Fabrie v Green [2005] NZLLA 728 (27 October 2005)

Last Updated: 21 January 2012

Decision No. PH 728/2005

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 cancellation of General Manager’s Certificate number 017/GM03/2005 issued to ANTHONY PAUL GREEN

BETWEEN DIRK FABRIE

(South Waikato District Licensing Agency Inspector)

Applicant

AND ANTHONY PAUL GREEN

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at ROTORUA on 12 October 2005

APPEARANCES

Mr D Fabrie - South Waikato District Licensing Agency Inspector – applicant
Mr J M Anderson – South Waikato District Licensing Agency Inspector – to assist
Mr P Jones – agent for respondent

RESERVED DECISION OF THE AUTHORITY

Introduction

[1] Anthony Paul Green is 43 years of age. He was born with cerebral palsy. Notwithstanding the debilitative nature of his condition, he has learned to live a reasonably normal and successful life. He worked for 23 years at Carter Holt Harvey in Tokoroa. When the “Trees Tavern” in Tokoroa came on the market for sale, Mr Green decided to purchase the business in partnership with Mr John Haratsis. Both are long standing local Tokoroa residents. They formed a company of which they each owned 50% of the shares. Each of them is a director of the company.

[2] The “Trees Tavern” is a tavern/restaurant which features live entertainment. The tavern has a range of gaming machines, as well as a TAB agency. The company took over the business in late 2004, and an application was duly filed for an on-licence. At the same time as the on-licence application was filed, both directors made application for General Manager’s Certificates.

[3] Mr Dirk Fabrie is an Inspector with the South Waikato District Licensing Agency. He wrote a report to the Agency on 24 January 2004, recommending that Mr Green be granted a General Manager’s Certificate. In his report he noted that he had interviewed Mr Green with particular emphasis on the duties and responsibilities of a duty manager. He stated that Mr Green came across as a responsible and dependable person who had the necessary attributes required to perform the duties and functions of a general manager. There was no mention of any difficulties he might have with cerebral palsy. He also added that the Police had no objections to the application.

[4] Mr Green had submitted a training certificate from Liquor Licensing Bureau Limited in Hamilton, showing that he had met the assessment criteria, and had proven competence in the Sale of Liquor Act and Host Responsibility. In terms of experience, the Inspector noted that Mr Green had gained experience as a bar assistant and manager for the past few months. It is not clear from the report as to period during which Mr Green’s experience as a manager had been gained. With the benefit of hindsight, Mr Green may well have benefited from spending a longer time being monitored by a certificated manager.

[5] Mr Fabrie wrote a further report to the Agency on 21 February 2005 in respect of the on-licence application. He stated that he had had the opportunity to assess the maturity and suitability of the two directors while vetting their applications for a General Manager’s Certificate. He confirmed that they seemed to have a good appreciation of the demands of operating licensed premises, and he believed that the company was suitable to hold a licence.

[6] Mr Green was granted his General Manager’s Certificate without opposition on 11 February 2005.

[7] On 21 July 2005, an anonymous call was made to Mr John McCaull Anderson, the Senior Environmental Health Officer and Licensing Inspector with the South Waikato District Council. The call expressed concern about Mr Green’s suitability to hold a General Manager’s Certificate. Allegations were made about Mr Green’s inappropriate language and behaviour and included a contention that he was regularly intoxicated. Mr Anderson then conducted a number of interviews with members of the staff of the “Trees Tavern” including Mr Haratsis the business partner. On the strength of these interviews, an application for the cancellation of Mr Green’s General Manager’s Certificate was filed with the Authority. The document was received on 15 August 2005, six months after the certificate had been granted.

[8] The ground for the cancellation application was that Mr Green’s conduct had been such as to show that he was not a suitable person to hold the certificate. The details in support of the application were listed in an accompanying letter. This letter referred to the interviews which had been conducted leading to allegations of verbally abusive behaviour, as well as being intoxicated. It was noted that Mr Green had a speech impediment which could result in frustration in communicating with staff and customers which could lead to the behaviour complained of.

[9] Mr Green denied all allegations. He was well supported by a number of witnesses, and in particular, Mr P Jones a local Tokoroa resident and friend. Mr Jones did an excellent job arguing the various issues on Mr Green’s behalf.

The Hearing

[10] Mr Anderson submitted that one of the requirements of a manager is to have good interpersonal and communication skills. He contended that Mr Green lacked such skills to a point where he was incapable of fulfilling his obligations as a manager. The issue is whether the alleged lack of skills is related directly to his condition, or results from a character defect, or is a consequence of his consumption of liquor. In the first scenario, there can be no case. Apart from the human rights issue, the condition could not be classified as conduct that has occurred since the certificate was issued. Once the certificate has been granted, it can only be removed as a result of the manager’s conduct.

[11] Mr Anderson interviewed Mr Green on 17/18 August 2005. At the interview Mr Green acknowledged that he had behaved inappropriately to his customers and staff, and used improper language. He asked that he be given a second chance. The Agency wrote to him on 18 August 2005 outlining the conditions on which the application would be withdrawn.

[12] These conditions were that over the next few months, Mr Green would not consume liquor on the premises; that there were no fresh complaints from patrons, and that Mr Haratsis confirmed that Mr Green had acted responsibly and professionally during this time. Mr Green advised that he has not drunk on the premises since that time. We did not hear from Mr Haratsis who was in Australia. It would appear that subsequent letters from Ms Fuller and Mr L Yukich may have been the triggers to continue with the application.

[13] Mr Clifford David Harris has held a General Manager’s Certificate for fifteen years. He has worked at the “Trees Tavern” for thirteen years, and has been the manager there since 1999. He stated that in his opinion, Mr Green had been intoxicated on two occasions in the evening while acting as duty manager. He was not able to specify which nights this had happened, or give any other details. He also complained about Mr Green’s language to patrons and members of staff, but was again unable to be specific. On the other hand, Mr Green was adamant that he had only worked on five occasions as the duty manager and had not been intoxicated on any such occasion.

[14] Mr Harris acknowledged that at the end of July 2005, there had been an argument with Mr Green which had led to his resignation. It seems from the evidence that there have been differences of opinion between Mr Green and his business partner about the amount of hospitality offered to patrons and staff. The issues have been mediated without success. The trouble has not gone unnoticed by members of staff. On the night in question, Mr Harris had questioned a staff member’s right to a free meal. He was advised by Mr Green that it was none of his f***ing business. Mr Harris decided that he did not have to be treated like that, and promptly left his employment. Mr Harris was subsequently interviewed by Mr Anderson and stated that he would not return if Mr Green continued working as the duty manager.

[15] The situation between Mr Haratsis and Mr Green needs resolution. Both hold General Manager’s Certificates. From a pragmatic point of view it would seem that either both or neither should be in a position of dictating how the business is to be run. We did not hear from Mr Haratsis as he was overseas. We understand that he had requested that a temporary manager be appointed in his absence. It was submitted that this showed a lack of confidence in Mr Green. According to Mr Green, this appointment was made on the grounds of business efficacy in that the temporary manager is involved in supervising the running of the TAB.

[16] Sherryl-Kaye Martha Fuller has been a regular patron at the tavern for the past eight or nine years. On 9/10 September 2005, there was an incident between her and Mr Green. She alleged that she was banned after trying to obtain a packet of cigarettes from the bar. Later she stated that she spoke with Mr Green who was in the company of a female patron. She alleged that the woman punched her on the shoulder, but was allowed back into the premises in an intoxicated state. She wrote a complaint to this effect on 12 September 2005. On the other hand, Mr Green alleged that Ms Fuller had abused him, both verbally, and with physical gestures. He denied being in the presence of the female patron or seeing any assault.

[17] In respect of this incident, it was not possible to establish where the truth lay. Ms Fuller stated that she had complained to the Police about the assault but we are unaware whether any action has been taken. We were offered a compact disc by the respondent which had been taken from a security camera. This apparently showed Ms Fuller abusing Mr Green. However, for some technical reason the disc was unable to be viewed. We received a written statement from Ms Drina Beets, an employee at the tavern. This statement has no great probative value, but does seem to support Mr Green’s contentions. Ms Beets noted that she had received an apology from one of Ms Fuller’s friends for her behaviour.

[18] Ms Fuller also spoke about an earlier incident in which a patron was allegedly assaulted by Mr Green for smoking on the premises. Once again the facts are confused. We did not hear from the person who was supposed to have been assaulted, and there has been no Police prosecution. Both parties alleged that the other party was intoxicated without giving any supportive details. Mr Green denied that there had been any assault, but acknowledged smacking the cigarette from the patron’s mouth.

[19] Mr Loui Joseph Yukich resides in Tokoroa and is a Union Secretary and Advocate. He was approached by Ms Drina Beets in May 2005. She alleged that Mr Green had subjected her to verbal abuse, in that he continually swore at her while she was working behind the bar. Mr Green was apparently trying unilaterally to change the conditions of her employment. Mr Yukich assisted Ms Beets to write a letter setting out her concerns, but the next day the behaviour was repeated. As a consequence, Ms Beets abandoned her place of work. She was subsequently deemed medically unfit to return to work.

[20] Mr Green subsequently delivered a letter of apology to Ms Beets. Since that time there have been discussions between the parties aimed at resolving the issues between them. According to the letter written by Ms Beets (refer paragraph [17] above), there had been several issues in the working relationship but she felt that these were being overcome. She said that Mr Green was learning how to deal with staff and patrons better, and was more relaxed, and was listening to staff and patron concerns.

[21] Mr Jones called six character witnesses including himself. In addition he produced nine statements from other people who could not be present. A complex picture emerged. Without exception, all the witnesses spoke highly about Mr Green. There was a defensive approach to any suggestion that Mr Green was unsuitable because of his disability. None had seen him intoxicated while on duty, although some had seen him intoxicated. Some of the referees had heard him use profane language, but others stated that this had not happened in the tavern. Some members of staff described him as a good boss, and had never found him to be abusive. Others had seen him abuse patrons, but only when provoked. Some believed that the difficulties had been caused by the new owners trying to improve the culture of the tavern.

[22] In addition Mr Green gave evidence, although, (as was pointed out by his friends), it takes a while before one can understand him. It could well be the case that patrons and others might genuinely interpret his manner as being caused by intoxication. Mr Green was adamant that he does not drink while on duty. He stated that he drinks on his day off, which is generally a Friday afternoon. He confirmed that he regretted some of the things he had done, and stated that he had a lot to learn.

The Authority’s Decision and Reasons

[23] Section 135 of the Act requires a two step approach. First the evidence must be examined to see whether we are satisfied that the allegations have been established. The applicant is required to establish that Mr Green’s conduct has been such that he is no longer suitable to hold the certificate. In other words we must be satisfied that Mr Green’s standards of behaviour have fallen below that expected of the holder of a General Manager's Certificate. If the applicant has shown this to be the case, we must then decide whether it is desirable than an enforcement order such as cancellation or suspension of the certificate be made.

[24] Resolving the factual situation is not without difficulty. The majority of the witnesses could not be described as independent or impartial. Some were patrons both past and present, and the members of the staff were in the same category. There were also a number of personal friends who stood up for him. We gained the impression that once people were able to get over, and understand his disability, they saw him in a much more positive light. There is no doubt that Mr Green is intelligent, and he was prepared to acknowledge that he had made mistakes since taking over the business.

[25] When Parliament passed the Sale of Liquor Amendment Act 1999, it amended s.115(1) to emphasise the fact that a manager must be on duty at all times when liquor was being sold or supplied. All managers became responsible for ensuring that the premises complied not only with the Act, but also with the conditions of the governing licence. There are other considerations such as setting an example to patrons and staff. A good manager should clearly have the ability to interact with patrons and staff alike.

[26] Prior to the amendment, this duty had been shared with the licensees. As a result of the amendment, a duty was placed on all licensees to take all reasonable steps to ensure that the manager complied with his or her obligations (s.115(3)).

[27] Although Deejay Enterprises Limited LLA 531/97–532/97 was decided prior to the amendment, the comments are equally relevant in a modern context. The Authority said:

“The guiding hand or hands on operator of any company, or the potential holder of a General Manager’s Certificate, now receive greater scrutiny from both the Police and other reporting agencies. Character and reputation are closely examined. The law and human desires frequently tug in different directions ... Self-imposed standards in accordance with the law must be set by licensees and holders of General Manager’s Certificates who control and manage licensed premises”.

[28] In Noel Justin Allen LLA 1388/97 the Authority had this to say:

“Following the introduction of a competitive regime on 1 April 1990 under the new Act, the Authority allowed a settling in period. In more recent years, we have endeavoured to gently raise the requisite standards both of licensees and the holders of Manager’s Certificates in order to improve both knowledge of the Sale of Liquor Act, and the conduct of licensed premises. As Dormer, Sherriff, and Crookston “Sale of Liquor” (Butterworths 1990) state in their text introduction at para 22 “Licences will be easier to get and easier to lose.” Provisions for Manager’s Certificates should, in our view, follow a similar pattern.”

[29] We are satisfied that Mr Green’s conduct, particularly the abusive way he dealt with his staff, was such as to show that he is not suitable to hold the certificate. However, in the light of the evidence called on his behalf, we are equally satisfied that it would be undesirable and unreasonable to make an enforcement order at this time. Rather we consider that we should utilise the provisions of subs.(7) of s.135 of the Act. That subsection reads:

Instead of making an order under subsection (6) of this section, the Licensing Authority may adjourn the application for such period as it thinks fit to give the manager an opportunity to remedy any matters that the Licensing Authority may require to be remedied within that period.

[30] We had concerns about the allegations of Mr Green’s drinking habits in the tavern. In view of the potential for his conduct to be misconstrued on this issue, that is a matter we will have to consider. Pursuant to s.4(2) of the Act, the Authority is required to exercise its jurisdiction, powers and discretions in the manner that is most likely to promote the object of the Act. That object is as follows:

The object of the 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.

[31] One of the ways of establishing a reasonable system of control over the sale of liquor to the public with the aim of contributing to the reduction of liquor abuse, is to ensure that all managers have high standards on both sides of the bar. We believe that this can be achieved if the issues which were outlined before us, are reviewed at the time the General Manager’s Certificate is due to be renewed.

[32] Accordingly, we propose to adjourn the application for five months. During this time Mr Green will have the opportunity to remedy the way he deals with the tavern’s patrons and staff. In addition, we would expect Mr Green to address the comments referred to in paragraph [30] above. It may be that his partnership problems with Mr Haratsis will have been resolved by that time. If that has not been the case then we would expect to hear from Mr Haratsis at the resumed hearing.

[33] Mr Green’s General Manager’s Certificate is due to be renewed on 11 February 2006. By that time it will be clear whether there is Police or Agency opposition to the renewal. In addition, if there are any further concerns expressed by the District Licensing Agency in relation to this application, we will arrange for a continuation of the hearing. If there are no such concerns, then the application will be deemed to have been resolved by this decision. The application is adjourned for five months on the terms outlined above.

DATED at WELLINGTON this 27th day of October 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

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