was quite confused. There seemed to us to be a fairly relaxed attitude to the rules. As Mr Uttinger stated, he is a genial person who in a small community is sometimes too much of a host. His final submissions were telling. He argued that he is a law-abiding citizen, and although he tries to stay within the rules, he acknowledged that no one is perfect, and that mistakes do occur. He stressed that he was not in contempt of the system, and did not feel that he had done anything wrong. He disputed any suggestion that he was unfit to hold a licence.

Authority’s Conclusion and Reasons

[19] In applications brought under ss. 132 and 135 of the Act, the Police carry the onus of proving the allegations. In assessing the weight of the evidence, the allegations must be proved on the balance of probabilities. During the course of the hearing, there were a number of disputed facts. In trying to assess the accuracy or honesty of the evidence, we are likely to rely on what was said and done at the time, rather than what may be genuinely recalled later. For example, we note that on Good Friday morning, Mr Uttinger’s immediate reaction when the Police arrived was that he was trying to get rid of the patrons, and then he started to usher them outside.

[20] Police witnesses have an advantage in that they are trained to observe, as well as take notes to enable them to refresh their memory. There was an issue as to whether Mr Uttinger made the sale on the morning of 24 April 2005 at 3.34 am. To some extent it matters not who made the sale because either way, it was clearly illegal. Despite the argument that Mr Uttinger had left before that time, we are satisfied on the probabilities that he was there. Had there been a prosecution in the District Court, we would not have been satisfied to the higher standard of beyond reasonable doubt. Nevertheless, we felt unable to accept Mr Uttinger’s assertions at their face value. In our opinion, he was attempting to provide a legal explanation for the illegal activity.

[21] We now apply the facts to the law. There is no question in our mind that on the Good Friday morning, the premises were trading illegally. Allowing for the 30-minute drink up time (enshrined in s.170(1)(a) of the Act), Mr Uttinger had a duty to have all patrons off the premises by 12.30 am. He was required to stop selling liquor at midnight.

[22] This aspect of the law does not apply to himself or his wife, or a manager or the manager’s spouse, or any member of their respective families. Nor does it apply to a person who is lodging on the premises, or a bona fide guest of that lodger. There are also exemptions for employees who reside on the premises, or who are actually working at the time, or who ceased work one hour previously.

[23] In this case, it is quite clear that there were some visitors who were apparently waiting for a taxi. By law they were not supposed to be present on the premises. In some situations, leeway could be granted to licensees who have a genuine problem with patrons who have finished drinking, and are waiting for transport, particularly if they are vulnerable. In this case, the evidence (which we accept) was that the majority of patrons were still drinking after 1.00 am. Mr Uttinger’s immediate reaction when he saw the Police was to remove the patrons forthwith. Some did not have time to finish their drinks. He said he had been trying to get them to leave for an hour.

[24] In our view, while there was no evidence of illegal sales, there was adequate evidence of a breach of s.171 of the Act, and we believe that the licensees’ conduct does not reflect well on their suitability. We think it is likely that drinks were sold in the period between midnight and 1.08 am, because there was evidence that patrons were still drinking. However, we cannot be satisfied that this was probably the case.

[25] In the case of the prospective son-in-law and his friends there was a technical breach of the Act, because the backpackers accommodation was not part of the licensed premises. However, in those circumstances any sanction would be undesirable. The evidence from one witness who was present, shows that she was not a genuine employee, and did not fall within the exemptions provided by s.170(2) of the Act. Mr Uttinger was close to obeying the law, but he needs to understand that the same rules which apply throughout New Zealand, apply equally in Matamata.

[26] With regard to the incident in April 2005, we reject Mr Uttinger’s claim that the Police cannot enter licensed premises unless there is a prima facie evidence that a crime has been committed. We believe that he was referring to s.317 of the Crimes Act 1961. That section only allows a Constable to enter premises by force if necessary, in order to arrest a person if he or she is freshly pursuing that person having found that person committing an imprisonable offence. Alternatively, the Constable may have good cause to suspect that the person has committed any such offence on the premises. Constables also have the power to enter any premises to prevent the commission of an offence likely to cause immediate and serious injury to any person.

[27] On the other hand, s.175 of the Sale of Liquor Act specifically authorises any member of the Police at any reasonable time to enter and inspect any licensed premises to ascertain whether the licensee is complying with the Act and the conditions of the licence. A member of the Police may also enter licensed premises at any time if there are grounds to believe that a breach of the Act is being committed.

[28] In the incident in the early hours of Sunday morning 24 April 2005, it matters little how the members of the Police came to be in the bar. The facts are that they were able to purchase liquor at 3.34 am, and were supplied liquor at 4.15 am. Even if there had been a private party in progress, no liquor was allowed to be sold after 3.00 am, and the premises should have been vacated by 3.30 am. The evidence was clear that the District Licensing Agency had not issued any special licences. To suggest that the barman thought that they were members of Mr Haumu’s family is not only drawing too long a bow, but would not have affected the illegality of either transaction.

[29] From the comments we have made thus far, it should be clear that we are satisfied that the grounds specified in the applications have been satisfied. On Good Friday 25 March 2005, the premises were conducted in breach of s. 171 of the Act. On 24 April 2005, the premises were conducted in breach of ss.165(1) and 171 of the Act, as well as the condition in the licence. On both occasions, the licensee’s conduct was such as to show a lack of suitability. We are also satisfied that Mr Uttinger’s conduct on both occasions was such as to show lack of suitability to hold the certificate.

[30] The issue for us is whether suspensions are desirable, and if so the length of those suspensions. We have no doubt that both the licence and the certificate should be suspended. On both occasions, it seemed to us that there had been a conscious decision by management not to apply the law too rigidly. Mr Uttinger had no legal justification for allowing the rules to be bent in this way. Furthermore, he had received something of a warning when he had been found hosting a group of patrons on Christmas Day 2004.

[31] In Christchurch District Licensing Agency Inspector and another v Karara Holdings Limited and others NZAR [2003] 752, the Court of Appeal stated:

“This indicates that the function of s.132 is to enable the Licensing Authority to enforce sound management of licensed premises. Its particular role is to enable the Licensing Authority to secure management compliance by licensees, through enforcement steps, in those cases brought before it by the Police or District Licensing Agencies where it appears there have been breaches in licensing standards which are reflected in the grounds for applying for and making orders under s.132”.

[32] In this case, there have been quite serious breaches of the Act and the licence. These are the sort of breaches which are likely to lead to an increase in liquor abuse. We need to secure managerial compliance by the licensee. Mr Uttinger needs to treat the law and the conditions of his licence with greater respect, although we do acknowledge his excellent record up to now. In making a decision we note that he is a respondent on both matters. Because there is an element of double jeopardy, both periods of suspension have been reduced from what might have been regarded as the norm.

[33] For the reasons we have attempted to articulate, we make the following orders.

(a) On-licence number 013/ON/2/2002 issued to the partnership of Peter Malcolm Uttinger and Diane Fay Uttinger is hereby suspended for five days from 11.00 am on Sunday 2 October 2005 to 11.00 am on Friday 7 October 2005.

(b) General Manager’s Certificate number GM/1817/94 issued to Peter Malcolm Uttinger is suspended for three weeks from Sunday 2 October 2005.

DATED at WELLINGTON this 9th day of September 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

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