Alabaster v Nielsen Enterprises Limited [2005] NZLLA 842 (1 December 2005)

Last Updated: 24 January 2012

Decision No. PH 842/2005

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 032/ON/1867/2003 issued to NIELSEN ENTERPRISES LIMITED in respect of premises situated at 123 Hakiaha Street, Taumarunui, known as “Paul’s Bar and Diner”

AND GRANT ALABASTER
(Police Officer of Taumarunui)

Applicant

BETWEEN NIELSEN ENTERPRISES LIMITED

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

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

HEARING at TAUMARUNUI on 8 November 2005

APPEARANCES

Constable G A Alabaster - NZ Police - applicant
Mr R W Murphy - for respondent
Mrs L E Jones - Ruapehu District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application for the suspension of an on-licence issued to Nielsen Enterprises Limited in respect of premises situated in the Main Street of Taumarunui known as “Paul’s Bar and Diner”.

[2] The application was brought by the Police in August 2005. The ground for the application is that the premises have been conducted in breach of s.171 of the Act. That section relates to the offence by any licensee or manager of allowing persons to be on licensed premises outside of the authorised licensing hours. The circumstances indicated that a number of patrons had been found in the premises at 3.08 am. The current hours permit trading until 2.00 am.

[3] The Police application was supported by some anecdotal evidence involving allegations in the nature of a last drink survey, of matters that had occurred in 2004. It seems that the Police had reached the stage where it was clear that something needed to be done about the management of the premises.

[4] It so happens that at about the time of the incident, the company had arranged to transfer the business to the manager, a Mrs Judith Adams. Mrs Adams was on duty and played a significant part in the alleged incident of 20 July 2005. As the new owner, Mrs Adams filed an application for a temporary authority to carry on the business known as “Paul’s Bar and Diner”. The application was filed on or about 24 August 2005.

[5] When the application for temporary authority was received by the Agency a report was requested from the Police. This took a little time because the Police had taken the view that there were issues of unsuitability concerning the existing licensee company. Because of the pending suspension application, the Agency received advice that it might be more appropriate to await the outcome of the application before granting any temporary authority.

[6] The matter has therefore continued in limbo until the date of hearing. Shortly before the hearing, Mr Murphy received instructions to assist. He was able, (with the assistance of the Police), to try and have the matter resolved in a pragmatic way. In his submission, the proposed solution would allow the business to continue without having to be closed. The Police agreed to the proposal. This proposal required certain concessions from the District Licensing Agency. The Inspector was able to receive some limited instructions, and has indicated that provided certain other matters are put in place, then a consent order would not be objected to.

[7] Although outside the general ambit of the suspension application, we therefore record a number of matters. Mrs Judith Adams has agreed that from Tuesday 15 November 2005, she will not use her General Manager’s Certificate for a period of three months. This reflects to some extent her conduct on the evening of 20 July 2005, and is also a consequence of her having two convictions involving breaches of the drink driving legislation. One of which occurred as recently as earlier this year.

[8] Mrs Adams has indicated through Mr Murphy that there are two other persons who are available to carry out work as duty managers and there is a third whose application for a General Manager’s Certificate is pending.

[9] The District Licensing Agency has requested that a detailed letter be sent by the new licensee to the Agency forthwith, setting out details of the proposed managers of the business. The Agency also requests that the Police amend their current report in the light of the decision about to be made by the Authority, so that support for the temporary authority is indicated. These matters will then be taken into account by the Agency, and it is hoped that a decision on the grant or otherwise of the temporary authority will be made within the next 24 hours.

[8] The Police have indicated a concern about the management of the premises. We understand there had been a previous meeting between the parties. However, the incident which occurred in July, was sufficiently serious for the Police to require that clear guidelines be set out, in order that an improvement in the way the business is run, takes place.

[9] On that basis the Police take the view that it is appropriate that the proposed change in proprietorship take place. We record that Mr Neilsen himself is unwilling to continue to run the business if this can be avoided.

[10] In those circumstances it is proposed to exercise the jurisdictions available to the Authority as set out in s.132(7) of the Act. This reads:

“132 Variation, suspension, or cancellation of licences other than special licences

(7) 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 licensee an opportunity to remedy any matters that the Licensing Authority may require to be remedied within that period.”

[11] The application for suspension is accordingly adjourned for six months. This is to give the licensee (and in this case it may be that this will be the new licensee) an opportunity to ensure that the hours granted in the underlying licence are respected, and that there are no other breaches of s.171 of the Act. If there are no breaches within that period of time then the application will be deemed to have lapsed. If there are breaches then a further public hearing will be held. If the management of the premises is not up to the standard expected, and there are other incidents, then the Police have indicated that a further application for the suspension of the licence will immediately be brought.

[12] We thank the parties for resolving these rather difficult issues in this way.

DATED at WELLINGTON this 1st day of December 2005

Judge E W Unwin Mr J C Crookston
Chairman Member

Nielsen Enterprises.doc(aw)